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: 1 July 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.

2.1 Selective Tenders

The information in this section is expected to change soon. Expected changes are explained in Fact Sheet: Forthcoming international agreements.

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 Instruction 6.1 meet this requirement.

2.2 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

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

5. Tender open period

The information in this section is expected to change soon. Expected changes are explained in Fact Sheet: Forthcoming international agreements.

Tenders must be open for at least 30 calendar days. This period can be reduced to 25 calendar days if all of the following three requirements are satisfied:

(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 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.

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 25/07/2018
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