NSW Procurement Board provides greater guidance to government on international procurement obligations

By Stuart Cosgriff, Charlotte Gordon and Madeline Pywell

21 Dec 2017

New guidelines will help government agencies to understand their obligations to comply with international free trade agreements and provide practical guidance during the procurement process.

This month, the NSW Procurement Board published "International Procurement Agreements - Guidelines for NSW Government Agencies", providing direction to government on the application of international free trade agreements to government procurement and practical guidance during the procurement process.

What international procurement agreements apply to NSW agencies?

New South Wales government agencies must comply with the following six international Free Trade Agreements (FTA)'s to which Australia is party for certain procurement actions:

  • Australia - USA FTA (2005)
  • Australia - Chile FTA (2009)
  • Korea - Australia FTA (2014)
  • Japan - Australia Economic Partnership Agreement (2015)
  • Trans Pacific Partnership (2016)
  • Singapore - Australia FTA (as amended 2017).

Which government agencies and procurement actions are subject to FTAs?

The Guidelines apply if the procurement:

  • is undertaken by or on behalf of an agency listed in Appendix 1 of the Guidelines;
  • is implemented through any form of contract;
  • has an estimated dollar value equal to, or in excess of, specified thresholds at the time of publication of a Notice of Intended Procurement; and
  • is not an excluded category of procurement (as described in section 2.4 of the Guidelines).

An FTA will apply to all forms of procurement contract over the specified dollar thresholds, including contracts for:

  • the purchase of goods and/or services including construction services;
  • rental or lease agreements (other than agreements for the acquisition or lease of land, existing buildings or other immovable property)
  • the construction or rehabilitation of physical infrastructure or other works where the supplier is assigned ownership or control for a specified period of time and can charge for the use of the works during the period of the contract.

How can Agencies use it?

In addition to providing guidance on the application of FTAs to government procurement, the Guidelines provide practical guidance on a range of matters arising during the lifespan of a procurement process.

For example, the Guidelines provide direction on planning, the types of procurement methods that can be used, setting selection criteria, considering tenders, awarding contracts, disclosure, and publication of the award of a contract.

The Guidelines also include a "Covered Procurement Checklist". Whilst not an assurance of compliance, the Checklist does provide a useful tool that Government agencies can refer to as they follow the individual requirements of each FTA.

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