New ICT Purchasing Framework for NSW Government agencies

The NSW Procurement Board recently updated the ICT Purchasing Framework documentation for the procurement of ICT goods and services. Procurement Board Direction PBD-2021-02 (Direction) came into effect on 1 July 2021 and will become mandatory for all NSW Government agencies from 1 September 2021.

The Direction requires a NSW Government agency to use the new ICT Purchasing Framework for the procurement of ICT goods and services. The ICT Purchasing Framework comprises of the:

• MICTA/ICTA Contracting Framework for contracts which are high risk or contract value of $1 million or more (ex. GST); and
• Core & Contracting Framework for contracts which are low risk and have a contract value up to $1 million (ex. GST).

The Master ICT Agreement (MICTA) and ICT Agreement (ICTA) Contracting Framework replaces the existing Procure IT v3.2 Framework and the Core & Contracting Framework updates the existing Core & short form agreement into a more concise format.

In addition to a complete restructure from the previous multi-module-based ProcureITv3.2 Framework, the updated MICTA/ICTA Contracting Framework includes a number of changes to key clauses. These changes were developed following a consultation draft review and submissions from key industry stakeholders, suppliers and other relevant industry customers. They include:

• addition of a requirement for suppliers to run initial and annual security awareness training for their personnel and to have a data management and protection plan in place in respect of the protection of personal information and compliance with privacy laws;
• mandating that suppliers implement and enforce a formal program of technical and organisational security measures relating to ICT security and cyber security which must be audited at least annually;
• providing flexibility to the position with respect to ownership of developments and modifications of a supplier’s pre-existing Intellectual Property (IP) by providing the option for suppliers to negotiate alternative positions in the relevant Order Form;
• elaborating on existing benchmarking rights with additional processes in relation to frequency of benchmarking, ability to dispute adjustments, selection of and terms of instruction for benchmarker, normalisation factors and related matters;
• streamlining of the liability and indemnity framework with a default general liability cap of two (2) x fees paid or payable and a floor of $2m where the fees are less than $1m; and
• clarification that indemnities by suppliers in relation to breach of privacy, confidentiality, security, fraud/recklessness/wilful misconduct, personal injury/death, third party claims in relation to IP infringement are excluded from the general cap but with provision of an option for parties to agree a different liability cap regime on a case-by-case basis.

All existing agency ICT contracts executed prior to 1 September 2021 will continue on the same terms until expiry, unless and until the supplier and agency vary the existing contract to include MICTA/ICTA terms and conditions.

If a pre-1 September 2021 contract allows for extension or renewal beyond 1 September 2021, the contract will continue on its existing terms (unless the supplier and agency agree in writing otherwise).

Approval from the Department of Customer Service is required to extend or renew a contract on its existing terms (rather than moving to a MICTA/ICTA Purchasing Framework) where the existing contract contains no remaining extension options.

The final versions of the new Contracting Frameworks are available for review and use through the buy.nsw.gov.au website. Suppliers who have current ICT supply contracts with NSW government agencies should familiarise themselves with the updated Frameworks and review their extension and renewal options.

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Authored by:

Donna Bartlett, Partner
Renee Smith, Associate