MICTA/ICTA user guide

1.1 Introduction

The MICTA/ICTA Contracting Framework refers to the set of contract documents used when buying high-risk or high-value (over $1 million) ICT goods and services on behalf of NSW Government. It replaces ProcureIT version 3.2 (ProcureIT).

The MICTA/ICTA contracting framework consists of the:

• Master ICT Agreement (MICTA)
• ICT Agreement (ICTA)
• associated modules: services, software, cloud, hardware and other ICT deliverables.

The MICTA/ICTA Framework forms part of the ICT Purchasing Framework.

1.2 Who may use the MICTA/ICTA framework?

The framework may be used by NSW Government agencies and other eligible customers.

1.3 Purpose

The purpose of this guide is to:

• introduce and provide an overview of the MICTA/ICTA framework
• provide a guide to the documents forming part of the framework, including how to use them
• address key frequently asked questions about the framework.

This guide relates to the MICTA/ICTA contracting framework only. View guidance on Core& contracts.

1.4 How to navigate and use this guide

This guide is structured to enable users to navigate the key components of the MICTA/ICTA contracting framework.

Please use the Page contents to go to the section you need further information on.

This guide is not a comprehensive summary and analysis of all parts of the MICTA/ICTA contracting framework. It should not be used as a substitute for reading the MICTA/ICTA contracting framework in full.

If you are unsure about the application or use of the MICTA/ICTA contracting framework or its respective elements, you should seek legal and procurement advice (as appropriate).

1.5 Defined terms

Capitalised terms used in this guide have the meaning given to them under the MICTA/ICTA contracting framework documents (unless otherwise specified).

1.6 Procurement laws and policies

Government agencies will need to ensure that all procurements are conducted in accordance with their delegation framework and all relevant procurement laws and policies, including the NSW Procurement Policy Framework.

2.1 Introduction to the MICTA/ICTA framework

Background

NSW Government is a major purchaser of information and communications technology goods and services. This trend is expected to continue given the increased role of technology in the operations of NSW Government and the delivery of services to the citizens of New South Wales.

A core objective of the Department of Customer Service (DCS) is to deliver a more efficient digital experience for users engaging or doing business with NSW Government.

The MICTA/ICTA contracting framework supports this objective and establishes a new, refreshed and industry-aligned baseline for the procurement of high-value or high-risk ICT goods and services.

Prior contracting landscape

Prior to the introduction of the MICTA/ICTA contracting framework, government agencies were, subject to relevant exceptions, required to use Procure IT when procuring high-value or high-risk ICT products and services.

Procure IT came into effect over a decade ago and had been the subject of various iterations over a number of years.

In broad terms, however, the evolution of Procure IT as a contracting model had been largely incremental and it had not been the subject of a significant transformation to the degree of the MICTA/ICTA contracting framework.

2.2 Developing the MICTA/ICTA contracting framework

The MICTA/ICTA contracting framework reflects over 12 months of work and has been developed to achieve the objectives set out below and to take into consideration, and address, feedback from relevant NSW Government stakeholders and the ICT industry.

2.3 Objectives

The key objectives of the MICTA/ICTA contracting framework are:

Customer experience

• streamlined and simplified contract model
• improve overall customer and user experience

Procurement

• enabled enhanced procurement and contracting flexibility and agility

Strategy

• implement NSW Government ICT and procurement policies
• promote SMEs, Aboriginal businesses and regional businesses

Assurance

• uplift to best industry practice
• modernise legacy contract concepts, positions and language

The MICTA/ICTA contracting framework achieves these objectives by:

• enabling enhanced procurement and contracting flexibility and agility for Customers and Suppliers
• being adaptive in order to respond to the changing needs of government
• appropriately protecting Customers, in line with best industry practice, while also modernising legacy contract concepts, positions and language which can, at times, contribute to procurement inefficiencies
• implementing NSW Government ICT and procurement policies, including in relation to small and medium enterprises (SMEs) and modern slavery
• catering to SMEs, regional enterprises and Aboriginal businesses, including through enhanced flexibility within the MICTA/ICTA contracting framework
• to the extent possible, future-proofing the MICTA/ICTA contracting framework, informed by an awareness of likely trends in the evolution of ICT contracting in coming years
• improving the overall user experience (for example, by reducing the number of Order Forms to complete and the number of documents to sign).

2.4 When to use the MICTA/ICTA contracting framework

The MICTA/ICTA contracting framework is geared to high-value (above $1 million, excluding GST) or high-risk ICT procurements. Other ICT procurements should use the Core& Contracts, which have been drafted for low-risk, low-value engagements.

Customers have the onus of conducting a risk assessment for each procurement to determine whether the use of the MICTA/ICTA contracting framework is appropriate. For further guidance, refer to the Risk Identification Toolkit XLSX, 90.3 KB.

Please note: This toolkit is not designed to replace a comprehensive risk assessment and does not override Customers' policies on risk management and contracting requirements.

The MICTA/ICTA contracting framework forms part of the ICT Purchasing Framework. As a general rule, it is mandatory for Government Agencies to use the ICT Purchasing Framework when procuring ICT related goods or services. Refer to PBD-2021-02.

2.5 Variations

Customers may make beneficial variations (Beneficial Variations) to the MICTA/ICTA contracting framework documents which they view as appropriate.

A Beneficial Variation is a variation to the MICTA/ICTA contracting framework which clearly improves the Customer’s contractual position, for example, amendments improving or adding to the Customer’s legal rights or amendments imposing additional obligations on the Supplier.

Non-beneficial variations (that is, those variations that are not Beneficial Variations) to the provisions under the MICTA/ICTA contracting framework documents may only be made by Government Agencies in accordance with, and subject to, the PBD-2021-02 and DCS' Governance and Reporting Framework (GRF). Agencies may request access to the GRF requirements by emailing ICTServices@customerservice.nsw.gov.au and must report all non-beneficial variations to DCS in accordance with the GRF.

Exceptions to the use of the MICTA/ICTA contracting framework

The MICTA/ICTA contracting framework covers most categories of ICT Services and Deliverables (including cloud services). The MICTA/ICTA contracting framework does not apply to procurements to which another current and mandated whole of government arrangement applies.

Government agencies should check the buy.nsw website for the latest information about current and mandated government procurement arrangements.

2.6 Structure of the MICTA/ICTA contracting framework

Figure 1 provides a high-level overview of the structure and core components of the MICTA/ICTA contracting framework, as outlined in 1.1 Introduction.

The MICTA/ICTA contracting framework follows a similar modular structure to Procure IT. However, there are some key structural differences. For example, under the MICTA/ICTA contracting framework:

• there is only one Order Form, rather than a General Order Form and separate Module Order Forms
• the number of Modules has been significantly reduced from 14 to 4
• the number of Schedules has been reduced from 12 to 9
• the Dictionary is consolidated into the MICTA and ICTA, rather than being a separate, standalone artefact.

2.7 Who can procure ICT Services and Deliverables using the MICTA/ICTA contracting framework?

The MICTA/ICTA contracting framework can be used by any "Eligible Customer" (which includes any "Government Agency" and "Eligible Non-Government Body") to procure ICT Services and Deliverables.

For the purpose of the MICTA/ICTA contracting framework, a "Government Agency" is defined as:

• a government sector agency (within the meaning of the Government Sector Employment Act 2013 (NSW))
• a New South Wales Government agency
• any other public authority that is constituted by or under an Act or that exercises public functions for or on behalf of the State of New South Wales (other than a State-owned corporation), or
• any State-owned corporation prescribed by regulations under the Public Works and Procurement Act 1912 (NSW).

For the purposes of the MICTA/ICTA contracting framework, an "Eligible Non-Government Body" includes the following public bodies that are not Government Agencies (as identified under clause 6 of the Public Works and Procurement Regulation 2019 (NSW)):

• a private hospital
• a local council or other local authority
• a charity or other community non-profit organisation
• a private school or a college
• a university
• a public authority of the Commonwealth or any other State or Territory
• a public authority or of any other jurisdiction (but only if it carries on activities in the State of New South Wales), or
• any contractor to a public authority (but only in respect of things done as such a contractor).

3.1 Introduction

The MICTA replaces the Head Agreement under Procure IT.

The MICTA can be used to establish a standing offer arrangement for the procurement of ICT Deliverables and Services on the terms and conditions of the ICTA. The ICTA is functionally equivalent to the Customer Contract under Procure IT.

A standing offer arrangement is an arrangement (sometimes referred to as a "panel") that sets out the terms and conditions and pricing parameters under which a Supplier agrees to deliver certain specified ICT Deliverables or Services. A standing offer arrangement may contain one or multiple Suppliers.

When the MICTA is entered into (that is, executed by both parties), the relevant Supplier(s) will sign the MICTA and go onto the relevant panel for the term of the MICTA.

Where a MICTA is entered into by a Contract Authority, any Eligible Customer (including the relevant Contract Authority) can use that MICTA to enter into individual Contracts for the procurement of the ICT Services or Deliverables that are within the scope of the relevant MICTA, by following the ordering mechanism outlined in it.

Any Contract entered into under a MICTA will be entered under the terms and conditions of the ICTA (which is attached to the MICTA as Annexure I).

Key aspects of the MICTA:

• Any Eligible Customer as defined under the  MICTA/ICTA contracting framework can enter into a MICTA with a Supplier to acquire Deliverables or Services using the ICTA terms and conditions. This provides flexibility for Eligible Customers and enables them to enter into their own standing offer arrangements. Once an Eligible Customer enters into a MICTA they become the Contract Authority with respect to that MICTA.
• In preparing the ICTA to be attached to the MICTA, the parties should negotiate any aspects of the ICTA Order Form that will apply to all Contracts. Any remaining details that are Contract specific (including the Statement of Work (SOW), will be finalised when the Eligible Customer is considering entering into a Contract (through the Order Proposal and Order mechanism outlined in the MICTA).
• The MICTA provides a simplified process for entering into a Contract under the MICTA, which requires the parties to finalise and execute an Order (as that term is defined in the MICTA) rather than having to also execute an ICTA, therefore avoiding unnecessary duplication.
• The MICTA provides a mechanism for setting rates and prices that will apply to each Contract formed under the MICTA, to maximise value for money for Eligible Customers, to minimise the need for negotiations and to ensure that Contracts can be entered into efficiently.

3.2 Entering into a MICTA

To prepare and enter into a MICTA, the parties must follow the steps set out in figure 2.

3.3 Executing a MICTA

The MICTA should be executed by both parties completing and signing the execution clauses at the end of the substantive terms of the MICTA (located just before the MICTA Annexures).

3.4 Forming contracts under a MICTA

Mechanism for forming a contract under a MICTA

If a MICTA is in place with respect to the relevant ICT Deliverables and Services to be procured, an Eligible Customer may procure the relevant Deliverables and Services by following the process set out below.

Any new procurement, including establishing a MICTA arrangement, will need to be conducted by Government Agencies in accordance with all relevant procurement laws and policies, including compliance with the NSW Procurement Policy Framework.

Key steps

1. The Eligible Customer will issue an Order Proposal to the Supplier. The Order Proposal includes a draft form of the ICTA Order Form (including SOW). The Order Form will identify the relevant Schedules that apply.
2. The Supplier will respond to the Order Proposal by submitting a Draft Order to the Eligible Customer.
3. On receipt of the Draft Order, the Eligible Customer may:
   • reject the Draft Order;
   • accept the Draft Order by issuing an "Order" in the form of Annexure E of the MICTA; or
   • request amendments to the Draft Order.
4. If the Eligible Customer accepts the Draft Order by issuing the Order, the parties will then sign the Order in Annexure E of the MICTA and a Contract will be formed. The Contract will be in the form of the ICTA and will be deemed to include all terms and conditions under the ICTA and the relevant Schedules that apply to the Order.

In the event that the parties do not agree on either the Order Proposal or the Draft Order, the parties will undertake the process outlined in clause 4 of the MICTA to address the matter.

It is important to note that entry into the MICTA does not bind the Contract Authority or Customers to issue any Order Proposal or to enter into any Contracts. A MICTA is not a contract to supply goods or services, rather it is the mechanism through which Eligible Customers may place orders for goods and services within the scope of the MICTA.

Figure 3 provides a visual overview of the process and mechanism for forming a contract under a MICTA.

3.5 Why use a MICTA?

There are many reasons why a Contract Authority may establish a standing offer arrangement. A key benefit of using a MICTA is that rates and prices (and other key Order Form Items) can be set at the MICTA level to maximise value for money for Eligible Customers, to save time and to prevent negotiation in relation to these matters.

3.6 When may the MICTA be used?

Circumstances in which a MICTA may be used

The MICTA may be used in the following circumstances:

• for DCS (as a Contract Authority) to establish a standing offer arrangement that can be used by it or other Eligible Customers
• for any other Contract Authority to establish a standing offer arrangement for itself (or other Eligible Customers), or
• for use by NSW Government clusters whereby a Government Agency may establish a standing offer arrangement for use by it and other entities within its cluster.

When you don't need to use a MICTA

The MICTA would not be utilised where:

• a current MICTA is not in place for the relevant ICT Services or Deliverables, in which case the Customer will simply use the ICTA to purchase those ICT Services or Deliverables
• the Eligible Customer does not require a standing offer arrangement, and is only procuring specified goods and services, in which case it should use the ICTA to procure those goods and services, and
• a Customer is only increasing the volume or quantum of Services or Deliverables (for example, originally the Customer sought to procure 100 items of hardware and now wishes to purchase 150 items of hardware). In this situation, the Customer may utilise the "Additional Order" mechanism in clause 3.3 of the ICTA if the parties have agreed in the ICTA Order Form to do so.

4.1 Introduction

The ICTA sets out the terms and conditions under which the Customer and the Supplier agree that the Supplier will carry out the Supplier's Activities.

As noted above, the ICTA serves a comparable function to the function that the Customer Contract served under Procure IT.

The ICTA contains:

• Core Terms
• Dictionary and interpretation
• Order Form (including Supplier's Documents and Statement of Work)
• Other Schedules.

4.2 Core Terms

The Core Terms are the substantive terms and conditions that govern the contractual relationship between the Customer and the Supplier.

Subject to PBD-2021-02, where the parties seek for any provisions within the Supplier's Documents to override the Core Terms, the parties may, if agreed, include those provisions as Additional Conditions.

In this case, the provisions should be removed from the Supplier's Documents and included within the Additional Conditions.

4.3 Description of ICTA Schedules and ProcureIT functional equivalent

Schedule 1: Dictionary and interpretation

This defines the terms under the ICTA and includes interpretation provisions to guide the interpretation of the ICTA.

ProcureIT 3.2 equivalent: Part 3: Dictionary

Schedule 2: Order Form

This Schedule includes the key order details that are relevant to the ICTA. It is comprised of:

• Parts A to E (as applicable)
• Annexure A - Supplier's Documents (as applicable)
• Annexure B - SOW (as applicable). Note: A template SOW is in Schedule 3.

Part A of the Order Form and at least one Part from Parts B to E of the Order Form (those parts addressing the Modules) will need to be completed for all procurements.

ProcureIT 3.2 equivalent: Schedule 1: General Order Form and Module Order Forms

Schedule 3: Statement of Work template

This is a template form of Statement of Work or SOW and not all content will be relevant for all engagements. The parties are free to amend the template (including to remove components of the template that are not applicable). The parties may also elect to use a completely different form of SOW.

A SOW is used to set out the Supplier's Activities (including to describe the Services or Deliverables to be provided), the Specifications for the Services and Deliverables and the roles and responsibilities of the parties in relation to the Supplier's Activities.

Where relevant, the SOW may also accommodate any applicable service level agreement (SLA) and associated Service Levels that applies to the procurement.

The SOW may also incorporate provisions to address Customer Supplied Items, Key Milestones and other Dates for Delivery, Acceptance Testing, governance arrangements, pricing (if the Payment Schedule is not being utilised) and assumptions and dependencies (among other matters).

To the extent that another part of the Order Form or another Order Document addresses the same subject matter and content as the SOW, it should not be replicated in the SOW and across the other Order Documents.

When completed, the SOW (including, where applicable, the template in Schedule 3) should be extracted into Annexure B of Schedule 2: Order Form and the content within the template in Schedule 3 deleted and replaced with:

"The SOW is included as an annexure to the Order Form". Alternatively, in Annexure B of Schedule 2 the parties can state: "Refer to the SOW in Schedule 3."

The SOW does not need to be duplicated in Schedules 2 and 3.

ProcureIT 3.2 equivalent: No direct equivalent. The closest equivalent was Schedule 12: Project Implementation and Payment Plan and (in relation to the SLA) Schedule 3: Service Level Agreement.

Schedule 4: Payment Schedule

The Payment Schedule is dedicated to payment and pricing particulars (including payment structure) in relation to the procurement. It can be used to specify pricing particulars for the provision of the Supplier's Activities, including Milestone payments, rates and other charges.

The Payment Schedule will not be needed for all arrangements. Where the payment regime is simply a monthly licence fee or something similar, it can be specified in the Order Form (including in the Statement of Work).

ProcureIT 3.2 equivalent: No direct equivalent. The closest equivalent was Schedule 12 - the Project Implementation and Payment Plan and Items 11 and 14 of Schedule 1: General Order Form.

Schedule 5: Change Request Form

Under the ICTA, Change Requests must be submitted in a form substantially similar to the Change Request Form in Schedule 5.

ProcureIT 3.2 equivalent: Schedule 4: Variation Procedures, section 3 (Change Request Form).

Schedule 6: Deed of Confidentiality and Privacy

Schedule 6 is a deed with respect to both confidentiality and privacy to be signed by the Supplier's Personnel who may receive or have access to Confidential Information or Personal Information. It only applies where specified in the Order Form.

ProcureIT 3.2 equivalent: Schedule 8: Deed of Confidentiality. Unlike Procure IT 3.2 Schedule 8, MICTA/ICTA Schedule 6 extends to the protection of both confidential information and personal information in recognition of the paramount importance of protecting both categories of information.

Schedule 7: Escrow Deed

Schedule 7 is a form of escrow deed.

It only applies where the Order Form specifies that any software, code or programming material is to be held in escrow.

Instead of utilising Schedule 7 (or a deed in substantially the same form as Schedule 7), the parties may agree on an alternative form of the escrow deed in writing.

There is also the option for the Customer to become a party to an escrow arrangement which covers the relevant Escrow Materials.

ProcureIT 3.2 equivalent: Schedule 5: Escrow Deed

Schedule 8: Performance Guarantee

Schedule 8 is a form of performance guarantee. It only applies where the Supplier is required under the Order Form to provide a Performance Guarantee.

ProcureIT 3.2 equivalent: Schedule 9: Performance Guarantee

Schedule 9: Financial Security

Schedule 9 is a form of financial security. It only applies where the Supplier is required under the Order Form to provide Financial Security.

ProcureIT 3.2 equivalent: Schedule 10: Financial Security

To the extent that a Schedule is not used or is not relevant – the parties should simply delete the content within the Schedule and include the words "Not Used" next to the heading.

Example: Schedule 9 – Financial Security – Not Used.

Standalone schedules under Procure IT that have been retired or incorporated elsewhere within the ICTA or Schedules

Certain existing schedules under Procure IT have either been removed entirely or incorporated into the substantive terms of the ICTA or into another Schedule. For example:

• There is not a standalone SLA Schedule under the MICTA/ICTA contracting framework. The parties can include Service Levels and an SLA as part of the Statement of Work either by including it within the body of the Statement of Work or annexing it to the Statement of Work.
• There is not a separate Schedule that sets out the form of Statutory Declaration for subcontractors. This is because there are mechanisms within the ICTA that provide the flexibility for customers to request that subcontractors enter into a subcontractor deed on terms consistent with, and no less onerous than, the parts of the ICTA applicable to the subcontractor's activities.

4.4 Steps for preparing an ICTA

Figure 3 outlines the key steps for entering into an ICTA.

Key steps

1. Complete Part A of the Order Form contained in Schedule 2. Part A of the Order Form must be completed for all engagements.
2. Complete Parts B to E of the Order Form contained in Schedule 2 (as applicable). Parts B to E of the Order Form address Module specific provisions. Those Parts within Parts B to E that do not apply should not be completed.
3. Complete the Annexures to the Order Form to the extent applicable. Note: Supplier's Documents and a SOW will not be relevant for all engagements. A template form of the SOW is included in Schedule 3. Once completed, it can be included or referenced in Annexure B of the Order Form (refer to section 4.3). The SOW does not need to be duplicated in Schedules 2 and 3.
4. If the Payment Particulars are not fully specified in Item 43 of the Order Form or in the SOW, ensure that you complete Schedule 4: Payment Schedule.
5. Identify and include all other Schedules that apply to the engagement and, to the extent known at the time of entry into the ICTA, complete those Schedules (for example, by completing the name of the Customer). If a Schedule does not apply, state: "Not used".

4.5 Executing an ICTA

The ICTA should be executed by both parties completing and signing the execution clauses at the end of the Core Terms of the ICTA (located just before the ICTA Schedules).

5.1 Overview

There are 4 Modules under the MICTA/ICTA contracting framework and each Module contains Order specific provisions that are included in Parts B to E of the Order Form. The Modules include:

Cloud Module

The Cloud Module contains provisions which are specific to "as-a-Service" types of services. It should be used for the provision of Cloud Services, including Software-as-a-Service, Infrastructure-as-a-Service and Platform-as-a-Service.

Services Module

This Services Module is to be used for the provision of ICT Services (non-Cloud), which may include:

• Support Services
• Development Services
• Systems Integration Services
• Managed Services
• training Services
• Data Services
• other Professional Services.

Training Services are also accommodated within each of the other Modules. Accordingly, there is no need to utilise the Services Module where procuring other ICT Deliverables and Services as well as training Services (for example, Licensed Software and training Services with respect to such Licensed Software).

However, if only training Services are being procured as part of the engagement, the Services Module is the most appropriate Module to use.

Software Module (Non-Cloud)

This Module is to be used to procure:

• Licensed Software
• Software Support Services for Licensed Software

as defined in the Software Module (Non-Cloud).

If the Customer is procuring software support Services for software other than Licensed Software, the Customer should use the Services (Non-Cloud) Module.

If the Customer is procuring software development Services, the Supplier should use the Services Module (Non-Cloud), which includes specific provisions relating to the development of software.

Hardware and Other ICT Deliverables Module

This Module should be used for:

• the acquisition and installation of Hardware
• provision of other ICT goods and infrastructure
• Support Services for Hardware and Other ICT Deliverables.

5.2 Additional and ancillary Services and Deliverables

The Modules may also be used to procure:

1. any additional or related Deliverables or Services, including (where specified) Non-ICT Services; and
2. goods and services that are incidental or ancillary to the provision of the Deliverables and Services under the relevant Modules.

5.3 Module changes from Procure IT

Module 6 under ProcureIT (Contractor Services)

No longer provided for under the MICTA/ICTA contracting framework. The Contingent Workforce Scheme, which is a mandated whole of government arrangement for the procurement of contingent labour, should be used.

Module 11 under ProcureIT (Telecommunications as a Service)

No longer directly covered under the MICTA/ICTA contracting framework at the present time as enterprise telecommunications should be procured under the Telecommunications Purchasing Arrangements (TPA) panel.

6.1 Additional Conditions

The MICTA/ICTA contracting framework provides an ability for the parties to agree "Additional Conditions" in relation to the contracting arrangement.

The intent of Additional Conditions is to provide flexibility for the parties to amend particular provisions within the Order Form or to agree new terms and conditions to be tailored to the specific requirements of the Customer.

6.2 EULA and reseller arrangements

As each arrangement will take a different form, the MICTA/ICTA contracting framework does not directly accommodate End User Licence Agreements (EULA) or reseller arrangements (which can sometimes go hand in hand).

However, such arrangements can be accommodated through the Additional Conditions and the Order Documents on a case by case basis.

In addressing EULAs and reseller arrangements, the parties will likely need to revise certain provisions under the MICTA/ICTA contracting framework, including:

• warranties
• Intellectual Property Rights
• Module Terms (including licence terms and rights).

In addition, new provisions may need to be added to the Additional Conditions and Order Documents to address the specific EULA and reseller arrangements.

6.3 Supporting SMEs

The MICTA/ICTA contracting framework lowers entry barriers for SMEs.

Through flexibility and the prescribed governance arrangements, Customers may agree to amendments for more effective risk-based contracting with SMEs, where those SMEs are either unable or unwilling to accept specific commercial and legal risks typically accepted by larger and multinational ICT suppliers.

This will be vitally important to enabling the realisation of the NSW Government's ICT procurement SME direct spend targets and diversifying the ICT supplier ecosystem to include start-ups and Aboriginal-owned businesses.

The MICTA/ICTA contracting framework represents a significant evolution of Procure IT. The core differences between the previous Procure IT framework and the MICTA/ICTA contracting framework are outlined in sections 4.3 and 5.3 and in this section.

This section has a targeted summary of key changes that may be of most interest to users of the MICTA/ICTA contracting framework.

The following list (and sections 4.3 and 5.3) are not intended to be an exhaustive description of all differences between the MICTA/ICTA contracting framework and the previous Procure IT framework.

MICTA

As noted above, the MICTA provides a simplified and more streamlined process for Eligible Customers to enter into contracts using the ICTA.

Consolidated and streamlined framework

The documents within the MICTA/ICTA contracting framework have been streamlined compared to Procure IT, for example:

• There were 14 Modules under Procure IT. The MICTA/ICTA contracting framework has consolidated and reduced the number of Modules to 4.
• Under Procure IT there was a General Order Form (Schedule 1) and separate Module Order Forms. Under the MICTA/ICTA contracting framework there is only one Order Form (contained in Schedule 2 of the ICTA) which will significantly decrease the time and cost of preparing, negotiating and finalising contracts.
• The MICTA/ICTA contracting framework removes duplicate provisions across the substantive contract terms and the Module terms.

Flexibility

The MICTA/ICTA contracting framework provides enhanced procurement and contracting flexibility and agility. There is in-built flexibility to accommodate:

• alternative project delivery methodologies (including waterfall, agile and iterative)
• easy placement of Additional Orders under the ICTA
• customisation through Additional Conditions.

Broadening to accommodate related or ancillary non-ICT deliverables and services

Procure IT was designed specifically for the procurement of ICT-related products and services. It did not directly address the procurement of goods and services that were not ICT related, but which were related or ancillary to the ICT procurement.

In recognition of the increasing convergence of technology with other sectors, the MICTA/ICTA contracting framework has been designed to accommodate non-ICT services and deliverables which are related or ancillary to the ICT procurement.

Supplier's documents

The MICTA/ICTA contracting framework accommodates the inclusion of certain types of Supplier's Documents (subject to certain parameters).

Electronic transacting

The MICTA/ICTA contracting framework supports electronic transactions, where possible.

Subject to any legislative restrictions, the MICTA/ICTA contracting framework anticipates that the parties may execute certain contract documents, including change request forms, electronically.

In addition, DCS is exploring electronic contract tools to guide users through the application and use of the MICTA/ICTA contracting framework and the completion of the ICTA Order Form.

Evolved data and security provisions

The MICTA/ICTA contracting framework includes evolved provisions in relation to data protection and security.

New clauses have also been added in relation to security incident notification and personnel background checks.

New Acceptance Testing provisions

The previous acceptance testing provisions under Procure IT could be cumbersome and time-consuming for parties to work with.

The Acceptance Testing regime has now been refreshed in the MICTA/ICTA contracting framework to provide Suppliers and Customers with greater control and flexibility in relation to how acceptance testing processes and procedures are described.

New intellectual property provisions

The MICTA/ICTA contracting framework includes a new intellectual property regime. While the default position under the ICTA of supplier ownership of new materials is retained, the ICTA includes refined expressions of licence rights with respect to both new and existing materials.

New and more simplified liability regime

The MICTA/ICTA contracting framework features a new streamlined and simplified regime with respect to limitations and exclusions of liability, which is more aligned with current market practice for high-value, high-risk ICT procurements.

Alignment with industry

The MICTA/ICTA contracting framework has removed a number of historic elements of Procure IT and replaced such provisions with new clauses that reflect best industry practice and terminology more commonly adopted in ICT contracts.

For example, the Project Implementation and Payment Plan has been removed and placed with a template SOW.

References to updated policies and legislation

The MICTA/ICTA contracting framework has been updated to incorporate new procurement policies and procedures and to reflect recent legislative and policy changes, for example to introduce clauses with respect to modern slavery and SMEs.

8.1 General

The MICTA/ICTA contracting framework is mandated for use by Government Agencies for all new procurements that are approved by the Government Agency on or after 1 September 2021.

From 1 July 2021 (the publishing date of PBD-2021-02) until 31 August 2021 (Transition Period), Government Agencies could, at their discretion, use Procure IT or the MICTA/ICTA contracting framework documents.

As the MICTA/ICTA contracting framework represents a significant shift from Procure IT (both in form and content), Eligible Customers and their procurement teams were encouraged to use the Transition Period to familiarise themselves with the MICTA/ICTA contracting framework.

8.2 Governance arrangements during the Transitional Period

The ability for Government Agencies to approve non-beneficial variations during the Transition Period will be dependent on what framework documents are being utilised by the Government Agency.

Where a Government Agency is using the MICTA/ICTA contracting framework, the Government Agency may approve non-beneficial variations to it from the date PBD-2021-02 has been published in accordance with the GRF.

However, the use of Procure IT during the Transition Period was subject to PBD 2020-02. In other words, if using Procure IT during the Transition Period, DCS was required to approve all non-beneficial variations in accordance with PBD-2020-02.

PBD-2020-02 was withdrawn at the end of the Transition Period.

Will there be any reviews of the MICTA/ICTA framework?

Yes. We anticipate that the MICTA/ICTA contracting framework documents will be reviewed in 12 months' time.

As part of the 12-month review, DCS will consider whether any changes to the MICTA/ICTA contracting framework documents or their structure are required.

Refer to section 10 of this User Guide for details about how you can provide feedback on the MICTA/ICTA contracting framework.

Is the Core& Contract suite also being amended?

At this time, the Core& Contract suite is not being amended.

Does DCS need to approve variations to the MICTA/ICTA contracting framework?

DCS only needs to approve "excluded variations" (as defined under PBD-2021-02) to the MICTA/ICTA contracting framework. Other non-beneficial variations may now be approved by the relevant Government Agency subject to the GRF and the PBD-2021-02.

Why is there only one Order Form?

There is only one Order Form to reduce the number of Modules (and therefore the number of terms and conditions) and to simplify the existing contractual model with respect to ICT procurement and to make it more efficient to do business with NSW Government.

How can I access the Governance and Reporting Framework?

Agencies may request access to the GRF by emailing ICTServices@customerservice.nsw.gov.au

What do we do if one or more of the Modules do not apply to our procurement?

To the extent that one or more of the Modules don't apply to your procurement then you do not need to complete those parts of the Order Form addressing the Module(s).

In this situation, you may delete the part of the Order Form addressing the Module(s) and insert "Not applicable" next to, or underneath, the table header in Schedule 2.

Example: PART D: Software Module (Non-Cloud) – Not applicable

Do you have to use a Statement of Work (SOW)?

No, you don't need to use a SOW.

The MICTA/ICTA contracting framework provides flexibility so that Customers can insert any necessary requirements in Parts A to E of the Order Form (to the extent applicable).

Does the MICTA/ICTA framework accommodate "piggybacking"?

The MICTA/ICTA contracting framework does not include express "piggybacking" provisions.

However, if a Customer wished to enable an Eligible Customer to leverage the contractual arrangement that they had agreed with a Supplier, they could either:

• set up a MICTA
• develop Additional Conditions with "piggybacking provisions".

Please note, use of piggybacking clauses will no longer be classed as an exempt procurement under Enforceable Procurement Provisions as of 29 November 2022.

My agency is procuring hardware Support Services only. Do I use the Hardware and Other ICT Deliverables Module or the Services (Non-Cloud) Module instead?

If the only Services being procured is hardware Support Services, Customers should use the Hardware and Other ICT Deliverables Module. Refer to section 5.1.

However, if other Services are being procured in addition to hardware Support Services, Customers may be better placed to use the Services Module so that one, rather than 2, Modules apply.

Can you use the MICTA/ICTA framework to procure non-ICT goods and services?

The MICTA/ICTA contracting framework is for the procurement of ICT goods and services.

However, if non-ICT goods and services are related or ancillary to ICT procurement, then you may use the MICTA/ICTA contracting framework.

Each of the Modules has been drafted with the flexibility to accommodate non-ICT goods and services.

What is the difference between the MICTA and the Additional Orders process under the ICTA?

The MICTA is a standing offer arrangement that only applies where a MICTA is in place. There is no minimum order spend or quantity at the time that a MICTA is entered into and established.

On the other hand, once an ICTA is in place, there is an initial Order.

Where agreed by the parties, the Additional Order process under the ICTA can be used to increase the volume or quantum of the Services or Deliverables within the scope of the ICTA.

However, an ICTA will only accommodate Additional Orders where agreed to by the parties in the Order Form.

What is the role of the Contract Authority under the MICTA?

The Contract Authority enters into the MICTA for itself or on behalf of other Eligible Customers.

In the context of the MICTA, the Contract Authority's role is of a largely administrative nature in terms of facilitating and administrating the MICTA arrangement.

The Contract Authority may also take certain action against Suppliers under the MICTA. For example, directing that a Supplier submits an action plan to address any non-performance issues.

If you have any comments or feedback about the MICTA/ICTA contracting framework, or would like to receive updates about any future developments to the MICTA/ICTA contracting framework, please email us at ICTServices@customerservice.nsw.gov.au

By providing feedback you agree that DCS may use that information (which may include personal information such as your name or email address) for the purpose of:

• considering and assessing your feedback
• further developing the MICTA/ICTA contracting framework documents
• for any other purpose related to the carrying out or exercise of DCS' functions or powers.

DCS may disclose any feedback that you provide to DCS in connection with the MICTA/ICTA contracting framework to DCS' employees, representatives and lawyers as well as other Eligible Customers.

Unless you otherwise advise DCS in writing, you also agree that DCS may use your personal details should it wish to contact you to seek further clarification of your feedback.