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TI. 1217 - Exemptions: building and construction/roads and bridges
 
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Treasurer’s Instruction No1217
TitleExemptions: building and construction/roads and bridges
Effective date22 December 2006
Objective and BackgroundProvides instruction on the process agencies must follow to apply for an exemption from the requirement to seek written quotations and/or go to open tender.
Version Number2
Last Reviewed DateNovember 2006
PDF versionPPB-TI 1217.pdf

Black letter (or bold) items within these Instructions are mandatory and other plain font items are instructional or for the purpose of providing guidance only.

(1)This Instruction applies to the procurement of building and construction and roads and bridges and is to be read in conjunction with Instructions 1201 to 1229.

Further information, including a definition of "building and construction" and "roads and bridges" and information on the types of services that fall under these categories is located in the Buying for Government section of www.purchasing.tas.gov.au.

Refer to Instructions 1101 to 1124 for information in relation to procurement of goods and non-construction related services.
EXEMPTION FROM THE REQUIREMENT TO SEEK WRITTEN QUOTATIONS OR CALL OPEN TENDERS
(2) Exemption from the requirement to seek written quotations or call open tenders can only be approved by the Secretary, Department of Treasury and Finance.

All exemptions granted, including the reasons for the granting of the exemption, will be disclosed in the Department of Treasury and Finance Annual Report. The contract and the method by which the procurement occurred (in this case, an exemption) will also be required to be reported by the agency in accordance with Instructions 1212 and 1213.

Exemptions from the requirement to seek quotations or call open tenders may be applied in the following circumstances:
  • where, in response to a prior notice, invitation to participate, or invitation to tender:
      - no tenders were submitted;
      - no tenders were submitted that conform to the essential requirements in the tender documentation; or
      - no suppliers satisfied the conditions for participation;
    and the entity does not substantially modify the essential requirements of the procurement;
  • where the services can be supplied only by a particular supplier and no reasonable alternative or substitute goods or services exist for the following reasons:
      - the requirement is for works of art;
      - the protection of patents, copyrights, or other exclusive rights, or proprietary information; or
      - due to an absence of competition for technical reasons;
  • for additional deliveries of services by the original supplier or authorised representative that are intended either as replacement parts, extensions, or continuing services for existing equipment, services, or installations, where a change of supplier would compel the procuring entity to procure services that do not meet requirements of interchangeability with existing equipment;
  • where a procuring entity procures a prototype or a first service that is intended for limited trial or that is developed at its request in the course of, and for, a particular contract for research, experiment, study, or original development;
  • in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseen by the procuring entity, the services could not be obtained in time utilising an open or selective tender. For the purposes of this exemption, a selective tender is one conducted using the processes set out in Instruction 1208 such as a multi-use list, special licence or an expression of interest;
  • for new construction services consisting of the repetition of similar construction services that conform to a basic project for which an initial contract was awarded following use of open tendering or selective tendering in accordance with the relevant Instruction and for which the entity has indicated in the notice of intended procurement concerning the initial construction service, that limited tendering procedures might be used in awarding contracts for those construction services;
  • for purchases made under exceptionally advantageous conditions that only arise in the very short term, such as from unusual disposals, unsolicited innovative proposals, liquidation, bankruptcy, or receivership and not for routine purchases from regular suppliers;
  • in the case of a contract awarded to the winner of a design contest provided that:
      - the contest has been organised in a manner that is consistent with the Australia - United States Free Trade Agreement (AUSFTA); and
      - the contest is judged by an independent jury with a view to a design contract being awarded to the winner;
  • in so far as is necessary for the protection of essential security interests; or
  • in so far as is necessary to protect access to confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest.

An AUSFTA procurement contract awarded through this process is referred to as a “Limited Tender” for the purposes of differentiating it from a normal TI exemption.

Where a procurement is not an AUSFTA covered procurement, as defined in Instruction 1202, the following additional grounds for an exemption may be applied where appropriate:
  • the work is urgent;
  • the work is of a specialist nature which a limited number of contractors are capable of carrying out; or
  • the circumstances justify limiting the number of contractors;
Where an exemption is granted pursuant to one of these grounds, and the number of contractors invited to tender is limited, a tender may be invited without public advertisement or a contractor may be engaged without any other tenders being invited.
Retrospective exemptions will not be granted.
(3)For each AUSFTA procurement contract awarded following an exemption pursuant to (2) above, agencies must prepare and appropriately file within the agency’s central filing system, a written report that includes:
(a)the name of the agency;
(b)the value and kind of services procured; and
(c)a statement indicating the circumstances and conditions that justify the use of a procedure other than an open or select tender process.
A copy of the request for exemption provided to the Department of Treasury and Finance (Treasury) together with the letter of approval from Treasury will be sufficient to meet this requirement.

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