Free Trade Agreement Guidelines

The Government Procurement chapter of each FTA contains a schedule which stipulates which State agencies are subject to the agreements.

Below is a list of Covered State Agencies (for the purposes of Free Trade Agreements).

Entities controlled by a Minister, or by a State agency listed above, used to procure goods, services or works (generally statutory bodies corporate) are also State agencies under section 5(1)(b) of the Act.

For example, this includes the Department of Housing and Works exercising the powers under the Public Works Act 1902 (WA) to contract as the Minister for Works.

The table above is not an exhaustive list of entities to which the various Free Trade Agreements apply. The entities listed below are not State agencies under the Act, but are covered by the Free Trade Agreements. Those entities may contact the Department of Treasury and Finance for further information, if required, when undertaking Procurment above the relevant threshold.

• Governor’s Establishment;
• Parliamentary Services Department;
• Legislative Assembly;
• Legislative Council;
• Salaries and Allowances Tribunal; and
• Swan River Trust.

A State agency that is stipulated in a schedule but has since undergone machinery of government changes is still subject to the FTAs.

The FTAs apply to “covered procurements” undertaken by State agencies

The Rules contain a definition of ‘covered procurement’ and a list of procurements to which the FTAs do not apply.

A multi-use list is a list of suppliers that:

• a State agency has determined satisfy the conditions for participation in that list
• the State agency intends to use more than once.

Where a State agency wishes to establish a multi-use list (pre-qualified suppliers), a notice must be issued in electronic form inviting interested suppliers to apply for inclusion on the list. The notice must include:

• a description of the procurement, or procurement categories, for which the list may be used
• the conditions for participation to be satisfied by potential suppliers and the methods that will be used to verify or determine a potential supplier’s compliance with or satisfaction of the conditions for participation
• the name and address of the State agency and other information necessary to contact the State agency and obtain all relevant documents relating to the list
• any time limit for applications for inclusion in the list.

The notice should be made available continuously; or suppliers should be given an opportunity, by release of notice to the market, to apply for inclusion on the list at least annually.

Where a supplier applies for inclusion in a multi-use list, the State agency must promptly advise the supplier of its decision with respect to its application.

State agencies must include all potential suppliers that satisfy the conditions for participation in a multi-use list within a reasonably short time.

Please note that Common Use Arrangements and Standing Offers are not multi-use lists.

A State agency may invite all or some of the suppliers listed in the multi-use list to submit offers. The State agency must invite offers from the largest number of domestic suppliers and suppliers from our FTA partners that is consistent with the efficient operation of the procurement process.

From time-to-time agencies may choose an expression of interest as its procurement method. An Expression of Interest (EOI) is part of the qualification process to receive a tender document.

An EOI is often the first step in a multi-stage tender process whereby more detailed requests for tender are issued to the shortlisted or registered suppliers. Typically, EOIs do not request pricing.

Where a State agency uses an EOI, the FTAs require that the subsequent Request (the second stage document) is sent to all suppliers that lodged a compliant response unless the notice inviting applications for participation, or the EOI, expressly stated that limited suppliers would be invited to bid.
Providing that relevant requirements and evaluation criteria have been specified in the notice inviting applications for participation, or the EOI, or the associated Request documentation, a State agency may:

• in assessing technical ability, assess the extent to which a submission meets the technical and performance specifications of the procurement
• limit the number of suppliers that it invites to tender, based on its rating of submissions, provided that the largest number of domestic suppliers and suppliers from our FTA partners are invited whilst still being consistent with the efficient operation of the procurement process.

In all other cases, the State agency must invite all suppliers that have responded to the Request for expressions of interest and that meet the conditions for participation to submit an offer.

Most State agencies choose to engage the Department of Treasury and Finance’s Tendering Services and Tenders WA to manage and close tenders (offers).

Where State agencies choose to close their own tenders (noting the publication requirement in the Rules to use Tenders WA to advertise tenders), under the FTAs, a State agency must:

• receive and open all tenders under procedures that guarantee the fairness and impartiality of the procurement process
• treat tenders in confidence. In particular, it shall not provide information to particular suppliers that might prejudice fair competition between suppliers
• not penalise any supplier whose tender is received after the time specified for receiving tenders if the delay is due solely to mishandling on the part of the State agency.

Where a State agency provides suppliers with opportunities to correct unintentional errors of form between the opening of tenders and the awarding of the contract, the State agency must provide the same opportunities to all participating suppliers.

In the event of a complaint from one of our FTA partners, alleging that a State agency has breached the requirements of the Government Procurement chapters of the FTAs, the State agency must accord timely and impartial consideration to that complaint.