Complying with International Agreements (Attachments 1 and 2 to Instruction 2.1)

Direction 2.1 and Instruction 2.1 explain the rules to apply when a procurement needs to comply with International Agreements.

Attachment 1 to Instruction 2.1 Agencies that must comply with government procurement requirements under International Agreements

Effective date: 1 July 2018

Application of International Agreements

Agencies that must comply with International Agreements:

All Departments

Commission for Children and Young People

Essential Services Commission

Game Management Authority

Independent Broad-Based Anti-corruption Commission

Office of Public Prosecutions

Office of the Chief Commissioner of Police (Victoria Police)

Office of the Commissioner for Environmental Sustainability

Office of the Fire Services Levy Monitor

Office of the Freedom of Information Commissioner

Office of the Legal Services Commissioner

Office of the Ombudsman

Office of the Privacy Commissioner

Office of the Road Safety Camera Commissioner

Office of the Victorian Inspectorate

Taxi Services Commission

Victorian Auditor-General’s Office

Victorian Commission for Gambling and Liquor Regulation

Victorian Electoral Commission

Victorian Equal Opportunity and Human Rights Commission

Victorian Public Sector Commission

Victorian Responsible Gambling Foundation

Attachment 2 to Instruction 2.1 Government procurement requirements under International Agreements

Effective date: 30 December 2018

1. General requirements of International Agreements

 1.1 Non-discrimination and equal treatment

Tender participants from other countries must be given the same opportunity to compete for government business as local tender participants.

Local tender participants must not be discriminated against on the basis that they have foreign shareholders or that they supply products originating in other countries.
Technical specifications and evaluation criteria should not be worded to exclude international tender participants.

Tender participants must not be required to provide offsets – which includes requirements for local content, use of domestic suppliers, licensing of technology, counter-trade or actions – to encourage local development, other than where required by Victorian laws (such as those relating to trade qualifications) or policies (such as the Victorian Industry Participation Policy).

1.2 Conditions of participation

Conditions of participation that inappropriately discriminate against international tender participants are not permitted.

Most common conditions for participating in a tender are acceptable under International Agreements. Examples of permitted conditions of participation include:

  • legal capacity to enter a binding agreement;
  • financial capacity appropriate for the scale and type of the project;
  • commitment to the Victorian Supplier Code of Conduct; or
  • appropriate licences or professional qualifications.

A condition requiring prior work experience in Victoria would discriminate against potential international tender participants and would not be acceptable.

2. Form of tender

2.1 Open tenders

An open tender is the preferred approach to market under International Agreements.

2.2 Selective Tenders

Registers used to select participants for Selective Tenders must either be continuously open to new applicants for registration or opened to new applicants at least once every 12 months. Registers approved under Use of Registers and Supplier panels (Instruction 6.1) meet this requirement. When using a Register to select participants by Selective Tender, the following requirements apply.

(a) The intention to conduct a Selective Tender must be openly advertised (by using a forward notice in accordance with Instruction 5.1) at least 25 calendar days before the Tender Notice is released to the selected tender participants. This time period can be reduced if the procurement is demonstrably urgent, but must be at least 10 calendar days.

(b) During the 25 calendar day period, potential tender participants who are already on the Register may express their interest in being considered for the tender. Potential tender participants who are not already listed on the Register may also express interest and initiate an application for registration. If the registration process cannot reasonably be completed in the time available there is no obligation to delay the tender while the application is dealt with.

(c) A process for dealing with these expressions of interest is not prescribed by International Agreements but the expressions of interest should be considered when selecting the field of tender participants. When deciding which prequalified suppliers will be invited to bid, there is no obligation to include parties who express interest or to exclude others who did not express interest.

(d) The forward notice must specify the number (or expected number) of tender participants who will be invited to submit a response. The criteria by which tender participants will be selected must also be described. If the forward notice does not cover these requirements, then all suitable potential tender participants listed on the Register must be invited to submit a response.

(e) A supplier who, in response to the forward notice, expresses interest in participating in a Selective Tender should be promptly informed of the Agency decision as to whether or not they will be invited to tender.

2.3 Limited Tenders

Limited Tenders are allowed under any of the Special Circumstances provided for by Instruction 3.2.2 except paragraphs (g) and (j).

When a Limited Tender is used a written a report must be created recording what was procured, the circumstances that justified the Limited Tender and to demonstrate how value for money was obtained.

3. Market-led proposals

Market-led proposals (also called unsolicited proposals) are permitted when conducted in accordance with the Victorian Government Market-led Proposals Guideline.

4. Notice requirements

4.1 Forward notice

Except for the 25 calendar day notice period for Selective Tenders, International Agreements do not specify the lead time for a forward notice, but do allow reductions in the required tender open period if a forward notice has been published.

4.2 Tender Notice

Complying with Tender Notices (Instruction 3.4) meets the requirements of International Agreements.

5. Tender open period

Tenders must be open for at least 40 calendar days. This period can be reduced by 5 calendar days for each of the following circumstances:

(a) the Tender Notice is published electronically;

(b) the Tender Documentation is available electronically; and

(c) responses can be submitted by electronic means.

A tender open period may be reduced to no less than 10 calendar days if:

(a) there is a substantiated state of urgency; or

(b) a forward notice was published at least 40 calendar days – but no longer than one year – before the Tender Notice and if the forward notice contained the same information that would have otherwise have been provided by the Tender Notice.

These requirements apply to open tenders and Selective Tenders. These requirements may apply to, but are not mandatory for, Limited Tenders.

6. Tender close

A response must not be excluded from consideration if it was submitted late because of some fault on the part of the Agency.

7. Evaluation criteria

Evaluation criteria must not discriminate between local tender participants and those from other countries.

The Tender Documentation must disclose the relative importance of the evaluation criteria. This requirement may be met by either:

(a) describing the weightings applied to each evaluation criterion; or

(b) by listing the evaluation criteria in order of importance.

Where not all evaluation criteria are weighted, the Tender Documentation should explain how certain criteria will be assessed using weightings or the order of importance, with other matters then considered in making the final value for money determination.

8. Post tender negotiations

Post tender negotiations are only permitted if:

(a) the Tender Notice advised that post tender negotiations either would or may be conducted; or

(b) following the evaluation, no response is obviously the most advantageous in terms of the evaluation criteria.

The restriction on post tender negotiations does not inhibit the right to meet with tender participants to clarify their responses.

Post tender negotiations must apply the evaluation criteria listed in the Tender Documentation.

If, following any post tender negotiations, tender participants are requested to submit revised responses, the same opportunity within the same time period must be provided to all tender participants under consideration.

9. Domestic dispute resolution

9.1  Use of DDR Arbitration Clause

(a) Tender documents for covered procurements must include the DDR Arbitration Clause, as published by the Secretary and as amended from time to time.

(b) Agencies may make minor or technical amendments to the DDR Arbitration Clause as required to align the clause with the structure and terminology of their tender documents.

9.2   Disputes not covered by a DDR Arbitration Clause

(a) In this paragraph 9.2:

(i) ‘relevant jurisdiction’ means those jurisdictions to which the measures apply, a list of which is published at https://www.buyingfor.vic.gov.au; and

(ii) ‘measures’ means the Victorian Government’s measures to implement the procurement requirements of international agreements, a list of which is published at https://www.buyingfor.vic.gov.au.

(b) If a supplier, whose principal place of business is in a relevant jurisdiction, wishes to bring a complaint or challenge that there has been a failure of the procuring entity to comply with one or more measures in relation to a covered procurement, but that supplier is unable for any reason to rely on a binding DDR Arbitration Clause:

(i)    the supplier may deliver a notice of complaint that cites this provision;
(ii)    the supplier and the procuring entity must negotiate and, if negotiation is unsuccessful, mediate, on the same terms as items 1.5 and 1.6 in the DDR Arbitration Clause; 
(iii)    if the complaint is not finally resolved by mediation within 28 days of the mediation notice, the supplier may deliver a written request for arbitration;
(iv)    on receipt of a written request for arbitration, the procuring entity must invite the supplier to arbitrate on the same terms as the DDR Arbitration Clause, subject to any necessary modification.

Revision Date Reference Details Endorsed by
   1/7/2018   First release  
1 30/12/2018 2.2

Remove the words 'The information in this section is expected to change soon. Expected changers are explained in fact Sheet Forthcoming international agreements.'

DTF
1 30/12/2018 2.2

Insert additional requirements on using a Register to select participants by Selective Tender.

DTF
1 30/12/2018 4.1

Insert the words “Except for the 25 day notice period for Selective Tenders,’ at the beginning of the paragraph.

DTF

1 30/12/2018 5

Remove the words 'The information in this section is expected to change soon. Expected changers are explained in fact Sheet Forthcoming international agreements.'

In the first sentence of the first paragraph, change reference to ‘30 calendar days’ to ’40 calendar days’.

In the second sentence of the first paragraph, change the period that can be reduced from ‘25 calendar days’ to ‘5 calendar days for each of the following circumstances:’

At the end of the first paragraph, remove the words ‘if all of the following three requirements are satisfied’.

DTF
1 30/12/2018 5 In the second paragraph, insert the words ‘no less than’ before 10 calendar days.

DTF

1 30/12/2018 9 Inclusion of Domestic dispute resolution. DTF

Tools and support

The Practitioners Toolkit includes key documents, guidance and information relating to the Ministerial Directions and Instructions.

For further information about the Ministerial Directions and Instructions for public construction procurement, please contact the Construction Policy Team.

Reviewed 28/12/2018
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