This NSW provision hangs off the state version of the legislation the Commonwealth required New South Wales to enter into pursuant to a free trade agreement with the USA and others. It is to do with, amongst other things, giving tenderers some recourse in the event of inappropriate procurement procedures by NSW government agencies.
It is supposed to free up trade. Granted it was drawn before COVID 19 changed things, but it seem, now, a bit odd to me to have provisions so intent on aiding overseas suppliers.
In some ways it just seems to repeat the usual provisions about the need to go to market in an open, transparent and open competition way.
However, it seems, to me, to have a number of “sleeper” provisions which could operate to exclude particular providers and/or exempt whole types of procurement.
Whilst I don’t see that as the intention, I draw attention to the following: –
- Schedule 1 lists all the government agencies to which it is applied;
- Oddly, the Privacy Commissioner is exempt but not the Privacy Commission [schedule 1];
- It is important to note that by virtue of clause 6 (4), the threshold for the Enforceable Procurement Principles (EPPs) becoming “enforceable” is $9,247,000 for “construction services” and “$657,000 for goods “or any other services” [despite services not being defined];
- Whilst, by virtue of definitions, it is to apply to “construction services” and “goods”, it would appear less certain how well it will apply to “services”;
- Clause 4 renders a whole string of things to be “enforceable” but, in a sense, they are nothing different to what has been seen for years and I note that, by virtue of clause 5, they override any other policies;
- Making general procurement policies “enforceable” does not apply, by virtue of clause 6 (2) (a), to excluded procurements listed in schedule 2 and that includes part of procurement that is a preference measure, as set out in schedule 3;
- Clause 10 allows government agencies effectively to outsource procurement functions but obliges the private sector operator to comply with the legislation;
- Clause 12 allows government agencies to exclude suppliers on certain grounds which include “insolvency” which might technically but inadvertently exclude a lot of people during this COVIC-19 recovery period and I note that “supplier” is defined in a way to include directors and managers of the “supplier”;
- Clause 15 deals with circumstances in which limited tendering is permitted> The pr. The provisions are not all that unusual , though the width of the terms and breadth of exemptions are such that I fear there will be some rorting of the system;
- Unusual aspects of schedule 1 “Government agencies” is that it seems to be so short a list;
- I note that much of what Transport does is exempt;
- Given the width and loose wording of many of the items set out in schedule 2 , I fear it will be open to misuse. For instance:-
- Does not 5 facilitate “grants” to skirt procurement requirements?
- Does not 6 by allowing staff to be employed from “labour hire” companies Create problem?;
- The words “health and welfare services” and “education services” are potentially too wide for the purposes of paragraph 9 and 10; and
- The width of paragraph 20 in allowing more “grant” arrangements to skirt procurement procedures is interesting
- Schedule 3 lists exempt measures including preferences and paragraph 3 is interesting suggesting that a preference to benefit “small and medium enterprise” will be exempt will not be in breach of free trade?
- It’s also interesting that contracts to do with storage and hosting of sensitive government information are exempt.