RESTRICTED  
  
GPA/ACC/AUS/30  
 
16 June 2017  
(17-3231) Page: 1/5 
Committee on Government Procurement  Original: English  
 
ACCESSION OF AUSTRALIA  TO THE AGREEMENT ON GOVERNMENT PROCUREME NT 
COMMUNICATION FROM AUSTRALIA  
The following communication, dated 16 June 2017, is being circulated at the request of the 
Delegation of Au stralia.  
 
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AUSTRALIA 'S RESPONSE TO CANA DA'S REQUEST FOR IMP ROVEMENTS 
(GPA/ACC/AUS/23) ON AUSTRALIA'S REVISED OFFER  
Australia thanks Canada for the submission of comments and requests for improvements 
(GPA/ACC/AUS/23), based on Australia's revised offer (GPA/ACC/AUS/17). Australia provides the 
following responses to the questions circulated by Canada.  
 
Annex 1 – Central Governmental Entities  
 
1. Australia has not addressed Canada's earlier reque st to add two entities to 
Annex  1. Please add the following entities:  
a. Australian Transport Safety Bureau; and 
b. Old Parliament House.  
Australia's second revised offer (GPA/ACC/AUS/29) includes these entities – the Australian 
Transport Safety Bureau in Annex 1 and Old Parliament House in Annex 3.  
 
2. In addition, Canada requests that Australia includes the National Health and 
Medical Research Council, which is covered in the Australia -US FTA under its old name 
(The National Institute of Clinical Studies Ltd). Given that the aforementioned entity is a 
non-corporate Commonwealth entity, we are of the view that it shoul d be listed in 
Annex  1.  
Australia is unable to agree to this request.  
 
3. In response to Canada's initial request for improvements (GPA/ACC/AUS/10), 
Australia noted that the "Australian Government does not intend for [the Australian 
industry capability progr am] to be used at any time to exclude any particular 
procurement or procurements that would otherwise be covered." Canada thanks 
Australia for this precision and requests that it be reflected in the language of Note 4.d. 
of Annex 1.  
Australia is unable to  agree to this request to ensure consistency between Australia 's trade 
agreements.  
 
Annex 2 – Sub-Central Governmental Entities  
 
4. Can Australia please clarify whether subordinate entities to the entities listed in 
Annex 2 are covered? In its reply to the Eu ropean Union regarding TransLink GPA/ACC/AUS/30  
 
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  (GPA/ACC/AUS/18, p.6), Australia states that TransLink is covered under Annex 2 as it 
is "part" of another entity listed under Annex  2. 
For the entities listed in Annex 2, all the functions performed by that entity are cove red unless 
expressly excluded. For example, Translink is covered as it is a division within (i.e. a function 
performed by) the Queensland Department of Transport and Main Roads.  The Department of 
Transport and Main Roads is covered as it is a department pu rsuant to section 14 of the Public 
Service Act 2008  (Qld). 
 
5. Northern Territory:  
a. It is our understanding that the Central Australian Hospital Network and the 
Top End Hospital Network operate as a Government Business Division within 
the Department of Health . Can Australia confirm whether these two entities are 
covered as part of the Department of Health?  
The Central Australian Hospital Network and the Top End Hospital Network are covered 
as part of the Department of Health.  
 
b. Please add the following entities : 
 Department of Transport; and  
 Department of Infrastructure.  
Australia is not able offer the Northern Territory Department of Infrastructure, Planning 
and Logistics (including transport). The coverage of Northern Territory entities in 
Australia 's offer is consistent with Australia 's recent trade agreements.  
 
6. Queensland:  
a. Training services are not covered for Queensland. Can Australia please explain 
why? We note that this is the only jurisdiction in Australia where training 
services are not covered.  
The excl usion of training services is consistent with Queensland 's commitments in 
Australia 's recent trade agreements.  
 
b. Canada requests a full listing of Queensland's departments, or parts of 
departments that deliver health, education, training or arts services, t hat would 
be removed from coverage as per note 1.b.  
The relevant departments are:  
 
 Education and training services – Department of Education and Training;  
 Health services – Department of Health; and  
 Arts services – part of the Department of Premier and Cab inet. 
7. South Australia:  
a. Canada requests that the Legal Services Commission be re -introduced in Annex 
2 as it is our understanding that more than 80% of the Commission's funding 
comes from grants provided by Commonwealth and State governments.  
The Legal Se rvices Commission sources its funding from the Government of South 
Australia, the Commonwealth Government and through cost recovery from the public 
using its services. It is only authorised to make procurement decisions up to A$220,000, 
which is below the Annex 2 threshold in Australia's offer. For these reasons it will not be 
re-introduced to Australia 's offer.  GPA/ACC/AUS/30  
 
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  8. Western Australia:  
a. The Note for Western Australia is inconsistent with GPA Article IX:11 on multi -
use lists. We therefore request that Australia d elete the phrases "For greater 
certainty, consistent with Article IX.11" found at the beginning of the note.  
Austr alia does not believe that the N ote is inconsistent with GPA Article IX:11. The time 
and complexity required to assess requests to participate  in a procurement from 
suppliers not already pre -qualified under WA 's Department of Finance, Building 
Management and Works ' Prequalification Scheme and Main Road 's National 
Prequalification System for Civil (Road and Bridge) Construction Contracts Scheme w ould 
have a significant, negative impact on the timely and efficient delivery of particular 
projects to the community. For these reasons, we believe the Note provides greater 
certainty.  
 
9. Can Australia please confirm whether the Department of Transport, or the 
entity(ies) in charge of transportation matters, are listed for every State and Territory in 
Australia?  
The entities in charge of transportation matters are listed for every State and Territory, exce pt for 
the Northern Territory. (See also response to Question 4b.)  
 
10. Please delete Notes 2 and 3. They are unnecessary and, combined, they have the 
effect of extending Annex 2 coverage to all current GPA Parties.  
Australia has deleted these N otes. 
 
Annex 3 – Other Entities  
 
11. Please lower thresholds for goods and services to SDR 355,000. No GPA Party has 
a combination of thresholds for goods and services as high as the one proposed by 
Australia. In almost all cases where a GPA Party has thresholds of SDR 400,000 for 
goods and services under Annex 3, their thres holds for goods and services under Annex 
2 are SDR 200,000.  
Australia 's offer of Annex 3 entities is independent of its offer of Annex 2 entities, all of which have 
been offered at a threshold consistent with Australia 's existing trade agreements. Austral ia's offer 
is comprehensive and ambitious, including because Australia offers a negative list approach to 
services, providing greater coverage of services than most GPA members . 
 
12. Please move all non -corporate Commonwealth entities from Annex 3 to Annex 1, 
including:  
a. Australian Communications and Media Authority;  
b. Australian Competition and Consumer Commission;  
c. Australian Financial Security Authority;  
d. Australian Fisheries Management Authority;  
e. Australian Prudential Regulation Authority;  
f. Australian Securities and Investments Commission; and  
g. Great Barrier Reef Marine Park Authority.  
Australia is unable to move these entities from Annex 3 to Annex 1. The listing of these entities in 
Annex 3 is consistent with Australia 's existing trade agreements.  
 GPA/ACC/AUS/30  
 
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  13. Canada reques ts the inclusion of corporate Commonwealth entities to Annex 3, 
including:  
a. The Australian Postal Corporation;  
b. Australia Renewable Energy Agency;  
c. National Library of Australia; and  
d. National Portrait Gallery of Australia.  
Australia is unable to offer these entities, consistent with Australia 's existing trade commitments.  
 
Annexes 1 to 3  
 
14. Please remove all the Notes excluding from coverage the procurement of motor 
vehicles.  
In Australia 's second revised offer (GPA/ACC/AUS/29) the exception on the procurement of motor 
vehicles has been removed from Annex 1 and Annex 3, with effect from 1 January 2019.  We had 
previously removed the exception for some sub -central governments in Annex 2.  This sector 
remains highly sensitive for Australia.  
 
Annex 5 - Services  
 
15. Cana da thanks Australia for using a negative list similar to the one from its TPP 
offer.  
16. Canada requests the deletion of the reciprocity note found in Annex 5.  
The reciprocity Note to Annex 5 is required for Australia to be able use a negative list approach to  
services.  GPA members will benefit from Australia 's services offer to the extent they offer those 
services to Australia.  
 
Annex 7 – General Notes  
 
17. In accordance with paragraph 2 of the Decision of the Committee on Government 
Procurement on a Work Programm e on SMEs (GPA/113 Appendix 2, Annex C), Canada is 
seeking assurances from Australia that any discriminatory measures that favour SMEs 
will not discriminate against SMEs from other GPA Parties. Canada requests that 
Australia amends General Note 1.a. so as to provide such assurances.  
The inclusion of the SME note is essential for all Australian governments, which recognise the 
important contribution small and medium enterprises (SMEs) make to the economy and 
employment in particular. For this reason, Austral ian governments seek to ensure that Australian 
SMEs have the same opportunities to participate in procurement processes as large companies and 
international businesses. SME participation schemes aim to assist competitive Australian SMEs to 
participate in p rojects by encouraging innovation, expansion of capability and investment 
opportunities.  
 
The N ote does not stop foreign companies from winning contracts in Australia. The Note on SMEs 
is consistent with Australia 's existing trade agreements and is in kee ping with similar notes of 
other GPA members.  
 
18. In discussions with Canada, Australia emphasized that Australian businesses can 
be considered SMEs if they employ less than 200 emplo yees. Canada requests that 
Note  1.a. include language reflecting this size l imit. 
This N ote is consistent with Australia 's existing trade commitments and Australia is not able to 
include any additional language to ensure consistency between trade agreements.  Under the 
current Commonwealth Procurement Rules , which will give practic al effect to Australia 's GPA GPA/ACC/AUS/30  
 
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  commitments, a company must have fewer than 200 full -time equivalent employees to be 
considered an SME.  
 
19. Canada understands GPA Article III to allow GPA Parties to take the actions 
necessary for the fulfillment of their obligat ions with respect to the maintenance or 
restoration of international peace or security. Canada therefore requests that Australia 
deletes Note 2.c., which is unnecessary.  
Australia has deleted this Note, on the basis that Article III of the revised GPA addr esses the 
essential security exception.  
 
20. In Canada's view, nothing in the GPA prevents Parties from protecting sensitive 
government information. Canada therefore requests that Australia deletes Note 2.d., 
which is unnecessary.  
Australia requires flexibilit y to specify the location of data storage and hosting services where 
there is a legitimate reason to do so, such as privacy or security requirements. For example, the 
Australian Government holds personal data in Australia, in accordance with legislation su ch as the 
Privacy Act 1988, which regulates the handling of personal information about individuals.  
 
Australia is not seeking t o prevent suppliers from other P arties from providing data storage and 
related services to Australia, but is seeking that such se rvices be provided in Australia when 
government data is involved.  
 
21. Alternatively, Canada may be prepared to address the two previous points through 
means other than Australia's market access offer. For example, Canada may look at the 
feasibility of address ing such issues through a GPA Committee decision.  
22. Please move Note 2.e. as a stand -alone note, so as to detach it from the "for 
greater certainty" chapeau. We also suggest changing the wording of the Note to: " A 
procuring entity may use limited tendering p rocedures for unsolicited innovated 
proposal in accordance with Article XIII of the Revised GPA ." 
This N ote is for greater certainty because Australia considers that innovative proposals fall within 
the scope of Article XIII.  New Zealand has a similar exce ption (for "unsolicited unique proposals ") 
referencing Article XIII.  
 
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