What is a funding entity?

Under the Code, each of the following is a funding entity:

  • A non-corporate Commonwealth entity as defined in the Public Governance, Performance and Accountability Act 2013 (PGPA Act).
  • A corporate Commonwealth entity as defined in the PGPA Act that is directed by the Minister for Finance to comply with the Code.

A complete list of Commonwealth entities and companies is published annually by the Department of Finance. If your agency’s name is shaded purple, it’s a funding entity.

View the complete list of PGPA Act Commonwealth entities and companies.

If you’d like to learn more about what defines a funding entity, you can review the complete PGPA Act here.

Related Resource

Preparing and issuing the expression of interest (EOI) or tender

On 26 July 2022, the Code for the Tendering and Performance of Building Work 2016 (Code) was amended by the Code for the Tendering and Performance of Building Work Amendment Instrument 2022 (the Amendment Instrument).

For funding entities, the only remaining requirements of the Code are sections 25A and 26(8) of the Code as follows:

  • 25(1)    A funding entity must ensure that before a contract is entered into in respect of Commonwealth funded building work, the preferred tenderer provides the following information:
    • the extent to which domestically sourced and manufactured building materials will be used to undertake the building work;
    • whether the building materials to be used to undertake the building work comply with relevant Australian standards published by, or on behalf of, Standards Australia;
    • the preferred tenderer’s assessment of the whole-of-life costs of the project to which the building work relates;
    • the impact on jobs of the project to which the building work relates; and
    • whether the project to which the building work relates will contribute to skills growth.
  • 26(8)    A funding entity must only enter into a contract in respect of Commonwealth funded building work with a code covered entity that only uses products in building work that comply with the relevant Australian standards published by, or on behalf of, Standards Australia.

What are my responsibilities regarding tenders and expressions of interest?

Section 25A

To fulfil the requirements of section 25A, funding entities may wish to ask the tenderers to complete a table similar to the one below as part of the tender and/or expression of interest process:

To what extent does the Tenderer intend to use domestically sourced and manufactured building materials to undertake the building work? Details:
Do the building materials to be used to undertake the building work comply with relevant Australian standards published by, or on behalf of, Standards Australia? Details:
What is the Tenderer’s assessment of the whole-of-life costs of the project to which the building work relates? Details:
What does the Tenderer consider the impact on jobs will be of the project to which the building work relates? Details:
Does the Tenderer consider that the project to which the building work relates will contribute to skills growth? Yes/No

Please note that this wording is not intended to be prescriptive.  

Section 26(8)

Whilst it is a matter for funding entities in deciding how to best fulfil the requirements of section 26(8), funding entities may wish to:

  • include the following requirement as part of the tender and/or expression of interest process:
    • Respondents/Tenderers will only use products in relation to the building work that comply with the relevant Australian standards published by, or on behalf of, Standards Australia;
  • include words to the following effect in their contract with a contractor:
    • The contractor must only use products in building work that comply with the relevant Australian standards published by, or on behalf, Standards Australia.
    • The contractor must ensure that any agreement that it enters into with a subcontractor in relation to the building work requires the subcontractor to only use products in relation to the building work that comply with the relevant Australian standards published by, or on behalf of, Standards Australia

Please note that this wording is not intended to be prescriptive.  

What about WRMPs?

The Code no longer contains any requirements in relation to Workplace Relations Management Plans (WRMPs). For this reason, the ABCC will no longer assess WRMPs. The ABCC will not be accepting new WRMPs submissions and any WRMPs previously submitted will not be assessed.

Related Resource

Assessing tender responses

What are the eligibility requirements for contractors?

Please note that the eligibility requirements of the Code relating to enterprise agreements have been removed. Accordingly, there is no longer a prohibition on contractors being covered by a non-compliant enterprise agreement in respect of building work, or contracting for Commonwealth funded building work while covered by a non-compliant enterprise agreement in respect of building work. Funding entities should not require tenderers to provide a Determination of Compliance from the ABCC or a Self-Declaration of Eligibility A form.  

Exclusion Sanctions

As a result of the July 2022 amendments, the Code now provides that exclusion sanctions currently in force continue in effect. There is currently one exclusion sanction in force, which was imposed by the former Minister for Industrial Relations against New South Wales company Landmark Roofing Pty Ltd (ACN 108 495 923) after the company was found to have failed to comply with work, health and safety laws, leading to the tragic death of an apprentice roof plumber.  The sanction remains in place until 1 February 2023.

Effects of the exclusion sanctions are as follows:

  • Another code covered entity must not enter into an agreement in respect of building work with the sanctioned entity as a subcontractor, unless approval to do so is provided by the Minister.
  • The sanctioned entity is not eligible to be awarded Commonwealth funded building work.
  • A funding entity must not enter into a contract in respect of Commonwealth funded building work with the sanctioned entity.

Related Resources

Awarding the contract

For funding entities, the only remaining requirements of the Code are sections 25A and 26(8) of the Code.

What must I do before entering a contract?

Before entering into a contract for Commonwealth funded building work, a funding entity must ensure that the preferred tenderer provides the following information:

  • The extent to which domestically sourced and manufactured building materials will be used to undertake the building work.
  • Whether the building materials to be used for the work comply with relevant Australian standards published by, or on behalf of, Standards Australia.
  • An assessment of the whole-of-life costs (the total cost) of the project to which the building work relates.
  • The impact on jobs of the project to which the building work relates.
  • Whether the project to which the building work relates will contribute to skills growth.

Are there any other contract requirements?

Yes, the Code provides an additional requirement to which funding entities must adhere as follows:

  • A funding entity can only enter into a contract for building work with a code covered entity if the code covered entity uses only products that comply with the relevant Australian standards published by, or on behalf of, Standards Australia.

How can I ensure my responsibilities are met?

Due to the extensive changes to the Code, previous template clauses (including the ABCC model clauses) will no longer be appropriate.

Please see the above section, What are my responsibilities regarding tenders and expressions of interest?.

Should I notify the ABCC when I appoint a head contractor?

No, funding entities are no longer required to notify the ABCC when a tender process is completed and a code covered entity has been awarded a contract to undertake Commonwealth funded building work.