Mind your Gs and Qs – The new ICT contracting framework

Queensland Information Technology Contracting (QITC) framework

The Queensland Government’s new ICT contracting framework was recently approved and officially released. It is available at: www.forgov.qld.gov.au/qitc.

The new QITC framework is the result of the Government Information Technology Contracting (GITC) framework review and refresh project which commenced in late 2015. It is the product of an extensive government and industry consultation and co-design process.

For over 20 years, the utilisation of the GITC framework has been mandatory for agencies when procuring ICT products and services. The new QITC framework, which replaces the GITC framework in its entirety, represents a substantial change for agencies when procuring ICT products and services.

IS13 – Procurement and disposal of ICT products and services

In conjunction with the release of the new QITC framework, IS13 has been amended.

IS13 now provides that the use of the new QITC framework should be the basis for all contracts established for the procurement of “ICT Products and/or Services”.

QGCIO defines ICT Products and/or Services as follows:

ICT products and/or services generally cover all types of technology (data, voice, video, etc.) and associated resources, which relate to the capture, storage, retrieval, transfer, communication or dissemination of information through the use of electronic media. All resources required for the implementation of ICT are encompassed, namely equipment, software, facilities and services, including telecommunications products and services that carry voice and/or data.

A guideline to the amended IS13 is available at: https://www.qgcio.qld.gov.au/products/qgea-documents/570-workflow/3359-is13-implemenation-guideline.

In accordance with the amended IS13, the use of the new QITC framework is now mandatory for the procurement of all ICT products and services.

Key differences between GITC and QITC

Contracting options

Under the GITC framework, agencies had the following two contracting options:

Agencies could also elect to procure ICT products and services under a Standing Offer Arrangement (SOA). All existing SOAs are predominantly on the terms of GITC.

Under the new QITC framework, agencies will have the following four contracting options:

Agencies will continue to have the option of procuring ICT products and services under an SOA. The terms of those SOAs will vary. Existing SOAs will be on the terms of GITC. Future SOAs will likely be on the terms of the QITC Comprehensive Contract Conditions. The new ICT SOA Conditions, which have been drafted to interoperate with the QITC framework, are due for release in the near future.

An SOA should be utilised where an existing SOA is applicable and appropriate. A list of ICT SOAs is available at: https://www.forgov.qld.gov.au/information-and-communications-technology-ict-arrangements or they can be identified by searching the Queensland Contracts Directory at: http://qcd.hpw.qld.gov.au/Pages/home.aspx.

Choice of contracting options

The use of the new QITC framework is mandatory. However, it is not mandatory for agencies to use a particular contracting option in particular circumstances. The circumstances for use of each contracting option, based on an assessment of risk and value, is a recommendation only and is not binding on agencies.

For example, for ease of contract administration and management, an agency may elect to procure all ICT products and services using the QITC Comprehensive Contract Conditions, irrespective of the risk and value of each individual procurement.

Similarly, an agency might elect to procure ICT products and services under the supplier’s terms and conditions, even where the individual procurement is high risk and high value.

Agencies will need to have regard to the recommendations, but they are not mandatory. If an agency uses one of the four contracting options, or procures under a SOA, it will be complying with the new QITC framework.

It is strongly recommended that agencies determine the most appropriate contracting option for their circumstances by conducting their own independent risk assessment and determining the estimated contract value of their individual procurement. The new QITC framework can then be used to determine which contracting option is recommended for use in those circumstances.

Comparison with GITC contracting options

Most of the contracting options under the QITC framework correspond to an equivalent option under the GITC framework as follows:

The biggest change for agencies is the option to use a supplier’s terms and conditions which was previously not possible under the GITC framework. Any agency should only use a supplier’s terms and conditions if they consider and accept the legal and commercial risks of doing so.

Comparison of QITC Comprehensive Contract Conditions and GITC Version 5.03

Despite the option to use the non-ICT General Contract Conditions being available to agencies since early 2015, the use of GITC Version 5.03 has remained the most popular contracting option.

For agencies who ordinarily enter into GITC Customer Contracts under the GITC framework, the QITC Comprehensive Contract Conditions will be the most familiar contracting option under the QITC framework. The QITC Comprehensive Contract Conditions share a number of similarities with GITC Version 5.03, but there are also some major differences, as follows:

Comparison of QITC Comprehensive Contract Conditions and QITC General Contract Conditions

The QITC Comprehensive Contract Conditions are similar to the QITC General Contract Conditions, except that the QITC Comprehensive Contract Conditions:

  • include more detailed and in-depth terms and conditions
  • cover a broader range of legal issues, for example, resellers, staged implementation and liquidated damages; and
  • cover additional ICT products and services, including managed services, telecommunications services and systems integration services.

Agencies will need to ensure that they use the most appropriate standard terms under the QITC framework, taking into consideration their assessment of risk and value, the ICT products and services to be procured and the required scope of the contract.

Removal of mandatory accreditation and head agreements

In order to be eligible to provide ICT products and services to agencies under GITC, suppliers had to hold:

  • industry accreditation (QAssure certification); and
  • GITC accreditation.

In accordance with the recently released Queensland Procurement Policy 2017, which commences on 1 September 2017, and in an attempt to simplify ICT procurement, suppliers will no longer need to hold any form of accreditation to provide ICT products and services to agencies, irrespective of the contract value. The removal of the requirement to hold accreditation applies to procurements under GITC or QITC.

As suppliers are no longer required to hold accreditation, this means that suppliers will no longer enter into a head agreement with the Queensland Government under which the suppliers agree to provide ICT products and services to agencies on the standard terms of the QITC General or Comprehensive Contract Conditions.

The removal of the supplier’s requirement to hold accreditation places greater responsibility on agencies to:

  • conduct their own due diligence checks of potential suppliers; and
  • ensure that their procurement process clearly specifies the applicable contracting option from the four available options.

Supporting resources

In addition to the contractual documents, the following have been prepared to provide support in understanding and using the new QITC framework:

  • QITC Framework User Guide
  • QITC General Contract Conditions – Guidance Notes for completing the contract details
  • QITC Comprehensive Contract Conditions – Guidance Notes for completing the contract details and module order forms
  • Guidelines for using Supplier Terms and Conditions
  • Contract Type Decision Tool
  • QITC Toolkit, including videos and fact sheets.

All of the support resources are available at the same location as the new QITC framework.

Transition approach

The following existing contracts will all continue until expiry or earlier termination:

  • GITC Customer Contracts
  • Standing Offer Arrangements
  • GITC Customer Contracts entered unto under SOAs
  • Contracts entered into under the non-ICT General Contract Conditions.

During an introductory period of three months from 23 August to 23 November 2017, agencies will have the option to continue to use the existing GITC framework or to use the new QITC framework.

Agencies are expected to acquaint themselves with the new QITC framework during the introductory period to ensure that they’re familiar with the QITC Comprehensive Contract Conditions and General Contract Conditions and other documents prior to the expiration of the introductory period.

What this means for your agency

The new QITC framework represents substantial changes for agencies procuring ICT products and services. Agencies should familiarise themselves with the new QITC framework, particularly the QITC Comprehensive Contract Conditions and General Contract Conditions and the various supporting resources. The new QITC framework presents agencies with greater ICT products and services procurement options, but agencies should inform themselves about the risks and benefits of each contracting option to ensure that they are adequately protected.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 23 August 2017

Author: Principal Lawyer, Adam Hall