GITC framework for government contracts
ITC providers looking to crack into the government market will need to ensure that they are up to speed with the legal issues involved and the standard procedures associated with governmental procurement of IT products. A plethora of documentation related to government procurement policies, tenders, endorsed supplier arrangements and related matters must be digested and comprehended in order to compete in this market. Further, many government organisations may favour suppliers who have familiarity with governmental frameworks including the Government Information Technology and Communications (GITC) contractual regime.
The GITC is a framework of standard legal documentation used by government agencies in relation to procurement of ITC products. It is constantly under review and it is intended to simplify and therefore reduce costs associated with the contracting process. And although contracting under the GITC framework may not be compulsory, the model contracts upon which it is based are frequently used. Presently, a set of standardised draft model GITC contracts are available, comprising a head agreement, a variety of terms and conditions and a number of appendices. The first suite of draft contracts focus on the areas of IT consultancy, hardware acquisition and support and commercial off ‑ the ‑ shelf software licence acquisition and support.
For suppliers, probably the main concern in GITC contracts is limitation of liability. Suppliers need to ensure that they can cap their liability appropriately in order to avoid potentially crippling claims brought by government customers. It is therefore imperative to incorporate the correct wording and precautionary measures into all relevant contracts so that liability can in fact be appropriate limited. At the same time, government policy on limitations of liability must also be taken into account; It is no use to propose terms and conditions to a government department that are simply outside the scope of the relevant department’s negotiable parameters.
The Government has already released a guide to limiting suppliers liability in ICT contracts. The Federal Government Department of Information Technology and the Arts states that “The Government is committed to amending the Government Information Technology Contracting (GITC) framework to make it clear to Government ICT procurement officers and industry that Australian Government ICT procurement contracts should cap suppliers’ liability at appropriate levels when purchasing ICT goods and services.”
Pending final release, the Government has also prepared an ICT Liability Policy that will set out the parameters within which Government bodies are able to contract with suppliers so far as the issue of liability is concerned. Knowledge of this document, like the GITC contracts and other relevant information can act as leverage in the preliminary contractual negotiation stages of any government-related transaction.
Other vital issues that must be considered when entering into contractual relations with Government organisations include intellectual property, termination and matters related to suppliers’ guaranteed levels of performance.
The Australian Government procurement market is a profitable revenue stream for ICT SMEs. To gain leverage in this market, it would be wise for suppliers to have their legal service providers review the model standardised contracts in preparation for negotiations.
Disclaimer: This column is for general informational purposes only. It is not legal advice nor is it a substitute for legal advice. Readers should seek legal advice on their own particular circumstances. Alan Arnott is a technology & telecommunications lawyer with qualifications in computer science and law with Arnotts Lawyers Jones Bay Wharf in Sydney. For more information, please visit www.arnotts.net.au.