Aboriginal Procurement Policy
The Aboriginal Procurement Policy (APP) and the Aboriginal Participation in Construction Policy (APIC) have merged into a new policy, commencing 1 January 2021.
Aboriginal Procurement Policy January 2021
The final policy document has been prepared by an Aboriginal graphic designer and includes Aboriginal artwork commissioned for the 2019 policy review report.
Download the policy document PDF, 569.86 KB.
The NSW Government values the economic, social and cultural contribution of the Aboriginal community in NSW.
The Aboriginal Procurement Policy (APP) will contribute to the NSW Government’s strategic economic policy of Growing NSW’s First Economy.
Government procurement provides a significant opportunity to increase Aboriginal skills and economic participation.
The APP supports the NSW Government Plan for Aboriginal Affairs, OCHRE, and is a key deliverable under the Aboriginal Economic Development framework.
- Support employment opportunities for Aboriginal people.
- Support sustainable growth of Aboriginal businesses by driving demand via Government procurement of goods, services and construction.
1.2 Targets by 31 December 2021
- 1% of total addressable spend. The APP aims for NSW Government clusters to direct 1% of the cluster’s addressable spend to Aboriginal businesses.
- 3% of total goods and services contracts. The APP aims for NSW Government clusters to award 3% of the total number of goods and services contracts to Aboriginal businesses.
- 3,000 full-time equivalent employment (FTE) employment opportunities supported. The APP aims to support an estimated 3,000 FTE opportunities for Aboriginal people through NSW Government procurement activities.
2. The APP applies to the procurement of goods, services and construction by all NSW Government agencies
The APP applies to the procurement of all goods and services, including construction, by a government agency, within the meaning of section 162 of the Public Works and Procurement Act 1912 (the Act) (collectively referred to as ‘clusters’ or ‘agencies’ in this policy).
State-owned corporations, the Parliament of NSW and local councils are not covered by this policy. State-owned corporations are encouraged to adopt aspects of the APP that are consistent with their corporate intent.
NSW Government agencies must apply the APP to all relevant procurement activities commencing from 1 January 2021. All agencies are encouraged to apply the policy at an earlier date where this is practical.
2.2 Identifying an Aboriginal business
For the purpose of this policy, an Aboriginal business is one that has at least 50% Aboriginal ownership and that is recognised through an appropriate organisation, such as Supply Nation or the NSW Indigenous Chamber of Commerce. These organisations maintain lists of Aboriginal businesses that are audited and undergo quality assurance.
2.3 Confirming Aboriginality of employees
For the purpose of this policy, suppliers reporting on numbers of FTE employment opportunities for Aboriginal people on the contract must be able to demonstrate their process to confirm Aboriginal or Torres Strait Islander heritage in line with the guidance to be issued prior to the commencement of the policy.
2.4 Accountability and transparency
The NSW Government will publicly hold itself to account for performance under the policy.
Performance against policy targets will be published on buy.nsw for the NSW Government as a whole and at a cluster level.
The success of this policy will be assessed on the following performance indicators:
- an increase in the number of Aboriginal businesses awarded contracts with the NSW Government
- an increase in direct spend with Aboriginal businesses
- an increase in FTE employment opportunities for Aboriginal people on NSW Government contracts.
3. Applying the APP – NSW Government agencies
3.1 Plan: Aboriginal Participation Strategy
Agencies must publish an annual Aboriginal Participation Strategy that describes how the agency will meet its obligations under the APP.
The strategy should identify and address upcoming procurement opportunities for Aboriginal participation, at a minimum for procurements valued at $7.5 million or above.
Strategies may be written at a cluster or agency level and must be published on the cluster’s website.
3.2 Source: Aboriginal Participation in contracts valued at $7.5 million or above
Agencies must include minimum requirements for 1.5% Aboriginal participation in all contracts valued at $7.5 million or above by requiring one or a combination of the following:
- at least 1.5% of the contract value to be subcontracted to Aboriginal businesses
- at least 1.5% of the contract’s Australian based workforce (FTE) that directly contribute to the contract to be Aboriginal employees*
- at least 1.5% of the contract value to be applied to the cost of education, training or capability building for Aboriginal staff or businesses directly contributing to the contract.
(*) The unit of measurement for workforce is the number of ‘full time equivalent’ workers according to the definition of FTE relevant to the industry in which the contractor operates. Suppliers must outline how they define and measure FTE in their Aboriginal participation plans.
Agencies should consider appropriate exclusions from the contract value in the calculation of Aboriginal participation requirements. Exclusions are determined by agencies and may include specialised goods and services with very limited opportunities for Aboriginal participation. The application of any exclusion is at the discretion of the agency.
Where a contract is valued at $7.5 million or above and it is determined that there is no scope for Aboriginal participation (for example, the purchase of high-value equipment or machinery) then an agency’s Chief Procurement Officer may approve that Aboriginal participation is not required in that instance. Relevant approval documentation must be retained.
Subcontracts with Aboriginal businesses that support the delivery of NSW Government goods and services contracts may be manually reported to NSW Treasury and count toward the cluster’s target of 3% of goods and services contracts.
- Require tenderers to submit an Aboriginal Participation Plan during the procurement process that sets out how the tenderer plans to meet the Aboriginal participation requirements.
- Require tenderers to declare, during the procurement process, whether they have previously participated, or are currently participating, in a NSW Government contract that had Aboriginal participation requirements and, if applicable, demonstrate their compliance with the requirements. The past performance of a tenderer should be considered when assessing Aboriginal participation proposals.
- Include the final Aboriginal Participation Plan in the successful supplier(s) contract requirements, including quarterly reporting against the plan and requirements for any Aboriginal participation spend balance to be retained by the agency or directed back to the agency to distribute to Training Services NSW.
Agencies should, whenever feasible:
- provide a length limit for tender responses
- use plain English and limit the complexity of tender requirements and documents
- apply an Aboriginal participation non-price evaluation criterion.
3.3 Source: Applying the APP for procurements valued below $7.5 million
Agencies should whenever feasible give first consideration to Aboriginal businesses for procurements up to $250,000.
Agencies may negotiate directly with an Aboriginal business for all procurements up to $250,000, even if there is a mandated prequalification scheme or panel in place. The Aboriginal business engaged by the agency does not need to be a member of a NSW Government prequalification scheme. If one or more Aboriginal businesses are identified, the agency should engage with those suppliers before proceeding to a broader market.
Agencies are encouraged to disclose all contracts with Aboriginal businesses even where these are below the Government Information (Public Access) Act 2009 contract disclosure threshold. All disclosed contracts will contribute to the cluster targets of 3% of goods and services contracts.
Agencies should, wherever feasible, provide constructive feedback to unsuccessful tenderers on their tender responses. This feedback should be provided with a view to building the capability of Aboriginal businesses to apply successfully for future opportunities.
- Manage suppliers’ compliance with the APP including reporting in accordance with the APP reporting requirements.
- Take reasonable steps to support suppliers to meet the requirements.
- Confirm claims made by the supplier in relation to Aboriginal participation and address any compliance or performance issues if they arise.
- Support and assist in audits in line with the NSW Procurement Board’s commitment to undertake a random audit of 5% of contracts annually.
- Conduct a final review of performance against the Aboriginal Participation Plan at the completion of the contract.
- Direct any remaining balance of Aboriginal participation spend to Training Services NSW within 3 months of the completion of the contract or earlier if the supplier confirms the Aboriginal participation targets will not be met.
4. Applying the APP – Government suppliers
- Comply with the requirements in this policy and additional requirements set by agencies and the NSW Procurement Board in support of the policy objectives.
- Allocate the minimum 1.5%, or a higher percentage as agreed with the contracting agency, of contract value to Aboriginal participation.
- Submit an Aboriginal Participation Plan during the tender process that sets out how the supplier will meet the Aboriginal participation requirements of the contract.
- Work with the contracting agency to successfully implement the Plan.
- Report quarterly on progress toward the Plan in the format and method required by this policy.
- Support and cooperate with audits of Aboriginal Participation Plans and reporting.
- Provide a final report on completion of the contract, including a final reconciliation against the Aboriginal participation requirements. This report may be submitted as the supplier’s last required quarterly report in line with the reporting format and method required by this policy.
- Where participation requirements have not been met, the remaining balance is to be collected by the contracting agency and directed to the account held by Training Services NSW. Funds cannot be transferred by suppliers. Agencies may choose to retain the Aboriginal participation spend at the start of the contract and allocate this spend progressively to suppliers as progress against the Plan is demonstrated.
4.1 Aboriginal Participation Fund
Training Services NSW has established the Aboriginal Participation Fund to receive payments when a supplier does not meet contracted Aboriginal participation requirements. Training Services NSW will use these funds to target skills and capacity gaps, education and capability building programs for Aboriginal people and businesses to enable Aboriginal participation requirements to be met for future NSW Government contracts.
NSW Government encourages supplier feedback on any areas of focus to enable future Aboriginal participation requirements to be met.
Suppliers are required to report quarterly on the progress against their commitments in the Aboriginal Participation Plan in the format and method required by this policy, and as updated from time to time.
The APP aims to support an estimated 3,000 full-time equivalent employment opportunities for Aboriginal people through NSW Government procurement activities by 2021.
The APP aims for Aboriginal-owned businesses to be awarded at least 3% of the total number of domestic contracts for goods and services issued by NSW Government agencies by 2021.
5. Target: 1% addressable spend
The APP aims for clusters to direct 1% of addressable spend to Aboriginal businesses by the end of 2021.
In response to the 2019 policy review recommendation to strengthen accountability, NSW Treasury will publish cluster targets annually and report on cluster progress towards the targets.
5.1 What is addressable spend?
The NSW Government categorises its procurement spend in accordance with the United Nations Standard Products and Services Code (UNSPSC).
For the purposes of the APP, we have defined ‘addressable’ spend as a category of spend where there are opportunities for agencies to engage Aboriginal businesses. Addressable spend has primarily been set based on categories of goods and services provided by businesses registered with NSWICC and Supply Nation.
‘Non-addressable’ spend is a category of spend where there are very limited opportunities for agencies to engage Aboriginal businesses. It includes categories where there are no recognised Aboriginal businesses able to supply to government, spend subject to mandated whole-of-government contracts, foster care payments or jury costs, spend on utilities, grants and spend to other government entities, State-owned Corporations or Statutory Authorities.
A uniform list of addressable spend categories has been set. Performance in spend categories and changes in opportunities across the categories will be reviewed annually.
5.2 Calculation of addressable spend target
The addressable spend for each cluster is the average of a cluster’s total spend in the addressable spend categories over 3 previous financial years.
The 1% addressable spend target is 1% of the cluster’s addressable spend.
Cluster addressable spend (CAS)
Addressable spend (AS)
CAS = The average of the cluster’s total spend in addressable spend categories over the 3 previous financial years.
CAS = (ASY1 + ASY2 + ASY3)/3
Cluster addressable spend target (CAST)
CAST = 0.01 x CAS
Y1, Y2, Y3 = Financial year 1, 2 and 3
Clusters are required to disclose contracts valued at $150,000 or above (including GST) on the Government’s contract register, in accordance with the Government Information (Public Access) Act 2009.
Clusters are encouraged to disclose lower value contracts with Aboriginal businesses for increased visibility of engagements.
5.3 How is cluster progress toward the spend target reported?
The Australian business numbers (ABNs) of verified Aboriginal businesses are matched against NSW Government procurement spend data.
Work is underway to capture spend with Aboriginal businesses on purchasing cards (P-cards).
In the interim, clusters may manually report P-card spend with Aboriginal businesses to NSW Treasury.
6. Target: 3% goods and services contracts
The APP aims for Aboriginal businesses to be awarded at least 3% of the total number of NSW Government contracts for goods and services by the end of 2021.
In response to the 2019 policy review recommendation to strengthen accountability, the targets are set by cluster.
The target excludes construction contracts and non-procurement contracts.
NSW Treasury will publish cluster targets annually and report on cluster progress towards the targets.
6.1 Calculation of contracts target
Targets are calculated annually based on 3% of the average total goods and services contracts disclosed by a cluster on the Government’s contract register over the previous 3 financial years.
Each contract disclosed is counted as one contract. The data may be adjusted in consultation with the relevant cluster to remove contracts excluded from the target.
This method has been adopted to set the targets as the total number of contracts awarded varies from year to year and will not be known in advance.
Average cluster contracts (ACC)
Total cluster contracts (TCC)
ACC = (TCCY1 + TCCY2 + TCCY3)/3
Cluster contracts target (CCT)
CCT = 0.03 x ACC
Y1, Y2, Y3 = Financial year 1, 2 and 3
Contract count only includes goods and services contracts.
6.2 How is cluster progress toward the contracts target reported?
The ABNs of verified Aboriginal businesses are matched against disclosed contracts in the NSW Government’s contract register.
In response to a 2019 policy review recommendation, subcontracts with Aboriginal businesses directly related to a NSW Government goods and services contract may be manually reported to NSW Treasury and count toward the cluster’s contracts target.
Reporting on progress towards the targets will specify the number of direct contracts and subcontracts represented in the total numbers.
7. Target: 3,000 Aboriginal FTE employment opportunities
The NSW Government target for supporting employment opportunities for Aboriginal people is set at a whole-of-government level.
The APP aims to support an estimated 3,000 FTE employment opportunities for Aboriginal people through NSW Government procurement opportunities by the end of 2021.
This target commenced in July 2018 through the previous Aboriginal Procurement Policy and revised Aboriginal Participation in Construction policy.
7.1 How is progress toward the employment opportunities target reported?
Reporting against this target is captured via supplier reporting of employment opportunities supported on NSW Government contracts valued at $7.5 million or above.
The unit of measurement for workforce is the number of ‘full time equivalent’ workers according to the definition of FTE relevant to the industry in which the contractor operates. Suppliers must outline how they define and measure FTE in their Aboriginal participation plans.
For the purpose of this policy, suppliers reporting on numbers of FTE employment opportunities supported for Aboriginal people must be able to demonstrate their process to confirm Aboriginal or Torres Strait Islander heritage in line with the guidance to be issued before the commencement of the policy.
8.1 NSW Procurement Board
The NSW Procurement Board is responsible for the administration, monitoring and reporting of this policy. This includes:
- conducting audits and reviews of the policy
- dealing with complaints about the application of the policy via its established complaints handling procedures
- exempting specific projects or classes of projects and allocating specific requirements against individual contracts
- issuing directions to agencies, including use of standard form contract clauses, on contracts subject to this policy.
8.2 Procurement complaints
Complaints about procurement matters should be directed to the relevant contracting agency.
Complaints should be resolved in a non-adversarial and cooperative manner.
The Office of the Small Business Commissioner can provide mediation services to small businesses if necessary.
If complaints cannot be resolved directly with the agency, or further action is required, complaints should be managed in accordance with the NSW Government Complaints Management Guidelines.
8.3 Aboriginal Participation Fund
The Fund receives unspent Aboriginal participation funds from NSW Government contracts subject to the policy.
This Fund is administered by Training Services NSW.
Decisions relating to the distribution of funds are managed by Training Services NSW in consultation with the Aboriginal Participation Fund Governance Committee.
9. Review of the APP
The outcomes and effectiveness of the APP will be reviewed in 2022.
The Deputy Ombudsman (Aboriginal Programs) has a legislated function to independently monitor and assess the implementation of prescribed Aboriginal programs including OCHRE.
This function is an integral part of the overall accountability framework for OCHRE.
10. Further information
Support and guidance materials can be found through the links provided in this policy or on buy.nsw.
Frequently asked questions
What is the purpose of the APP?
The Aboriginal Procurement Policy (APP) is a NSW Government policy designed to encourage NSW Government agencies and suppliers to create opportunities for Aboriginal people, Aboriginal-owned businesses and Aboriginal communities.
The policy aligns with Opportunity, Choice, Healing, Responsibility and Empowerment (OCHRE), the NSW Government’s plan to improve outcomes for Aboriginal people across all sectors of the community.
The APP is an opportunity for the NSW Government and businesses to create a legacy for diversity and inclusion in NSW by growing Aboriginal participation through increased education and employment opportunities. The APP also provides the opportunity to enable and grow Aboriginal businesses throughout NSW via government projects.
When does the revised policy come into effect?
The requirements of the revised APP will come into effect on 1 January 2021.
Agencies are encouraged to apply these requirements earlier, if possible.
The 2018 Aboriginal Procurement Policy PDF, 107.5 KB (for goods and services) and Aboriginal Participation in Construction policy 2018 (APIC) PDF, 136.67 KB will continue to apply for contracts that began prior to this date.
Who must comply with the APP?
The APP applies to the procurement of goods and services of any kind, including construction, by all NSW Government departments, statutory authorities, trusts, and other government sector agencies (collectively referred to as ‘clusters’ or ‘agencies’) as defined in Part 11 of the Public Works and Procurement Act 1912.
State-owned corporations, the Parliament of NSW, and local councils are not covered by this policy.
State-owned corporations are encouraged to adopt aspects of the APP that are consistent with their corporate intent.
Suppliers are also required to apply Aboriginal participation requirements as described in the tender documents and contract of relevant procurements.
What categories of procurement does the APP apply to?
The APP applies to the procurement of all goods and services and construction.
There are no exempt categories. However, there may be cases where Aboriginal participation is not possible in a procurement, for example, the purchase of high-value equipment from overseas. In these cases, approval must be sought from an agency’s Chief Procurement Officer, and this approval must be documented in the procurement plan.
Do Aboriginal businesses need to be pre-qualified before they can supply?
Agencies may negotiate directly with an Aboriginal business for all procurements up to $250,000, even if there is a mandated scheme or panel in place.
The Aboriginal business engaged by the agency does not need to be a member of a NSW Government prequalification scheme. If one or more Aboriginal-owned businesses are identified, the agency should engage with those suppliers before proceeding to a broader market.
Aboriginal businesses are still encouraged to join a prequalification scheme where relevant, as this will increase their visibility to NSW Government buyers.
What procurement methods or strategies can an agency use under the APP?
The APP does not require an agency to use any specific procurement method or strategy.
Agencies may directly negotiate with an Aboriginal business for procurements up to $250,000. Where the procurement is valued up to $1 million, an agency may invite several Aboriginal businesses to participate in a limited tender.
In all other circumstances, an agency publishes an Open Approach to Market (OAM) on NSW eTendering and uses the procurement method or strategy that is appropriate for the circumstances. This may be an open request for tender (RFT), an expression of interest process (EOI), or any innovative strategy that involves a competitive market approach.
The Open Approach to Market must include information about the procurement method that will be used, any qualifications that suppliers must meet to participate in the procurement and, if relevant, any criteria that will be used to select a limited number of qualified suppliers who will be invited to make detailed submissions.
Aboriginal businesses are encouraged to apply for all opportunities where their business has the capability to supply.
Exemptions to whole-of-government contracts
You must use whole-of government-contracts to purchase applicable goods or services, including construction, except where:
- you are buying from an Aboriginal business up to $250,000
- you are inviting several prequalified Aboriginal-owned businesses to a limited tender for procurements up to $1 million.
How can Aboriginal businesses find opportunities to supply to NSW Government?
Where the Aboriginal business is also a small business, they should register with the Small Business Commissioner via this link – registration will make the business eligible for the faster payments policy.
Although Aboriginal businesses don’t need to be part of a prequalification scheme to supply to NSW Government for procurements up to $250,000, we encourage Aboriginal businesses to register for inclusion on a scheme where relevant. This will improve their visibility for government buyers.
How do agencies find an Aboriginal supplier?
A list of businesses recognised by these bodies is available for NSW Government employees on the Aboriginal Supplier Dashboard. Access can be requested through the agency’s procurement team.
Suppliers to NSW Government that wish to use an Aboriginal business can access the Supply Nation business directory or the NSW Indigenous Chamber of Commerce business directory.
What does the 1% of Addressable Spend target with Aboriginal businesses mean?
The NSW Government has set a target PDF, 265.25 KB to spend 1% of its addressable spend with Aboriginal businesses.
‘Addressable spend’ includes categories of spend where there is potential to source from Aboriginal businesses.
Clusters have each been assigned a target spend. Progress will be captured by a cluster’s direct spend with Aboriginal businesses through Spend Cube reporting and will be published on this site, buy.NSW.
What is the target of 3% of NSW Government goods and services contracts by 2021?
The NSW Government has set a target to award 3% of the number of its domestic goods and services contracts to Aboriginal businesses by 2021.
Clusters will each be set a target number of contracts. To encourage the participation of Aboriginal businesses in the NSW Government supply chain, clusters may also count sub-contracts with Aboriginal businesses toward the target. Cluster targets and progress toward them can be found on this site, buy.NSW.
How will we achieve the target of 3,000 FTE opportunities for Aboriginal people by 2021?
The target for full-time equivalent (FTE) employment opportunities is being achieved through the lead contractors or sub-contractors on high-value NSW Government projects employing Aboriginal people. This forms part of their Aboriginal participation commitment.
Which contracts need to include a minimum of 1.5% Aboriginal participation?
The requirement to direct at least 1.5% of the project value to Aboriginal participation applies to all contracts valued at $7.5 million or above – this includes all categories of goods and services and construction procurement.
Note that 1.5% is the minimal participation requirement and contracting agencies may require a higher participation percentage on projects.
If there is no opportunity for Aboriginal participation on a contract, for example, the purchase of high-value machinery from overseas, then agencies must document this and report it to NSW Procurement.
How can the 1.5% be directed?
The APP 2021 requires that at least 1.5% of a project value is directed to Aboriginal participation.
The requirement is met when:
- 1.5% of project value is subcontracted to an Aboriginal-owned business; OR
- 1.5% of the full-time equivalent (FTE) Australian-based workforce deployed on the contracted project are Aboriginal people (1.5% of the workforce as an average FTE over the term of the contract), OR
- 1.5% of the project value is directed toward building capability and capacity in Aboriginal businesses or employees; OR
- a combination of any of these options.
How is FTE defined in the APP?
The APP does not define full-time equivalent (FTE) or rates of pay for employees.
When reporting the number of Aboriginal staff working on a project, the unit of measurement for the workforce is the number of ‘full-time equivalent’ workers according to the definition of FTE relevant to the industry in which the contractor operates.
Suppliers must outline how they define and measure FTE in their Aboriginal participation plans DOCX, 29.4 KB.
Is there a template for Aboriginal Participation Plans?
Yes, a basic template for Aboriginal Participation Plans DOCX, 29.4 KB is published here on buy.NSW.
Note that contracting agencies may have their own requirements or supply their own templates for suppliers to use.
Do agencies need to submit Aboriginal Participation Plans to NSW Procurement?
No. Agencies must finalise the Aboriginal Participation Plan DOCX, 29.4 KB with suppliers, prior to the commencement of the contract.
Agencies must keep the plan and use this to monitor supplier compliance with their commitments throughout the project.
Does a final Aboriginal Participation Report need to be submitted to NSW Procurement by suppliers?
No. Suppliers should report their progress against their Aboriginal Participation Plan DOCX, 29.4 KB to their contract manager quarterly, or more frequently if requested by the contracting agency. Agency staff will submit reporting quarterly to NSW Procurement.
When the project is complete, suppliers should finalise their remaining quarterly report.
What action can agencies take when a supplier does not meet its Aboriginal participation commitments?
Agencies must regularly monitor a supplier’s progress against its Aboriginal Participation Plan DOCX, 29.4 KB.
Where a supplier is struggling to meet their commitments, the contracting agency should provide advice or assistance where relevant.
If at the end of the contract the supplier’s full Aboriginal participation commitment has not been met, any remaining funds must be transferred to the Aboriginal Participation Fund administered by Training Services NSW. The contracting agency must transfer funds. More information can be found in the supporting documents.
Why are unspent Aboriginal participation funds directed to Training Services NSW?
Stakeholders expressed dissatisfaction with the arrangement in place at the time and that funds should be directed to training that would provide jobs for Aboriginal people and capacity building for Aboriginal businesses so that they may take part in future NSW Government projects. Further, that greater accountability and transparency of how funds are managed was required.
How does the APP apply to contract extensions?
A contract entered into from 1 January 2021 can include options for contract extensions if this is identified in the procurement documentation and notified in the Open Approach to Market. Opportunities for Aboriginal participation in contract extensions should be considered.
A government agency should not use a contract extension to avoid applying the APP. Any decision to exercise a contract extension should be documented sufficiently to respond to any potential complaint that the agency has extended a contract to avoid applying the APP.
How much time should an agency give a supplier to prepare and submit a response?
An agency must provide suppliers with enough time to prepare and submit a response to any invitation to take part in a procurement, consistent with the agency’s reasonable needs. This applies to any form of submission including a Request for Quote (RFQ), a Request for Tender (RFT), or an Expression of Interest (EOI).
The time period must be at least 25 calendar days (or 10 calendar days in some specified circumstances) even where some suppliers may be able to respond in a shorter period.
When specifically approaching Aboriginal businesses for response, consideration should be given to the capacity of the business to respond within a certain timeframe. As Aboriginal businesses are mostly small to medium enterprises (SMEs), agencies may consider allowing a longer time period for response.
An agency should consider time limit requirements when planning a procurement. The agency should take account of:
- the nature of the goods and services being procured
- the complexity of the procurement documentation
- the conditions that the supplier needs to meet to participate in the procurement and any evidence or certifications that may be required – for example, engaging with the Aboriginal community or Aboriginal businesses local to the planned project to prepare an Aboriginal Participation Plan.
- the extent and complexity of information that is being requested.
The time period may vary depending upon the stage of a procurement. For example, an initial stage in an EOI may require less time than the development of a subsequent detailed proposal.
An agency may receive a complaint alleging that a supplier has not been provided with enough time to respond. The agency should have evidence to demonstrate that these matters have been considered where relevant.
What is limited tendering?
Limited tendering is the process where an agency directly invites one or more suppliers of the agency’s choice to participate in a procurement by making a submission. Examples of a submission include a Request for Quote (RFQ), a Request for Tender (RFT) or an Expression of Interest (EOI).
Agencies may use limited tendering when inviting several Aboriginal suppliers to participate, even where the procurement would normally be a covered procurement under the EPP direction.
How should the APP be considered in tender documents?
When preparing tender documentation, agencies must:
- provide a length limit for tender responses whenever feasible
- use plain English
- reasonably limit the complexity of tender requirements.
In the tender documents, the APP requires that agencies must:
- apply an Aboriginal participation non-price evaluation criterion
- require tenderers to submit an Aboriginal Participation Plan DOCX, 29.4 KB during the procurement process, which sets out how the tenderer plans to meet the Aboriginal participation requirements
- require tenderers to declare, during the procurement process, whether they have previously participated, or are currently participating, in a NSW Government contract that had Aboriginal participation requirements and, if applicable, demonstrate their compliance with the requirements. The past performance of a tenderer should be considered when assessing Aboriginal participation proposals
- include the final Aboriginal Participation Plan DOCX, 29.4 KB in the successful supplier/s contract requirements, including quarterly reporting against the plan and requirements for any Aboriginal Participation spend balance to be directed to Training Services NSW.
Agencies should, wherever feasible, provide constructive feedback to unsuccessful tenderers on their tender responses.
This feedback should be provided with a view to building the capability of Aboriginal businesses to apply successfully for future opportunities.
How does the Enforceable Procurement Provision (EPP) affect the APP?
The Enforceable procurement provisions (PBD2019-05) do not apply to any measure included in a procurement for the economic and social advancement of Aboriginal people.
An agency should continue to comply with the APP when undertaking covered procurement (that is, any procurement covered by the EPP Direction).
Will Aboriginal participation on NSW Government projects be audited?
A recommendation of the APP and APIC 2019 policy review PDF, 1314.83 KB is that 5% of NSW Government contracts that have Aboriginal participation commitments will be audited annually by an independent auditor engaged by NSW Procurement. Projects to be audited will be selected by NSW Procurement.
What is the potential impact of not complying with the APP?
Under sec.176 of the Public Works and Procurement (PWP) Act, NSW Government agencies must comply with procurement policies set by the NSW Procurement Board. The NSW Procurement Board monitors agency compliance with the APP.
Where there is a complaint regarding the conduct of an agency in relation to the APP, a written complaint should be made to the head of that agency who must investigate the complaint and must take reasonable and prompt action to attempt to resolve the matter. Should the matter remain unresolved, it will be investigated by the NSW Procurement Board.
Review of the APP
The next review of the APP will be undertaken in 2022. This will ensure there is adequate time to track progress toward the targets and assess how the policy is working for clusters and suppliers.