Amendments to tendering obligations for local councils

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Amendments to tendering obligations for local councils

By Gabriella Hijazi and Alyce Kliese

Part 7 of the Local Government (General) Regulation 2021 (the Regulations) sets out provisions with respect to the contracts that councils issue for the purpose of inviting tenders.

The Regulations were amended on 16 December 2022, by way of the Local Government (General) Amendment Regulation (No 2) 2022 (the Amended Regulations), to reflect the increased use of electronic tendering. We set out the relevant amendments below.

Process for submitting and receiving tenders

  1. Councils must ‘state the way an application must be made’ with respect to expressions of interest pursuant to section 168(2)(c) of the Regulations.
  2. Councils now have the following obligations when receiving tender submissions that are not made electronically, namely:
    • to provide a secure tender submission box.
    • to ensure that said box is accessible to the public during Council’s operational hours, pursuant to section 174(2) of the Regulations.
    • to ensure that submissions are kept securely in said box until they are formally received, pursuant to section 175 of the Regulations.
  3. Electronic tender submissions must now be stored on an information system that is password protected, or otherwise is accessible only to an appropriate person.
  4. Council must ensure that a tender submission is not opened, read or reviewed until formally received pursuant to section 175 of the Regulations.

Process for notifying acceptance of a successful tender

  1. Section 175 of the Regulations sets out the parameters surrounding formal receipt of tender submissions and requires the following:
    • councils must specify a timeframe for formal receipt of the tender submissions.
    • tenders’ submissions must be formally received by 2 persons nominated by the general manager.
    • one of the persons nominated must record the names of the tenderers and the amounts that are tendered.
    • the other of the persons must verify the information being recorded.
    • the names of tenders and amounts tendered are to be published on the council’s website as soon as practicable.
    • additional information that the nominated persons consider to be appropriate can be published on council’s website.
  2. Council may only consider a tender submission that is submitted before the deadline specified in the tender and submitted in the way specified in the tender proposal, pursuant to section 177(2) of the Regulations.
  3. If a tender submission is not made in the way specified method, the local council must take reasonable steps to inform the tenderer of the appropriate method for submission, pursuant to section 177(3) of the Regulations.

Electronic tender submission

  1. Tender submissions can now be submitted electronically, including electronic submission that is not effected by a secure mechanism such as encryption based technology, pursuant to section 173(2) of the Regulations.
  2. Previously, section 173(2) prohibited electronic submission by electronic means, unless the submission was effected by a secure mechanism that ensures the tender submission cannot subsequently be altered. This has now been omitted pursuant to the Amended Regulations.

Facsimile transmission of tenders

  1. Facsimile transmission of tenders is no longer an accepted means of submitting tender documents, pursuant to section 173 of the Regulations.
  2. Previously section 173 of the Regulations identified facsimile transmission as an acceptable means of transmission. This has now been omitted pursuant to the Amended Regulations.