MICTA/ICTA contracting framework mandated for use by NSW Government from 1 September
From 1 September 2021, Procurement Board Direction PBD 2021-02 mandates the use of the new MICTA/ICTA contracting framework by NSW Government agencies.
The MICTA/ICTA framework already forms part of the ICT Purchasing Framework, however from 1 September 2021, PBD 2021-02 requires that the MICTA/ICTA framework must be used in place of the previous ProcureIT v3.2 framework, for ICT procurements that are high risk or are valued at more than $1 million (ex GST).
What is changing?
- All NSW Government agencies must use the ICT Purchasing Framework when buying ICT related goods and services, as mandated by Procurement Board Direction PBD-2021-02.
- From 1 September 2021, the MICTA/ICTA contracting framework replaces ProcureIT v3.2 under the ICT Purchasing Framework, and must be used for procurements that are high risk or are valued at more than $1 million (ex GST), with a handful of limited exceptions.
- The new contracting framework represents a significant ‘step forward’ in a number of areas. Uplifts to key provisions have been made in consultation with NSW Government and industry, to more appropriately reflect the risk profile of the projects for which the framework is generally used and to better reflect modern contracting practices, tools and techniques.
- The core & contractual templates have not been amended and will continue to apply for low risk procurements valued at up to $1 million (excl GST).
Procurement Board Direction PBD 2021-02
- Procurement Board Direction PBD 2021-02 also mandates a new approval and reporting process for amendments to the ICT Purchasing Framework.
- Non-beneficial amendments to the framework no longer require Department of Customer Service (DCS) approval, other than in relation to the ‘excluded variations’ discussed below.
- Instead, agencies may self-approve non-beneficial amendments to the framework provided they comply with the internal reporting and governance framework mandated by DCS, which requires that a range of internal approvals must be obtained.
- Beneficial amendments (i.e. those which clearly improve a customer’s contractual position) no longer need to be notified to DCS.
What are excluded variations?
Excluded variations still require the approval of DCS. These comprise:
- variation of any ICT procurement contracts under a whole of government panel or other whole of government contract
- exemptions from using the ICT Purchasing Framework
- variations which vary the order of precedence of the documents comprising the relevant ICT Purchasing Framework or which enable a supplier’s terms to take priority over the ICT Purchasing Framework documents.
What about existing contracts?
- Contracts executed prior to 1 September 2021 will continue on the same terms until expiry.
- If a pre-1 September 2021 contract is extended or renewed in accordance with its terms after 1 September 2021, the contract will continue on its existing (i.e. Procure IT v.3.2, or earlier) terms.
- Where there are no remaining options to extend, approval from DCS is required to vary a Procure IT contract so as to extend its term (rather than transitioning onto the MICTA/ICTA contracting framework).
From 1 September 2021, the MICTA/ICTA framework must be used for ICT procurements that are high risk, or are valued at more than $1 million (ex GST).Based on our experience working with the contractual documents, we consider that in some cases there will be areas where further ‘uplift’ to the standard terms will be appropriate to cater to the particular context and risk profile of the project or the customer.
Our experience to date also suggests that the process of completing the order documents will initially be more complex, due to the significant number of variables available. In the short-term there may therefore be a period of ‘upskilling’ required, as customers and suppliers alike become familiar with using and negotiating under the new framework.
The new MICTA / ICTA contracting framework is mandatory for use from 1 September 2021
If you or your team need additional training or ‘hands-on’ support to become familiar with the new framework, or need help in understanding how to use the new contractual documents in practice, please reach out to us. We have a range of training packages and other resources available, which we may be able to tailor to suit your needs.
When outsourcing a problem creates a bigger one: The Qantas decision
By Ross Jackson
Transport Workers’ Union has successfully argued that Qantas engaged in adverse action for prohibited reasons.
‘Contracting out' of limitation periods – a guide for Government entities
The relevance of Price v Spoor for Government clients.
New case on clause 4.6 requests – is it a development standard?
By Joshua Same & Georgia Appleby
Recent judgment in Elimatta Pty ltd v Read and Anor  NSWLEC 75, implicating the drafting of clause 4.6 requests