This Direction sets out requirements relating to international procurement agreements which the NSW Procurement Board has specified as enforceable procurement provisions. All government agencies listed in Schedule 1 of the Direction must comply with these requirements.
Under the Public Works and Procurement Act 1912 (the Act), a supplier may lodge a complaint with the head of a government agency alleging that the agency has contravened or proposes to contravene an enforceable procurement provision in this Direction. The agency head must investigate and attempt to resolve this complaint in accordance with provisions in the Act.
The complainant supplier can apply to the Supreme Court for an injunction restraining the agency from contravening an enforceable procurement provision, or requiring the agency to take action to avoid or remedy a contravention of an enforceable procurement provision. The supplier can also apply to the Supreme Court for an order for the agency to pay compensation.
The Enforceable Procurement Provisions Direction is attached. The Direction commences on 29 November 2019 and replaces PBD 2017-06 International Procurement Agreements.
On 11 October 2019, the NSW Procurement Board approved amendments to clarify the transitional provisions in subclauses 29(1), 29(2) and 29(4). The amended provisions commenced on 29 November 2019.
On 28 January 2020, the NSW Procurement Board approved amendments to clause 5 and to Schedule 2 to clarify clause 5 and to exempt procurement undertaken pursuant to Procurement Board Direction PBD 2020-01 Support for bushfire affected communities. On 4 May 2020 the NSW Procurement Board extended PBD 2020-01 Support for bushfire affected communities to include work related to floods occurring in NSW from January 2020 to March 2020, where a procurement is started after 4 May 2020.
On Friday 28 August 2020, the Executive Director, NSW Procurement, under delegation from the NSW Procurement Board approved amendments to clause 6 to increase the value of the relevant procurement thresholds applying the Direction. The revised thresholds are $9.584 million for construction services and $680,000 for goods and other services and have effect from 2 September 2020. The Executive Director also approved amendments to Schedule 1 to apply the Direction to the Independent Planning Commission and the Office of the Independent Planning Commission, Regional NSW and Resilience NSW.
On 25 November 2020, the NSW Procurement Board approved amendments to Schedule 1 and Schedule 2 to clarify that contracts under the Passenger Transport Act 2014 are exempt from the Direction. The NSW Procurement Board also approved amendments to transitional provisions in clause 29(2) and 29(4)(b) to extend the exemption for procurement through a pre-qualification scheme.
On 27 September 2023, the NSW Procurement Board approved amendments to the Enforceable Procurement Provisions Direction following the Australia-United Kingdom Free Trade Agreement entering into force. This includes updates to Schedule 1 to include new covered entities and inclusions of the former functions of Roads and Maritime Services goods and services procurement. Procurement lists are required to be open to new applicants at all times.
Who needs to know and/or comply with this?
- Executive agencies related to Departments
- Advisory Entities (including Boards and Committees)
- Separate agencies
- Statutory Authorities/Bodies
- Date Issued
- Sep 16, 2019
- Review Date
- Nov 29, 2025
- Replaced By
- Publishing Entity
- The Treasury
- Issuing Entity
- NSW Procurement Board