Guidelines for Unsolicited Proposals - Edition 3.1

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

GUIDELINES FOR

UNSOLICITED

PROPOSALS

EDITION 3.1

MARCH 2020

CHIEF MINISTER, TREASURY AND

ECONOMIC DEVELOPMENT DIRECTORATE

The Partnerships Framework

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part may

be reproduced by any process without written permission from the Territory Records Office, ACT

Government, GPO Box 158, Canberra City, ACT, 2601

Enquiries about this publication should be directed to:

unsolicitedproposal@act.gov.au

Executive Branch Manager

Infrastructure Finance & Reform

Chief Minister, Treasury and Economic Development Directorate

ACT Government

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

CONTENTS

FOREWORD ................................................................. iii

1. INTRODUCTION ..................................................... 1

1.1 BACKGROUND ........................................................................... 1

1.2 PURPOSE OF THIS DOCUMENT ............................................... 1

1.3 SUMMARY OF THE PROCESS .................................................. 2

1.4 STRUCTURE OF THE GUIDELINES .......................................... 3

2. GUIDING PRINCIPLES ........................................... 5

2.1 OVERVIEW ................................................................................. 5

2.2 WHAT IS AN UNSOLICITED PROPOSAL? ................................. 5

3. PHASED PROCESS ............................................... 9

3.1 OVERVIEW ................................................................................. 9

3.2 SUBMITTING AN UNSOLICITED PROPOSAL ............................ 9

3.3 CONCEPT SUBMISSION (PHASE 1) ........................................ 10

3.4 DETAILED SUBMISSION (PHASE 2) ........................................ 12

3.5 TENDER (PHASE 3) .................................................................. 16

4. GOVERNANCE ..................................................... 19

4.1 OVERVIEW ............................................................................... 19

4.2 ROLES AND RESPONSIBILITIES ............................................. 19

4.3 PROBITY ................................................................................... 20

5. COMMUNICATION AND CONSULTATION .......... 21

5.1 OVERVIEW ............................................................................... 21

5.2 REPORTING AND PUBLIC DISCLOSURE ............................... 21

5.3 PUBLIC CONSULTATION ......................................................... 21

5.4 ROLES AND RESPONSIBILITIES ............................................. 21

5.5 INTRA-GOVERNMENTAL CONSULTATION ............................ 22

5.6 TREASURER AND CABINET .................................................... 22

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

APPENDICES ............................................................. 23

Appendix A: Glossary .................................................. 25

Appendix B: Sources ................................................... 29

Appendix C: Covering Letter Template ........................ 30

Appendix D: Declaration to Abide by Process ............. 31

Appendix E: Concept Submission ............................... 32

Appendix F: Public Declaration .................................... 38

Appendix G: Examples of hypothetical proposals and

possible Tender Models ............................................... 39

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

iii

FOREWORD

The ACT Government is committed to improving the facilitation of infrastructure development, service

delivery and private sector investment within the Territory. By introducing this policy on Unsolicited

Proposals, the Government has created a clear pathway for prospective bidders to submit innovative and

unique ideas that align with its strategic objectives and to have them considered within a fair and

transparent framework.

It is important that genuine Unsolicited Proposals, which normal procurement processes cannot manage,

have a process under which the Government can consider them in a manner that is both efficient and

effective for prospective bidders and Government.

These Guidelines for Unsolicited Proposals provide a transparent framework for both prospective bidders

and Government to inform themselves on the treatment of Unsolicited Proposals for public

infrastructure, service delivery and private sector investment in the Territory.

This document’s main objective is to provide consistency and clarity to any parties involved in an

Unsolicited Proposal submission, both private and public sectors alike. It describes how the Government

evaluates submissions and, if appropriate, determines the process for reaching contractual agreement on

their implementation in order to meet the Government’s principles of acting in the public interest,

delivering value for money, and achieving appropriate delivery.

These Guidelines will ensure the maintenance of accountability and fairness throughout the

Government’s process of consideration of Unsolicited Proposals, while also maximising value for money

to the Territory and staying within the Government’s affordability envelope.

This Edition 3.1 of these Guidelines:

 seeks to provide greater clarity and to remove unnecessary duplication and extraneous material

 adds more specific guidance on timelines

 provides additional flexibility to accommodate different types of Unsolicited Proposals, to reflect the

wide variety of Unsolicited Proposals that the Government has received so far

 merges the Open Book and Development Manager Tender Models, which were very similar

 removes Swiss Challenge and Bid Premium from the list of the Government’s preferred tender

models, which were in the Third Edition and previous editions of Guidelines. Government has

deemed that it would be highly unlikely that these tender models would be practically feasible while

achieving value for money as required by the Government Procurement Act 2001

and fairness as

required by common law.

 introduces a requirement for limited public disclosure of Unsolicited Proposals that the Government

deems worthy of preliminary consideration.

See Section 22A of the Act

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1. INTRODUCTION

1.1 BACKGROUND

The ACT Government is committed to improving the facilitation of infrastructure and service delivery

within the Territory in order to meet its service delivery needs and to develop a strong and resilient local

economy. This intent covers both infrastructure that supports economic development and growth, and

infrastructure that enhances and sustains social outcomes for the general public.

In order to support this objective, the Government has implemented the Capital Framework to provide a

platform for more progressive and sophisticated approaches towards capital project delivery in the ACT.

The Capital Framework supports capital projects of any type, complexity or cost through rigorous internal

government processes for assessing the case for new investment projects in the ACT and, among other

matters, determining their most appropriate delivery model.

The Government has developed the Partnerships Framework as an extension to the Capital Framework

for major capital projects where the Government engages with the private sector to a greater degree than

under traditional Government procurement methods, through arrangements such as Public Private

Partnerships and unsolicited proposals. The Partnerships Framework aims to support private sector

investment in social and economic infrastructure and related services where the ACT Government can

demonstrate clearly the value for money of such investment.

The Partnerships Framework consists of two separate documents:

 the Guidelines for Public Private Partnerships

 the Guidelines for Unsolicited Proposals.

These Guidelines for Unsolicited Proposals (Guidelines) provide a viable framework for prospective

bidders (Proponents) to submit innovative and unique ideas (Unsolicited Proposals) that:

 do not fit readily within the Government’s normal procurement processes

 provide value for money for the Territory

 align with the Government's strategic objectives.

The Guidelines provide a transparent framework for the treatment of Unsolicited Proposals in the

Territory, giving consistency and clarity to both Proponents and Government. They ensure the

maintenance of accountability, transparency and fairness throughout the process of the Government’s

consideration of Unsolicited Proposals, while maximising value for money to the Territory.

This Edition 3.1 of the Guidelines updates the Third Edition of the Guidelines (released in March 2018),

which in turn replaced the previous Second Edition (July 2016, updated September 2016) and follows the

commitment in the original version of these Guidelines (First Edition, January 2014) to maintain and

update them as required.

Responsibility for administering the Partnerships Framework lies with the Infrastructure Finance & Reform

branch (IFR) of the Chief Minister, Treasury and Economic Development Directorate (CMTEDD).

1.2 PURPOSE OF THIS DOCUMENT

These Guidelines set out guiding principles for Ministers, ACT public sector officers and Proponents when

developing and evaluating Unsolicited Proposals. They aim to provide consistency and confidence to the

market on how the Government will assess Unsolicited Proposals against its key principles of meeting its

strategic objectives and providing value for money.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

These Guidelines do not provide an alternative to the Government Procurement Act 2001 (the Act) and

the related Government Procurement Regulation 2007 (the Regulation) where this Act and Regulation

apply. As described further in Section 3.4.4, the Act and Regulation require the Government to undertake

competitive open tender procurement procedures, with very limited exceptions. The Government also

needs to comply with common law principles of fairness and transparency in procurement.

Where appropriate, the Government will apply processes within the Capital Framework and the

Partnerships Framework to promote standardisation and consistency in capital project planning and

delivery.

These Guidelines are a general statement of intent on how the Government will treat Unsolicited

Proposals, rather than a binding process. Unsolicited Proposals can take various forms and, therefore, the

Government may develop an alternative process tailored to its specific Unsolicited Proposal should it

deem this to be appropriate and in the best interests of the Territory.

These Guidelines do not replace or circumvent any due process of the Government or its agencies. All

Proposals will be subject to the requisite legislative, regulatory and policy requirements afforded to all

other development within the Territory. In particular, these Guidelines do not prevail over or circumvent

any statutory process relating to the direct sale of land in the ACT. Unsolicited Proposals that also include

land sales will continue to be subject to the provisions of the Planning and Development Act 2007.

The ACT Government gratefully acknowledges that this document draws on existing guidelines published

by other Australian jurisdictions, in addition to other sources.

1.3 SUMMARY OF THE PROCESS

The process described in these Guidelines covers three Phases:

 Phase 1 – Concept Submission

 Phase 2 – Detailed Submission

 Phase 3 – Tender

FIGURE 1 below shows a high-level summary of the process, which Section 3 below describes in more

detail.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Figure 1: Phased Process

1.4 STRUCTURE OF THE GUIDELINES

The structure of this document is as follows:

 Guiding Principles – This section provides the overarching rationale and principles to drive and test

the identification, assessment and approval of Unsolicited Proposals

 Phased Process – This section provides a description of the phases involved in the submission,

filtering and evaluation of Unsolicited Proposals

 Governance – This section provides guidance to ACT public sector officers on appropriate levels of

resourcing, responsibility delegation and scheduling, as well as maintaining acceptable probity

standards when considering Unsolicited Proposals

 Communication and Consultation – This section provides guidance to relevant stakeholders on the

roles, responsibilities and expectations of consultation on Unsolicited Proposals.

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2. GUIDING PRINCIPLES

2.1 OVERVIEW

This section outlines the rationale for a Proponent to submit an Unsolicited Proposal. It also provides

further detail on the guiding principles, objectives and frameworks that the ACT Government intends

generally to follow when evaluating the merit of an Unsolicited Proposal. As noted in Section 1.2 above,

there may be circumstances in which the Government follows an alternative process.

2.2 WHAT IS AN UNSOLICITED PROPOSAL?

For the purposes of this policy, an Unsolicited Proposal is an approach by a Proponent with a proposal,

not requested or otherwise solicited by the Government or its agencies, that normally entails one or more

of the following:

 the construction and/or financing of public infrastructure

 the transfer of assets between the public and private sector in relation to the provision of public

infrastructure

 the divestment and/or outsourcing of public assets and/or services

 business partnerships and collaboration between the public and private sectors that involve

considered entrepreneurship.

An Unsolicited Proposal may also entail particular regulatory arrangements.

A successful Unsolicited Proposal is likely to be of a high standard and well developed, and to address

substantively some or all of the following criteria:

 Public Interest – satisfying a community need or otherwise providing a clear and measurable benefit

to the residents of the ACT, either directly or indirectly via the Government

 Appropriate for Government investment – not displacing private sector activity, crowding-out

private sector investment, or contravening competitive neutrality principles

 Strategic priority – taking into account the Government’s strategic objectives

 Justification for direct negotiation – demonstrating that the public interest is best served by the

Government negotiating directly with the Proponent, rather than by engaging in an open, competitive

process

 Value for Money – delivering an outcome to the Territory that it can determine is value-for-money in

the absence of a competitive market

 Affordability – being affordable within the Government’s Budget, funding priorities and fiscal strategy

 Appropriate risk and cost allocation – the proposed allocation of costs and risks between the

Proponent and other parties is acceptable to the Government

 Feasibility – being technically, commercially and practically feasible

 Capacity and capability – the Proponent demonstrating that it has the financial and technical

capacity, capability and experience to deliver the proposed outcome successfully.

In considering whether a Proposal is “appropriate for Government investment”, the Government

generally will favour ideas that align with its current strategic objectives. However, the Government

recognises that there may be Proposals of interest to it beyond the current focus of Government, and will

consider such Proposals on a case-by-case basis. Proponents can find the Government’s strategic

objectives as at the date of publication of this Edition 3.1 of the Guidelines in the following documents:

 ACT Budget 2019-20

 Infrastructure Plan: Planning for the future

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

 Business Development Strategy 2015

The Government updates its strategic priorities from time to time to reflect changes in the Territory’s

overall environment.

As a general guide, the orientation of this framework is towards projects with a minimum value of

$10 million, but the Government may also apply it to smaller projects.

Generally, the Government will not meet or reimburse costs incurred by Proponents in the preparation,

development and processing of an Unsolicited Proposal.

The following types of proposal typically do not constitute Unsolicited Proposals under these Guidelines

and, generally, the Government will not consider them under this framework:

 Proponents seeking to purchase or acquire unleased Territory land directly. Unless the proposal

presents a unique opportunity, the Government is unlikely to enter into such an arrangement without

an open tender process. It will instead refer direct land sale proposals to the Urban Renewal, Strategic

Projects and Infrastructure unit in the Environment, Planning and Sustainable Development

Directorate (EPSDD), which manages direct land sales in accordance with the requirements of the

Planning and Development Act 2007. More details on the direct sale of land, including eligibility

criteria and the process to apply, can be found under Direct Sales on EPSDD’s website.

 Proponents seeking to sell land to the Territory. The Land Acquisition Directions set out under the City

Renewal Authority and Suburban Land Agency Act 2017 describe the acquisition process and

requirements for the CRA and the SLA. Other Government agencies, such as ACT Housing and

individual Directorates, have their own processes for land acquisition.

 Proponents with an existing licence to provide goods or services to the Government or its agencies

who are seeking to bypass a future tender process.

 Proposals for significant extensions to existing contracts, or for the next stage of a staged project, on

the basis that the contractor is already on-site or has some other claimed advantages, in the absence

of other criteria that justify the use of these Guidelines.

 Proposals seeking to develop land that neither the Territory nor the Proponent owns.

 Proposals to provide widely available goods or services, including consultancy services, to the

Government or its agencies.

 Proposals for projects for which the tender process has formally commenced or for which planning

has commenced, whether published or not.

 Proposals merely seeking grants to fund organisational projects, e.g. scientific research.

 Proposals seeking funding for start-up enterprises and organisations, as it is unlikely that they would

satisfy the criteria of the Proponent having an appropriate capacity and capability.

 Proposals involving matters outside the ACT or that are the responsibility of a jurisdiction other than

the ACT Government.

2.2.1 Ensuring Appropriate Delivery

A Proponent ideally should present some or all of the following in its Proposal:

 the roles, responsibilities and contributions required of the Government and its agencies in delivering

the Proposal

 where relevant, the proposed delivery model for the Proposal, including planning, design and

construction and operations arrangements (as required)

 the demonstrated capability and capacity of the Proponent to deliver the Proposal, including in terms

of technical issues

 the appropriateness of the proposed risk allocation between the Proponent and the Territory.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

A Proponent ideally should nominate its preferred commercial Tender Model from those listed in

Section 3.5 below and provide reasoning for the preference identified.

The evaluation of Unsolicited Proposals may take into consideration:

 the uniqueness of the proposed delivery approach in terms of the ability of other third parties to

provide similar benefits

 whether the Proposal could create a commercial environment (e.g. a monopoly position) that could

impair existing markets or impose economic costs on the Territory.

The evaluation process will take into consideration the Proponent’s preferred commercial Tender Model,

but the Government reserves the right to select a final Tender Model that it considers to be in the overall

best interest of the Territory.

2.2.2 Value for Money

The achievement of value for money is a core requirement of any procurement or divestment activity

undertaken by the Government, and is an absolute requirement of the Government Procurement Act

2001

. The related Government Procurement Regulation 2007 requires a public tender for procurements

with an estimated value of $200,000 or more

. The Government may exempt specific procurements from

the requirement for a public tender if it is satisfied, on reasonable grounds, that the benefit of the

exemption outweighs the benefit of compliance

. However, the Government still must pursue value for

money through the alternative procurement method. Hence, in considering the appropriate Tender

Model for a Proposal, it will need to be satisfied that this Tender Model will result in better value for

money than would a public tender. Section 3.5 below discusses this issue in more detail.

See Section 22A of the Act

See Section 9 of the Regulation

See Section 10 of the Regulation

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3. PHASED PROCESS

3.1 OVERVIEW

This section outlines the Phased Process through which the ACT Government will identify, assess and

approve Unsolicited Proposals.

Responsibility for managing this Phased Process lies with the Infrastructure Finance & Reform branch (IFR)

of the Chief Minister, Treasury and Economic Development Directorate (CMTEDD), under the overall

direction of the Unsolicited Proposal Steering Committee (UPSC), consisting of senior officers of the ACT

public service (see Section 4.2.1 below for further information on the UPSC). IFR officers will liaise with

officers from Directorates and agencies with an interest in the Unsolicited Proposal as appropriate.

The process involves:

 A Pre-Proposal Meeting with IFR and other relevant ACT public sector officers as requested by the

Proponent

 Phase 1 – Concept Submission

 Phase 2 – Detailed Submission

 Phase 3 – Tender (requiring Cabinet approval).

3.2 SUBMITTING AN UNSOLICITED PROPOSAL

The Government will consider an Unsolicited Proposal to have commenced formally the process

described in these Guidelines from the Proponent lodging a Concept Submission with IFR as described

further below. Appendices C, D, E and F contain details of and templates for Concept Submissions. The

Government will treat submissions to agencies other than IFR as preliminary and such submissions will

provide no benefit to Proponents under these Guidelines until IFR receives them.

A Proponent must include within its Concept Submission a ‘Declaration to Abide by Process’ (see

Appendix D), which includes an agreement not to contact or discuss with Ministers, Ministerial staff and

Government officers the Unsolicited Proposal. Any approach of this nature will constitute a breach of

this Declaration and may result in the exclusion of the Proposal from further consideration under these

Guidelines.

Anything submitted by a Proponent as part of its Unsolicited Proposal may be subject to disclosure under

the Freedom of Information Act 2016.

The Proponent has the right to withdraw its Proposal at any point during the Phased Process.

3.2.1 Pre-Proposal Meetings

The Government strongly encourages prospective Proponents to request a Pre-Proposal Meeting with IFR

representatives. Depending on the nature of the Proposal, IFR may invite representatives of Directorates

and other agencies with an interest in the Proposal to attend this meeting as well. Proponents should

submit requests for a Pre-Proposal Meeting by email to:

unsolicitedproposal@act.gov.au

Pre-Proposal Meetings enable the clarification of the expectations of both the Government and the

Proponent in relation to the specific Concept Submission for an Unsolicited Proposal. They also assist in

guiding proposals that do not meet the definition of an Unsolicited Proposal to an appropriate alternative

mechanism for their consideration.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

A Pre-Proposal Meeting is an opportunity for the Proponent to raise its concept with the Government,

enabling it to consider the feasibility of the concept before the Proponent devotes significant resources to

developing a detailed Unsolicited Proposal. In addition, as the information provided in Phases 1 and 2

generally will be the basis of assessment of a Proposal, the Pre-Proposal Meeting is an opportunity for

prospective Proponents to obtain advice on how best to present their Proposals.

However, should the Government become aware of information that materially effects a Proposal, either

during a Pre-Proposal Meeting or at any other time prior to the Government concluding its assessment,

the Government may take into account such information regardless of whether it was part of the formal

Unsolicited Proposal. Examples include information calling into question:

 the uniqueness of the Proposal

 the feasibility of the Proposal

 the capability or capacity of the Proponent to undertake the Proposal.

3.3 CONCEPT SUBMISSION (PHASE 1)

Phase 1 provides the opportunity to present a concept to the most senior levels of the ACT public service

through a transparent process and in an efficient manner.

The Proponent’s submission will require the following documentation:

1. Covering Letter (Appendix C)

2. Signed Declaration to Abide by Process (Appendix D)

3. Concept Submission (Appendix E).

4. Signed Public Declaration (Appendix F)

Proponents should make their submission of an Unsolicited Proposal via email to:

unsolicitedproposal@act.gov.au

IFR officers will then acknowledge receipt of the Proposal and, in liaison with officers from Directorates

and agencies with an interest in the Proposal, perform a preliminary assessment as a basis for a

recommendation to the UPSC on whether to invite the Proponent to present its Concept Submission.

The recommended format for a Concept Submission is a brief and concise overview that the Government

can assess in accordance with the principles, objectives and processes set out in these Guidelines.

Appendix E contains a template for the information requirements Concept Submission, though there is no

restriction on a Proponent using an alternative format if appropriate for its Proposal.

In addition to setting out the Proposal’s merit and viability, the Concept Submission also should include

(and explain the rationale for) the Proponent’s preferred commercial Tender Model for progressing the

Proposal. Section 3.5 below provides further detail on these models.

The duration from the formal submission of a Proposal to its potential presentation to the UPSC will vary,

depending on the complexity of the Proposal and the need for clarifications and further correspondence.

However, Government will aim to advise the Proponent whether the UPSC would like to receive a

presentation within three months of receiving the formal Concept Submission.

Figure 2 illustrates the steps taken during the Phase 1.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Figure 2 : Concept Submission Process (Phase 1)

3.3.1 Assessing Concept Submissions

IFR officers, in liaison with officers from other Directorates and agencies with an interest in the Proposal,

will perform a preliminary review of the Concept Submission to support the UPSC in its decision on

whether to seek a 45-minute presentation from the Proponent. IFR will continue to provide support and

advice to the UPSC throughout the Phased Process.

This initial assessment primarily serves to ensure that neither the Proponent nor the Government

expends resources unduly for an Unsolicited Proposal that does not warrant further consideration. In

considering whether a Proposal proceeds to a UPSC presentation, IFR officers will consider some or all of:

 whether the Submission meets the criteria identified in Section 2 – Guiding Principles

 the Territory’s current economic and financial position

 community expectations

 broader reforms that may be occurring nationally

 any other factors they deem relevant to the Proposal.

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During this process, IFR may also request further clarification and/or additional information for the

Proponent to include within its presentation.

The UPSC may also determine, at its absolute discretion, whether the Proposal satisfies the criteria for

consideration as an Unsolicited Proposal or whether the Government should deal with it through another,

more appropriate mechanism.

3.3.2 Presentation and Strategic Review

Following its initial assessment and review, should the UPSC consider that a Proposal warrants further

consideration, it will invite the Proponent to present its Proposal to the UPSC for approximately

45 minutes. The presentation should reflect the Concept Submission and any clarification or information

sought by IFR during the assessment process.

When a Proposal reaches this stage, the Government will publish summary information on it based on the

details provided in the Proponent’s Public Declaration (Appendix F), as described further in Section 5.2

below. By lodging a Concept Submission, the Proponent accepts that there will be no restriction on the

Government publishing this summary information, as there is no Intellectual Property transfer to the

Government at this stage. Any material submitted as part of the Concept Submission will be at the

Proponent’s own risk of public disclosure. However, the Government recognises that some such material

may be confidential, and will treat it as ‘Commercial-in-Confidence’ as appropriate.

Following the presentation, the UPSC will undertake an assessment of whether the Concept Submission

aligns with the principles and objectives set out in Section 2 above. At this stage, the UPSC may still

request the Proponent to provide further clarification and/or additional information to assist in its review.

3.3.3 Phase 1 Decision

Following its review of the Proposal, the UPSC will decide, at its absolute discretion, that:

a. the Government will not consider the Unsolicited Proposal any further, or

b. the Unsolicited Proposal will proceed to Phase 2 – Detailed Submission, or

c. features of the Unsolicited Proposal warrant consideration by Cabinet before determining whether it

will proceed to Phase 2.

The UPSC will notify the Proponent of this decision within two calendar months of the presentation to the

UPSC, unless there are particular circumstances that require a longer review period.

In the event that neither the UPSC nor Cabinet approves a Proposal proceeding to Phase 2, the

Government generally will not consider it further until 18 months have elapsed since the lodgement of

the Concept Submission, unless the Proponent makes substantial changes to the Proposal.

3.4 DETAILED SUBMISSION (PHASE 2)

The intent of Phase 2 is to permit the Government to assess the Proposal based on a detailed Business

Case and other information submitted by the Proponent, following the approval for the Proposal to

proceed to Phase 2 and a subsequent invitation to the Proponent to do so.

The Proponent needs to develop this Business Case fully such that it is robust and, together with other

information provided by the Proponent, provides sufficient information to enable the Government to

assess and make a definitive decision on the merits of the Proposal and whether it should proceed to

Phase 3 – Tender. The Detailed Submission should provide a comprehensive and compelling case to

support the Unsolicited Proposal and, where possible, provide quantified supporting evidence to allow for

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a robust evaluation by the UPSC against the guiding principles and objectives described in these

Guidelines.

The Government and its agencies recognise that this detailed Business Case may include the Proponent’s

Intellectual Property, and will take all reasonable steps to protect such Intellectual Property including

treating documents as ‘Commercial-in-Confidence’ during its assessment of the Detailed Submission.

At the commencement of Phase 2, Government will advise the Proponent of its estimated timeframe for

completion. The duration of Phase 2 will vary between Proposals, but is likely to take at least 6 – 12

months from the lodging of the Detailed Submission to the decision by the UPSC whether to recommend

to Cabinet that it proceed to Phase 3 – Tender.

Figure 3: Detailed Submission Process (Phase 2)

The Phase 2 assessment is the responsibility of the UPSC, advised by officers from IFR and other

Directorates and agencies with an interest in the Proposal and, if necessary, specialist external advisors.

The decision on whether to proceed beyond Phase 2 is the responsibility of Cabinet, informed by a

recommendation from the UPSC following its assessment.

3.4.1 Content of the Detailed Submission

The invitation to make a Detailed Submission will set out in detail specific requirements for that

Submission and will indicate how the Government intends to assess it. The requirements set by the UPSC

will be on a case-by-case basis. However, the paragraphs below and Appendix E provide a general guide

for Proponents.

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The Detailed Submission should include the following, to the extent that they are relevant to the

Proposal:

 Objectives of the Proposal

 Unique elements of the Proposal:

o Intellectual Property or genuinely innovative ideas

o Ownership of real property

o Ownership of software or technology offering a unique benefits

o Unique financial arrangement

o Unique ability to deliver a strategic outcome

o Other demonstrably unique elements

o Other justifications that the public interest is best served by the Government negotiating directly

with the Proponent, rather than by engaging in an open, competitive process

 Nature and extent of anticipated outcomes

 Alignment with relevant Government policy

 Proposed requirements of the Government and its agencies, such as:

o Transfer of Territory assets

o Direct sale of land

o Cash contribution

o Services from Government agencies

o Deferment of taxes and charges

 Preferred Tender Model.

3.4.2 Public Interest

The Proponent most likely will need to demonstrate in its Detailed Submission, to a greater degree of

rigour and detail than in Phase 1, that the Proposal is in the public interest as well as meeting necessary

legislative/regulatory amendments. The UPSC may require the Proponent to address any particular issues

relating to the public interest identified in Phase 1.

In demonstrating that the Proposal is in the public interest, the UPSC may require the Proponent to

conduct public or stakeholder consultations. Section 5 below provides details of requirements for the

consultation process. The UPSC and/or Cabinet may consider the findings of consultations in making the

decision on whether the Proposal should proceed to Phase 3 – Tender.

3.4.3 Value for Money

The Government will need to determine that a Proposal represents value for money for the Territory. To

assist in this determination, the Detailed Submission should include, to the extent that they are relevant

to the Proposal, descriptions of:

 the proposed commercial proposition, including full financial details

 the net economic benefits/costs of the Proposal to the ACT community over the whole of life of the

Proposal

 the net financial benefits/cost of the Proposal to the Territory

 the required use of Territory assets, facilities, equipment, materials, personnel, resources and land

 the Proponent’s financial and commercial capacity to deliver the Proposal, including return on

investment.

The UPSC may also require the following to assist in its assessment:

 an economic appraisal using a whole-of-life evaluation approach to determine value for money (i.e.

capturing all benefits and costs to the Territory)

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

 a financial appraisal to determine affordability and cash flow position for whole-of-government and

the return of investment for the Proponent

 a risk assessment including quantification (where possible) and proposed mitigation strategies.

The Proponent may also estimate any benefits that will result from any innovative or unique elements

that the Proposal provides for which conventional appraisal methods do not account. The UPSC may

consider such benefits on a case-by-case basis and separately from the standard approach to cost-benefit

analysis.

3.4.4 Appropriate Delivery

The Detailed Submission is likely to include the following:

 the Proponent’s preferred Tender Model and its reasoning for that preference

 further organisation and governance details:

o description of the Proponent’s organisation, trade or business

o previous experience in delivery of similar projects;

o past performance in operating similar projects

o facilities and resources to be used (e.g. land owned by Proponent)

 timescales, critical paths or deadlines

 technical challenges and a discussion of how the Proponent will address them

 requirements of the Government to participate in the project.

The Government Procurement Act 2001 and related Government Procurement Regulation 2007 require

the Government to undertake competitive open tender procurement procedures for activities covered by

them, with very limited exceptions, as described in Section 2.2.2 above. This Act and Regulation cover all

acquisitions and disposals of goods, services, works and property (subject to some specific exemptions for

land). The Government also needs to comply with common law principles of fairness and transparency in

procurement.

If the Proponent prefers the Government to use a different Tender Model to a public tender, it needs to

provide sound justification for consideration by the UPSC. The Government reserves the right to

undertake an open, competitive bidding process for the Proposal, at its absolute discretion.

3.4.5 Phase 2 Decision

Once the UPSC has completed its evaluation of the Detailed Submission, it will decide, at its absolute

discretion, either:

a. that the Government will not consider the Unsolicited Proposal any further, or

b. that the Proposal merits consideration by Cabinet for a decision on whether it should proceed to

Phase 3 - Tender.

The ultimate decision to proceed with a Proposal is the responsibility of Cabinet, informed by the

recommendation of the UPSC. The Treasurer will present the relevant Cabinet Submission. Therefore the

UPSC normally will assign the preparation of the Cabinet Submission to Treasury, which will consult with

the other members of the UPSC and relevant Government agencies as appropriate.

The time taken for a decision on whether a Proposal proceeds to Phase 3 may vary considerably,

depending on the nature and complexity of the Proposal. Government will aim to reach a decision by the

time advised at the start of Phase 2, unless there are particular circumstances that requires additional

time for consideration. Government will contact the Proponent regularly to ensure it is appropriately

informed of the timeline for consideration.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

In the event that either the UPSC or Cabinet ends the assessment of a Proposal, the Government

generally will not consider it further until 18 months have elapsed since the lodgement of the Detailed

Submission, unless the Proponent makes substantial changes to the Proposal.

3.5 TENDER (PHASE 3)

Phase 3 covers the formal procurement of the Proposal up to the execution of a binding contract for its

implementation. It includes the:

 selection and development of an appropriate Tender Model

 tender process itself

 negotiation of the contract for implementing the Proposal

 execution of this contract.

At the commencement of Phase 2, Government will advise the Proponent of its estimated timeframe for

completion. The duration of Phase 3 will vary between Proposals. During this Phase, there is likely to be

considerable interaction between the Proponent, IFR and the Directorates and agencies affected by the

Proposal.

3.5.1 Tender Model Selection

Although the Proponent may nominate its preferred Tender Model in its Detailed Submission, and the

Government will take into account the Proponent’s preference, the Government reserves the right to

select a final Tender Model that it considers to be in the best overall interests of the Territory. It may do

so as part of its Phase 2 decision on the Proposal proceeding to Phase 3, or separately following further

development of the Proposal at the start of or during Phase 3.

The Government may consult the Government Procurement Board during Phase 2 on its views on the

Tender Model.

TABLE 1 below provides summary descriptions of the Government’s preferred alternative Tender Models.

However, Unsolicited Proposals can have various forms and the Government reserves the right to adapt

these models or to develop an alternative model as appropriate for individual Proposals, at its absolute

discretion. In determining the appropriate Tender Model for the Proposal, the Government may require

public or stakeholder consultations. Section 5 below provides details of requirements for the consultation

process.

The Government will seek to ensure that, in any Tender Model involving a competitive tender process, it

provides the same information to all bidders and gives bidders other than the Proponent adequate time

to take account of that information in developing their bids.

Table 1: The Government’s Preferred Commercial Tender Models

Tender Model

Description

Applicability

Open Tender

The Government undertakes a fully competitive

public tender process.

 Default preferred model

 Proposal is not unique

Developer Fee

The Government undertakes a competitive

tender process and the winning bidder, if it is

not the Proponent, reimburses the Proponent’s

pre-agreed development costs.

 Proposal likely to be unique,

but there is the potential for

market alternatives

 Perceived potential for

market alternative

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Tender Model

Description

Applicability

Development

Manager

The Proponent acts as a development manager

for the Territory, conducting one or more

transparent procurement processes for

different components of the implementation of

its Proposal, and receiving a pre-agreed return.

 Proposal likely unique

 Niche model for Proponents

potentially lacking full life-

cycle delivery capability

Contestable

Negotiations

The Territory enters into direct negotiations

with the Proponent, and works cooperatively

with it to develop the Proposal so that it is

acceptable to both parties. The Territory

normally will seek opportunities for elements of

the Proposal to be contestable.

 Unique submission

 A complete market

alternative does not exist

The sections below provide further details of these Tender Models, and Appendix G provides some

examples of hypothetical proposals and the Tender Model that the Government might select for each.

Following its selection of the Tender Model, the Government will develop a detailed Tender Plan for the

conduct of Phase 3. As part of compliance with the Government Procurement Act 2001 and Government

Procurement Regulation 2007, the Government will refer the detailed Tender Plan to the Government

Procurement Board for its review and advice.

3.5.2 Open Tender

As noted in Section 3.4.4 above, the Government Procurement Act 2001 requires the Government to

undertake competitive public tender procurement procedures for activities covered by it, with very

limited exceptions. The criteria that the Government may consider in determining whether to select an

Open Tender model for the Proposal include:

 the Proposal not being unique

 there being legitimate competition to the Proponent

 the Government considering that it is in the best interests of the Territory to have an Open Tender.

The Government would run any Open Tender within the provisions of relevant legislation and its

applicable policies and guidelines, including the Capital Framework and the Partnerships Framework.

The Government may consider an appropriate incentive mechanism for the Proponent to participate in

the Open Tender if this is in the best interests of the Territory.

The Proponent has the right to withdraw its Proposal at this stage, and the Government and its agencies

will take all reasonable steps to protect the genuine Intellectual Property of the Proponent. However,

should the Proponent withdraw its Proposal, the Government reserves the right to proceed with an Open

Tender for the concept of the Proposal, if it deems this to be in the best interests of the Territory.

3.5.3 Developer Fee

The Developer Fee approach recognises that the Proponent is entitled to some reimbursement of its costs

or compensation should it be unsuccessful in a competitive bidding process. Generally, the successful

bidder (if not the Proponent) will pay this fee directly to the Proponent on contract signature. The

Government will advise bidders of the amount of the fee in the bid documents.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

The Government will determine the amount of the fee at its absolute discretion, but will take into account

such factors as:

 the Proponent’s cost of developing its Proposal

 the value of the Proponent’s Intellectual Property contained within its Proposal

 the nature and size of the project

 the number of bidders involved.

The content of the Proponent’s submission will be a major consideration in determining the amount of

the fee, but the Government may also consider the context of the Proposal.

Where the fee relates directly to the Proponent’s Intellectual Property, its amount will reflect the

Proponent transferring this Intellectual Property to the Government and, subsequently, to a successful

alternative bidder.

3.5.4 Development Manager

Under a Development Manager approach, the Proponent develops the project and conducts the bidding

process on behalf of the Government, as its procurement manager. The Proponent cannot bid for the

project but receives a development fee from the winning bidder.

This is a niche approach available to a Proponent who may lack the full capability to deliver its Proposal

(which might involve, for example, a major capital project) but still is entitled to compensation for an idea,

concept or design that is unique. It is also appropriate where the Government does not have sufficient

capability or resources to develop the technical specifications for a tender process, while ensuring that

the approach remains compliant with the Government Procurement Act 2001. The determination of the

amount of the fee paid to the Proponent by the successful bidder will follow the same process as that

under the Developer Fee approach.

3.5.5 Contestable Negotiations

In the Contestable Negotiations approach, the Government or one of its agencies enters into direct

negotiations in good faith with the Proponent, and both parties work cooperatively to develop the

Proposal to be acceptable to both parties.

Although this is a relatively straightforward process, it offers the least amount of competitive tension and

procedural transparency. As such, the Government is likely only to use it if the Proponent’s Proposal

clearly is unique and innovative. However, other factors, including timeliness, procurement costs and

value for money, may form part of any decision to undertake direct negotiations.

The Government will seek opportunities for elements of the Proposal to be contestable. For example,

although the Government may give the Proponent exclusive rights to develop the Proposal, it may require

there to be a competitive open tender for construction works.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

4. GOVERNANCE

4.1 OVERVIEW

This section provides guidance on the governance, resourcing, delegation and proper conduct throughout

the evaluation and tendering of Unsolicited Proposals. This guidance does not represent a contract or any

form of implied contract between the ACT Government and prospective Proponents.

4.2 ROLES AND RESPONSIBILITIES

The UPSC may consider and determine several factors in its approach to the governance of Proposals.

These factors may include:

 the identification of any Intellectual Property and how the Government will manage it

 the decision making and approval processes appropriate to the Proposal, including any necessary

statutory approvals

 the roles and responsibilities of individuals and committees involved in assessment and decision

making

 a timetable for completing various elements of the assessment.

4.2.1 Unsolicited Proposals Steering Committee

The UPSC consists of the following three core members, who meet on an ‘as-required’ basis:

 The Head of Service, ACT Public Service

 The Under Treasurer

 The Director-General of the Environment, Planning and Sustainable Development Directorate.

Where appropriate, other senior officers may deputise for UPSC members or actively participate in the

UPSC where an Unsolicited Proposal relates to their Directorate or agency.

The UPSC may also elect to refer to the Government’s Strategic Board for advice and input if the

Unsolicited Proposal affects multiple directorates.

4.2.2 Government Procurement Board

The Government Procurement Board was established under the Government Procurement Act 2001. Its

functions include reviewing and giving advice on procurement proposals and activities referred to the

board by a Minister or responsible chief executive officer, and reviewing procurement proposals of

territory entities, all in accordance with the Government Procurement Regulations 2007.

The board consists of the following nine part-time members, who are appointed for a maximum of five

years:

 the chairperson;

 the deputy chairperson;

 3 public employee members;

 4 non-public employee members

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

4.3 PROBITY

The Government and the ACT public service seek to conduct their dealings with private industry with

integrity and procedural transparency. The identification and evaluation of any Unsolicited Proposals

must be fair, open and demonstrate probity, consistent with the public interest.

The following probity principles apply throughout the Phased Process:

 upholding professional integrity

 maintaining impartiality

 maintaining accountability and process transparency

 avoiding conflicts of interest

 maintaining confidentiality, except where these Guidelines provide otherwise

 undertaking evaluations and assessments within robust governance arrangements.

Although the Government and its employees will take all reasonable steps to protect the genuine

Intellectual Property of the Proponent during the Phased Process, Proponents should be mindful that they

submit their Proposals at their own risk. The Government generally will only recognise the need to protect

Intellectual Property once it invites the Proponent to lodge a Detailed Submission following the

assessment of its Concept Submission in Phase 1. Anything submitted by a Proponent as part of its

Unsolicited Proposal may be subject to disclosure under the Freedom of Information Act 2016.

The Proponent has the right to withdraw its Proposal at any point during the Phased Process, including if

the Government decides on a Tender Model different to that preferred by the Proponent. However, in

such circumstances, the Government reserves the right to proceed with a Proposal’s objectives without

the involvement of the Proponent, but also without the use of the Proponent’s genuine Intellectual

Property, should it deem this to be in the best interests of the Territory.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

5. COMMUNICATION AND CONSULTATION

5.1 OVERVIEW

This section provides guidance on the communication of and consultation on Unsolicited Proposals. It also

provides guidance to the Proponent, the general public and other relevant stakeholders on the roles,

responsibilities and expectations relating to consultation during the Phased Process.

5.2 REPORTING AND PUBLIC DISCLOSURE

If the UPSC decides to invite a Proponent to present its Proposal within the Phase 1 process, the

Government will publish on the CMTEDD website summary information on the Proposal based on the

details provided in the Proponent’s Public Declaration (Appendix F).

These details include the:

 name of the Proposal

 name of the Proponent

 summary of the Proposal

 date of the Concept Submission

 Media Contact of the Proponent

 signed acknowledgement from the Proponent that the Proposal is not a Government proposal, is not

necessarily supported by the Government and has been lodged under the Government’s Guidelines

for Unsolicited Proposals.

The Government will not publish details of Proposals that do not proceed to a Phase 1 presentation.

Proposals proceeding to Phase 2 may subsequently be subject to additional disclosures, at the absolute

discretion of Cabinet.

Anything submitted by a Proponent as part of its Unsolicited Proposal may be subject to disclosure under

the Freedom of Information Act 2016.

5.3 PUBLIC CONSULTATION

Public consultation on a Proposal may occur within any Phase of the assessment process (i.e. either

before or after Cabinet has considered the merits of that Proposal). Cabinet must provide prior approval

for all public consultation processes for a Proposal.

Public consultation involves seeking the views of stakeholders outside the Government and its agencies,

including the general public, on aspects of the Proposal. It would not involve the release of the

Proponent’s Intellectual Property without the express approval of the Proponent, unless required by law.

5.4 ROLES AND RESPONSIBILITIES

Public consultation may be either:

 entirely the responsibility of the Proponent

 led by government officers; or

 led by the Proponent with participation by Government officers.

Cabinet, informed by the recommendation of the UPSC, will determine the consultation method and the

allocation of responsibilities. The Proponent must abide by all consultation requirements of the

Government.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

The Government may undertake consultation with both internal stakeholders and external stakeholders,

including the general public, who have an interest in the Proposal, in accordance with these Guidelines

and at its absolute discretion.

5.5 INTRA-GOVERNMENTAL CONSULTATION

Consultation and communication among Government agencies is intrinsic to the Unsolicited Proposal

process and will take place as required on a case-by-case basis.

5.6 TREASURER AND CABINET

The Treasurer is the Minister responsible for these Guidelines for Unsolicited Proposals. CMTEDD will

inform the Treasurer, and subsequently Cabinet:

 of any new Proposals submitted in the form of a Concept Submission in Phase 1

 quarterly on the status of all Unsolicited Proposals under consideration

 in advance of any submission of a Proposal to Cabinet for a decision on its progression through the

Phased Process and on any other significant matters such as public consultation and the choice of a

Tender Model

 at any other time on an as-required basis.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

APPENDICES

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THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Appendix A: Glossary

Term

Definition

ACT

The Australian Capital Territory

Cabinet

Cabinet is the peak decision-making body of Ministers of the ACT Government.

Cabinet usually meets weekly to discuss matters that have significant implications

for the Territory, communities, business and individuals.

CMTEDD

The Chief Minister, Treasury and Economic Development Directorate of the

Government

Concept Submission

The initial formal document submitted to the Government that provides a

description of the concept of an Unsolicited Proposal for consideration by the

Unsolicited Proposals Steering Committee, as further described in Section 3.3

and Appendix E. Lodging a Concept Submission with IFR marks the formal

commencement of Phase 1 of the Phased Process under these Guidelines.

Covering Letter

Covering letter attached to the initial submission made by the Proponent to

initiate the Phased Process for Unsolicited Proposals, substantially in the form

shown in Appendix C.

Detailed

Submission

A fully developed and robust detailed business case supporting an Unsolicited

Proposal, submitted by the Proponent following a decision that the Unsolicited

Proposal should pass to Phase 2 of the Phased Process under these Guidelines.

Directors General

Respective service heads of Government directorates.

Economic Appraisal

A systematic means of analysing all the costs and benefits of various ways to

meet a project objective. It shows:

 whether the benefits of a project exceeds its costs

 which, among the range of options to achieve an objective, has the highest

net benefit

 which option is the most cost effective, where benefits are equivalent.

Expression of

Interest (“EoI”)

A formal document expressing interest in delivering a project, normally

including details of the provider’s experience and capability in meeting the

requirements of the project.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Term

Definition

Financial Appraisal

A method used to evaluate the financial viability of a proposed project. It

assesses the extent to which a project will generate revenues sufficient to meet

its financial obligations, as measured by the Net Present Value (“NPV”) (where

applicable) of its cash flows. The method takes account of all revenues resulting

from, and expenditures incurred under, the project and the whole of

Government.

It assesses:

 project cash flows

 sensitivity of financial projections to key project risks

 adequacy of estimated investment costs

 the financial impact of alternative projects.

Government

The Government of the Australian Capital Territory

Head of Service

The Head of the ACT public service and Director General of the Chief Minister,

Treasury and Economic Development Directorate.

IFR

The Infrastructure Finance & Reform branch of the Chief Minister, Treasury and

Economic Development Directorate.

Intellectual

Property

Inventions, original designs and practical applications of good ideas protected

by law through copyright, patents, registered designs, circuit layout rights and

trademarks. It also includes trade secrets, proprietary know-how and other

confidential information protected against unlawful disclosure by common law

and through additional contractual obligations such as Confidentiality

Agreements.

Phased Process

The Government’s three-phase process for validating, evaluating and awarding

projects initiated by Unsolicited Proposals.

Pre-Proposal

Meeting

A meeting between the Proponent and IFR officers held before the formal

submission of an Unsolicited Proposal by the Proponent

Proponent

Any person or organisation that submits the Unsolicited Proposal, except for

Government agencies and directorates.

Proposal

See Unsolicited Proposal below.

Strategic Board

The Strategic Board is the senior management team for the ACT public service.

The Head of Service chairs the Strategic Board, and its other members are the

Under Treasurer and the Directors-General of each of the Directorates.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Term

Definition

Tender Model

One of the alternative processes for the procurement of the works, goods

and/or services that are the subject of the Proposal, as described in Section 3.5.

Territory

 when used in a geographical sense, means the Australian Capital Territory

 when used in any other sense, means the body politic established by

Section 7 of the Australian Capital Territory (Self Government) Act 1998

(Commonwealth of Australia).

Unsolicited

Proposal, or

Proposal

An approach by a Proponent with a proposal, not requested or otherwise

solicited by the Government or its agencies, that entails:

 the construction and/or financing of public infrastructure

 the transfer of assets between the public and private sector in relation to

the provision of public infrastructure

 the divestment and/or outsourcing of public assets and/or services

 business partnerships and collaboration between the public and private

sectors that involve considered entrepreneurship

as described in Section 2.2.

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Appendix B: Sources

The ACT Government gratefully acknowledges the following documents as sources for much of the

information in these Guidelines.

Asian Development Bank & GHD Pty Ltd (2012), Final Draft – Policy Brief Unsolicited Proposals

Government of South Australia Department of Treasury and Finance, Guidelines for Assessment of

Unsolicited Proposals

Hodges, J, Dellacha, D (2007), Unsolicited Infrastructure Proposals: How Some Countries Introduce

Competition and Transparency – Working Paper No. 1, Public Private Infrastructure Advisory Facility

Nova Scotia Procurement (2009), Procurement Process: Submission & Evaluation of Unsolicited Proposals

NSW Government (2017), Unsolicited Proposals – Guide for Submission and Assessment

Public Private Infrastructure Advisory Facility (2012), Note 6 – Unsolicited Proposals

Queensland Government Treasury (2017), Market Led Proposal Guidelines

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Appendix C: Covering Letter Template

[Date]

Head of ACT Public Service

Chief Minister, Treasury and Economic Development Directorate

GPO Box 158

Canberra ACT 2601

RE: UNSOLICITED PROPOSAL – [SUBJECT]

Dear Sir/Madam,

[Letter to contain brief detail of the following:

 Introduction to the Proponent

 Proposal idea/concept

 Total estimated investment for the Proposal

 Value proposition to the Territory

 Contact details.]

Yours faithfully

[Signature]

[Name & Title]

[Organisation]

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Appendix D: Declaration to Abide by Process

Date

Name

Organisation

Head of ACT Public Service

In relation to

Declaration

I, ___________________________________________________, [insert full name] of

__________________________________________________________ [Insert organisation and address]

agree and acknowledge that I abide by the process outlined in this document, including the following:

 that I am not transferring any Intellectual Property to the Territory in this Concept Submission, and

that any material presented will be at my risk of public disclosure

 that I will not make any approach regarding the Unsolicited Proposal to Ministers, Ministerial staff or

other officers within the ACT Government prior to, during and after the Phased Process

 that, in the event that the ACT Government rejects my Unsolicited Proposal, I will not make any

further approach to the ACT Government regarding it until at least 18 months have transpired since

the date of this Concept Submission.

Executed as a Deed

Signed, seal and delivered

Signature of

Declarant

Name of Declarant

Signature of

Witness

Name of Witness

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Appendix E: Concept Submission

Proponents should provide the information requested below in their Concept Submission of their

Unsolicited Proposal. Proponents may either complete this form in the gaps below or use their own

document with company branding, etc. If using a separate document, Proponents should ensure that they

provide the information sought below. The Proponent may include additional information that it sees as

beneficial.

Prospective proponents may also find it useful to complete a draft version of this form as a framework for

discussions in the Pre-Proposal Meeting with IFR officers.

Title and abstract of Proposal (maximum 200 words)

Proponent:

(Name of

Company/

Consortium/

Individual etc.)

Address:

Identity:

[Individual, sole trader,

company, etc.]

Type of

Organisation/

Consortium:

[profit / non-profit,

educational, small business,

etc.]

Contact

person(s):

Name:

Phone:

Email:

Date of Submission:

Preferred Commercial Tender Model

[Open Tender, Developer Fee, Development

Manager, Contestable Negotiations]

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Proposal Details – Briefly include information on the Proposal objectives, Proposal methodology,

anticipated outcomes and the benefits the Proposal will bring to citizens of the ACT. (maximum 500

words)

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Assessment Criteria – Please provide a brief description, of less than 200 words for each criterion, of how

the Proposal would meet each of the following assessment criteria.

Community Need – what are the economic, social, environmental or other benefits to the residents of the

ACT (these should be clear and measurable)?

Reason for Direct Negotiation – what characteristics of the Proposal support a government decision to

provide an exclusive mandate? e.g. uniqueness, not deliverable by competitors, exclusive Intellectual

Property rights, ownership of strategic assets such as contractual rights or real property, unique financial

arrangements, etc.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Value for money – what is the price of the Proposal relative to comparable projects? What is the sharing

of costs and risks between the Government and the proponent?

Organisational Capacity and Capability – what is the Proponent’s previous experience in similar projects,

relevant commercial and trading history, financial capacity, prior dealing with Government, skills,

experience and competencies required to deliver the Proposal; and any reliance on third parties.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Financial and commercial details – Please provide a brief description of the financial and commercial

details of the Proposal and the Proponent’s financial capacity to deliver the Proposal. Clearly explain the

proposed commercial proposition.

Costs and requirements of Government – This section may include legislative/regulatory amendments,

finance or the use of Government assets, facilities, equipment, materials, personnel, resources and land.

What would be the cost of Government providing these resources? (e.g. What is the value of Government

land required for the Proposal?)

Risks – for both the Proponent and Government – This section should contain a comprehensive

description of the risks relating to the Proposal, together with proposed mitigation measures.

Intellectual Property details

If applicable, please provide a description of the following:

 Inventory of each item of Intellectual Property

 Nature of the Intellectual Property claimed (e.g. copyright, patent, etc.)

 The owner(s) of the Intellectual Property claimed

 Registration details (where applicable)

 Details of any items for which confidentiality is wholly or partly claimed

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Competing Proposals

Demonstrate how the Proposal enjoys advantages over other potential proponents such that the

Government could not reasonably expect a better value for money outcome from a competitive tender

process.

Previous contact with the Government

Provide the name, agency and contact details of anyone within the Government (including the ACT public

service and Government agencies) with whom previous discussions about this project have occurred.

Expiry

Advise of any time period over which the Proposal will remain valid, which should be a minimum of six

months

Other Statements

For example, please detail any applicable organisational conflict of interest and environmental impacts.

This Proposal is to be signed by a representative of the Proponent authorised to represent and

contractually bind the Proponent.

Name:_________________________________

Position:________________________________

Signature:_______________________________

Date:___________________________________

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Appendix F: Public Declaration

The ACT Government may publish the details provided below on its Treasury website. The Government is

not in a position to comment on a Concept Submission or the related Unsolicited Proposal at the time of

its lodgement.

Anything submitted by a Proponent as part of its Unsolicited Proposal may be subject to disclosure under

the Freedom of Information Act 2016.

Date

Proponent

Media Contact of

Proponent

Name of Proposal

Summary of

Proposal (please

keep to 50 words)

Declaration

I, ___________________________________________________, [insert full name and title] of

__________________________________________________________[Insert organisation and address]

acknowledge that the ACT Government may publish the details provided above on its website.

Executed as a Deed

Signed, seal and delivered

Signature of

Declarant

Name of Declarant

Signature of

Witness

Name of Witness

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Appendix G: Examples of hypothetical proposals

and possible Tender Models

Example 1

The Proposal involves the provision of new technology that will result in substantial cost savings for the

Government, and have no adverse social or environmental impacts. The Government is not aware of any

other parties that could provide similar technology with similar benefits. The Proponent’s proposed role is

as licensor and operator of the technology. It would need another party to construct the necessary

infrastructure.

The Government’s likely Tender Model is Contestable Negotiations. The Government will run a public

tender for the contestable parts of the Proposal: the construction of the necessary infrastructure.

Example 2

The Proposal involves the provision of a new economic infrastructure project (i.e. for which user charges

will make up a substantial part of the funding). The Proponent owns a complementary infrastructure

project and can operate the two projects together to result in substantial cost savings and/or additional

revenue over those that would result from separate ownership of the new project. The Proponent’s

proposed role is developer, owner and operator of the infrastructure. It would need other parties to

undertake detailed design, construction and provision of debt finance.

The Government’s likely Tender Model is Contestable Negotiations. There would be public tenders for the

contestable parts of the Proposal: the design and construction of the infrastructure and the provision of

debt finance.

Example 3

The Proposal involves the provision of new infrastructure that will be of clear benefit to the Territory. The

Proponent has undertaken substantial work in developing the Proposal, including preparing a detailed

design for it. The Proponent’s proposed role is to undertake the entire project: design, construction,

finance, operation and maintenance.

However, the Proponent does not have any particular competitive advantage in undertaking the project,

other than having proposed it initially. Several other parties could undertake the entire project and

possibly be more competitive than would be the Proponent.

The Government’s likely Tender Model is the Developer Fee. There would be a public tender for the

project. The Proponent would be able to bid. If it were unsuccessful in its bid, the winning bidder would

pay it a pre-agreed fee in recognition of the Intellectual Property and detailed work it had undertaken on

its original Proposal.

THE PARTNERSHIPS FRAMEWORK – GUIDELINES FOR UNSOLICITED PROPOSALS

Chief Minister, Treasury and Economic

Development Directorate

March 2020