Public Works Tender Board Order 1997

Public Works Tender Board Order 1997

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, exercising the Royal Prerogative and acting with the advice of the Executive Council, make the following order-in-council.

G. S. M. GREEN

Governor

By His Excellency's Command,

RONALD CORNISH

Minister for Finance

1.   Short title

This order-in-council may be cited as the Public Works Tender Board Order 1997 .

2.   Commencement

This order-in-council takes effect on the day on which its making is notified in the Gazette.

3.   Revocation

The Construction (Tender Board) Order 1978 (being Statutory Rules 1978, No. 133) is revoked.

4.   Interpretation

(1)  In this order-in-council, unless the contrary intention appears –

[Clause 4 Subclause (1) amended by S.R. 1997, No. 156, Applied:03 Dec 1997] Agency has the same meaning as in the Tasmanian State Service Act 1984 ;

Board means the Public Works Tender Board as continued under clause 5 ;

Department means the Department responsible to the Minister;

member means a member of the Board;

Minister means the Minister for Finance;

secretary means the secretary of the Board;

tender means an offer in writing to execute works;

tenderer means any person submitting a tender, including a contractor, subcontractor and supplier;

works includes the provision, by a person lodging a tender at his or her own cost, of all materials, carriage, labour, tools and other things necessary for the proper execution and completion of the proposed contract for –

(a) construction of buildings, roads and bridges; and

(b) any associated maintenance and services.

(2)  The Acts Interpretation Act 1931 applies to the interpretation of this order-in-council as if it were an Act of Parliament.

(3)  For the purposes of the Administrative Arrangements Act 1990 the Board is taken to be a Department and the administration of the Board is assigned to the Minister for Finance.

5.   Continuation of Board

Subject to this order-in-council the Board of Tenders for Public Works continued by the Construction (Tender Board) Order 1978 is continued as the Public Works Tender Board.

6.   Constitution of Board

(1)  [Clause 6 Subclause (1) substituted by S.R. 1998, No. 42, Applied:13 May 1998] The Board consists of 5 members nominated by the Minister and appointed by the Governor.

(2)  The Governor is to appoint one member as chairperson.

(3)  Any 3 members constitute a quorum.

(4)  The Secretary of the Department of Treasury and Finance is to provide secretariat support to the Board in relation to building construction.

(5)  The Secretary of the Department of Transport is to provide secretariat support to the Board in relation to the construction of roads and bridges.

7.   Membership of Board

(1)  A member of the Board is appointed for such period, not exceeding 3 years, as is specified in the instrument of appointment.

(2)  A member may be reappointed for such period not exceeding 3 years as is specified in the instrument of reappointment.

8.   Functions of Board

(1)  [Clause 8 Subclause (1) substituted by S.R. 1997, No. 156, Applied:03 Dec 1997] The functions of the Board are as follows:

(a) in relation to tendering for a project of up to and including $100 000, or a project covered by a delegation under subclause (3) , to ensure that the agency or Department conducting or awarding the tender complies with the guidelines published by the Board;

(b) in relation to tendering for a project over $100 000, other than a project covered by a delegation under subclause (3)  –

(i) to conduct the tender and make recommendations to the Minister responsible for the Board in relation to the outcome of the tender process; or

(ii) to conduct the tender and, if so authorised by the Minister responsible for the Board, make recommendations to the portfolio Minister on the outcome of the tender process;

(c) the exercise of any other powers and the performance of any other duties as are conferred on it by this order-in-council.

(2)  The Board is to develop and publish tender guidelines which –

(a) set out the principles for a competitive and efficient tendering process; and

(b) include codes of conduct which set the standards of behaviour required of all participants in the tender process; and

(c) provide guidance to agencies on policy and best practice standards for the detailed procedures leading into, during and following a tender process.

(3)  [Clause 8 Subclause (3) inserted by S.R. 1997, No. 156, Applied:03 Dec 1997] The Board, with the approval of the Minister, may delegate to an agency or a Department responsibility for the conduct and award of tenders for projects over $100 000 but less than $10 million.

9.   Complaints

The Board is to –

(a) investigate any complaint that, in the opinion of the Board, warrants further action; and

(b) investigate any complaint referred to it by the Minister; and

(c) report to the Minister in relation to any complaint investigated, if the Board considers it necessary.

10.   Remuneration of members

[Clause 10 Substituted by S.R. 1998, No. 42, Applied:13 May 1998]

(1)  Subject to subclause (2) , a member is entitled to be paid such remuneration, including travelling and other allowances, as the Minister may determine.

(2)  A member who is employed under the Tasmanian State Service Act 1984 is not entitled to remuneration under subclause (1) except with the approval of the Minister.

11.   Appointment of substitute

(1)  The Governor may appoint any person to act in the office of a member while that member is absent from office or the office is vacant.

(2)  Any thing done, or omitted to be done, by a person while acting in the office of a member is as valid, and has the same consequences, as if done, or omitted to be done, by that member.

12.   Vacation of office

A member of the Board vacates office if he or she –

(a) dies; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or

(c) is absent from 3 consecutive ordinary meetings of the Board of which reasonable notice has been given to him or her, without the approval of the Board; or

(d) becomes liable to be detained under the Mental Health Act 1953 in a hospital within the meaning of section 3(1) of that Act; or

(e) is convicted in Tasmania of a crime or an offence punishable by imprisonment for 12 months or longer; or

(f) is convicted outside Tasmania of an offence which, if committed in Tasmania, would be a crime or an offence so punishable; or

(g) is convicted, whether in Tasmania or elsewhere, of a crime or an offence for which he or she is sentenced to imprisonment; or

(h) resigns from office in writing addressed to the Governor and the Governor accepts the resignation.

13.   Removal of member

The Governor may remove from office a member having regard to any information supplied by the Secretary of the Department that the member is no longer qualified to be appointed to the Board.

14.   Filling of casual vacancies

If the office of a member becomes vacant, the Governor may appoint a person to the vacant office for the remainder of that member's term of office.

15.   Procedure at meetings

(1)  The chairperson is to preside at all meetings of the Board at which the chairperson is present.

(2)  If the chairperson is absent from a meeting of the Board the members present at the meeting must choose one of their number to act as chairperson for that meeting.

(3)  The chairperson, or acting chairperson, has a deliberative vote only.

(4)  If the voting on a question arising at a meeting of the Board is equal, the question passes in the negative.

(5)  The Board is to meet at least once a month and at any other time required by this order-in-council.

(6)  The Board may exercise its powers and perform its functions, notwithstanding a vacancy in its membership, so long as a quorum remains.

(7)  Subject to this clause, the Board may regulate its own procedure at its meetings.

16.   Secretary to Board

(1)  The Governor may appoint an officer of the Department to be secretary of the Board.

(2)  The secretary must –

(a) keep minutes of the proceedings of the Board; and

(b) perform other duties as the Board may require.

17.   Tenders

(1)  The Board is to keep any tender received secure and confidential.

(2)  The Board is to keep a register of tenders in any form it considers appropriate.

(3)  The Board is to cause all tenders to be recorded in the register of tenders and the record to be initialled by the person recording them.

(4)  On recording the tenders received, the secretary in consultation with a member of the Board is to –

(a) classify the tenders; and

(b) compile a list of tenders specifying –

(i) the relevant details of the tenders; and

(ii) the cost of execution and completion of the works as estimated.

18.   Review of tenders

In reviewing any tenders or tenderer, the Board is to consider the following:

(a) compliance with –

(i) any pre-qualification criteria; and

(ii) the Australian Standard, Code of Tendering AS 4120-1994; and

(iii) any other Code that the Board may adopt from time to time;

(b) conformity with all documents relevant to the tender, including site reports, geotechnical reports and addenda;

(c) value for money that the tender represents;

(d) technical, managerial, physical and financial resources of the tenderer;

(e) any other commitment that may affect the tenderer's capacity to carry out the proposed contract;

(f) any other matter the Board considers appropriate.

19.   Recommendation to Minister

The Board is to –

(a) consider all tenders received, together with any statement prepared by the secretary of the record of the recommended tenderer; and

(b) recommend to the Minister which, if any, of the tenders should be accepted; and

(c) in making a recommendation to the Minister, have regard to the tender most favourable to the Government and the Agency relevant to the proposed work.

20.   Urgent or exceptional works

(1)  The Minister may limit the number of contractors invited to tender for certain works if of the opinion that –

(a) the work is urgent; or

(b) the work is of a specialist nature which a limited number of contractors are capable of carrying out; or

(c) the circumstances justify limiting the number of contractors.

(2)  If the Minister limits the number of contractors invited to tender –

(a) a tender may be invited without public advertisement; or

(b) a contractor may be engaged without any other tenders being invited.

21.   Late tenders

In making a recommendation, the Board is not to consider a late tender unless it is satisfied that –

(a) the lateness was caused by circumstances beyond the tenderer's control; and

(b) the integrity of the tendering process will not be compromised by accepting the late tender.

22.   Acceptance or rejection of a tender

(1)  The Board, if it thinks necessary or desirable to do so, may require a person who lodges a tender to provide the Board with acceptable evidence that the person's financial position is sufficient to enable the person to carry out the works tendered for.

(2)  The Board may reject a tender –

(a) if the Board considers the tenderer –

(i) to be unreliable; or

(ii) likely to carry out the works in an unsatisfactory manner; or

(iii) likely not to make due and prompt payment to any employee or person supplying materials; or

(b) if the tenderer, in the opinion of the Board, has in hand more work than the tenderer can complete on time; or

(c) if the Board considers that if the tenderer is incapable of properly carrying out the contract, the tenderer will not employ suitable persons to ensure the contract is properly carried out; or

(d) if the Board considers the tenderer to have insufficient financial resources available to successfully carry out the contract; or

(e) if the tenderer, in the opinion of the Board, would have to resort to substandard work, the use of inferior materials or unacceptable practices to avoid making a loss on the contract; or

(f) if the tender price submitted is considered by the Board to be excessive; or

(g) on any other grounds that the Minister considers sufficient.

23.   Schedule of tenders

(1)  On the Board deciding to recommend a tender for acceptance, the secretary is to specify that tender, together with any other tender the acceptance of which the Board recommends, in a schedule of tenders.

(2)  The schedule of tenders is to be signed by all the members of the Board present at the meeting at which the Board decided to recommend for acceptance the tenders specified.

(3)  The chairman of the Board is to submit the signed schedule to the Minister.

24.   Keeping records

The Board is to keep sufficient records for the purposes of this order-in-council.

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 30 July 1997

This order-in-council is administered in the Department of Treasury and Finance.