New South Wales Procurement Board
Category
NSW Procurement Board Direction
Identifier
PBD-2017-02
Status
Active

PBD-2017-02-PROCUREMENT BOARD DIRECTION – Use of Procure IT for procurement of ICT goods and services

Description:

NSW Government agencies must use the Procure IT Framework when entering into an arrangement with a supplier for the procurement of information and communications technology (ICT) related goods and services.

Function:             Procurement                     Subject:                               Procurement – Acquisition

Function:             Information Communications Technology

This Direction applies to the procurement of ICT related goods and services by a government agency within the meaning of the Public Works and Procurement Act 1912 (the Act). It replaces Procurement Board Direction PBD-2012-05: Use of Procure IT when entering into an arrangement with a supplier for the procurement of ICT goods and services.

When entering into an arrangement with a supplier for the procurement of ICT related goods and services, a government agency must use the Procure IT Framework.

For the benefit of suppliers and Government, and to ensure consistent ICT contract terms, government agencies are not permitted to vary the standard terms and conditions of the Procure IT Framework without the written approval of the Department of Finance, Services and Innovation (DFSI), except in the case of beneficial variations as specified below. The Department will approve variations that are reasonable and necessary to accommodate unique features of a particular procurement.

Beneficial variations

Government agencies are not required to seek DFSI approval for beneficial variations which clearly improve the Customer’s contractual position. For example, amendments improving or adding to the Customer’s legal rights and amendments imposing additional obligations on the Contractor.

However, government agencies must provide prior written notification of such variations to DFSI Legal, supported by legal advice confirming the variations are beneficial in nature.

Intellectual property

The Procure IT Framework creates the default (or the starting contractual) position in favour of the ICT supplier owning the intellectual property (IP) in the ICT product that the supplier develops under the contract with a government agency.

Under the default position, the supplier grants the agency (as the ‘customer’) a broad free-of-charge licence to use the IP and transfer it between agencies.

An agency can elect on the General Order Form within the Procure IT Framework for IP to be vested with the agency on the basis of public interest, ‘exceptional circumstances’ or where the agency (alone or in partnership) has undertaken substantial research and development of an ICT product or service and where retention of IP benefits the agency. The agency may elect to grant the supplier a licence to use retained IP on terms specified in the General Order Form.

Examples may include: security and/or strategic (including commercial) interest; law enforcement; IP applying to critical government ICT systems; and IP that includes personal information. Agencies should satisfy themselves that these circumstances exist when taking measures to retain the IP in ICT procurement contracts. Documented reasons for retaining the IP should be kept by the agency.

This direction applies from 1 July 2017 until it is withdrawn.