Are you a NSW government IT tender partner?
The NSW Government Department of Customer Service has confirmed that from 1 September 2021 Procure IT version 3.2 will be replaced by the MICTA/ICTA contracting framework.
Government agencies may use either the MICTA/ICTA Contracting Framework, or Procure IT 3.2 during the transitional period between 1 July 2021 and 31 August 2021.
The new MICTA/ICTA framework incorporates 3 sections:
· Master ICT Agreement (MICTA) (including the “Key Details” document setting out the specific terms of the agreement);
· ICT Agreement (ICTA); and
· associated Modules: Services, Software, Cloud, Hardware & Other ICT Deliverables.
In addition, the final executed contract includes an “Order Form” which outlines the work to be done, and may include a completed “Key Details” document incorporated as part of the MICTA, which provides specific details of the engagement.
Changes
As with most government contracts, the devil is in the details. Some of the following are new clauses and requirements which suppliers should watch out for:
– Benchmarking: the benchmarking requirements have been bolstered and given significantly more teeth. The Procure IT 3.2 system simply provided for a performance review, while the new MICTA terms allow for a full independent benchmarking review with the supplier’s only avenue for disputing the independent benchmarker’s findings (and the agency’s application of those findings to the contract) being through the dispute resolution system under the contract.
– Reporting: default reporting requirements are significantly more onerous, including details of the supplier’s compliance with various policies of the NSW government.
– Intellectual property: the Procure IT 3.2 contract contained a choice around whether IP was to be owned by the agency or the supplier. The MICTA does away with this requirement in favour of a clause stating that all developed IP under the contract is owned by the agency. The ICTA, on the other hand, defaults to the Supplier owning IP unless the Key Details state otherwise.
– Termination: the agency may terminate immediately without notice, paying only the supplier’s reasonable costs related to the period prior to the termination. By comparison, Procure IT 3.2 required 60 days’ notice for termination for convenience.
– Limitation of Liability: MICTA and ICTA have both retained the ability to negotiate the liability cap. ICTA applies a default of $2m or 2 times total fees, whichever is higher. This cap does not apply to a breach of indemnities or a repudiation or abandonment of the agreement.
– Non-solicitation: the agreement has a non-solicitation clause for both parties with a 6-month tail.
For more information on the ICTA and MICTA contracts, or to review a contract you have received from the NSW government, reach out to matthew.hodgkinson@papillonlawyers.com.
