Complying with International Agreements (Attachments 1 and 2 to Instruction 2.1)

Application of International Agreements

Agencies that must comply with International Agreements:

• All Departments
• Commercial Passenger Vehicle Commission
• Commission for Children and Young People
• Environment Protection Authority
• Essential Services Commission
• Family Violence Protection Authority
• Game Management Authority
• Independent Broad-Based Anti-corruption Commission
• Office of Public Prosecutions
• Office of the Chief Commissioner of Police (Victoria Police)
• Office of the Commissioner for Environmental Sustainability
• Office of the Labour Hire Licensing Authority
• Office of the Victorian Legal Services Commissioner
• Office of the Ombudsman
• Office of the Road Safety Camera Commissioner
• Office of the Victorian Information Commissioner
• Office of the Victorian Inspectorate
• Portable Long Service Benefits Authority
• Victorian Auditor-General’s Office
• Victorian Commission for Gambling and Liquor Regulation
• Victorian Electoral Commission
• Victorian Equal Opportunity and Human Rights Commission
• Victorian Fisheries Authority
• Victorian Public Sector Commission
• Victorian Responsible Gambling Foundation

Notes

For the entities listed for Victoria, this Agreement does not cover:

• the procurement of motor vehicles
• procurement by covered entities on behalf of non-covered entities
• procurement conducted by the office of Head, Transport for Victoria.

Attachment 2 to Instruction 2.1 Government procurement requirements under International Agreements

Effective date: 1 July 2020

1. General requirements of International Agreements

1.1 Non-discrimination and equal treatment

Tender participants from other countries must be given the same opportunity to compete for government business as local tender participants.

Local tender participants must not be discriminated against on the basis that they have foreign shareholders or that they supply products originating in other countries.

Technical specifications and evaluation criteria should not be worded to exclude international tender participants.

Tender participants must not be required to provide offsets – which includes requirements for local content, use of domestic suppliers, licensing of technology, counter-trade or actions – to encourage local development, other than where required by Victorian laws (such as those relating to trade qualifications) or policies (such as the Victorian Industry Participation Policy).

1.2 Conditions of participation

Conditions of participation that inappropriately discriminate against international tender participants are not permitted.

Most common conditions for participating in a tender are acceptable under International Agreements. Examples of permitted conditions of participation include:

• legal capacity to enter a binding agreement
• financial capacity appropriate for the scale and type of the project
• commitment to the Victorian Supplier Code of Conduct
• appropriate licences or professional qualifications.

A condition requiring prior work experience in Victoria would discriminate against potential international tender participants and would not be acceptable.

2. Form of tender

2.1 Open tenders

An open tender is the preferred approach to market under International Agreements.

2.2 Selective Tenders

Registers used to select participants for Selective Tenders must either be continuously open to new applicants for registration or opened to new applicants at least once every 12 months. Registers approved under Use of Registers and Supplier panels (Instruction 6.1) meet this requirement. When using a Register to select participants by Selective Tender, the following requirements apply.

(a) The intention to conduct a Selective Tender must be openly advertised (by using a forward notice in accordance with Instruction 5.1) at least 25 calendar days before the Tender Notice is released to the selected tender participants. This time period can be reduced if the procurement is demonstrably urgent, but must be at least 10 calendar days.

(b) During the 25 calendar day period, potential tender participants who are already on the Register may express their interest in being considered for the tender. Potential tender participants who are not already listed on the Register may also express interest and initiate an application for registration. If the registration process cannot reasonably be completed in the time available there is no obligation to delay the tender while the application is dealt with.

(c) A process for dealing with these expressions of interest is not prescribed by International Agreements but the expressions of interest should be considered when selecting the field of tender participants. When deciding which prequalified suppliers will be invited to bid, there is no obligation to include parties who express interest or to exclude others who did not express interest.

(d) The forward notice must specify the number (or expected number) of tender participants who will be invited to submit a response. The criteria by which tender participants will be selected must also be described. If the forward notice does not cover these requirements, then all suitable potential tender participants listed on the Register must be invited to submit a response.

(e) A supplier who, in response to the forward notice, expresses interest in participating in a Selective Tender should be promptly informed of the Agency decision as to whether or not they will be invited to tender.

2.3 Limited Tenders

Limited Tenders are allowed under any of the Special Circumstances provided for by Instruction 3.2.2 except paragraphs (f), (g) and (j).

When a Limited Tender is used a written a report must be created recording what was procured, the circumstances that justified the Limited Tender and to demonstrate how value for money was obtained.

3. Market-led proposals

Market-led proposals (also called unsolicited proposals) are permitted when conducted in accordance with the Victorian Government Market-led Proposals Guideline.

4. Notice requirements

4.1 Forward notice

Except for the 25 calendar day notice period for Selective Tenders, International Agreements do not specify the lead time for a forward notice, but do allow reductions in the required tender open period if a forward notice has been published.

Forward notices must state ‘The requirements of Instruction 2.1 (International Agreements) under the Ministerial Directions for Public Construction Procurement in Victoria apply to this tender.

4.2 Tender Notice

Complying with Tender Notices (Instruction 3.4) meets the requirements of International Agreements.

4.3 Authentication and encryption requirements for electronic tenders

Where an electronic tender is used, Agencies must describe the place and process for lodging tenders, including any authentication and encryption requirements for the electronic tender.

5. Tender open period

Tenders must be open for at least 40 calendar days. This period can be reduced by 5 calendar days for each of the following circumstances:

(a) the Tender Notice is published electronically

(b) the Tender Documentation is available electronically

(c) responses can be submitted by electronic means.

A tender open period may be reduced to no less than 10 calendar days if:

(a) there is a substantiated state of urgency

(b) a forward notice was published at least 40 calendar days – but no longer than one year – before the Tender Notice and if the forward notice contained the same information that would have otherwise have been provided by the Tender Notice.

These requirements apply to open tenders and Selective Tenders. These requirements may apply to, but are not mandatory for, Limited Tenders.

6. Tender close

A response must not be excluded from consideration if it was submitted late because of some fault on the part of the Agency.

7. Evaluation criteria

Evaluation criteria must not discriminate between local tender participants and those from other countries.

The Tender Documentation must disclose the relative importance of the evaluation criteria. This requirement may be met by either:

(a) describing the weightings applied to each evaluation criterion

(b) by listing the evaluation criteria in order of importance.

Where not all evaluation criteria are weighted, the Tender Documentation should explain how certain criteria will be assessed using weightings or the order of importance, with other matters then considered in making the final value for money determination.

8. Post tender negotiations

Post tender negotiations are only permitted if:

(a) the Tender Notice advised that post tender negotiations either would or may be conducted

(b) following the evaluation, no response is obviously the most advantageous in terms of the evaluation criteria.

The restriction on post tender negotiations does not inhibit the right to meet with tender participants to clarify their responses.

Post tender negotiations must apply the evaluation criteria listed in the Tender Documentation.

If, following any post tender negotiations, tender participants are requested to submit revised responses, the same opportunity within the same time period must be provided to all tender participants under consideration.

9. Domestic dispute resolution

9.1 Use of domestic dispute resolution arbitration clause

(a) Tender documents for covered procurements must include the domestic dispute resolution arbitration clause, as published by the Secretary and as amended from time to time.

(b) Agencies may make minor or technical amendments to the domestic dispute resolution arbitration clause as required to align the clause with the structure and terminology of their tender documents.

9.2 Disputes not covered by a domestic dispute resolution arbitration clause

(a) In this paragraph 9.2:

(i) ‘relevant jurisdiction’ means those jurisdictions to which the measures apply, a list of which is published on the Buying for Victoria website.

(ii) ‘measures’ means the Victorian Government’s measures to implement the procurement requirements of international agreements, a list of which is published on the Buying for Victoria website.

(b) If a supplier, whose principal place of business is in a relevant jurisdiction, wishes to bring a complaint or challenge that there has been a failure of the procuring entity to comply with one or more measures in relation to a covered procurement, but that supplier is unable for any reason to rely on a binding domestic dispute resolution arbitration clause:

(i) the supplier may deliver a notice of complaint that cites this provision

(ii) the supplier and the procuring entity must negotiate and, if negotiation is unsuccessful, mediate, on the same terms as items 1.5 and 1.6 in the domestic dispute resolution arbitration clause

(iii) if the complaint is not finally resolved by mediation within 28 days of the mediation notice, the supplier may deliver a written request for arbitration

(iv) on receipt of a written request for arbitration, the procuring entity must invite the supplier to arbitrate on the same terms as the domestic dispute resolution arbitration clause, subject to any necessary modification.

10. Public interest certificate

At any stage during a procurement process, the Accountable Officer of an Agency may issue a written certificate (a public interest certificate) stating that it is not in the public interest for a procurement by the Agency to be suspended while a complaint by a supplier is being managed in accordance with the domestic dispute resolution arbitration clause.

11. Suspend a procurement subject to a complaint under the domestic dispute resolution arbitration clause

The Accountable Officer for an Agency must suspend a procurement if:

(a) a supplier makes a complaint to the Agency under the domestic dispute resolution arbitration clause or paragraph 9.2

(b) there is no public interest certificate issued in respect of the procurement.

Such suspension is to continue until the first to occur of:

(a) the supplier informs the Accountable Officer that the supplier considers the complaint to be resolved

(b) the supplier withdraws the complaint

(c) the Accountable Officer issues a public interest certificate in relation to the procurement

(d) the complaint is resolved or concludes under the domestic dispute resolution arbitration clause or paragraph 9.2 (as the case may be).

Tools and support

The Practitioners Toolkit includes key documents, guidance and information relating to the Ministerial Directions and Instructions.

For further information about the Ministerial Directions and Instructions for public construction procurement, please contact the Construction Policy Team.