Introduction

Coverage and terminology

This Guide covers the phases of the procurement cycle commencing from the selection of a preferred tenderer or contractor through to managing and ending the contract. The Guide is intended to complement other procurement publications which focus on the early stages of the procurement cycle, such as the preparation, issue and evaluation of tenders.

A range of principles, key issues and considerations relevant to the development and management of contracts generally are outlined in the Guide. These are intended to complement, rather than replace, specific guidance and advice developed by individual entities. For very large, complex contracts, such as equipment acquisitions, detailed and tailored guidance will be required.

A number of specific issues associated with the legal processes of contract development or detailed contract clauses needed to avoid or mitigate a range of common risks are mentioned in the Guide but are not discussed in detail. This is due to the number of potential issues involved and because of the evolving nature of legal precedent. Contract managers are encouraged to seek professional advice on these issues, as necessary.

The Guide also does not address project management, although many of the issues canvassed in the Guide will also apply to the management of projects.

For ease of reference and presentation, the following terms are used in this Guide:

• Acquiring entity: the party that enters into the contract and is responsible for its management;
• Contractor: the party engaged to provide the specified goods or services;
• Contract deliverables: the goods or services to be delivered by the contractor;
• Procurement cycle: the process for acquiring goods or services. It begins when an entity has identified a procurement requirement and continues through the activities of risk assessment, seeking and evaluating alternative solutions, contract award, delivery and payment for the goods or services, and where relevant, the ongoing management of a contract and consideration of options related to the contract;
• Public sector entities: all organisations subject to the Financial Management and Accountability Act 1997 and the Commonwealth Authorities and Companies Act 1997; and
• Stakeholders: the parties that have a legitimate interest in the procurement process. These can include Ministers, senior management of the acquiring entity and of other entities affected by a contract, and end-users of the goods or services to be provided.

The guide refers to a range of legislation and policy in relation to contract management, and these are subject to change. While references are up to date at the time of publication, readers should check for any updates, especially through the Department of Finance and Deregulation’s website.

Structure of the Guide

The Guide is divided into six parts as indicated below:

Structure of the Guide

Part 1 – Contracting in the Public Sector	Summarises the legislation and related policies relevant to public sector contracting. This part also introduces a number of key issues that are relevant throughout the procurement process.
Part 2 – Developing the Contract	Outlines issues and considerations involved in the development of a contract.
Part 3 – Formalising the Contract	Outlines the issues and considerations that should be addressed in finalising a contract.
Part 4 – Entity Arrangements for Managing Contracts	Discusses issues and considerations relating to the general management of contracts by entities.
Part 5 – Managing the Contract	Discusses a range of issues and considerations relating to the effective management of an individual contract.
Part 6 – Ending the Contract	Outlines the issues and options available for bringing a contract to a close.

Each part of the Guide includes a discussion of the key factors and considerations relevant to each contracting phase. These are, in some instances, complemented by case studies or examples illustrating key points, drawn from actual Australian Public Sector experiences. In some cases these have been simplified to better illustrate the point. In other cases a composite case study is presented, to illustrate several points at once. A number of contract management checklists and similar aids are also included throughout the Guide. These should be tailored to the particular circumstances of each entity and the nature and complexity of its contracting activities.

Each part of the Guide is presented, to the extent possible, as a standalone discussion with cross-references to other parts where appropriate. The Guide also incorporates a comprehensive Index. This should allow readers with particular responsibilities and interests to navigate easily through the Guide.

The ANAO wishes to acknowledge the assistance provided by Strategic Legal Services and Consulting Pty Ltd, and Ms Ann Thurley in developing the original Guide, and Courage Partners Pty Ltd in updating this Guide with support and assistance provided by the Department of Finance and Deregulation. A number of entities provided valuable material and input in developing the original Guide, including the Departments of Defence, Education Employment and Workplace Relations, Veterans’ Affairs, Foreign Affairs and Trade, Centrelink, and the Australian National Gallery. The assistance and input provided by entities and private sector organisations consulted in updating this Guide is also gratefully acknowledged.

 

---

Previous: Table of contents

Next: Contracting in the Public Sector