Section D: Request Development and Contract Formation

D1.1 Minimum Approach to Market Requirements

1. State agencies must use, as a minimum, the method and/or documentation to approach the market, in accordance with the corresponding value in the table below.

2. This Rule does not apply when conducting a Procurement in accordance with the Buying Rules of a Standing Offer.

   Monetary Value	Minimum Approach to Market Requirements
   Up to $50,000	Verbal quotation
   $50,000 and above	Written approach to market documentation, in the form of a Request, appropriate to the procurement being undertaken (whether a request for quote, request for tender, expression of interest, etc.)

D1.2 Form of Contract

1. (1) State agencies must use, as a minimum, the form of contract described in the following table for Procurements equal to or less than the relevant thresholds, unless the value, risk, complexity and/or type of Procurement requires a different form of contract.

Goods and Services

Delivering Community Services in Partnership Policy Procurements

Works

D2.1 Promote Competition

1. Requests (including specifications) must promote open and fair competition.

D2.2 Performance and Functional Requirements

1. Where appropriate, Request specifications must be set out in terms of performance and functional requirements, rather than design or descriptive characteristics.

D2.3 Specification by Example

1. Products must be specified generically.
2. Subject to Rule D2.4, where naming a Proprietary Product is necessary to describe a requirement of the Procurement, it must specify a Western Australian product where appropriate, and be used as an example only, with Suppliers able to offer an equivalent alternative.

D2.4 Approval to Specify Proprietary Products

D2.4.A General Rule

This Rule only applies where the Procurement is not a Covered Procurement.

1. An Authorised Officer may give approval to specify a Proprietary Product for a Procurement where no equivalent alternative will be considered.
2. This approval must be recorded in writing.

D2.4.B Covered Procurement

Where the Procurement is a Covered Procurement, apply the Rule in the table below instead of the general requirement above.

Covered Procurement Rule

1. A State agency seeking to specify a Proprietary Product in a Covered Procurement without allowing equivalent alternatives must seek advice from the Department of Finance before doing so.

D2.5 Industry Standards

D2.5.A General Rule

This Rule only applies where the Procurement is not a Covered Procurement.

1. Where appropriate, Request specifications that need to reference a standard must apply an Australian standard.

D2.5.B Covered Procurement

Where the Procurement is a Covered Procurement, apply the Rule in the table below instead of the general requirement above.

Covered Procurement Rule

1. Where appropriate, Request specifications must apply an international standard, except where the use of the international standards would fail to meet the State agency’s requirements.
2. If no appropriate international standard exists, Request specifications should be based on Australian technical regulations, standard or building codes, as is appropriate in the circumstances.

D2.6 Additional Covered Procurement Rule – Barriers to Participation

This Rule applies only to Covered Procurements:

Covered Procurement Rule

1. Specifications must not:
   1. create unnecessary obstacles to trade with Free Trade Agreement partner countries; and
   2. impose a condition requiring Suppliers to have been previously awarded a contract in Australia.

D3.1 Approach to Market

1. State agencies must use Tenders WA to advertise Requests that are issued as Open Advertisements under Rule C4.1.

D3.2 Modification of Request

1. Where a State agency modifies information published as part of an Open Advertisement (including, but not limited to, the evaluation criteria or specification), they must publish all amended information on Tenders WA, with enough time to allow potential Suppliers to modify and submit relevant documents. This may require extending the closing time.

D4.1.A General Rule

This Rule only applies where the Procurement is not a Covered Procurement.

1. Requests issued as Open Advertisements must be advertised for a minimum of 14 Days, except:
   1. in Emergency Situations; or
   2. where purchasing from a Standing Offer in accordance with the relevant Buying Rules.
2. For market approaches other than Open Advertisements in Rule C4.1, State agencies must provide Suppliers Sufficient Time to respond.

D4.1.B Covered Procurement

Where the Procurement is a Covered Procurement, apply the Rule in the table below instead of the general requirement above.

Covered Procurement Rule

D4.1.B.1 Additional Defined Terms Used in this Rule

1. Early Tender Advice means a public notice of an intended procurement by a Covered State agency, published on Tenders WA at least 40 Days, but no more than 12 months, in advance of the Request, and includes:
   1. a description of the Procurement;
   2. the estimated timing of the approach to market;
   3. the estimated time limit for the submission of offers; and
   4. the procedure to obtain Request documentation.
2. Multi-Use List means a list of Suppliers that satisfy the conditions for participation in that list, that a Covered State agency maintains and intends to use more than once.

D4.1.B.2 Provide Sufficient Time

1. Covered State agencies must provide Sufficient Time for suppliers to submit a response to a Request.
2. The minimum advertising time limits discussed below only form part of considering whether Sufficient Time is provided. Covered State agencies must add further time to the minimum stated period if required to give Sufficient Time.

D4.1.B.3 Open Advertisement: Minimum Time Period

1. Subject to paragraph (2), Covered State agencies must advertise Requests issued as Open Advertisements, at a minimum, for:
   1. 14 days - if an Early Tender Advice has been published on Tenders WA; or
   2. 25 days - if an Early Tender Advice has not been published on Tenders WA.
2. However, 5 days must be added to the minimum time period in paragraph (1) for each instance of the following criteria being met:
   1. the Request is not published electronically;
   2. the Request documentation is not available electronically at the date the Request is issued; and/or
   3. the Covered State agency does not accept electronic responses to the Request.

D4.1.B.4 Restricted Process: Minimum Time Period

1. Where, as part of a multi-stage procurement process, an initial approach to market as an Open Advertisement leads to a subsequent restricted procurement process amongst fewer eligible Suppliers, a Covered State agency must apply the Open Advertisement rule above for the restricted process.
2. Other than provided for in paragraph (1), where conditions of participation apply to restrict the eligible Suppliers in a Procurement, a Covered State agency must advertise the Request for at least 25 days.

D4.1.B.5 Limited Sourcing: Minimum Time Period

1. Covered State agencies undertaking a Procurement by Limited Sourcing must give Suppliers Sufficient Time to submit a response.

D4.1.B.6 Time Period May Be Reduced in State of Urgency

1. The advertising period for a Request may be reduced to not less than 10 days in circumstances where an Authorised Officer of a Covered State agency determines and records in writing that a situation has arisen whereby it is impracticable to comply with the required time period.

D4.1.B.7 Procurement Under Standing Offer Arrangements

1. Where a Covered State agency is conducting a Covered Procurement under a Standing Offer, it must provide Suppliers with Sufficient Time to submit a response and conduct the Procurement in accordance with the Buying Rules.

D4.1.B Multi-Use Lists

1. Where a Covered State agency is establishing a Multi-Use List, such as a prequalification scheme, it must provide Suppliers with Sufficient Time to submit a response.

1. Assessment of offers must be:
2. undertaken in a manner appropriate to the value, risk and complexity of the Procurement; and
3. conducted in accordance with the evaluation criteria and process documented in the Request.

D5.1 Additional Covered Procurement Rule – Evaluating Business Activities

This Rule applies only to Covered Procurements:

Covered Procurement Rule

1. When a Covered State agency is evaluating a Supplier’s financial capacity, commercial and technical abilities, that evaluation must be based on that Supplier’s business activities both inside and/or outside of Australia, where such information is provided in the Supplier’s offer, and is capable of verification.

D6.1 Conducting Negotiations

1. State agencies must only conduct negotiations during the evaluation of offers if:
   1. the right to negotiate was included in the Request; or
   2. no offer obviously represents the best value for money, and the Request documentation does not preclude negotiation.
2. Elimination of Suppliers participating in the negotiation process must only occur in accordance with the Request process and/or any process outlined in a negotiation plan (if applicable).
3. If during, or at the conclusion of negotiations, any new or revised tender information is required from Suppliers, a common deadline for providing that information must be afforded to all remaining participating Suppliers.

D6.2 Negotiate Fairly

1. Negotiations must be conducted in a manner that is consistent with probity obligations.
2. The negotiation process and outcome must be documented.

1. An evaluation report must be developed for all Procurements valued $50,000 and above.
2. The detail of an evaluation report must be commensurate with the value, risk and complexity of the Procurement.
3. Where the Total Estimated Value of a Procurement is $5 million or above, State agencies must also undertake appropriate assurance and review of the procurement evaluation report by:
   1. for goods and services (including Community Services) Procurements, submitting the procurement evaluation report to the Relevant Review Committee; and
   2. for works Procurements, by applying documented internal review and assurance measures established by the State agency, unless:
      1. the State agency and the Department of Finance agree under Rule F8 to use a Relevant Review Committee; or
      2. an agency specific procurement direction requires the State agency to submit the procurement evaluation report to a Relevant Review Committee.
4. If a State agency is required to have Procurement documentation reviewed by the Relevant Review Committee under paragraph (3), the State agency is not required to submit procurement evaluation reports where:
   1. The Procurement has been exempted by the Relevant Review Committee as part of the Strategic Forward Procurement Planning process; or
   2. The State agency submits an exemption request outlining circumstances that justify an exemption, and the Deputy Director General – Advisory Services, Department of Finance approves that request.
5. An exemption under paragraph (4) must be in writing and recorded in the State agency’s exemption register.

D8.1 Publish Contract Award Details on Tenders WA

1. Where the contract (including Standing Offers) is valued $50,000 or more, State agencies must publish all contract award details on Tenders WA, including:
   1. the name of the State agency;
   2. a description of the goods, services or works procured;
   3. the contract commencement date, and contract expiry date (if applicable);
   4. the estimated contract value;
   5. the name and address of the successful Supplier; and
   6. the procurement method used.
2. These details must be published:
   1. after the successful Supplier(s) have been notified; and then
   2. as soon as practicable, but no later than 30 Days after the award of the contract.
3. Rule D8.1(1) and (2) do not apply to contracts awarded under an existing Standing Offer, unless the Buying Rules of that Standing Offer specifically require the contract award information to be published.

D8.2 Exemption from Release of Award Details

1. A State agency is not required to comply with the requirements of Rule D8.1 where an Authorised Officer determines and justifies in writing that the release of those contract details would present a Significant Operational Risk.
2. This decision must be recorded in the State agency’s exemption register.

1. Where a Request has been used:
   1. the State agency must provide unsuccessful Suppliers with the name and total or estimated contract value of the successful Supplier; and
   2. unsuccessful Suppliers that request a debriefing must be provided one.