❓ A parliamentary question seeks details on confidentiality clauses in WA Government contracts, focusing on intellectual property, commercial grounds, and the confidentiality of the clauses themselves. The government's response acknowledges the use of such clauses but denies a policy of making them confidential, citing open competition policies and resource constraints in providing specific contract details.
AnsweredQoN 2640Legislative Council
QuestionView source ↗
(1) How many current Government contracts have confidentiality clauses attached to them?
(2) What proportion of those are to protect ‘intellectual property rights’?
(3) How many are there on purely commercial grounds?
(4) Is it Government policy not only to use ‘commercial confidentially’ clauses extensively, but even further to make the confidentiality clauses themselves confidential?
(5) If that was not the intention, when will the Government act to ensure that no confidentiality clauses are of themselves confidential?
(2) What proportion of those are to protect ‘intellectual property rights’?
(3) How many are there on purely commercial grounds?
(4) Is it Government policy not only to use ‘commercial confidentially’ clauses extensively, but even further to make the confidentiality clauses themselves confidential?
(5) If that was not the intention, when will the Government act to ensure that no confidentiality clauses are of themselves confidential?
AnswerView source ↗
Answered
16 November 2005
Responded by
Leader of the House representing the Minister for Public Sector Management
Response time
35 days
(1-5) Government contracts may incorporate a range of confidentiality provisions that are intended to protect the interests of Government, including, but not necessarily limited to, the treatment of information and intellectual property obtained or created by contractors in providing goods or services to Government and/or the community. Provisions may also apply in relation to protection of a contractor's commercial interests (including pricing, intellectual property, etc) in various contracts. Additionally, there may be instances involving covert operations, such as those of the Corruption and Crime Commission, which may not be revealed for operational reasons.
There is no Government policy expressly requiring public authorities to utilise commercial confidentiality clauses, or to make any confidentiality clauses confidential. Public authorities, subject to the
State Supply Commission Act 1991
are required to comply with the State Supply Commission 'Open and Effective Competition' policy. This policy requires in part:
(a) "Following the awarding of a contract, public authorities must provide all bidders with the name of the successful bidder, the total contract value, the contract period and the make or model of goods or description of services"
;
and
(b) "Public authorities shall adopt the General Conditions of Contract for the Supply of Goods and/or Services as approved by the Commission, except in relation to service contracts entered into by public authorities pursuant to the Funding and Purchasing Community Services Policy".
The approved 'General Conditions' contain a clauses relating to 'Access and Confidentiality'.
The Guidelines for best practice interpretation of this policy state in part:
"In addition to the policy requirements for identifying the successful bidder, public authorities should, on request, consider providing details of the successful bidder's pricing schedule as specified in the Quotation or Request documentation. Any information provided should not include commercial in-confidence information.
No additional information regarding the successful bidder's offer should be released to other bidders or the public, unless such disclosure was an acknowledged part of bidding process or it has been agreed to by the successful bidder."
With regard to specific government contracts, the detailed information requested by the Member is not readily available. Provision of this information would require considerable research, which would divert staff away from their normal duties.
If the Member has a more specific inquiry about confidentiality in Government contracts, I will seek further advice.
There is no Government policy expressly requiring public authorities to utilise commercial confidentiality clauses, or to make any confidentiality clauses confidential. Public authorities, subject to the
State Supply Commission Act 1991
are required to comply with the State Supply Commission 'Open and Effective Competition' policy. This policy requires in part:
(a) "Following the awarding of a contract, public authorities must provide all bidders with the name of the successful bidder, the total contract value, the contract period and the make or model of goods or description of services"
;
and
(b) "Public authorities shall adopt the General Conditions of Contract for the Supply of Goods and/or Services as approved by the Commission, except in relation to service contracts entered into by public authorities pursuant to the Funding and Purchasing Community Services Policy".
The approved 'General Conditions' contain a clauses relating to 'Access and Confidentiality'.
The Guidelines for best practice interpretation of this policy state in part:
"In addition to the policy requirements for identifying the successful bidder, public authorities should, on request, consider providing details of the successful bidder's pricing schedule as specified in the Quotation or Request documentation. Any information provided should not include commercial in-confidence information.
No additional information regarding the successful bidder's offer should be released to other bidders or the public, unless such disclosure was an acknowledged part of bidding process or it has been agreed to by the successful bidder."
With regard to specific government contracts, the detailed information requested by the Member is not readily available. Provision of this information would require considerable research, which would divert staff away from their normal duties.
If the Member has a more specific inquiry about confidentiality in Government contracts, I will seek further advice.
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