Footnotes

Footnotes

Executive summary and recommendations

[1]        The estimated annual contract price is approximately AUD $30.937 m (exclusive of fuel costs) with a contract period of two years, plus two one year options.

Chapter 1 - Introduction

[1]        Journals of the Senate, 24 November 2010, pp. 14–15.

[2]        Senate Foreign Affairs, Defence and Trade References Committee, Interim Report: Inquiry into the Department of Defence's request for tender for aviation contracts and associated issues (27 April 2011).

[3]        The relevant panel is the Air Transport Standing Offer Panel—DNL09009. It was established by the Air Transport Deed of Standing Offer, 2 November 2009 (AusTender SON179438).

[4]        See: https://www.aph.gov.au/Senate/committee/fadt_ctte/aviation/index.htm (accessed 23 March 2011).

[5]        See: https://www.aph.gov.au/Senate/committee/fadt_ctte/estimates/index.htm. (accessed 23 March 2011).

[6]        'AFCD Review'. This document was provided to the committee as Department of Defence, Submission 5, Attachment E.

[7]        'PwC Review'. This document was provided to the committee as Department of Defence, Submission 5, Attachment B.

[8]        'Deloitte Review'. This document was provided to the committee as Deloitte Touche Tohmatsu, Submission 3, Attachment. Defence also provided a copy of this report to the Legislation Committee at the Supplementary Budget Estimates hearing on 19 October 2010.

[9]        'AGS Review'. Defence provided a substantially un-redacted copy of this report to the committee under cover of letter to the Committee Secretariat dated 28 March 2011. A version with more substantial redactions was provided to the Legislation Committee at the Supplementary Budget Estimates hearing on 19 October 2010.

Chapter 2 - Background to the 2010 tender process

[1]        For convenience, a list of key entities and personnel is provided at Appendix 4 to this report.

[2]        Department of Defence, Submission 5, Attachment A, p. 1.

[3]        Department of Defence, Submission 5, Attachment A, p. 1.

[4]        Department of Defence, Submission 5, Attachment A, p. 1.

[5]        Department of Defence, Submission 5, Attachment A, p. 1. See further Department of Defence Audit and Fraud Control Division, Final probity review report: probity review of tender process for air sustainment services to the Middle East Area of Operations (MEAO ('AFCD Review'), Review Task 11-058, September 2010, pp. 25–26.

[6]        Defence advised that these services were provided by Emirates and Etihad Airways: Department of Defence, Submission 5, p. 2 (footnote 9).

[7]        Defence advised that chartered aircraft included Soviet-made Antonov AN12 and AN 124 and Ilyushin IL 76: Submission 5, pp. 2 (footnotes 6 and 7), 28. Adagold Aviation was among the contractors who chartered these aircraft: Senator the Hon Robert Hill, Minister for Defence, Senate Hansard, 8 September 2003, p. 14506.

[8]        Department of Defence, Submission 5, Attachment A, p. 2.

[9]        Department of Defence, Submission 5, Attachment A, pp. 1–2.

[10]      Department of Defence, Submission 5, Attachment A, p. 2.

[11]      Australian Government Solicitor, Legal and legal process review of the procurement process for the Middle East Area of Operation (MEAO) Air Sustainment Support Contract ('AGS Review'), 15 September 2010, p. 3; AFCD Review, p. 7.

[12]      Department of Defence, Contracts Listing for 1/7/2004 to 30/6/2005, Senate Order on Departmental and Agency Contracts, p. 44.

[13]      Mr Shaun Aisen, Proof Committee Hansard, Canberra, 29 March 2011, p. 4; Department of Defence, Submission 5, Attachment A, p. 5.

[14]      Department of Defence, Submission 5, Attachment A, p. 2.

[15]      Lieutenant-General Ken Gillespie, Vice Chief of Defence Force, Committee Hansard, Estimates, 1 November 2006, p. 85.

[16]      Department of Defence, Contracts Listing for 1/7/2005 to 30/6/2006, Senate Order on Departmental and Agency Contracts, p. 243. As an indication of the value of the contracts Defence's contracts listing shows contracts with Strategic valued at $28.6 m, duration 212 days, commencing on 25 October 2005; $34.4 m, duration 168 days, commencing 25 April 2006; $42.8 m, duration 186 days commencing 26 October 2006; $32 m, duration 213 days commencing 1 April 2007; and $35.5 m, duration 187 days commencing on 24 April 2008.

[17]      Department of Defence, Submission 5, Attachment A, p. 3. The Department of Defence, Contracts Listing for 1/7/2008 to 30/6/2009, Senate Order on Departmental and Agency Contracts shows contracts with Strategic valued at $100 m, duration 890days, commencing on 16 May 2008 and $122  m, duration 395 days, commencing 1 October 2008, pp. 213, 358.

[18]      Dr Brendan Nelson, MP, answer to question on notice, House of Representatives Hansard, 12 September 2007, p. 207; Lieutenant-General Ken Gillespie, Vice Chief of Defence Force, Committee Hansard, Estimates, 1 November 2006, p. 85.

[19]      Department of Defence, Submission 5, Attachment A, p 5; Department of Defence, Response to Questions on Notice, Supplementary Budget Estimates 2010-2011, response to question (b).

[20]      Contract Change Proposal No 7, dated 5 March 2010, cited in Department of Defence, Submission 3, Attachment A, p. 19.

[21]      Department of Defence, Submission 3, Attachment A, p. 19.

[22]      The reasons for doing so are summarised in: Department of Defence, Submission 5, Attachment A, pp. 2–3 and discussed in chapter 3.

[23]      Department of Defence, Submission 5, Attachment A, pp. 2–3.

[24]      See for example, Deloitte, 'Examination of the procurement process for Tender RFT AO/014/09-10 September 2010, p. 7.

[25]      Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 46.

[26]      Department of Defence, Submission 5, Attachment A, pp. 3–4.

[27]      Department of Defence, Submission 5, Attachment A, p. 4.

[28]      In October 2010, Strategic was awarded an interim contract for flights from 23 October to 22 November 2010, pending finalisation of the 2010 tender process: Department of Defence, Submission 5, Attachment A, p. 11, Annexure A.

[29]      Department of Defence, Submission 5, Attachment A, p. 4.

[30]      AFCD Review, p. 7. See also Department of Defence, Submission 5, Attachment A, p. 10 and Department of Defence, Response to Questions on Notice, Supplementary Budget Estimates 2010-2011, response to question (bb) (Defence identified the contract price as $62 million over the two-year term).

[31]      Department of Defence, Submission 5, Attachment A, p. 11; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 49.

[32]      Department of Defence, Submission 5, Attachment A, p. 4; Mr Danny Foster, Pel Air Aviation, Proof Committee Hansard, Sydney, 28 March 2011, p. 20. See further, AFCD Review, p. 12: 'the [Air Transport Standing Offer Panel] is composed of highly competitive companies within an industry operating on tight margins and offering almost identical services'.

[33]      Department of Defence, Response to Questions on Notice, Supplementary Budget Estimates 2010-2011, response to question (bb); Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 48.

[34]      See Air Transport Deed of Standing Offer, 2 November 2009 (AusTender SON179438).

[35]      For instance, the committee heard evidence of multiple movements between suppliers by persons associated with the 2010 tender process. See for example: Major David Charlton, Statutory Declaration 7 September 2010, [5], [6], [9]; Strategic Aviation, Submission 6, p. 2; AFCD Review pp. 23–25; Deloitte Review, pp. 42, 51–52; Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, pp. 4–5; 8–9; Mr Shaun Aisen, letter to Inspector-General, Department of Defence, 14 July 2011, p. 2.

[36]      Department of Defence, Submission 5, Attachment A, p. 4.

[37]      Mr Danny Foster, Proof Committee Hansard, 28 March 2011, p. 20; confidential correspondence to the committee, March 2011.

[38]      Senator the Hon Alan Ferguson, Committee Hansard, Estimates, 4 June 2003, pp. 408–409; Senator the Hon Robert Hill, Minister for Defence, Senate Hansard, 8 September 2003, pp. 14506–14507.

[39]      Confidential correspondence to the committee, March 2011.

[40]      Phillip Coorey, 'We're barred from flying troops—pilots', Sydney Morning Herald, 2 May 2006, p. 6 (referring to a complaint made by the Australian Federation of Air Pilots to the then Minister of Defence, the Hon Brendan Nelson MP).

[41]      The '7.30 Report', transcript, 'Troop Transport company failing aviation safety standards, former staff say', 12 July 2007.

[42]      The '7.30 Report', transcript, 'Troop Transport company failing aviation safety standards, former staff say', 12 July 2007.

[43]      See for example, Richard Barker, 'The sky's the limit', Age, 2 September 2010, p. 13.

[44]      Defence indicated that it referred the matter to the AFP on 10 September 2010, following media reports alleging collusion between two former ADF members and Strategic: Department of Defence, Submission 5, Attachment A, p. 13. See further, Department of Defence 'Referral of matters regarding the 2005 Defence contract for air support services to the Middle East Area of Operations to the Australian Federal Police' Media Release MECC 428/10, 13 September 2010.

[45]      Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 11. Email Shaun Aisen to Lieutenant Colonel Andrew Hall, 30 March 2010. 

[46]      Australian Securities and Investments Commission, extract from National Names Index, accessed 7 April 2011.

[47]      According to media reports, Mr Aisen resigned in February 2011: Matt O'Sullivan, 'Strategic feeling the pressure', Age, 14 March 2011, p. 3.

[48]      Mr Shaun Aisen and Mr David Blake, Proof Committee Hansard, 29 March 2011, p 1.

[49]      Strategic Aviation Pty Ltd, website, http://www.flystrategic.com.au/About_Us.aspx (accessed 6 December 2010).

[50]      The Strategic Aviation Group is an Australian proprietary company limited by shares, registered on 15 September 2008: Australian Securities and Investments Commission, extract from National Names Index, accessed 7 April 2011.

[51]      Strategic Airlines is an Australian proprietary company limited by shares, registered on 16 May 2008: Australian Securities and Investments Commission, extract from National Names Index, accessed 7 April 2011.

[52]      In broad terms, a 'wet lease' refers to the leasing of an aircraft with crew, often also including maintenance and insurance. See further: CASA 'Assessing aircraft leases prior to adding aircraft to an AOC', Regulatory Policy CEO-PN007-2010 (July 2010), p. 6.

[53]      Strategic Aviation Group, 'Strategic Airlines Strengthens Management Team', media release 19 October 2010, p. 2.

[54]      Department of Defence, Submission 5, Attachment A, p. 5; Department of Defence, Response to Questions on Notice, Supplementary Budget Estimates 2010-2011, response to question (b).

[55]      See for example, Department of Immigration and Citizenship, Report on Senate Order on Departmental and Agency Contracts, 1 January-31 December 2010, pp. 63–64.

[56]      Foreign Affairs, Defence and Trade Legislation Committee, Estimates, Committee Hansard, 25 February 2009, p. 97.

[57]      AFCD Review, p. 12.

[58]      AFCD Review, p. 12 (footnote 1).

[59]      See for example, Group Captain Robert Barnes, Statutory Declaration signed 20 April 2011, [2]–[5]; Jo-Anne Pope, Statutory Declaration signed 14 April 2011; Joshua Prucha, Statutory Declaration signed 14 April 2011.

[60]      Department of Defence, Submission 5, Attachment A, p. 13. See further, Department of Defence 'Referral of matters regarding the 2005 Defence contract for air support services to the Middle East Area of Operations to the Australian Federal Police' Media Release MECC 428/10, 13 September 2010; Richard Barker, 'The sky's the limit', Age, 2 September 2010, p. 13.

[61]      Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 12.

[62]      Australian Securities and Investments Commission, extract from National Names Index, accessed 7 April 2011; Mr Mark Clark, Statutory Declaration, 7 September 2010; Deloitte Report, p. 23.

[63]      Mr Mark Clark, Statutory Declaration, dated 7 September 2010; Deloitte Report, p. 23; Adagold, 'About us', http://www.adagold.com.au/about,asp (accessed 25 November 2010).

[64]      Mr Geoffrey Brown, Chief Audit Executive, Department of Defence, Committee Hansard, Estimates, 19 October 2010, p. 61. See further, Adagold, 'Capability statement', http://www.adagold.com.au/capability.asp (accessed 7 April 2011).

[65]      'Very, Very Important Person'—a term used in the aviation industry to describe persons afforded a status beyond that of 'VIP', for example heads of state, and government or defence force principals.

[66]      Adagold, 'About us', http://www.adagold.com.au/about.asp (accessed 25 November 2010). See further, Judy Hinz, '2010 Defence SME Top 20', Australian Defence Magazine, December 2010–January 2011, p. 61.

[67]      Department of Defence, Submission 5, Attachment A, pp. 4–5.

[68]      Committee Hansard, Estimates, 4 June 2003, pp. 406–410; Senate Hansard, 8 September 2003, pp. 14505–14506; Department of Defence, Submission 5, Attachment A, pp. 4–5, 28.

[69]      Department of Defence, Submission 5, Attachment A, p. 27.

[70]      Department of Defence, Submission 5, Attachment A, p. 27.

[71]      Defence advised that Adagold was the only tenderer to have done so: Department of Defence, Submission 5, Attachment A, p. 27.

[72]      Department of Defence, Submission 5, Attachment A, p. 5.

[73]      This was stated to have provided visibility of the increased volumetric freight requirements and the fact that Strategic's A330-200 aircraft could not meet those requirements: AFCD Review, p. 23.

[74]      Department of Defence, Submission 5, Attachment A, p. 5.

[75]      Mr Warren Clark, Statutory Declaration, signed 7 September 2010.

[76]      Department of Defence, Submission 5, Attachment A, p. 5 (footnote 17).

[77]      Mr Warren Clark to the Committee, 4 May 2011.

[78]      The Deed of Standing Offer identifies the Attorney-General's Department and the Department of Immigration and Citizenship as 'participant agencies' eligible to utilise the panel arrangement: Air Transport Deed of Standing Offer, 2 November 2009 (AusTender SON179438).

[79]      See for example, Department of Immigration and Citizenship, Report on Senate Order on Departmental and Agency Contracts, 1 January–31 December 2010, pp. 1–2.

[80]      AFCD Review, p. 24; Department of Defence, Submission 5, Attachment A, p. 5.

[81]      AFCD Review, p. 24.

[82]      Department of Defence, Submission 5, Attachment A, p. 28; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 46.

[83]      Department of Defence, Submission 5, Attachment A, p. 26; Deloitte Review, p. 26.

[84]      As advised by Defence in correspondence to the committee secretariat, 1 December 2010.

[85]      Department of Defence, Submission 5, Attachment A, p. 26; Deloitte Review, p. 26.

[86]      Hi Fly website, http://www.hifly.aero/company.aspx (accessed 6 December 2010).

[87]      Hi Fly website, http://www.hifly.aero/company.aspx (accessed 6 December 2010).

[88]      Hi Fly website, http://www.hifly.aero/company.aspx (accessed 6 December 2010). These six aircraft are listed on Schedule 1 to Hi Fly's FAAOC issued by CASA: Air Operator's Certificate AOC # 1-BOV6-09, issued 26 October 2010.

[89]      Mr Adam Anastasi, Civil Aviation Safety Authority, Proof Committee Hansard, 29 March 2011 p. 39.

[90]      Air Operator's Certificate AOC # 1-BOV6-09, issued 26 October 2010.

[91]      Civil Aviation Safety Authority, Submission 7, pp. 1–2.

[92]      Defined in s 3 of the Civil Aviation Act as provisions of that Act and the Civil Aviation Orders that relate to safety.

[93]      Civil Aviation Safety Authority, Submission 7, p. 2, citing s 28 of the Civil Aviation Act.

[94]      Civil Aviation Safety Authority, Submission 7, p. 2, citing s 27AE of the Civil Aviation Act.

[95]      Civil Aviation Safety Authority, answer to question taken on notice.

[96]      Department of Defence, Submission 5, Attachment A, p. 5.

[97]      Department of Defence, Submission 5, Attachment A, p. 27.

[98]      Department of Defence, Submission 5, Attachment A, p. 26. Defence advised the Legislation Committee that the value of the performance guarantee was 'assessed on the basis that [it] would cover the cost of another short-term contract in the event of [the] contract falling over': Mr Geoffrey Brown, Chief Audit Executive, Committee Hansard, Estimates, 19 October 2010, p. 67.

[99]      Mr Geoffrey Brown, Chief Audit Executive, Committee Hansard, Estimates, 19 October 2010, p. 68; Department of Defence, Submission 5, Attachment A, p. 26.

[100]    In its submission, Defence stated, '...subsequent analysis through the Deloitte Examination of financial statements highlighted additional risks given the subcontractor/contractor structure of the tender response. Following this, Defence recognised the potential risks relating to financial viability and so sought to mitigate the risks by seeking to execute a novation agreement between Adagold, Hi Fly and Defence.' Submission 5, p. 26.

[101]    Strategic Airlines, website http://flystrategic.com.au/About_Us.aspx    (accessed 6 December 2010). Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 1.

[102]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [1]–[3].

[103]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [4].

[104]    The statutory declaration was tabled at the Legislation Committee's Supplementary Budget Estimates hearing of 19 October 2010. Major David John Charlton, Statutory Declaration, signed 7 September 2010, [1]. Dr Raymond Bromwich, Proof Committee Hansard, Canberra, 29 March 2011, pp. 80–81.

[105]    Deloitte Review, p. 18.

[106]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [13].

[107]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [7]. See further, Australian Securities and Investments Commission, Extract from National Names Index, accessed 13 April 2011.  Media reports indicate that the Commonwealth was among the company's unsecured creditors, in respect of a 2008 contract administered by the Attorney‑General's Department for the provision of air transport services to the Indian Ocean Territories. See Richard Barker, 'The sky's the limit', Age, 2 September 2010, p. 13. See further Joint Standing Committee on the National Capital and External Territories, Inquiry into the changing economic environment in the Indian Ocean Territories (April 2010), p. 140; Attorney-General's Department, Annual Report 2009‑10, p. 166.

[108]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [8], [9], [10], [11].

[109]    Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 11.

[110]    AIS is an Australian proprietary company limited by shares. It was registered on 30 March 2009: Australian Securities and Investments Commission, Extract from National Names Database, accessed 14 April 2011. The company is wholly owned by an entity called Little Pockets Pty Ltd, which is in turn owned equally by Mr Rowan Keast and Ms Melanie Keast: Deloitte Review, p. 24.

[111]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [7], [9].

[112]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [10], [14].

[113]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [14].

[114]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [10], [12]

[115]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [17]–[22].

[116]    Richard Barker, 'The sky's the limit', Age, 2 September 2010, p. 13; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 46.

[117]    Richard Barker, 'The sky's the limit', Age, 2 September 2010, p. 13; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 46.

[118]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [4]–[6].

[119]    Mr Shaun Aisen, email correspondence to Dr Raymond Bromwich, Inspector-General, Department of Defence, 21 July 2010.

[120]    Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 5; Mr Shaun Aisen, email correspondence to Dr Raymond Bromwich, Inspector-General, Department of Defence, 14, 16 July 2010; Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, Chief Audit Executive, Department of Defence, 18 August 2010.

[121]    Major David John Charlton, Statutory Declaration, signed 7 September 2010, [16].

[122]    Group Captain Robert Barnes, Proof Committee Hansard, 29 March 2011, p. 64.

[123]    Group Captain Robert Barnes, Proof Committee Hansard, 29 March 2011, p. 68.

[124]    Committee Hansard, 29 March 2011, pp, 8, 9 and 11.

[125]    Mr Mark Clark, Statutory Declaration, 7 September 2010; Deloitte Report, p. 23; Adagold Aviation, 'About us', http://www.adagold.com.au/about,asp (accessed 25 November 2010).

[126]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010. The statutory declaration was tabled at the Legislation Committee's Supplementary Budget Estimates hearing of 19 October 2010: Mr Geoffrey Brown, Committee Hansard, Estimates, Canberra, 19 October 2010, p. 111. The committee was informed that an initial draft of the statutory declaration was undertaken by the Director of Investigations within the Office of the Chief Audit Executive, Department of Defence. The draft was based on transcripts of interviews of Mr Clark conducted by the Office: Dr Raymond Bromwich, Proof Committee Hansard, 29 March 2011, pp. 80–81.

[127]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010, [2], [3].

[128]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010, [5], [6].

[129]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010, [12].

[130]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010, [15], [16].

[131]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010, [7].

[132]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010, [8].

[133]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010, [9].

[134]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010, [10].

[135]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010, [11].

[136]    Mr Mark Warren Clark, Statutory Declaration, signed 7 September 2010, [20].

[137]    Dr Watt, Committee Hansard, 29 March 2011.

Chapter 3 - The conduct of the 2010 tender process

[1]        A chronology of events is also provided at Appendix 5 to this report.

[2]        Department of Defence, Submission 5, Attachment A, p. 3.

[3]        Department of Defence, Submission 5, Attachment A, p. 3.

[4]        Department of Defence, Submission 5, Attachment A, p. 3.

[5]        Department of Defence, Submission 5, Attachment A, p. 3.

[6]        Department of Defence, Submission 5, Attachment A, p. 3; Deloitte Review, p. 12.

[7]        Department of Defence, Submission 5, Attachment A, p. 3. See further, AFCD Review, pp. 16–17; AGS Review, p. 3; Deloitte Review, p. 12; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 46.

[8]        Department of Defence, Submission 5, Attachment A, p. 3; AFCD Review, p. 16.

[9]        Department of Defence, Submission 5, Attachment A, p. 3; AFCD Review, p. 16.

[10]      Department of Defence, Submission 5, Attachment A, p. 3; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 49. See further: Group Captain Robert Barnes, Statutory Declaration, signed 20 April 2011; Jo-Anne Pope, Statutory Declaration, signed 14 April 2011; Joshua Prucha, Statutory Declaration, signed 14 April 2011.

[11]      Department of Defence, Submission 5, Attachment A, p. 3.

[12]      Air Transport Deed of Standing Offer, 2 November 2009 (AusTender SON179438).

[13]      AFCD Review, p. 4.

[14]      Air Transport Deed of Standing Offer, 2 November 2009 (AusTender SON179438).

[15]      Air Transport Deed of Standing Offer, 2 November 2009 (AusTender SON179438).

[16]      Deloitte Review, p. 8. See further, AGS Review p. 6.

[17]      Commonwealth Procurement Guidelines (CPGs), December 2008, [8.35].

[18]      CPGs, [8.35]; Department of Finance and Deregulation, Establishing and Using Panels, Good Procurement Practice Guide 4, December 2007, [3.2]; Defence Procurement Policy Manual (DPPM), April 2011, Chapter 4.8.

[19]      See especially Division 2 (Mandatory Procurement Procedures), [8.35]–[8.37], which govern the establishment of panels. Note that the Mandatory Procurement Procedures apply to 'covered procurements' (defined as those which exceed the prescribed monetary thresholds in the CPGs and are not otherwise exempt).

[20]      See, for example, Department of Finance and Deregulation, Guidance on the Mandatory Procurement Procedures, Financial Management Guidance 13, Appendix B—Panels; Department of Finance and Deregulation, Establishing and Using Panels, Good Procurement Practice Guide 4; DPPM chapter 4.8.

[21]      Department of Finance and Deregulation, Establishing and Using Panels, Good Procurement Practice Guide 4, December 2007, [3.3], [3.5].

[22]      Department of Finance and Deregulation, Establishing and Using Panels, Good Procurement Practice Guide 4, December 2007, [3.4].

[23]      CPGs [8.35].

[24]      Department of Finance and Deregulation, Guidance on the Mandatory Procurement Procedures, Financial Management Guidance 13, Appendix B—Panels.

[25]      AGS Review, p. 6.

[26]      Department of Defence, Submission 5, Attachment D ('Air Transport Deed of Standing Offer'), Clause 5.1(c).

[27]      Department of Defence, Submission 5, Attachment D ('Air Transport Deed of Standing Offer'), Clause 5.2(b).

[28]      Department of Defence, Submission 5, Attachment D ('Air Transport Deed of Standing Offer'), Clauses 6.6, 13.3.

[29]      Department of Defence, Submission 5, Attachment D ('Air Transport Deed of Standing Offer'), Clause 13.4.

[30]      Department of Defence, Submission 5, Attachment D ('Air Transport Deed of Standing Offer'), Clause 22.

[31]      Department of Defence, Submission 5, Attachment D ('Air Transport Deed of Standing Offer'), Clause 22 (a).

[32]      Department of Defence, Submission 5, Attachment D ('Air Transport Deed of Standing Offer'), Clauses 22 (b), (d).

[33]      Department of Defence, Submission 5, Attachment D ('Air Transport Deed of Standing Offer'), Clause 22(c).

[34]      See the Defence Procurement Policy Manual (DPPM), Chapter 5.1, 'Planning complex and strategic procurements'.

[35]      Department of Defence, Submission 5, Attachment A, Annexure A; Deloitte Review, Appendix C.

[36]      Review, p. 14, citing 'Procurement Strategy for the Contracting of Air Sustainment Services in Support of Operation Slipper', [14]. See further, Department of Defence, Submission 5, Attachment A, p. 21.

[37]      Deloitte Review, p. 7, citing 'Procurement Strategy for the Contracting of Air Sustainment Services in Support of Operation Slipper'.

[38]      Deloitte Review, p. 7.

[39]      Department of Defence, Submission 5, Attachment A, Annexure C (Procurement Risk Management Plan, 23 March 2010).

[40]      Department of Defence, Submission 5, Attachment A, Annexure A; Deloitte Review, Appendix C.

[41]      Deloitte Review pp. 15–16; Department of Defence, Submission 5, Attachment A, p. 22.

[42]      Department of Defence, Submission 5, Attachment A, p. 23.

[43]      AFCD Review, p. 11; Mr Geoffrey Brown, Dr David Lloyd and Dr Ian Watt, Proof Committee Hansard, 29 March 2011, pp. 53–56.

[44]      AFCD Review, p. 11.

[45]      Proof Committee Hansard, 28 June 2011, p. 10.

[46]      Proof Committee Hansard, 28 June 2011, p. 11.

[47]      Proof Committee Hansard, in camera, 28 June 2011, p. 3.

[48]      Proof Committee Hansard, 29 March 2011, p. 11.

[49]      Department of Defence, Submission 5, Attachment A, pp. 3–4; RFT AO/014/09-10, p. 1.

[50]      RFT AO/014/09–10, pp. 2 (definitions section), 20 (item 8).

[51]      Department of Defence, Submission 5, Attachment A, p. 20.

[52]      Department of Defence, Submission 5, Attachment A, p. 18. See further RFT AO/014/09–10, item 10(a). Note however, that the costs of fuel were met by the Commonwealth: item 7.9.

[53]      RFT AO/014/09-10, pp. 13-14 (Clause 7.13).

[54]      Department of Defence, Submission 3, Attachment A, p. 19.

[55]      Department of Defence, Submission 3, Attachment A, p. 19.

[56]      Department of Defence, Submission 3, Attachment A, p. 19.

[57]      Department of Defence, Submission 5, Attachment A, p. 19.

[58]      Department of Defence, Submission 5, Attachment A, 15. See further Deloitte Review, p. 11.

[59]      RFT AO/014/09–10, p. 23 (item 9.20). See also item 9.25(a)(xiii) which enabled the Commonwealth to waive any requirement or obligation under the Request or the Deed of Standing Offer. 

[60]      Deloitte Review, pp. 14–15. See further, Department of Defence, Submission 5, Attachment A, p. 20.

[61]      Mr Shaun Aisen, email correspondence to Lieutenant Colonel Andrew Hall and Group Captain Robert Barnes, 30 March 2010.

[62]      Mr Shaun Aisen, email correspondence to Lieutenant Colonel Andrew Hall and Group Captain Robert Barnes, 30 March 2010.

[63]      Mr Shaun Aisen, email correspondence to Lieutenant Colonel Andrew Hall and Group Captain Robert Barnes, 30 March 2010.

[64]      Lieutenant Colonel Andrew Hall, email correspondence to Mr Shaun Aisen, 8 April 2010. See further Group Captain Robert Barnes, Proof Committee Hansard, 29 March 2011, p. 69.

[65]      Lieutenant Colonel Andrew Hall, email correspondence to Mr Shaun Aisen, 8 April 2010.

[66]      Lieutenant Colonel Andrew Hall, email correspondence to Mr Shaun Aisen, 8 April 2010.

[67]      See AFCD Review, p. 27.

[68]      Department of Defence, Submission 5, Attachment A, p. 19.

[69]      AFCD Review, p. 12.

[70]      AGS Review, p. 9.

[71]      Major David Charlton, Statutory Declaration, signed 7 September 2010, [10], [14].

[72]      Major David Charlton, Statutory Declaration, signed 7 September 2010, [10].

[73]      Department of Defence, Submission 5, Attachment A, Annexure A; Deloitte Review, pp. 19–20; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 47.

[74]      AFCD Review, p. 27.

[75]      Department of Defence, Submission 5, Attachment A, p. 3.

[76]      Department of Defence, Submission 5, Attachment A, p. 3.

[77]      Department of Defence, Submission 5, Attachment A, p. 18; AFCD Review, p. 8.

[78]      Referred to as the Technical/Operational TEWG.

[79]      Referred to as the Financial TEWG.

[80]      Department of Defence, Submission 5, Attachment A, p. 18.

[81]      RFT AO/014/09-10, item 9.22; Department of Defence, Submission 5, Attachment A, pp. 17–18; AFCD Report, p. 9.

[82]      RFT AO/014/09-10, item 9.22.

[83]      RFT AO/014/09-10, item 9.22.

[84]      AFCD Review, p. 9.

[85]      Department of Defence, Submission 5, Attachment A, p. 18; AFCD Review p. 10.

[86]      AFCD Review, p. 10.

[87]      AFCD Review, p. 12.

[88]      Department of Defence, Submission 5, Attachment A, p. 18.

[89]      Department of Defence, Submission 5, Attachment A, pp. 18–19.

[90]      Clauses 18, 21 and 22 of the TEP, cited in Department of Defence, Submission 5, Attachment A, p. 23.

[91]      Deloitte Review, p. 18.

[92]      Department of Defence, Submission 5, Attachment A, p. 22.

[93]      Deloitte Review, p. 18.

[94]      Department of Defence, Submission 5, Attachment A, p. 24. See further, Deloitte Review, pp. 18–19.

[95]      Department of Defence, Submission 5, Attachment A, pp. 15–16.

[96]      Deloitte Review, p. 8.

[97]      Group Captain Robert Barnes, Proof Committee Hansard, 29 March 2011, pp. 69–71.

[98]      Group Captain Robert Barnes, Proof Committee Hansard, 29 March 2011, p. 70.

[99]      Group Captain Robert Barnes, Proof Committee Hansard, 29 March 2011, pp. 70–71.

[100]    Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, p. 72.

[101]    AFCD Review, pp. 22–23.

[102]    Department of Defence, Summary of advice provided by Clayton Utz to Defence in relation to the appointment of a probity auditor (14 April 2011), response to Question on Notice 3(j).

[103]    Defence made available to the committee a summary prepared by Mr Power of his telephone conversation with Squadron Leader Cole on 9 June 2010: Department of Defence, Summary of advice provided by Clayton Utz to Defence in relation to the appointment of a probity auditor (14 April 2011), response to Question on Notice 3(j).

[104]    Department of Defence, Summary of advice provided by Clayton Utz to Defence in relation to the appointment of a probity auditor (14 April 2011), response to Question on Notice 3(j).

[105]    Department of Defence, Summary of advice provided by Clayton Utz to Defence in relation to the appointment of a probity auditor (14 April 2011), response to Question on Notice 3(j).

[106]    See further: Mr Geoffrey Brown, Dr David Lloyd and Dr Ian Watt, Proof Committee Hansard, 29 March 2011, pp. 53–56. See also, AFCD Review, pp. 11–12; AGS Review, p. 9; Deloitte Review, p. 15.

[107]    Dr David Lloyd, Proof Committee Hansard, 29 March 2011, p. 55.

[108]    Group Captain Robert Barnes, Proof Committee Hansard, 29 March 2011, p. 59. See further, Department of Defence, Submission 5, Attachment A, p. 16.

[109]    Department of Defence, Submission 5, Attachment A, p. 4.

[110]    Department of Defence, Submission 5, Attachment A, pp. 3–4 (footnote 13). See further DPPM, 5.6—Evaluation of tenders, p. 5.6–14.

[111]    Proof Committee Hansard, 28 June 2011, p. 16.

[112]    Clayton Utz, Advice to Tender Evaluation Board re Source Evaluation Report, 9 July in camera evidence.

[113]    Proof Committee Hansard, 28 June 2011, p. 16 and in camera Hansard, 28 June 2011.

[114]    Clayton Utz, Request ALSO/014/09-10 for the Provision of Air Sustainment Services to the MEAO (Request) – Advice to Tender Evaluation Board re Source Evaluation Report, Committee Hansard, in camera, 28 June 2011.

[115]    Committee Hansard, in camera, 28 June 2011, p. 5.

[116]    Committee Hansard, in camera, 28 June 2011, p. 5.

[117]    Committee Hansard, in camera, 28 June 2011, p. 7.

[118]    Department of Defence, Submission 5, Attachment A, Annexure A.

[119]    Department of Defence, Submission 5, Attachment A, Annexure A. See further, DPPM 5.6—Evaluation of tenders, p. 5.6–15.

[120]    Department of Defence, Submission 5, Attachment A, Annexure A.

[121]    Department of Defence, Submission 5, Attachment A, Annexure A.

[122]    Report provided to the committee as a confidential document.

Chapter 4 - Complaints about the 2010 tender process

[1]        Mr Shaun Aisen, email correspondence to Dr Raymond Bromwich, 14 July 2010.

[2]        Mr Shaun Aisen, email correspondence to Dr Raymond Bromwich, Inspector-General, Department of Defence, 16, 19, 21 July 2010. See also Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, Chief Audit Executive, Department of Defence, 22, 28, 31 July 2010; 4, 18, 28 August 2010.

[3]        See further, Department of Defence, Submission 5, Attachment A, pp. 5–6; AFCD Review, 4.2.

[4]        Strategic Aviation, Submission 6, p. 2. See also, Mr Shaun Aisen, letter to Dr Raymond Bromwich, 14 July 2010; Mr Shaun Aisen, email to Mr Geoffrey Brown, 4 August 2010 (forwarding email correspondence with HQ1JMOVGP from 30 March to 9 April 2010).

[5]        Mr Shaun Aisen, email to Mr Geoffrey Brown, 18 August 2010.

[6]        Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 4. See also Strategic Aviation, Submission 6, p. 2; Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 4, 18 August 2010.

[7]         Strategic Aviation, Submission 6, p. 2; Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 4 August 2010 (forwarding email correspondence with HQ1JMOVGP between 30 March and 9 April 2010).

[8]        Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 4 August 2010 (forwarding email correspondence with HQ1JMOVGP between 30 March and 9 April 2010).

[9]        Mr Shaun Aisen, email correspondence to Dr Raymond Bromwich, 21 July 2010.

[10]      Mr Shaun Aisen, email correspondence to Dr Raymond Bromwich, 21 July 2010.

[11]      Strategic Aviation, Submission 6, p. 4; Mr Shaun Aisen, email correspondence to Dr Raymond Bromwich, 21 July 2010.

[12]      Mr Shaun Aisen, letter to Dr Raymond Bromwich, 14 July 2010. See also, Mr Shaun Aisen, email correspondence to Dr Raymond Bromwich, 16 July 2010; Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 18 August 2010.

[13]      Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 18 August 2010.

[14]      Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 18 August 2010.

[15]      Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 28 July 2010. See also, Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, pp. 2–5; Strategic Aviation, Submission 6, pp. 3–4.

[16]      Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 28 July 2010; Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 4 August 2010 (forwarding email correspondence with HQ1JMOVGP between 30 March and 9 April 2010). See also, Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 4; Strategic Aviation, Submission 6, pp. 3–4.

[17]      Mr Shaun Aisen, email correspondence to Dr Raymond Bromwich, 21 July 2010. See also, Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 2; Strategic Aviation, Submission 6, p. 3.

[18]      Mr Shaun Aisen, email correspondence to Dr Raymond Bromwich, 19 July 2010; Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 18 August 2010; Strategic Aviation, Submission 6, p. 4.

[19]      Mr Shaun Aisen, letter to Dr Raymond Bromwich, 14 July 2010.

[20]      Mr Shaun Aisen, letter to Dr Raymond Bromwich, 14 July 2010.

[21]      Mr Shaun Aisen, letter to Dr Raymond Bromwich, 14 July 2010.

[22]      Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 4.

[23]      Mr Shaun Aisen, letter to Dr Raymond Bromwich, 14 July 2010.

[24]      Shaun Aisen to Dr Ian Williams, Inspector General, 14 July 2010 (confidential document).

Chapter 5 - Internal review of the 2010 tender process

[1]        Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, p. 87.

[2]        Department of Defence, Submission 5, Attachment A, p. 6.

[3]        AFCD Review, p. 3.

[4]        Australian Government Department of Finance and Deregulation, 'Guidance on Ethics and Probity in Government Procurement', Financial Management Guidance No. 14 (January 2005). The guide was developed to support the Commonwealth Procurement Guidelines (CPGs), to help officials understand their policy obligations when undertaking procurement activities (p. 2).

[5]        AFCD Review, p. 6.

[6]        AFCD Review, p. 6.

[7]        AFCD Review, pp. 21–22.

[8]        AFCD Review, pp. 6–7.

[9]        AFCD Review, p. 4.

[10]      AFCD Review, p. 5.

[11]      AFCD Review, p. 17

[12]      AFCD Review, pp. 16–17.

[13]      The review noted the evidence of an unsuccessful tenderer to this effect: AFCD Review, p. 15.

[14]      AFCD Review, p. 14.

[15]      AFCD Review, p. 9.

[16]      AFCD Review, pp. 21–23.

[17]      AFCD Review, pp. 17, 23–24.

[18]      AFCD Review, p. 24.

[19]      AFCD Review, p. 26.

[20]      AFCD Review, p. 19.

[21]      AFCD Review, pp. 19–20.

[22]      AFCD Review, p. 25.

[23]      AFCD Review, p. 18.

[24]      AFCD Review, p. 10. This matter was further examined in the AGS Review, discussed in chapter 6 of this report. See further, AGS Review, p. 6.

[25]      AFCD Review, pp. 7–8.

[26]      AFCD Review, pp. 11, 12.

[27]      AFCD Review, p. 11.

[28]      AFCD Review, pp. 11, 12.

[29]      AFCD Review, p. 11.

[30]      AFCD Review, p. 11.

[31]      AFCD Review, p. 11.

[32]      AFCD Review, p. 11.

[33]      AFCD Review, pp. 11, 13.

[34]      AFCD Review, p. 12.

[35]      Richard Baker, 'Concerns over Defence contract', Sydney Morning Herald and the Age, 12 August 2010.

[36]      Proof Committee Hansard, 29 March 2011, pp. 73–83. A number of witnesses referred to time constraints and the need to have the contract in force. See for example, Mr Scala, AGS, Proof Committee Hansard, 28 June 2011, p. 6; Mr Brown, Proof Committee Hansard, 29 March 2011, p. 86. 

[37]      Proof Committee Hansard, 29 March 2011, pp. 75, 77, 82 and 86. See also observation in PwC's Independent peer review of the Department of Defence—Audit and Fraud control Division's probity review concerning the Provision of Air Sustainment Services to the Middle East Area of Operations (MEAO), 8 October 2010, p. 7 and the AFCD Review, p. 6.

[38]      Proof Committee Hansard, 29 March 2011, p. 75.

[39]      See also paragraph 6.73.

[40]      AFCD Review, p. 25.

[41]      Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, pp. 73, 74, 75.

[42]      Proof Committee Hansard, 29 March 2011, pp. 75 (Mr Geoffrey Brown), 76–80 (Dr Raymond Bromwich). This matter was also the subject of comment in the PwC review, detailed below.

[43]      AFCD Review, pp. 22–23. See further, Dr Raymond Bromwich, Proof Committee Hansard, 29 March 201, p. 83.

[44]      Department of Defence, Submission 5, Attachment A, p. 7; PwC Review, p. 2; Mr Steven Baker, Proof Committee Hansard, 29 March 2011, p. 14; Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, p. 83.

[45]      Australian Government Department of Finance and Deregulation, 'Guidance on Ethics and Probity in Government Procurement', Financial Management Guidance No. 14 (January 2005). See footnote 4.

[46]      PwC Review, p. 2; Department of Defence, Submission 5, Attachment A, p. 7; Mr Steven Baker, Proof Committee Hansard, 29 March 2011, p. 14.

[47]      Department of Defence, Submission 5, Attachment A, p. 7. See further, PwC Review, Appendix A (terms of reference and quotation as contained in a letter from PwC to Defence dated 18 August 2010).

[48]      Department of Defence, Submission 5, Attachment A, p. 7.

[49]      Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, pp. 83–84. See also, Mr Steven Baker, Proof Committee Hansard, 29 March 2011, pp. 18–21.

[50]      PwC Review, p. 5.

[51]      PwC Review, pp. 2, 3.

[52]      PwC Review, p. 3.

[53]      PwC Review, p. 3.

[54]      PwC Review, pp. 2, 7.

[55]      PwC Review, p. 3.

[56]      PwC Review, p. 3.

[57]      PwC Review, p. 7 (observation 1).

[58]      PwC Review, pp. 7–8.

[59]      PwC Review, p. 8 (observation 3).

[60]      PwC Review, p. 8 (observation 4).

[61]      PwC Review, p. 9 (observation 5).

[62]      PwC Review, p. 9 (observation 6).

[63]      PwC Review, p. 7.

[64]      PwC Review, pp. 8–9.

[65]      PwC Review, p. 9.

[66]      PwC Review, p. 8.

[67]      Proof Committee Hansard, 29 March 2011, pp. 74–79; 87–88.

[68]      Dr Raymond Bromwich, Proof Committee Hansard, 29 March 2011, p. 77. See further p. 82.

[69]      Dr Raymond Bromwich, Proof Committee Hansard, 29 March 2011, p. 79.

[70]      Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 88.

[71]      Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 88.

[72]      Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 88.

[73]      Proof Committee Hansard, 29 March 2011, p. 16.

[74]      Proof Committee Hansard, 29 March 2011, p. 14.

[75]      PwC Review, p. 3.

[76]      Proof Committee Hansard, 29 March 2011, p. 31. See also para. 5.15 and accompanying footnotes.

Chapter 6 - External reviews of the 2010 tender process

[1]        Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 28 August 2010.

[2]        Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 28 August 2010.

[3]        Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 28 August 2010.

[4]        Mr Shaun Aisen, email correspondence to Mr Geoffrey Brown, 28 August 2010.

[5]        Department of Defence, Submission 5, Attachment A, pp. 7–8.

[6]        Department of Defence, Submission 5, Attachment A, p. 8.

[7]        Department of Defence, Submission 5, Attachment A, p. 8 and Annexure B.

[8]        Senator the Hon David Johnston, Shadow Minister for Defence, letter to Dr Ian Watt, 31 August 2010, p. 1.

[9]        Senator the Hon David Johnston, Shadow Minister for Defence, letter to Dr Ian Watt, 31 August 2010, p. 1.

[10]      Department of Defence, Submission 5, Attachment A, p. 8.

[11]      Department of Defence, Submission 5, Attachment A, p. 8.

[12]      Department of Defence, Submission 5, Attachment A, p. 11; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 49.

[13]      Department of Defence, Submission 5, Attachment A, p. 8.

[14]      Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 84. Defence also noted the depth of resources available to large firms and their rapid response capacity—including, for example, through AFCD's outsource co-partner arrangement with PwC: Mr Geoffrey Brown, Proof Committee Hansard, 9 March 2011, pp. 83–84.

[15]      Richard Baker, 'Defence bidders got inside help', the Age, 2 September 2010.

[16]      The full terms of reference are set out at pp. 3–4 of the Deloitte Review.

[17]      Department of Defence, Submission 5, Attachment A, p. 8.

[18]      Department of Defence, Submission 5, Attachment A, p. 8.

[19]      Mr Peter Bars, Proof Committee Hansard, 28 March 2011, p. 16.

[20]      Deloitte Review, p. 2.

[21]      Deloitte Review, p. 2.

[22]      Deloitte Review, p. 11.

[23]      Deloitte Review, pp. 11–12.

[24]      Deloitte Review, p. 12.

[25]      Deloitte Review, p. 16.

[26]      Deloitte Review, p. 15.

[27]      Deloitte Review, p. 15.

[28]      Deloitte Review, p. 15.

[29]      Deloitte Review, p. 18.

[30]      Deloitte Review, pp. 17–18.

[31]      Deloitte Review, pp. 19–20.

[32]      Deloitte Review, p. 10.

[33]      Deloitte Review, p. 8.

[34]      Mr Dennis Krallis, Proof Committee Hansard, 28 March 2011, p. 12.

[35]      These were Adagold (subsidiaries, related companies and key members or employees); Alltrans (parent company and key members or employees); AIS (parent companies and key members or employees): Deloitte Review, p. 21.

[36]      Deloitte Review, p. 24.

[37]      Deloitte Review, p. 23.

[38]      Deloitte Review, p. 27.

[39]      Deloitte Review, p. 26.

[40]      Deloitte Review, p. 27.

[41]      Deloitte Review, p. 27.

[42]      Deloitte Review, p. 29.

[43]      Deloitte Review, p. 28.

[44]      Deloitte Review, pp. 28–29.

[45]      Deloitte Review, p. 29.

[46]      Deloitte Review, p. 33.

[47]      Deloitte Review, pp. 31–32.

[48]      Deloitte Review, p. 33.

[49]      Deloitte Review, p. 7.

[50]      Deloitte Review, p. 34.

[51]      Deloitte Review, p. 35.

[52]      AGS Review, p. 1.

[53]      AGS Review, p. 1. See also Proof Committee Hansard, 28 June 2011, p. 2.

[54]      Department of Defence, Submission 5, Attachment A, p. 8.

[55]      AGS Review, p. 5.

[56]      See AGS Review, Annexure A.

[57]      AGS Review, Annexure B.

[58]      AGS Review, p. 2.

[59]      AGS Review, p. 2.

[60]      AGS Review, p. 2.

[61]      AGS Review, p. 7.

[62]      AGS Review, p. 7.

[63]      AGS Review, p. 7.

[64]      AGS Review, p. 7.

[65]      AGS Review, p. 7.

[66]      AGS Review, p. 7.

[67]      AGS Review, pp. 7–8.

[68]      AGS Review, p. 7.

[69]      AGS Review, p. 8.

[70]      AGS Review, p. 8.

[71]      AGS Review, p. 8. See further, Department of Finance and Deregulation, Guidance on the Mandatory Procurement Procedures, Financial Management Guidance 13, Appendix B—Panels.

[72]      AGS Review, p. 8.

[73]      AGS Review, p. 8.

[74]      AGS Review, p. 9.

[75]      AGS Review, p. 9.

[76]      AGS Review, pp. 9–10.

[77]      AGS Review, p. 10.

[78]      AGS Review, p. 10.

[79]      AGS Review, p. 10.

[80]      AGS Review, p. 10.

[81]      AGS Review, p. 10.

[82]      AGS Review, p. 10.

[83]      Proof Committee Hansard, 28 June 2011, p. 5.

[84]      AGS Review, pp. 10–11.

[85]      Clayton Utz, Advice to Tender Evaluation Board re Source Evaluation Report, 9 July in camera evidence.

[86]      Proof Committee Hansard, 28 June 2011, p. 16 and in camera Hansard, 28 June 2011.

[87]      Proof Committee Hansard, 28 June 2011, p. 4.

[88]      Proof Committee Hansard, 28 June 2011, p. 17.

[89]      Proof Committee Hansard, 28 June 2011, p. 4.

[90]      AGS Review, p. 11.

[91]      AGS Review, p. 11.

[92]      AGS Review, p. 11.

[93]      Richard Barker, 'The sky's the limit', Age, 2 September 2010, p. 13.

[94]      Richard Barker, 'The sky's the limit', Age, 2 September 2010, p. 13.

[95]      AFCD Review, pp. 5, 25.

[96]      Department of Defence, Submission 5, Attachment A, p. 13.

[97]      Department of Defence, Submission 5, Attachment A, p. 13; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 46. See further, Department of Defence 'Referral of matters regarding the 2005 Defence contract for air support services to the Middle East Area of Operations to the Australian Federal Police' Media Release MECC 428/10, 13 September 2010.

[98]      Deloitte Review, pp. 15, 18.

[99]      AGS Review, pp. 9–10. See further, AFCD Review, p. 11.

[100]    Department of Defence, Submission 5, Attachment A, pp. 10–11.

[101]    Department of Defence, Submission 5, Attachment A, pp. 26–27.

[102]    Department of Defence, Submission 5, Attachment A, pp. 32–35.

[103]    Deloitte review, p. 2; AGS review, p. 5.

[104]    Mr Bromwich, Proof Committee Hansard, 29 March 2011, p. 81.

[105]    Deloitte Review, p. 2.

[106]    Deloitte Touche Tohmatsu, Submission 3, p. 1. See further, Department of Defence, Submission 5, Attachment A, p. 9.

[107]    Department of Defence, Submission 5, Attachment A, pp. 8–9. See also Mr Brown, Proof Committee Hansard, 29 March 2011, p. 75.

[108]    Department of Defence, Submission 5, Attachment A, p. 9; Mr Peter Bars, Proof Committee Hansard, Sydney, 28 March 2011, p. 2; Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, pp. 84–85.

[109]    Department of Defence, Submission 5, Attachment A, pp. 8–9; Deloitte, Submission 3, p. 1.

[110]    Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, pp. 86–87; Mr Peter Bars, Proof Committee Hansard, 28 March 2011, p. 2. See also the evidence of PwC in respect of the development of terms of reference, which were prepared by PwC and approved by Defence: Mr Steven Baker, Proof Committee Hansard, 29 March 2011, p. 20.

[111]    Department of Defence, Submission 5, Attachment A, p. 10. See further, Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, p. 87; Deloitte, Submission 3, p. 1, but compare the oral evidence of Deloitte, that their request to access the AGS Review was denied by Defence on the basis of privilege: Mr Dennis Krallis, Proof Committee Hansard, 28 March 2011, p. 4.

[112]    Dr Ian Watt, Proof Committee Hansard, 29 March 2011, pp. 47–48. See further, Deloitte, Submission 3, p. 2; Mr Dennis Krallis, Proof Committee Hansard, 28 March 2011, p. 13.

[113]    Deloitte Touche Tohmatsu, Submission 3, p. 2; Mr Dennis Krallis, Proof Committee Hansard, 28 March 2011, p. 2. See further, Department of Defence, Submission 5, Attachment A,  pp. 9–10. Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, pp. 84–87.

[114]    Mr Dennis Krallis, Proof Committee Hansard, 28 March 2011, p. 13.

[115]    Mr Dennis Krallis, Proof Committee Hansard, 28 March 2011, p. 13.

[116]    However, AGS consulted with Deloitte in the preparation of its advice and shared thoughts and findings on a progressive basis AGS Review, pp. 1, 5.

[117]    AGS Review, p. 5.

[118]    AGS Review, p. 5.

[119]    Proof Committee Hansard, 28 June 2011, p. 7.

[120]    See paragraph 5.14.

[121]    Proof Committee Hansard, 28 June 2011, p. 2.

Chapter 7 - The awarding and performance of the 2010 contract

[1]        Defence, Submission 5, Annex A and  Dr Ian Watt, Proof Committee Hansard, Estimates, 19 October 2010, p. 11.

[2]        Department of Defence, Submission 5, Attachment A, Annexure A.

[3]        Department of Defence, Submission 5, Attachment A, Annexure A.

[4]        Air Operator's Certificate AOC # 1-BOV6-09, issued 26 October 2010.

[5]        Department of Defence, Submission 5, Attachment A, p. 15; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 46.

[6]        Clause 16.5(a).

[7]        Clause 16.5(b).

[8]        Clauses 16.6(a),(b), (d), (e).

[9]        Clause 16.6(c).

[10]      Clause 16.6(f).

[11]      Item 7.16.

[12]      Dr Ian Watt, Secretary's opening remarks to the Senate Foreign Affairs Defence and Trade References Committee, tabled 29 March 2011, p.17.

[13]      Dr Ian Watt, Secretary's opening remarks to the Senate Foreign Affairs Defence and Trade References Committee, tabled 29 March 2011, pp. 1–2.

[14]      Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 2.

[15]      Rear Admiral Ray Griggs, Proof Committee Hansard, 29 March 2011, p. 51.

[16]      Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, pp. 3–4.

[17]      Mr Shaun Aisen, Proof Committee Hansard, 29 March 2011, p. 4.

[18]      The TEP included criteria assessing: overall compliance with the requirements; the respondent's understanding of the requirements; compliance with specific performance requirements; and demonstrated technical and managerial capacity to meet the requirements: AFCD Review, p. 9.

[19]      Deloitte Review, pp. 28–29.

[20]      AGS Review, p. 9. See further, Department of Defence, Submission 5, Attachment A, pp. 27‑28.

[21]      Vice Admiral Griggs and Dr Watt, Proof Committee Hansard, 28 June 2011, p. 17.

[22]      Department of Defence, Submission 5, Attachment A, pp. 32–35; Dr Ian Watt, Secretary's opening remarks to the Senate Foreign Affairs Defence and Trade References Committee, tabled 29 March 2011, pp. 18–22.

[23]      Department of Defence, Submission 5, Attachment A, pp. 32–33.

[24]      Department of Defence, Submission 5, Attachment A, pp. 33–45.

[25]      Department of Defence, Submission 5, Attachment A, pp. 34–35; Dr Ian Watt, Secretary's opening remarks to the Senate Foreign Affairs, Defence and Trade References Committee, tabled 29 March 2011, pp. 19–22.

[26]      Department of Defence, Submission 5, Attachment A, pp. 34–35.

[27]      Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, pp. 88–89.

[28]      Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, pp. 88–89.

Chapter 8 - Taking stock

[1]        Terms of Reference, paragraphs (a)(iii),(iv),(vi),(vii).

[2]        Terms of Reference, paragraphs (a)(ii), (v).

[3]        Terms of Reference, paragraphs (a)(i),(viii); (b)(i)-(iv).

[4]        Terms of Reference, paragraph (b)(v).

[5]        Department of Finance and Deregulation, Ethics and Probity in Procurement, Financial Management Guidance 14.

[6]        These are: the AFCD Review, the PwC Review, the Deloitte Review, the AGS Review and the committee's inquiry.

[7]        See, for example, Committee Hansard, Estimates, 23 February 2011, pp. 89–91; Committee Hansard, Estimates, 19 October 2010, pp. 8–10, 49–71; Department of Defence, Response to Questions on Notice, Supplementary Budget Estimates 2010-2011.

[8]        See, for example, the series of articles by journalist Richard Baker, including: 'Concerns over Defence contract', Age, 12 August 2010, p. 5; 'Defence bidders got inside help', Age, 2 September 2010, p. 1; 'The sky's the limit', Age, 2 September 2010, p. 13; 'Pledge to probe Defence contract', Age, 3 September 2010, p. 6; 'Pledge to probe Defence contract', Age, 3 September 2010, p. 6; 'Probes on deal to fly troops', Age, 13 September 2010, p. 1; 'Police to probe $30m Defence deal', Age, 14 September 2010, p. 5; 'Defence contract row widens', Age, 30 September 2010, p. 13; 'Defence must act on contract cover-up claims', Age, 18 November 2010, p. 18.

[9]        Department of Finance and Deregulation, Guidance on Ethics and Probity in Government Procurement, Financial Management Guidance 14 (January 2005) ('FMG 14'), p. 16.

[10]      FMG 14, p. 16.

[11]      Proof Committee Hansard, 28 June 2011, p. 17.

[12]      See chapter 5, paragraphs 5.18–5.19 and 5.36–5.5.41.

[13]      See chapters 5 and 6.

[14]      See chapters 5 and 6.

[15]      See chapter 6.

[16]      See chapter 2. See further Dr Raymond Bromwich, Proof Committee Hansard, 29 March 2011, pp. 80–81.

[17]      PwC Review, p. 8. See further chapter 5.

Chapter 9 - Governance arrangements—probity

[1]        Terms of Reference, paragraph (a)(iii).

[2]        Terms of Reference, paragraph (a)(iv).

[3]        Terms of Reference, paragraph (a)(vi).

[4]        Terms of Reference, paragraph (a)(vii).

[5]        See chapters 2 and 3.

[6]        See chapter 2.

[7]        See chapters 2 and 3.

[8]        See chapter 2.

[9]        See chapters 3 and 4.

[10]      See chapters 3 and 4.

[11]      See chapter 3.

[12]      See chapters 2 and 3.

[13]      See chapter 3.

[14]      See chapters 3 and 4.

[15]      See chapters 2 and 3.

[16]      See chapter 2.

[17]      See chapter 3.

[18]      See chapter 3.

[19]      Department of Finance and Deregulation, Ethics and Probity in Procurement, Financial Management Guidance 14, January 2005 ('FMG 14'), p. 28.

[20]      FMG 14, p. 30.

[21]      Australian National Audit Office, Better Practice Guide—Fairness and Transparency in Purchasing Decisions: Probity in Australian Government Procurement, ('ANAO Better Practice Guide') August 2007, p. 33.

[22]      DPPM, Chapter 3.13.

[23]      DPPM, p. 3.13-3, [12].

[24]      DPPM, p. 3.13-3, [13].

[25]      DPPM, p. 3.13-4.

[26]      DPPM, p. 3.13-3, [16].

[27]      DPPM, p. 3.13-6.

[28]      See chapter 6.

[29]      Department of Defence, Submission 5, Attachment A, p. 22.

[30]      See chapter 3.

[31]      Department of Defence, Summary of advice provided by Clayton Utz to Defence in relation to the appointment of a probity auditor (14 April 2011), response to Question on Notice 3(j). See further chapter 3.

[32]      See chapter 3.

[33]      See chapter 3. See further the observations of the Deloitte and AGS Reviews in chapter 6.

[34]      See chapter 3. See further the observations of the Deloitte and AGS Reviews in chapter 6.

[35]      See chapter 3. See further the observations of the Deloitte Review in chapter 6.

[36]      See chapters 5 and 6.

[37]      See chapters 3 and 4.

[38]      See for example, Department of Defence, Submission 5, Attachment A, pp. 16, 22.

[39]      See chapter 3. See further Department of Defence, Submission 5, Attachment A, p. 23.

[40]      Department of Defence, Summary of advice provided by Clayton Utz to Defence in relation to the appointment of a probity auditor (14 April 2011), response to Question on Notice 3(j).

[41]      See for example, AFCD Review, p. 12: 'while the advice not to appoint an independent probity advisor may have been reasonable at the time, with the benefit of hindsight, the review concluded that a complete risk assessment ... should have identified the desirability for an independent probity advisor'. See further, Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, p. 88; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 88 (evidence on the benefits of hindsight with respect to the decision not to interview Mr Aisen).

[42]      See for example, Department of Defence, Submission 5, Appendix A, pp. 16, 22.

[43]      Department of Defence, Submission 5, Attachment A, p. 16. See further, p. 22.

[44]      Department of Defence, Submission 5, Attachment A, p. 22.

[45]      See Chapter 3. See further AFCD Review, p. 12.     

[46]      Department of Defence, Summary of advice provided by Clayton Utz to Defence in relation to the appointment of a probity auditor (14 April 2011), response to Question on Notice 3(j).

[47]      Group Captain Robert Barnes, Proof Committee Hansard, 29 March 2011, p. 64.

[48]      Department of Defence, Submission 5, Attachment A, p. 16. See further, chapter 7.

[49]      DPPM, Chapter 3.2.

[50]      DPPM, Chapter 3.13.

[51]      DPPM, p. 3.2-2.

[52]      Terms of Reference, paragraph (b)(v).

[53]      This included Pel-Air Aviation Pty Ltd, Submission 2, p. 2.

[54]      Pel-Air Aviation Pty Ltd, Submission 2, p. 2. See further, Mr Danny Foster, Proof Committee Hansard, 28 March 2011, pp. 19–26.

[55]      Mr Danny Foster, Proof Committee Hansard, 28 March 2011, p. 20.

[56]      See especially, FMG 14.

[57]      See FMG 14. See further, Australian National Audit Office, Better Practice Guide—Fairness and Transparency in Purchasing Decisions: Probity in Australian Government Procurement, August 2007.

[58]      Confidential correspondence to the committee, March 2011.

Chapter 10 - Governance arrangements—conflicts of interest and confidentiality

[1]        See for example, Deloitte Review p. 19.

[2]        Deloitte Review, p. 19. Defence Instruction (General) PERS 25-2—Employment and voluntary activities of Australian Defence Force Members in off-duty hours.

[3]        Defence Instruction (General) PERS 25-3—Disclosure of interests of members of the Australian Defence Force. It is, however, acknowledged that Major Charlton was subject to legal and ethical requirements of general application—for example, the Crimes Act 1914 (Cth) s 70(2) (the offence of the unauthorised disclosure of information by a Commonwealth officer); the Criminal Code Act 1995 (Cth) s 135 (the offence of dishonestly obtaining a gain or financial advantage from the Commonwealth); Defence Force Discipline Act 1982 (Cth) s 58 (the offence of the unauthorised disclosure of information likely to be prejudicial to national security or defence); and DI(G) PERS 25-6—conflicts of interest and acceptance of offers of gifts and hospitality, p. 3 (general duty to disclose actual or perceived conflicts of interest).

[4]        DI (G) PERS 25-2, paragraph 3(c); DI (G) PERS 25-3, paragraph 3. See further, Deloitte Review p. 19.

[5]        Defence Instruction (General) PERS 25-4—Notification of post-separation employment, annex a.

[6]        DI (G) PERS 25-4, annex b, paragraph 3.

[7]        High-level statements on the disclosure and management of conflicts of interest also appear in various other Defence policy documents and industry publications. See for example, Department of Defence, Guidance on Conflict of Interest Issues for Defence Personnel, Circular Memorandum No 53/98, [1]; Department of Defence, Defence and Industry—an Ethical Relationship (1998), pp. 2–4; Department of Defence, Ethics Matters in Defence Resource Management (2002), pp. 10–12.

[8]        Department of Defence, Submission 5, p. 35.

[9]        DI(G) PERS 25-4, paragraph 28.

[10]      AGS Review, p. 7.

[11]      Department of Defence, Submission 5, p. 35.

[12]      Department of Defence, Secretary's Opening Remarks (tabled 29 March 2011), pp. 20–21.

[13]      See chapter 6.

Chapter 11 - Findings on tender design

[1]        Terms of Reference, paragraph (a)(ii).

[2]        Terms of Reference, paragraph (a)(v).

[3]        Department of Defence, Submission 5, Attachment A, p. 3; Deloitte Review, p. 12.

[4]        See paragraphs 3.3–3.5.

[5]        Department of Defence, Submission 5, Attachment A, p. 3. See further, AFCD Review, pp. 16–17; AGS Review, p. 3; Deloitte Review, p. 12; Dr Ian Watt Proof Committee Hansard, 29 March 2011, p. 46.

[6]        See paragraph 6.16.

[7]        See paragraph 5.7.

[8]        AFCD Review, p. 5.

[9]        See, for example, Mr Shaun Aisen, email correspondence to Lieutenant Colonel Andrew Hall, 8 April 2010.

[10]      See paragraph 6.56, AGS Review, p. 79.

[11]      AFCD Review, pp. 11, 12.

[12]      AGS Review, pp. 7, 10–11.

[13]      AFCD Review, p. 11.

[14]      AGS Review, p. 10.

[15]      AFCD Review, pp. 11, 12.

[16]      AFCD Review, p. 10.

[17]      AFCD Review, p. 11; AGS Review, pp. 9–10.

[18]      See paragraph 6.65.

[19]      AFCD Review, p. 14.

Chapter 12 - Findings on due diligence and other relevant matters

[1]        Terms of Reference, paragraphs (a)(i),(viii); (b)(i)-(iv).

[2]        Terms of Reference, paragraph (b)(v).

[3]        Terms of Reference, paragraph (a)(i).

[4]        Terms of Reference, paragraph (a)(viii).

[5]        Terms of Reference, paragraph (b)(i).

[6]        Terms of Reference, paragraph (b)(ii).

[7]        Terms of Reference, paragraph (b)(iii).

[8]        Terms of Reference, paragraph (b)(iv).

[9]        Deloitte Review, pp. 21–24 (terms of reference, paragraph 4.6).

[10]      Deloitte Review, p. 23.

[11]      CPGs, Division 1, Part 4—Value for Money.

[12]      Deloitte Review, pp. 21–23.

[13]      Deloitte Review, pp. 25–26.

[14]      Deloitte Review, p. 25.

[15]      Civil Aviation Safety Authority, Submission 7, p. 3.

[16]      AFCD Review, p. 12; Mr Geoffrey Brown, Proof Committee Hansard, 29 March 2011, p. 88; Dr Ian Watt, Proof Committee Hansard, 29 March 2011, p. 88.

[17]      Department of Defence, Submission 5, Attachment A, p. 22;

Appendix 5 - Chronology of significant events 2005-2011[1]

[1]        This chronology was compiled from information taken from many different sources. Please consult the relevant sections in the report for more detail.