December 2021 Procurement update

Issued: 20 December 2021

Procurement update and a further reform to facilitate electronic deeds

The Modern Slavery Act 2018 (NSW) will now commence on 1 January 2022. Recent amendments to the Act, including those relating to government procurement, clarify the scope of operation of the Act. 

New Procurement Board Direction 2021-04 Approved Procurement Arrangements replaces PBD 2020-04 and includes new provisions. 

A key amendment has been made to the Conveyancing Act 1919 (NSW) to clarify that a deed executed by a corporation may be created in electronic form and electronically signed and attested. 

Key points

Modern slavery

The Modern Slavery Amendment Act 2021, which commenced 29 November 2021, has amended the Modern Slavery Act 2018 and provided for its commencement on 1 January 2022.  From this date:

• government agencies - now defined to exclude State owned corporations (SOCs) and companies incorporated under the Corporations Act 2001 (Cth) that have shareholding Ministers - must take reasonable steps to ensure the goods and services they procure are not the product of modern slavery.

• if not already required to report under the Modern Slavery Act 2018 (Cth), eligible SOCs must make voluntary modern slavery statements under that Act. 

• annual reporting information provided by government agencies will include information on modern slavery due diligence and compliance.

• the Procurement Board may issue directions to government agencies as to the reasonable steps to be taken to ensure that the goods and services agencies procure are not the subject of modern slavery.
  

Whole-of-government procurement contracts

PBD 2021-04 sets out the latest approved procurement arrangements for government agencies undertaking any kind of procurement. The Procurement Board Direction, issued on 23 November 2021:

• includes a requirement for agencies to obtain approval from their responsible Minister before entering into whole-of-government contracts; and
  

• adds an Exceptions Framework enabling agencies not to use mandatory whole of government procurement arrangements if certain conditions are met.  

The monetary thresholds for the prescribed methods of goods and services procurement by unaccredited agencies remain unchanged.

Electronic execution of deeds by companies

The Customer Service Legislation Amendment Act 2021 (NSW) amends s. 38A of the Conveyancing Act 1919 (NSW) to clarify that corporations as well as individuals may electronically execute deeds in electronic form. This amendment came into effect on 29 November 2021. 

Section 38A supplements recent reforms to the Corporations Act 2001 (Cth), currently due to expire on 31 March 2022, which provide for companies to electronically sign documents, including deeds, and allow 'split execution' under s. 127 of that Act. 

While the Corporations Amendment (Meetings and Documents) Bill 2021 seeks to permanently reform s. 127 to permit electronic execution by companies, it is not certain whether the Bill, currently before the Senate, will be passed before the 31 March 2022 expiry date. So, watch this space!

Contacts

Karen Ferris, Principal Solicitor
karen.ferris@cso.nsw.gov.au
02 9474 9265 

Felicity Shaw, Assistant Crown Solicitor
felicity.shaw@cso.nsw.gov.au
02 9474 9442  

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