Eligibility to tender
The Code sets out two eligibility requirements for Contractors seeking to express interest in or tender for Commonwealth funded building work. These criteria relate to exclusion sanctions, and compliance with section 11 of the Code.
While the ABCC generally seeks voluntary rectification by contractors of breaches in the first instance, the Codes provide that the ABC Commissioner may refer breaches to the Minister for Employment with recommendations, if any, that a sanction should be imposed. The Minister in turn can choose to impose an exclusion sanction, or a formal warning.
An exclusion sanction means a period during which a code covered entity is not permitted to tender for, or be awarded, Commonwealth funded building work. Details of current exclusion sanctions are published on our Current sanctions page.
Compliance with Section 11 of the Code
To demonstrate compliance with section 11 of the Code, contractors require either a Letter of Compliance, or an appropriate Self-Declaration. The evidence required of each contractor is different depending on the type of industrial arrangement(s) the contractor operates under, when the arrangement was made, and when the contractor has/is tendering for Commonwealth funded building work.
Letters of compliance, self-declarations and preliminary advice on agreement content
The ABCC issues Letters of Compliance for enterprise agreements made on or after 25 April 2014 that meet Building Code 2016 requirements (an ABCC Determination). The ABCC can also provide advice on whether individual clauses and proposed agreements meet the requirements of the Building Code 2016. Refer below to ‘How do I Apply for a Letter of Compliance’.
Contractors who are covered by an enterprise agreement(s) made on or after 2 December 2016 (regardless if it applies to the work, or if the contractor is also covered by other agreements), require an ABCC Letter of Compliance to demonstrate eligibility to express interest in, tender for and be awarded a contract for Commonwealth funded building work. A self-declaration may also be required if covered by other agreements and depending on the date of tender submission.
There are five different Self-Declarations available for contractors to demonstrate eligibility to express interest in or tender for Commonwealth funded building work, and in some cases to demonstrate eligibility to be awarded the contract for that work.
Contractors who are only covered by enterprise agreements made before 25 April 2014 or are covered by a Modern Award or other lawful workplace arrangements can use Self-Declaration A (Word - 150K | PDF - 175K) to demonstrate eligibility to express interest in, tender for and be awarded a contract for Commonwealth funded building work.
Contractors with agreements made from 25 April 2014 and prior to 2 December 2016 (regardless if it applies to the work, or also covered by other agreements including agreements made from 2 December 2016), require a Self-Declaration B, C, D or E and/or an ABCC letter of Compliance to demonstrate eligibility to express interest in, tender for and be awarded a contract for Commonwealth funded building work.
All requirements are set out in the proof of eligibility table, which indicates the required Self-Declaration and/or Letter of Compliance based on your specific scenario. View the table (Word - 40K | PDF - 460K)
Why are there letters of compliance and self-declarations?
The amendments to the Building and Construction Industry (Improving Productivity) Act 2016 on 17 February 2017 reduced the transition period for enterprise agreement content from two years to nine months. The new transition period concludes 31 August 2017.
The amendments provided for limited exemption provisions for companies with non-code compliant agreements to tender for, and in some circumstances be awarded, Commonwealth funded building work, depending on when the agreement was made, when Commonwealth funded building work was/is tendered for, and whether the company operates under other enterprise agreements or other industrial arrangements.
Self-Declarations provide a streamlined form of evidence for those situations where a Letter of Compliance is not required. Each of the Self-Declarations outline in what circumstance they can be utilised, and when they are valid until, providing companies and funding entities assurance that Code requirements are being met by both parties.
What if I have a "transitional letter" of compliance for an enterprise agreement made before 2 December 2016?
If the ABCC issued you with a letter of compliance for an enterprise agreement made before 2 December 2016 that states you are eligible to tender until 29 November 2018, this letter is no longer valid as evidence that you are eligible to express interest in, tender for or be awarded a contract for Commonwealth funded building work. You will instead need to complete the appropriate Self-Declaration and where relevant apply for an ABCC Letter of Compliance as outlined above.
Am I eligible to tender with a non-compliant agreement? What evidence can I use?
Some contractors may be still eligible to express interest in, tender for or be awarded a contract for Commonwealth funded building work as they qualify for an exemption under the Code amendments. The ABCC has developed a proof of eligibility table for contractors to guide them as to whether they require a letter of compliance or are eligible for an exemption. View the table (Word - 40K | PDF - 460K).
How do I apply for a letter of compliance or preliminary advice?
To streamline the assessment process, the ABCC has introduced a two-step process which requires stakeholders to undertake a preliminary review of any proposed agreement before submitting it to the ABCC for consideration. Commence your preliminary review.
How long will the process take to receive a letter of compliance or preliminary advice?
The time to assess an agreement varies based on a number of factors depending on the agreement’s length and the extent to which it is compliant with the Building Code. The timeframe also depends on when the agreement was submitted. A large volume of agreements were received in December when the Code was first passed, which has impacted the timelines for those stakeholders.
Stakeholders seeking assessment of draft agreements are encouraged to use the guidance material to undertake a review of their agreement.
Those stakeholders who submitted an agreement prior to the guidance material being published by the ABCC (9 March 2016), can undertake a preliminary review of their agreement and, if they find it does not meet the requirements of the Building Code, can resubmit their agreement and not lose their place in the queue. Individual clauses can also be submitted for advice to clauseadvice [at] abcc.gov.au (subject: Eligibility%20to%20tender) and the advice will be provided as soon as possible. Commence your preliminary review.
Need more information?
See the Application of Code Amendments factsheet for information about how the amendments to the Code affect contractors.
For further information or assistance contact the ABCC Hotline on 1800 003 338.