I’m a technology services provider wanting to do work with the Victorian Government under the eServices Register Contract. What do I do?
IT service suppliers, especially smaller businesses, often run into trouble when engaging with the Victorian Government under an eServices Agreement. Government tender contracts are often a step above other client contracts in terms of their complexity and many businesses just accept them without really considering or understanding their obligations and options in negotiation.
While the Victorian government is always quite keen to ensure suppliers contract uniformly, a thorough understanding of the risks involved and the options in negotiations is integral for getting the best deal.
eServices Register
The eServices Register is the Victorian government’s procurement register for IT services. The process of registering is set out on the eServices web page here. This requires the registration on the register and the provision of information relating to the register. Being on the register is a precondition of entering into the eServices contract.
The Victorian Government has recently released version 5.2 of the eServices Register Head Agreement, which forms part of the eServices contract. Amongst other items, this version has a stronger focus on compliance and governance issues through the Victorian Government’s “Ethical Supplier” programme.
How is the contract structured?
The eServices contract is “modular” in nature, meaning it is made up of a number of documents and sections. It includes the following parts:
– The eServices Register Head Agreement;
– The Contract Variables which are specifically tailored for each engagement, and include the terms that are open for negotiation. This portion of the Contract also includes a note of what services are relevant to that engagement;
– Schedules 1-8 (listed below) which cover specific services. Which of these schedules are triggered depends on the services identified by the Contract Variables;
– The tender document put together by the Victorian Government agency (whether a Request For Tender, Request for Information, Request for Proposal etc); and
– The response document put together by you.
What does the contract cover?
The eServices Register Head Agreement sets out the relevant services it applies to within schedules 1-8 of the contract itself. As with previous versions, the agreement covers services including the following:
– Schedule 1 – Cloud Services;
– Schedule 2 – Implementation Services;
– Schedule 3 – Development Services;
– Schedule 4 – Hosting Services;
– Schedule 5 – Managed Services;
– Schedule 6 – Maintenance And Support Services;
– Schedule 7 – Professional Services; and
– Schedule 8 – Hardware Services (meaning professional services provided around hardware).
The eServices register specifically excludes the following services:
– marketing services;
– contract workers or temporary staff;
– IT hardware or software (independently of the listed services); and
– where there is a specific purchase contract in place (typically with large scale providers who have a blanket agreement with the Victorian Goverment).
What are some of the main traps for small businesses signing an eServices Agreement for the first time?
By far the biggest issue that arises over and over again is over-promising in the response to tender document, which many clients do not realise will be integrated into the final agreement. This is compounded by typical terms under the governments tender request which may require the supplier to have informed themselves fully about all information provided and to have fully investigated all other information publically available and potentially relevant to your response. In entering into the agreement, a supplier therefore cannot necessarily rely on caveats and dependencies set out, especially if you should have informed yourself about that information otherwise.
A second issue that arises is being unaware of the pointier terms of the contract which potentially could have been negotiated. Whilst the eServices Register Head Agreement itself is often difficult to change without a compelling reason, the contract variables contain specific the detail of clauses which can often make a difference between a successful engagement and a failure. In limited circumstances, the contract may also be replaced with the supplier’s own agreement.
The third trap is the lack of engagement with the governance and corporate social responsibility portions of the agreement. Typically, these are either ignored or paid lip service via a few short verbal responses. The Victorian Ethical Supplier Requirements, for example, are becoming more and more onerous and the Victorian Government is increasingly coming down hard on breaches. It is important that businesses analyse these requirements to ensure they comply fully.
If you have any queries about your eServices Contract or your tender response to an eServices tender, reach out to us at info@papillonlawyers.com for a free initial consu
