DEFENCE INFRASTRUCTURE PANEL 2017 - 2022 CONTRACT MANUAL [LAST AMENDED: 28 MARCH 2017] DISCLAIMER: This Manual has been prepared solely for the purpose of providing guidance to Defence and other Commonwealth personnel. Any use by non-Defence or other Commonwealth personnel is unauthorised. No responsibility will be taken by the Commonwealth of Australia or the advisers assisting in the preparation of the Manual for any such use, including any purported reliance on the guidance provided by the Manual. The Manual is not intended to be a substitute for legal advice, and unless expressly agreed in Defence Infrastructure Panel 2017-2022 Contract Manual Volume 2: Contract Management CUFooterText
Transcript
DEFENCE INFRASTRUCTURE PANEL
2017 - 2022
CONTRACT MANUAL
[LAST AMENDED: 28 MARCH 2017]
DISCLAIMER:
This Manual has been prepared solely for the purpose of providing guidance to Defence and other Commonwealth personnel. Any use by non-Defence or other Commonwealth personnel is unauthorised. No responsibility will be taken by the Commonwealth of Australia or the advisers assisting in the preparation of the Manual for any such use, including any purported reliance on the guidance provided by the Manual. The Manual is not intended to be a substitute for legal advice, and unless expressly agreed in writing by the Commonwealth of Australia, nothing in the Manual will alter or affect the respective rights, obligations and liabilities of the parties under any contract.
SECTION 1 - CLAUSE BY CLAUSE GUIDANCE..........................................................1CLAUSE 1 - GLOSSARY OF TERMS, INTERPRETATION AND MISCELLANEOUS..................2Clause 1.1 - Glossary of Terms................................................................................................................2Clause 1.2 - Interpretation......................................................................................................................20Clause 1.3 - Miscellaneous.....................................................................................................................22CLAUSE 2 - ROLE OF THE CONSULTANT.....................................................................................25Clause 2.1 - Engagement........................................................................................................................25Clause 2.2 - Standard of Care.................................................................................................................25Clause 2.3 - Authority to Act.................................................................................................................26Clause 2.4 - Knowledge of the Commonwealth's Requirements...........................................................27Clause 2.5 - Notice of Matters Impacting on the Services or the Project..............................................28Clause 2.6 - Co-ordination.....................................................................................................................29Clause 2.7 - Access to the Consultant's Premises..................................................................................29Clause 2.8 - Conflict of Interest.............................................................................................................30Clause 2.9 - Subcontracting...................................................................................................................31Clause 2.10 - Statutory Requirements....................................................................................................32Clause 2.11 - Change in Statutory Requirements or Variance with Contract........................................33Clause 2.12 - No authority to give directions or waive requirements....................................................34Clause 2.13Interpretation of the Brief...................................................................................................35CLAUSE 3 - ROLE OF THE COMMONWEALTH............................................................................42Clause 3.1 - Information and Services...................................................................................................42Clause 3.2 - Requests for Additional Information by the Consultant....................................................43Clause 3.3 - Access................................................................................................................................44Clause 3.4 - Request for Commonwealth Decisions by the Consultant.................................................44Clause 3.5 - Commercial-in-Confidence Information............................................................................45CLAUSE 4 - PERSONNEL...................................................................................................................47Clause 4.1 - Commonwealth's Representative.......................................................................................47Clause 4.2 - Replacement of Commonwealth's Representative.............................................................55Clause 4.3 - Parties' Conduct..................................................................................................................56Clause 4.4 - Assistant Commonwealth's Representative.......................................................................56Clause 4.5 - Contract Key People..........................................................................................................57Clause 4.6 - Removal of Persons...........................................................................................................58CLAUSE 5 - DOCUMENTATION.......................................................................................................59Clause 5.1 - Commonwealth's Documents.............................................................................................59Clause 5.2 - Consultant's Documents - Option 1...................................................................................59Clause 5.2 - Consultant's Documents - Option 2...................................................................................60Clause 5.3 - No obligation to review......................................................................................................62Clause 5.4 - Licence over the Consultant Material................................................................................63Clause 5.5 - Intellectual Property Warranties........................................................................................64Clause 5.6 - Intellectual Property Rights...............................................................................................65Clause 5.7 - Commonwealth Material....................................................................................................65Clause 5.8 - Project DCAP.....................................................................................................................66Clause 5.9 - Work Health and Safety.....................................................................................................67Clause 5.10 - Resolution of Ambiguities...............................................................................................70Clause 5.11 - Project DCAP...................................................................................................................70Clause 5.12 - Proactive Review Of All Project Contractor Documentation..........................................71Clause 5.13 - Drawings..........................................................................................................................72Clause 5.14 - Certification.....................................................................................................................73Clause 5.15 - Project Plans.....................................................................................................................74Clause 5.16 - Manual Of Fire Protection Engineering And National Construction Code Certification76Clause 5.17 - Requests For Information.................................................................................................77Clause 5.18 - Access to Project Documents...........................................................................................78CLAUSE 6 - QUALITY........................................................................................................................79Clause 6.1 - Quality Assurance..............................................................................................................79Clause 6.2 - Non-Complying Services...................................................................................................80
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Clause 6.3 - Re-performance of the Non-complying Services...............................................................81CLAUSE 7 - TIME................................................................................................................................82Clause 7.1 - Progress..............................................................................................................................82Clause 7.2 - Programming......................................................................................................................82Clause 7.3 - Consultant Not Relieved....................................................................................................82Clause 7.4 - Suspension.........................................................................................................................84Clause 7.5 - Acceleration.......................................................................................................................85CLAUSE 8 - PHASES - PLANNING PHASE AND DELIVERY PHASE........................................87Clause 8.2 - General...............................................................................................................................88Clause 8.3 - Resources for Delivery Phase............................................................................................89Clause 8.4 - Adjustment of Indicative Delivery Phase Fee and any Milestone Fee Payment Schedule91Clause 8.5 - Delivery Phase Agreement and Delivery Phase Approval................................................92Clause 8.6 - Failure to Achieve Delivery Phase Agreement or Delivery Phase Approval....................94CLAUSE 9 - VARIATION....................................................................................................................96Clause 9.1 - Variation Price Request.....................................................................................................97Clause 9.2 - Variation Order..................................................................................................................97Clause 9.3 – Cost of Variation...............................................................................................................98Clause 9.4 – Rates and Prices.................................................................................................................98Clause 9.5 - Omissions...........................................................................................................................99Clause 9.6 – All Work Included...........................................................................................................100CLAUSE 10 - PAYMENT...................................................................................................................101Clause 10.1 - Payment Obligation........................................................................................................102Clause 10.2 - Payment Claims.............................................................................................................103Clause 10.3 - Conditions Precedent.....................................................................................................105Clause 10.4 - Payment Statements.......................................................................................................106Clause 10.5 - Payment..........................................................................................................................108Clause 10.6 - Payment on Account......................................................................................................109Clause 10.7 - Completion Payment Claim and Notice.........................................................................109Clause 10.8 - Release after Completion Payment Claim and Notice...................................................109Clause 10.9 - Interest............................................................................................................................110Clause 10.10 - Correction of Payment Statements...............................................................................111Clause 10.11 - Right of Set-Off...........................................................................................................112Clause 10.12 - Payment of Workers and Subconsultants - Option 1 (NSW only) .............................113Clause 10.12 - Payment of Workers and Subconsultants - Option 2 (all other States and Territories)113Clause 10.13 - GST..............................................................................................................................114Clause 10.14 - Security of Payment Legislation..................................................................................115Clause 10.15 - Accounting Records.....................................................................................................122Clause 10.16 - Estate Information........................................................................................................122Clause 10.17 - Estate Information Program.........................................................................................123Clause 10.18 - Commonwealth's Representative may Review Estate Information.............................124CLAUSE 11 - TERMINATION..........................................................................................................125Clause 11.1 – Preservation of Rights...................................................................................................125Clause 11.2 – Consultant Default.........................................................................................................125Clause 11.3 – Contents of Notice Default............................................................................................125Clause 11.4 – Termination for Insolvency or Breach..........................................................................126Clause 11.5 – Commonwealth’s Entitlements after Termination........................................................127Clause 11.6 – Consultant’s Entitlements after Termination................................................................128Clause 11.7 – Termination for Convenience........................................................................................129Clause 11.8 – Costs..............................................................................................................................129CLAUSE 12 – DISPUTE RESOLUTION...........................................................................................131Clause 12.1 – Notice of Dispute...........................................................................................................131Clause 12.2 – Expert Determination....................................................................................................132Clause 12.3 – The Expert.....................................................................................................................133Clause 12.4 – Not Arbitration..............................................................................................................133Clause 12.5 – Procedure for Determination.........................................................................................133Clause 12.6 – Disclosure of Interest.....................................................................................................133Clause 12.7 – Costs..............................................................................................................................133Clause 12.8 – Conclusion of Expert Determination.............................................................................133Clause 12.9 – Agreement with the Expert............................................................................................133Clause 12.10 - Determination of Expert...............................................................................................133Defence Infrastructure Panel 2017-2022Contract Manual Volume 2: Contract ManagementCUFooterText ii
Clause 12.11 – Executive Negotiation.................................................................................................135Clause 12.12 – Arbitration Agreement................................................................................................136Clause 12.13 – Arbitration...................................................................................................................136Clause 12.14 – Proportional Liability..................................................................................................138Clause 12.15 – Continuation of Services.............................................................................................139CLAUSE 13 - NOTICES.....................................................................................................................140Clause 13.1 - Notice of Variation.........................................................................................................141Clause 13.2 - Notice of Other Claims..................................................................................................142Clause 13.3 - Prescribed Notices..........................................................................................................143Clause 13.4 - Continuing Events..........................................................................................................144Clause 13.5 - Time Bar........................................................................................................................144Clause 13.6 - Other Provisions Unaffected..........................................................................................145Clause 13.7 - Address for Service........................................................................................................145Clause 13.8 - Receipt of Notices..........................................................................................................146CLAUSE 14 - INDIGENOUS PROCUREMENT POLICY...............................................................148Clause 14.1Indigenous Procurement Policy - Option 1 (Non High Value Contract)..........................148Clause 14.2Indigenous Procurement Policy - Option 2 (High Value Contract)..................................149CLAUSE 15 - INFORMATION SECURITY - CONFIDENTIAL INFORMATION.......................151Clause 15.1 - Consultant's warranty....................................................................................................151Clause 15.2 - Confidential Information Requirements.......................................................................152CLAUSE 16 - INFORMATION SECURITY - SENSITIVE AND CLASSIFIED INFORMATION158Clause 16.1 - Sensitive and Classified Information, generally...........................................................158Clause 16.2 - Consultant's warranties.................................................................................................159Clause 16.4 - Return, destruction and erasure of Sensitive and Classified Information......................163Clause 16.5 - Compliance with clause 16...........................................................................................164Clause 16.6 - Acknowledgement, release and indemnity...................................................................165CLAUSE 17 - MATERIAL CHANGE OR DEFENCE STRATEGIC INTEREST ISSUE..............167Clause 17.1 - Consultant's warranty....................................................................................................167Clause 17.2 - Consultant must notify Material Change or Defence Strategic Interest Issue..............168CLAUSE 18 - FINANCIAL VIABILITY..........................................................................................172
Section 2 - Proforma Documents and Notices....................................................176
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SECTION 1 - CLAUSE BY CLAUSE GUIDANCEThis section provides a commentary on each clause of the Terms of Engagement, explaining the purpose of the clause within the DIP framework and matters of which personnel should be aware. Interspersed throughout the clause by clause commentary is general advice about issues likely to be encountered in the administration of the Terms of Engagement, such as:
(a) communication and meetings with Consultant personnel; and
(b) dealing with claims made by the Consultant, including those in respect of the primary risk areas of time, cost (including variations) and quality.
It also provides a general discussion of the major themes within the Terms of Engagement, including quality and non-compliances, time and progress, variations and payment procedures.
Any notices or supporting documentation that relate to a clause are also provided in this section through quick links for each clause.
Further information regarding the Defence Infrastructure Panel is available from the Commonwealth's Panel Manager, currently the Deputy Director, Quality and Compliance, Directorate of Program Assurance - Capital Facilities and Infrastructure Branch.
This Manual has been prepared for internal use by Defence and other Commonwealth agencies only, solely for the purpose of providing guidance to Defence and Commonwealth personnel. Any use by non-Defence or Commonwealth personnel is unauthorised. No responsibility will be taken by the Commonwealth of Australia, or the advisers assisting in the preparation of the Manual, for any such use, including any purported reliance on the guidance provided by the Manual. The Manual is not intended to be a substitute for legal advice, and unless expressly agreed in writing by the Commonwealth of Australia, nothing in the Manual will alter or affect the respective rights, obligations and liabilities of the parties under any contract.
CLAUSE 1 - GLOSSARY OF TERMS, INTERPRETATION AND MISCELLANEOUS
Quick Links
Policy Background
This clause contains defined terms, rules for interpretation of the Terms of Engagement and other miscellaneous provisions.
This clause should be read in conjunction with other clauses that contain defined terms.
Clause 1.1 - Glossary of Terms
Quick Links
Key Message
Each defined term has a specific meaning and should be read in conjunction with relevant provisions of the Terms of Engagement.
The Contract Particulars for each Project provide specific information (where relevant), concerning each defined term as it relates to each individual Contract. The Contract Particulars that apply for a particular Project will be attached to the relevant Official Order.
User Guidance
This clause contains definitions of important terms used throughout the Terms of Engagement.
All defined terms are identifiable as their first letter is in uppercase.
Always refer to the Glossary when seeking to interpret specific contract clauses.
Clause 1.1 - Glossary of Terms
Unless the context otherwise indicates, whenever used in this Contract, each word or phrase in the headings in this clause 1.1 has the meaning given to it under the relevant heading.
Accredited Building Surveyor
A person who is:
(a) a building surveyor accredited by the Australian Institute of Building Surveyors; or
(b) from time to time nominated within MFPE as having the capacity to certify compliance with the requirements of the MFPE and the National Construction Code for Commonwealth projects similar to the Project.
Act of Prevention
Any act or omission (including breach of contract) of the Commonwealth or those for whom it is responsible.
Approval
Any licence, permit, consent, approval, determination, certificate, notice or other requirement of any Commonwealth, State, Territory or local authority, body or other organisation having any jurisdiction in connection with the Site, the Project or the Services or under any other applicable Statutory Requirement, which
Has the meaning in the Building Code 2013 and the Building Code 2013 - Supporting Guidelines for Commonwealth Funding Entities.
Commonwealth
Commonwealth of Australia.
Commonwealth Material
All material provided to the Consultant by the Commonwealth, including documents provided in accordance with clause 5 and any other documents, equipment, machinery and data (stored by any means).
Commonwealth Procurement Rules
The Commonwealth Procurement Rules issued under section 105B(1) of the Public Governance, Performance and Accountability Act 2013 (Cth).
Commonwealth's Program
Any program, as amended from time to time, prepared by or on behalf of the Commonwealth setting out the times for the Completion of the whole or any part of the Services and the Project, including the Milestones.
Commonwealth's Representative
The person nominated in the Contract Particulars or any other person nominated by the Commonwealth from time to time under clause 4.2 to replace that person.
Commonwealth Requirements
Policies, guidelines, instructions (including departmental procurement policy instructions) and other Commonwealth or Departmental requirements (including the Defence Manual of Fire Protection Engineering as amended or substituted from time to time).
Completion
The point in time when, in respect of a Milestone, everything required by this Contract or a Project Contract to have been completed as a condition precedent to Completion of the Milestone has been completed in accordance with this Contract or the Project Contract.
Confidential Information
(a) Means, subject to paragraph (b):
(i) the Contract;
(ii) the Project Documents;
(iii) any document, drawing, information or communication (whether in written, oral or electronic form) given to the Consultant by the Commonwealth, the Commonwealth's Representative or anyone on the Commonwealth's behalf, whether or not owned by the Commonwealth which is in any way connected with the project which:
A. by its nature is confidential;
B. the Consultant knows or ought to know is confidential; or
C. is the subject of a Separation Arrangement; and
(iv) everything recording, containing, setting out or making reference to the document, Defence Infrastructure Panel 2017-2022Contract Manual Volume 2: Contract ManagementCUFooterText 4
drawing, information or communication (whether in written, oral or electronic form) described in subparagraph (iii) including documents, notes, records, memoranda, materials, software, disks and all other media, articles or things.
(b) Does not mean any document, drawing, information or communication (whether in written, oral or electronic form) given to the Consultant by the Commonwealth, the Commonwealth's Representative or anyone on the Commonwealth's behalf, whether or not owned by the Commonwealth which:
(i) is in the possession of the Consultant without restriction in relation to its disclosure or use before the date of its receipt from the Commonwealth, the Commonwealth's Representative or anyone on the Commonwealth's behalf;
(ii) is in the public domain otherwise than due to a breach of clause 15; or
(iii) has been independently developed or acquired by the Consultant.
Confidential Information Incident
A single breach or a series of breaches of clause 15, any Separation Arrangements or any other unwanted or unexpected Confidential Information Security Event that has a significant probability of compromising Commonwealth business and threatening Commonwealth information security.
Confidential Information Security Event
An identified fact, circumstance, occurrence or event indicating a potential or actual breach of information security requirements, a failure of information security safeguards or a previously unknown or unencountered fact, circumstance, occurrence or event which is or may be relevant to Commonwealth information security.
Consultant
The person named in the Contract Particulars.
Consultant Material
All material brought, or required to be brought, into existence by the Consultant as part of, or for the purpose of, carrying out the Services including documents, equipment, reports, technical information, plans, charts, drawings, specifications, calculations, tables, schedules, data (stored by any means), photographs and finishes boards.
Consultant's Representative
The person named in the Contract Particulars or any other person from time to time appointed as Consultant's Representative in accordance with clause 4.5.
Contamination
The presence in, on or under land, air or water of a substance (whether a solid, liquid, gas, odour, heat, sound, vibration or radiation) at a concentration above the concentration at which the substance is normally present in, on or under land, air or water in the same locality, that presents a risk of Environmental Harm, including harm to human health or any other aspect of the Environment, or could otherwise give rise to a risk of non-compliance with any Statutory Requirement for the protection of the Environment.
Contract
The contractual relationship between the parties in respect of an Engagement constituted by the documents referred to in clause 2.4 of the Panel Conditions and any other document listed in the Contract Particulars.
Contract Particulars
The particulars for an Engagement attached to the Official Order and entitled "Contract Particulars".
(a) the ability to exercise or control the exercise of the right to vote in respect of more than 50% of the voting shares or other form of voting equity in a corporation;
(b) the ability to dispose or exercise control over the disposal of more than 50% of the shares or other form of equity in a corporation;
(c) the ability to appoint or remove all or a majority of the directors of a corporation;
(d) the ability to exercise or control the exercise of the casting of a majority of the votes cast at the meetings of the board of directors of a corporation; and
(e) any other means, direct or indirect, of dominating the decision making and financial and operating policies of a corporation.
Cyber Security Event
An identified occurrence of a system, service or network state indicating a potential or actual breach of Sensitive and Classified Information security procedures, processes and requirements, a failure of Sensitive and Classified Information security procedure, process and requirement safeguards or a previously unknown or unencountered occurrence of a system, service or network state which is or may be relevant to Sensitive and Classified Information security procedures, processes and requirements.
Cyber Security Incident
A single or series of unwanted or unexpected Cyber Security Events that has a significant probability of compromising Sensitive and Classified Information security procedures, processes and requirements and threatening security.
Date for Delivery Phase Agreement
The date set out in the Contract Particulars, as adjusted (if at all) in accordance with clause 8.
Date for Delivery Phase Approval
The date set out in the Contract Particulars, as adjusted (if at all) in accordance with clause 8.
Defence Environmental Management System
The environmental management system applicable to the Site (if any).
Defence Environmental Plan
The environmental plan applicable to the Site (if any).
Defence Environmental Requirements
The Defence Environmental Management System and Defence Environmental Plan which relates to the Site, the Project or the Services and includes any procedures, instructions, requirements and standing orders which have been developed or issued under the Defence Environmental Management System or Defence Environmental Plan (as the case may be).
Defence Security Manual
Is a reference to that document as amended from time to time.
Defence Strategic Interest Issue
Means any issue that involves an actual, potential or perceived risk of an adverse effect on the interests of the
(a) protecting Australia’s national security requirements, in accordance with all Commonwealth Requirements and Statutory Requirements (including the Australian Government Protective Security Policy, the Australian Government Protective Security Framework, the Australian Government Protective Security Manual, , the Australian Government Physical Security Management Protocol, the Australian Government Personnel Security Management Protocol, the Australian Government Information Security Manual and the Defence Security Manual);
(b) ensuring that the whole (or any part of) the Confidential Information is not exported (or capable of being exported) outside of Australia or is not disclosed or transmitted (or capable of being disclosed or transmitted) to any person who does not hold (or is not eligible to hold) an Australian Defence security clearance, unless the Commonwealth has given its prior written consent (in its absolute discretion); and
(c) ensuring compliance by the Consultant with Australia’s national security requirements, in accordance with all Commonwealth Requirements and Statutory Requirements (including the Australian Government Protective Security Policy, the Australian Government Protective Security Framework, the Australian Government Protective Security Manual, the Australian Government Physical Security Management Protocol, the Australian Government Personnel Security Management Protocol, the Australian Government Information Security Manual and the Defence Security Manual).
DEQMS
The Defence Estate Quality Management System website available at www.defence.gov.au/estatemanagement.
Delivery Phase
Means the Delivery Phase (if any) described in the Brief.
Delivery Phase Agreement
Means:
(a) the resource plan is approved in writing under clause 8.3(d); and
(b) the Commonwealth's Representative has issued written certification under clause 8.4(c)(ii) that the Commonwealth is satisfied with the performance of the Consultant under the Contract up to the Date for Delivery Phase Agreement.
Delivery Phase Approval
Means:
(a) Delivery Phase Agreement and Delivery Phase Approval under the Project Contract (if any) have been achieved;
(b) the Consultant has achieved Delivery Phase Agreement under the Contract;
(c) all relevant departmental, government and parliamentary approvals required for the Project have been obtained; and
(d) the Consultant has otherwise complied with all of its obligations under the Contract to the extent applicable before the Date for Delivery Phase Approval.
direction
Any agreement, approval, authorisation, certificate, consent, decision, demand, determination, direction, explanation, failure to consent, instruction, notice, notification, order, permission, rejection, request or requirement.
If the Services are performed or the Consultant's employees perform work, are employed or normally reside in Western Australia or any jurisdiction outside Australia, a policy of insurance covering the liability of the Consultant to its employees at common law, for death or injuries arising out of or in connection with their employment, whether as an extension to Workers Compensation Insurance or otherwise.
Engagement
An engagement to perform the Services for the Commonwealth under the Panel Agreement on the terms set out in the relevant Official Order and the Panel Agreement.
Environment
Includes:
(a) ecosystems and their constituent parts, including people and communities;
(b) natural and physical resources;
(c) the qualities and characteristics of locations, places and areas; and
(d) the social, economic, aesthetic and cultural aspects of a thing mentioned in paragraph (a), (b), or (c).
Environmental Clearance Certificate
The Environmental Clearance Certificate issued by the Commonwealth relating to the Services or the Project and any conditions incorporated in that certificate.
Environmental Harm
Any actual or threatened adverse impact on, or damage to, the Environment.
Environmental Incident
Any Environmental Harm or Contamination caused by or in relation to the Services.
Environmental Management Plan
The environmental management plan (if any) prepared by the Consultant and finalised under clause 5.15 which sets out in adequate detail the procedures the Consultant will implement to manage the Services from an environmental perspective and which must describe how the Consultant proposes to ensure the Services will be performed consistently with and so as to maximise the achievement of:
(a) the Environmental Requirements;
(b) the Statutory Requirements;.
(c) the Consultant's environmental commitments set out in the Project DCAP (if any);
(d) without limiting paragraph (b), the Energy Policy for Commonwealth Agencies and Commonwealth Procurement Rules;
(e) the ESD Principles; and
(f) the Environmental Objectives.
Environmental Objectives
Means to:
(a) encourage best practice environmental management through planning, commitment and continuous
(f) efficiency in resource and materials utilisation, especially water resources;
(g) selection of materials and products based on their life-cycle environmental impacts;
(h) increased use of materials and products with recycled content;
(i) recycling of construction waste and building materials after demolition;
(j) reduction in harmful waste products produced during construction;
(k) facility maintenance and operational practices that reduce or minimise harmful effects on people and the natural environment;
(l) maintaining the cultural, economic, physical and social wellbeing of people and communities;
(m) the principles described in the Smart Infrastructure Manual; and
(n) the additional specific matters (if any) relating to ESD specified in the Contract Particulars.
Executive Negotiators
The representatives of the parties nominated in the Contract Particulars or any person nominated by the relevant party to replace that person from time to time by notice in writing to the other party.
Fee
The amount set out in or determined in accordance with the Fee Schedule, as adjusted, subject to clause 13.5 (if applicable), under the Contract, which is not, unless elsewhere stated, subject to rise and fall in costs.
Fee Schedule
The Fee Schedule attached to the Official Order.
Financial Representative
Means:
(a) in relation to the Consultant, the Consultant's chief financial officer, financial controller or other officer or employee with primary responsibility for managing the financial affairs of the Consultant; and
(b) in relation to a subconsultant, the subconsultant's chief financial officer, financial controller or other officer or employee with primary responsibility for managing the financial affairs of the subconsultant.
GST
Means the tax payable on taxable supplies under the GST Legislation.
GST Legislation
Means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax.
High Value Contract
Has the meaning in the Indigenous Procurement Policy.
Indicative Delivery Phase Fee
The Indicative Delivery Phase Fee (if any) as set out in the Fee Schedule attached to the Official Order as adjusted (if at all) in accordance with clause 8.
The Indicative Delivery Phase Fee Proposal (if any) as set out in the Fee Schedule attached to the Official Order.
Indicative Delivery Phase Resource Plan
The Indicative Delivery Phase Resource Plan (if any) set out in the Fee Schedule attached to the Official Order.
Indigenous Enterprise
Means an organisation that is 50% or more Indigenous owned that is operating a business.
Indigenous Participation Plan
The plan prepared by the Consultant:
(a) if Option 1 of clause 14.1 applies, in accordance with clause 14.1(b); or
(b) if Option 2 of clause 14.2 applies, in accordance with the Consultant's Indigenous Participation Plan set out in the Official Order.
Indigenous Procurement Policy
The Commonwealth's Indigenous Procurement Policy dated 1 July 2015 available at https://www.dpmc.gov.au/indigenous-affairs/economic-development/indigenous-procurement-policy-ipp.
Insolvency Event
Any one of the following:
(a) the Consultant becomes, is declared to be, is taken under any applicable law (including the Corporations Act 2001 (Cth)) to be, admits to or informs the Commonwealth in writing, or its creditors generally, that the Consultant is insolvent, an insolvent under administration, bankrupt, unable to pay its debts or is unable to proceed with the Contract for financial reasons;
(b) execution is levied against the Consultant by a creditor;
(c) a garnishee order, mareva injunction or similar order, attachment, distress or other process is made, levied or issued against or in relation to any asset of the Consultant;
(d) where the Consultant is an individual person or a partnership including an individual person, the Consultant:
(i) commits an act of bankruptcy;
(ii) has a bankruptcy petition presented against him or her or presents his or her own petition;
(iii) is made bankrupt; or
(iv) applies for, agrees to, enters into, calls a meeting for the consideration of, executes or is the subject of an order or declaration in respect of:
A. a moratorium of any debts; or
B. a personal insolvency agreement or any other assignment, composition or arrangement (formal or informal) with creditors,
by which his or her assets are subjected conditionally or unconditionally to the control of a creditor or trustee;
(e) where the Consultant is a corporation, any one of the following:
(i) notice is given of a meeting of creditors with a view to the corporation entering into a deed of Defence Infrastructure Panel 2017-2022Contract Manual Volume 2: Contract ManagementCUFooterText 11
(ii) a liquidator or provisional liquidator is appointed in respect of a corporation;
(iii) the corporation entering a deed of company arrangement with creditors;
(iv) a controller (as defined in section 9 of the Corporations Act 2001 (Cth)), administrator, receiver, receiver and manager, provisional liquidator or liquidator is appointed to the corporation;
(v) an application is made to a court for the winding up of the corporation and not stayed within 14 days;
(vi) any application (not withdrawn or dismissed within 7 days) is made to a court for an order, an order is made, a meeting is convened or a resolution is passed, for the purpose of proposing or implementing a scheme of arrangement other than with the prior approval of the Commonwealth under a solvent scheme of arrangement pursuant to Part 5.1 of the Corporations Act 2001 (Cth);
(vii) a winding up order or deregistration order is made in respect of the corporation;
(viii) the corporation resolves by special resolution that it be wound up voluntarily (other than for a members’ voluntary winding up);
(ix) as a result of the operation of section 459F(1) of the Corporations Act 2001 (Cth), the corporation is taken to have failed to comply with a statutory demand (as defined in the Corporations Act 2001 (Cth)); or
(x) a mortgagee of any property of the corporation takes possession of that property;
(f) the Commissioner of Taxation issues a notice to any creditor of a person under the Taxation Administration Act 1953 (Cth) requiring that creditor to pay any money owing to that person to the Commissioner in respect of any tax or other amount required to be paid by that person to the Commissioner (whether or not due and payable) or the Commissioner advises that creditor that it intends to issue such a notice; or
(g) anything analogous to anything referred to in paragraphs (a) to (f) (inclusive) of this definition, or which has a substantially similar effect, occurs with respect to a person or corporation under any law of any jurisdiction.
Inspector
A person appointed as a Fair Work Building Industry Inspector or Fair Work Inspector as defined in the Fair Work (Building Industry) Act 2012 (Cth) and the Fair Work Act 2009 (Cth), respectively.
Intellectual Property Rights
All statutory and other proprietary rights in respect of inventions, innovations, patents, utility models, designs, circuit layouts, mask rights, copyrights (including future copyrights), confidential information, trade secrets, know-how, trade marks and all other rights in respect of intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967.
IT Equipment
Any software, hardware or telecommunications equipment:
(a) produced; or
(b) provided, or required to be provided, to the Commonwealth or the Commonwealth's Representative,
under, for the purposes of, or in connection with, the Contract, the Services or the Project by, for or on behalf of
Means any actual, potential or perceived material change to the circumstances of the Consultant, including any change:
(a) arising out of or in connection with:
(i) a Change of Control;
(ii) an Insolvency Event; or
(iii) the Consultant's financial viability or capacity to perform the Services, achieve Completion and otherwise meet its obligations under the Contract; or
(b) which affects the truth, completeness or accuracy of:
(i) the Consultant's tender for the Panel;
(ii) the Consultant's proposal in response to a request for proposal under the Panel; or
(iii) any other information, documents, evidence or clarifications provided by the Consultant to the Commonwealth arising out of or in any way in connection with the Contract or the Services.
Method of Work Plan for Airfield Activities
The method of work plan for airfield activities (if any) prepared in accordance with the applicable provision in clause 5.15.
MFPE
The Manual of Fire Protection Engineering as the document is amended from time to time.
Milestone
A milestone described in the Fee Schedule.
Milestone Fee Payment Schedule
Means the Milestone Fee Payment Schedule (if any) in the Fee Schedule, otherwise as adjusted in accordance with the Contract, setting out:
(a) the instalments in which the Fee is to be payable; and
(b) the Milestones which must be achieved by the Consultant for each instalment to become payable.
Moral Rights
Has the meaning given by the Copyright Act 1968 (Cth).
National Construction Code
The National Construction Code that applies in the State or Territory where the Works are located, as amended from time to time, produced and maintained by the Australian Building Codes Board on behalf of the Commonwealth Government and each State and Territory Government.
Official Order
The document issued by the Commonwealth to the Consultant under the Panel Agreement in respect of an Engagement, entitled "Official Order", engaging the Consultant to perform the Services.
Any contractor, supplier, subcontractor, consultant, artist, tradesperson or other person engaged or to be engaged to do work other than the Consultant and its subconsultants and a Project Contractor.
Panel Agreement
The Panel Agreement for the Defence Infrastructure Panel 2017 - 2022 between the Commonwealth and the Consultant.
Personal Information
Has the meaning given in the Privacy Act.
Planning Phase
Means the Planning Phase (if any) described in the Brief.
Privacy Act
Means the Privacy Act 1988 (Cth).
Project
The project (if any) described in the Official Order.
Project Contractor
Any person who is engaged by the Commonwealth to deliver any aspect of the Project under a Project Contract.
Project Contracts
The project contracts described in the Contract Particulars.
Project Contractor Documentation
Means:
(a) all material brought or required to be brought into existence by a Project Contractor as part of, or for the purpose of, carrying out any part of the Project Contract including documents, notices, drawings, specifications, reports, models, samples and calculations, equipment, technical information, plans, charts, tables, schedules, data (stored by any means), photographs and finishes boards; and
(b) without limiting paragraph (a), includes:
(i) Design Documentation (or similar term used in the relevant Project Contract);
(ii) programs and cost plans issued under a Project Contract;
(iii) if required by the Project Contract, subcontract documentation;
(iv) all notices purporting to be issued under a Project Contract, including those seeking additional time or money;
(v) all "variations" under a Project Contract;
(vi) payment claims purporting to be issued under a Project Contract; and
(vii) all other Claims (as defined in each Project Contract).
(d) the documents which the Consultant is obliged to maintain under clause 10.15; and
(e) without limiting paragraphs (a) - (c), any other material produced or provided, or required to be provided, to the Commonwealth or the Commonwealth's Representative under, for the purposes of or in connection with the Contract, the Services or the Project by, for or on behalf of the Consultant (including by subconsultants), including any material relating to the Consultant's compliance with the WHS Legislation..
Project DCAP
The "Project Detailed Consultant's Activities Proposal" attached to the Official Order, as amended from time to time in accordance with clause 5.8.
Project Plans
The plans (if any) referred to in the Contract Particulars (which may include the Environmental Management Plan, the Site Management Plan and/or the Work Health and Safety Plan) and prepared and finalised by the Consultant under clause 5.15, as amended (if at all) with the written consent of the Commonwealth's Representative.
Recipient
Any person provided with Confidential Information and if clause 16 applies, Sensitive and Classified Information (or any part of it) (whether in a tangible or an intangible form), including potential or actual subcontractors, suppliers and material suppliers.
Related Entity
Has the meaning in the Building Code 2016.
Remote Area
Means an area identified on the map located at https://www.dpmc.gov.au/resource-centre/indigenous-affairs/ripp-map-data.
Request for Information
Any request made by a Project Contractor to the Consultant (whether under a Project Contract or otherwise) requesting further information, instruction, guidance, advice or opinion (including in respect of the resolution of ambiguities, discrepancies or inconsistencies in the Consultant Material) or otherwise.
Schedule of Rates
The document attached in Appendix 2 to the Panel Agreement.
Security of Payment Legislation
Means:
(a) Building and Construction Industry Security of Payment Act 1999 (NSW);
(b) Building and Construction Industry Security of Payment Act 2002 (Vic);
(c) Building and Construction Industry Payments Act 2004 (Qld);
(d) Construction Contracts Act 2004 (WA);
(e) Construction Contracts (Security of Payments) Act 2004 (NT);
(f) Building and Construction Industry Security of Payment Act 2009 (Tas);
(g) Building and Construction Industry (Security of Payment) Act 2009 (ACT);
(h) Building and Construction Industry Security of Payment Act 2009 (SA); and
(i) any legislation in any State or Territory of Australia addressing security of payment in the building and construction industry.
Sensitive and Classified Information
Any document, drawing, information or communication (whether in written, oral or electronic form) issued or communicated to the Consultant by the Commonwealth, the Commonwealth's Representative or anyone on the Commonwealth's behalf, whether or not owned by the Commonwealth:
(a) marked as "sensitive information" or "for official use only";
(b) identified at the time of issue or communication as "Sensitive Information";
(c) marked with a national security classification or as "Classified Information";
(d) identified at the time of issue or communication as "Classified Information";
(e) the Consultant knows or ought to know is subject to, or ought to be treated as Sensitive and Classified Information in accordance with, the provisions of all Commonwealth Requirements and Statutory Requirements (including the Australian Government Protective Security Policy, the Australian Government Protective Security Framework, the Australian Government Protective Security Manual, the Australian Government Physical Security Management Protocol, the Australian Government Personnel Security Management Protocol, the Australian Government Information Security Manual and the Defence Security Manual); and
(f) everything recording, containing, setting out or making reference to the document, drawing, information or communication (whether in written, oral or electronic form), including documents, notes, records, memoranda, materials, software, disks and all other media, articles or things.
Sensitive and Classified Information Incident
A single breach or a series of breaches of clause 16, any Separation Arrangements, any Cyber Security Event, any Cyber Security Incident or any other unwanted or unexpected Sensitive and Classified Information Security Event that has a significant probability of compromising Sensitive and Classified Information security procedures, processes and requirements and threatening security.
Sensitive and Classified Information Security Event
An identified fact, circumstance, occurrence or event indicating a potential or actual breach of Sensitive and Classified Information security procedures, processes and requirements, a failure of Sensitive and Classified Information security procedure, process and requirement safeguards or a previously unknown or unencountered fact, circumstance, occurrence or event which is or may be relevant to Sensitive and Classified Information security procedures, processes and requirements.
(c) is required to put in place under clause 17.3,
for the purpose of preventing, ending, avoiding, mitigating or otherwise managing any Material Change or Defence Strategic Interest Issue or complying with clause 15 and, if clause 16 applies, clause 16.
Services
Means:
(a) the services outlined in, or reasonably to be inferred from, the Brief; and
(b) all other services, of a type generally consistent with the services referred to in paragraph (a), which may be required by the Commonwealth in connection with the relevant Engagement.
Services for the Delivery Phase
The services for the Delivery Phase described in the Brief.
Site
The site (if any) described in the Contract Particulars.
Site Management Plan
The site management plan (if any) prepared by the Consultant and finalised under clause 5.15, which must set out in adequate detail all procedures the Consultant will implement to manage the carrying out of the Services on and near the Site, including:
(a) the matters set out in the Contract Particulars;
(b) if the Services are to be carried out on or in the vicinity of an airfield, a Method of Work Plan for Airfield Activities; and
(c) any other matters required by the Commonwealth's Representative.
Smart Infrastructure Manual
The Defence Smart Infrastructure Manual Design and Construction available on DEQMS.
Statutory Requirements
Includes any:
(a) law of the Commonwealth or of a State or Territory or a local body, including Acts, ordinances, regulations, by-laws and other subordinate legislation;
(b) Approvals (including any conditions or requirement under them);
(c) Commonwealth Requirements; and
(d) Environmental Requirements,
applicable to the Site or the Services.
Subconsultant Deed of Covenant
The subconsultant deed of covenant in a form determined by the Commonwealth.
Variation
Unless otherwise stated in the Contract, means any change to the Services, including any addition, increase,
decrease, omission or deletion to or from the Services.
WHS Accreditation Scheme
The scheme established under the Fair Work (Building Industry) Act 2012 (Cth).
WHS Legislation
Means:
(a) the Work Health and Safety Act 2011 (Cth) and Work Health and Safety Regulations 2011 (Cth); and
(b) any corresponding WHS law as defined in section 4 of the Work Health and Safety Act 2011 (Cth).
Work Health and Safety Plan
The work health and safety plan (if any) prepared by the Consultant and finalised under clause 5.15, which must as a minimum include:
(a) the names, positions and responsibilities of all persons (including those at any workplace where the Services are carried out) whose positions or roles involve specific health and safety responsibilities in connection with the delivery of the Services and the Works;
(b) the arrangements in place, or to be implemented between any persons conducting a business or undertaking at any workplace where the Services/Works are carried out (including Other Consultants) regarding consulting, cooperating and coordinating activities where the persons conducting a business of undertaking at the relevant workplace where the Services/Works are carried out and the Consultant owe a work health and safety duty in relation to the same work health and safety matter (including procedures for information sharing and communication);
(c) the arrangements in place, or to be implemented, for managing any work health and safety incidents that occur at a workplace where the Services/Works are carried out, including:
(ii) preventative and corrective action procedures; and
(iii) record-keeping and reporting requirements, including reporting to the Commonwealth Representative with respect to incidents and accidents in accordance with clause 5.9(b);
(d) any site-specific health and safety rules, and the arrangements for ensuring that all persons at any workplace where the Services/Works are performed are informed of these rules;
(e) to the extent that design forms part of the Services/Works (whether as a designer or where the Consultant must review a design produced by an Other Contractor or Project Contractor), procedures for:
(i) conducting design risk assessments regarding design and addressing design changes relevant to work health and safety considerations;
(ii) carrying out (or ensuring the carrying out of) calculations, analysis, testing or examinations regarding design to ensure compliance with WHS Legislation; and
(iii) ensuring the results of such calculations, analysis, testing or examinations are provided to the Commonwealth promptly upon completion of the relevant Services/Works;
(f) procedures and arrangements for the management of work health and safety generally, including:
(i) details of the Consultant's work health and safety policies;
(ii) details of any work health and safety management system (whether certified or
uncertified), including procedures for managing work health and safety disputes;
(iii) inductions, training and other awareness programmes regarding work health and safety and any workplace specific work health and safety induction, training and other awareness programmes; and
(iv) emergency procedures, emergency management planning, the use of emergency equipment and the establishment of workplace specific first aid facilities;
(g) procedures for ensuring the provision of written assurances to the Commonwealth Representative in accordance with clause 5.9(e) regarding compliance with the WHS Legislation by the Consultant, subconsultants and Other Contractors;
(h) procedures for the preparation, finalisation and regular reviewing of the Work Health and Safety Plan in accordance with clause 5.15 (including as a consequence of any review of hazards, risks and control measures regarding the Services and any notifiable incident or systemic risk management failure);
(i) procedures for the management of subconsultants, including, as relevant:
(i) inductions, training and other awareness programmes (in addition to those referred to in subparagraph (f)(iii);
(ii) the subconsultant's development and provision of job safety assessments or equivalent documentation;
(iii) ensuring subconsultants comply with their obligation to consult, cooperate and coordinate activities (including the information-sharing and communication of information); and
(iv) ensuring subconsultant compliance with the Work Health and Safety Plan;
(j) the approach to the management of project and Services and Works hazards and risks including how the Consultant will identify hazards and eliminate or minimise risks arising from those hazards so far as is reasonably practicable:
(i) prior to commencing the Services and the Works; and
(ii) during the delivery of the Services and Works;
(k) the actions the Consultant will take to proactively identify and manage risks to ensure it avoids systematic work health and safety risk management failures occurring during the delivery of the Services and the Works;
(l) the procedures the Consultant will adopt to audit or otherwise monitor and verify its (and its subconsultants) compliance with the Work Health and Safety Plan and the WHS Legislation (including details of the regularity, form and content of such audit, monitoring and verification activities);
(m) the procedures the Consultant will adopt to ensure it provides to the Commonwealth, all information regarding hazards and risks present in or arising from the use of the Works for the purpose for which they were designed or manufactured (including the supply of information in accordance with clause 5.9(n));
(n) the approach the Consultant will adopt in identifying, controlling and managing work health and safety hazards and risks concerning (as applicable):
(i) hazardous chemicals (as defined in the WHS Legislation), including, where hazardous chemicals are used or handled in the delivery of the Services and the Works, incorporated into the Works, stored by the Consultant at the workplace or transported by the Consultant to or from the workplace (including whilst transported on, into or from
(ii) fall hazards, telecommunications towers, demolition, disturbance or removal of asbestos, structural alterations requiring temporary supports, confined spaces, excavation deeper than 1.5 metres, tunnels, use of explosives, pressurised gas distribution mains and consumer piping; chemical, fuel or refrigerant lines, electrical work, including involving energised electrical installations and services, hazardous atmospheres, tilt-up and precast concrete. roadways or railways used by road or rail traffic, movement of powered mobile plant, artificial extremes of temperature; water or other liquids where there is a risk of drowning, diving, remote or isolated work, above-standard exposure to noise exposure to falling objects and abrasive blasting; and
(o) any other specific matters required by:
(i) the Contract; or
(ii) the Commonwealth's Representative.
Works
The works (if any) described in the Brief.
Clause 1.2 - Interpretation
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Key Message
Guidance to interpretation of the Terms of Engagement.
User Guidance
This clause contains a number of provisions relating to how the Terms of Engagement should be read and interpreted.
Of particular relevance to the Commonwealth's Representative will be:
(a) the provisions in paragraphs (k), (l) and (m) which define "day" in relation to particular clauses of the Terms of Engagement;
(b) the provisions in paragraph (r) regarding Australian standards and other standards, and the relevant edition to be used for the purposes of the Terms of Engagement;
(c) the provisions in paragraph (s) regarding interpretation of the Brief and in particular the use of the DEQMS website, as amended from time to time, as an aid to interpretation of the Brief.
Clause 1.2 - Interpretation
In this Contract, unless the context otherwise indicates:
(a) words in the singular include the plural and vice versa;
(b) references to a person include an individual, firm, corporation or unincorporated body;
(c) except in clause 1.1, headings are for convenience only and do not affect the interpretation of this Contract;
(d) references to any party to this Contract include its successors or permitted assigns;
(e) a reference to a party, clause, Annexure, Schedule, or exhibit is a reference to a party, clause, Annexure, Schedule or exhibit of or to this Contract;
(f) references to this Contract and any deed, agreement or instrument are deemed to include references to this Contract or such other deed, agreement or instrument as amended, novated, supplemented, varied or replaced from time to time;
(g) words denoting any gender include all genders;
(h) references to any legislation or to any section or provision of any legislation include any:
(i) statutory modification or re-enactment of or any statutory provision substituted for that legislation, section or provision; and
(ii) ordinances, by laws, regulations and other statutory instruments issued under that legislation, section or provision;
(i) no rule of construction applies to the disadvantage of a party on the basis that the party put forward the Contract or any part;
(j) a reference to "$" is to Australian currency;
(k) where under the Contract:
(i) a direction is required to be given or must be complied with; or
(ii) payment of money must be made (other than under clause 10.5),
within a period of 7 days or less from a specified event, then Saturdays, Sundays and public holidays in the place where the Project is to be situated will not be counted in computing the number of days;
(l) for the purposes of clauses 10.4 and 10.5, to the extent that the Services are to be carried out:
(i) in any jurisdiction other than the State of Victoria, the State of South Australia, the State of Tasmania, the Northern Territory, the State of Queensland, the Australian Capital Territory or the State of Queensland, references to "business days" are to days other than:
A. a Saturday or Sunday or the 27th, 28th, 29th, 30th or 31st day of December; or
B. a public holiday in the State or Territory in which the Site is situated;
(ii) in the State of Victoria, references to "business days" are to days other than:
A. a Saturday or Sunday; or
B. a day that is partly or wholly observed as a public holiday throughout Victoria; or
(iii) in the Northern Territory, references to "business days" are to days other than:
A. a Saturday or Sunday; or
B. a public holiday in the Northern Territory;
(iv) in the State of South Australia, references to "business days" are to days other than:
A. a Saturday or Sunday or the 27th, 28th, 29th, 30th or 31st day of December;
B. a public holiday in the State of South Australia; or
C. any other day on which there is a Statewide shutdown of the operations of Defence Infrastructure Panel 2017-2022Contract Manual Volume 2: Contract ManagementCUFooterText 21
the building and construction industry;
(v) in the State of Tasmania, references to "business days" are to days other than:
A. a Saturday or Sunday;
B. a statutory holiday as defined in the Statutory Holidays Act 2000 (Tas);
(vi) in the Australian Capital Territory, references to "business days" are to days other than:
A. a Saturday or Sunday or the 27th, 28th, 29th, 30th or 31st day of December; or
B. a public or bank holiday in the Australian Capital Territory under the Holidays Act 1958 (ACT); or
(vii) in the State of Queensland, references to "business days" are to days other than:
A. a Saturday or Sunday;
B. the 22nd, 23rd, 24th, 27th, 28th, 29th, 30th, 31st day of December or the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th or 10th day of January; or
C. a public holiday, special holiday or bank holiday in Queensland under the Holidays Act 1983 (QLD);
(m) other than as set out in paragraphs (k) and (l) references to "day" are references to calendar days;
(n) the words "including" and "includes" and any variants of those words, will be read as if followed by the words "without limitation";
(o) where a clause contains two options, the option specified in the Contract Particulars will apply;
(p) the word "subconsultant" will include subconsultants, subcontractors and suppliers, and the word "subcontract" will include a contract with a subconsultant;
(q) derivatives of a word or expression which has been defined in clause 1.1 will have a corresponding meaning to that assigned to it in clause 1.1;
(r) unless agreed or notified in writing by the Commonwealth's Representative, a reference to Standards Australia standards, overseas standards or other similar reference documents in the Brief is a reference to the edition last published prior to the preparation of the Consultant Material. If requested by the Commonwealth's Representative, the Consultant must make copies of all Standards Australia standards, overseas standards or other similar reference documents referred to in the Brief and the Consultant Material available to the Commonwealth's Representative; and
(s) unless the context otherwise requires, capitalised terms in the Brief have the meaning given to them by the Panel Agreement, Official Order, or the meaning given to them by the Commonwealth as published on the DEQMS website as amended from time to time.
Clause 1.3 - Miscellaneous
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Key Message
Miscellaneous provisions that deal with issues such as, governing law, waiver, entire agreement, indemnity and
The governing law of the Terms of Engagement is set out in the Contract Particulars.
Where the Sites covered by the Terms of Engagement straddle state borders, a decision needs to be made which State or Territory’s law is to apply.
As different jurisdictions’ laws may impact differently upon the Terms of Engagement, if there is any doubt as to which jurisdiction is to apply, legal or policy guidance should be sought.
Waiver:
None of the terms of the Terms of Engagement can be varied, waived, discharged or released unless, to the extent that the term involves a request of one party seeking to waive an obligation of the other party, there is written notice to the other party or, otherwise, both parties agree in writing. However, the parties need to remain very careful that they do not act in a way that is inconsistent with the terms of the Terms of Engagement as equitable principles (such as estoppel) may still be applied by a court in examining the conduct of parties.
Contract is entire agreement:
Both parties acknowledge that the Terms of Engagement constitutes the entire agreement between them and supersedes all communications, negotiations, arrangements and agreements made between the parties before the Award Date. Only those matters which are contained in the "Contract" (as defined in clause 1.1) constitute the enforceable contract between the parties.
If a dispute arose in relation to the interpretation of the Terms of Engagement, clause 1.3(c) would reinforce the principle that a court or arbitrator will not generally look outside of the "four corners" of a written contract to find out what the parties intended their contract (i.e. agreement) to mean.
Thus, any contract-specific matters which are at variance to, or beyond the scope of the Terms of Engagement, need to be incorporated within the wording of any one of the documents which comprise the "Contract" to be a part of the agreement.
Do not affix notes of meetings, correspondence or other documents to the Terms of Engagement. Any amendment should be made to the Terms of Engagement themselves by way of a Special Condition attached to the relevant Official Order, having first drafted the specific amendment and obtained legal advice as to the specific drafting.
Joint and several liability:
This clause is only relevant where a number of separate legal entities make up the Consultant, such as where there is a consortium or joint venture. In such circumstances, this clause preserves the right of the Commonwealth to take action against the separate entities making up the Consultant, or against the Consultant itself.
However, given legislation in a number of jurisdictions that affects the traditional approach to joint and several liability, if the Consultant will consist of a number of separate legal entities, legal advice should be obtained.
Severability of invalid terms:
This clause provides that any provisions of the Contract which are illegal, void or unenforceable are severable (i.e. removable) to the extent of the illegality, unenforceability or other reason causing the provision to be void and that these provisions will not invalidate any other provisions of the Terms of Engagement.
Under this clause, the Consultant provides an indemnity in favour of the Commonwealth for breach of the Terms of Engagement by the Consultant. The purpose of the indemnity is to make it clear the Consultant will be liable to the Commonwealth for any costs, liabilities, or claim by a third party the Commonwealth incurs as a result of a breach of a term of the Contract by the Consultant.
Legal advice should be sought before taking any action in respect of the indemnity.
Survival of indemnities:
All indemnities provided survive termination of the Terms of Engagement and may be relied upon and enforced by The Commonwealth in the event that the Contract has been terminated.
Clause 1.3 - Miscellaneous
(a) This Contract is subject to and is to be construed in accordance with the laws of the State or Territory set out in the Contract Particulars.
(b) None of the terms of the Contract can be waived, discharged or released at law or in equity unless:
(i) to the extent that the term involves a right of the party seeking to waive the term or one party seeking to waive an obligation of the other party - this is done by written notice to the other party; or
(ii) otherwise, both parties agree in writing.
(c) This Contract constitutes the entire agreement and understanding between the parties and will take effect according to its tenor despite:
(i) any prior agreement in conflict or at variance with the Contract; or
(ii) any correspondence or other documents relating to the subject matter of the Contract which may have passed between the parties prior to the Award Date and which are not included in the Contract.
(d) Where a party comprises two or more persons, each person will be jointly and severally bound by the party’s obligations under the Contract.
(e) Any provision in this Contract which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and such illegality, voidness or unenforceability will not invalidate any other provision of the Contract.
(f) The Consultant must indemnify the Commonwealth against:
(i) any liability to or claim by a third party, Project Contractor or an Other Contractor; and
(ii) all costs, losses and damages suffered or incurred by the Commonwealth,
to the extent arising out of or in connection with any breach by the Consultant of a term of this Contract.
(g) All obligations to indemnify under this Contract survive termination of the Contract.
(h) Unless expressly stated to the contrary in this Contract, the Consultant must perform the Services at its cost.
(i) Without limiting the Consultant's obligations or liabilities under this Contract, any obligation of the Consultant under this Contract is deemed to include an obligation on the Consultant to ensure that its subconsultants comply with a corresponding obligation.
(j) Where under this Contract the Commonwealth (or the Commonwealth's Representative) has a right,
power, discretion or other function (including to accept, agree, approve, comment to or reject any matter), the Commonwealth (or other person on its behalf) will be entitled to exercise that right, power, discretion or other function in its absolute discretion, unless the content otherwise expressly provides.
This clause provides for the Consultant's fundamental obligations to provide Services to the Commonwealth. It sets out the standards the Consultant is required to perform the Services to and the basis on which the Commonwealth expects the Consultant to perform the Services.
Clause 2.1 - Engagement
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Key Message
The Consultant's obligation to carry out the Services in accordance with the Contract and Project Contracts.
User Guidance
The Consultant is obliged under this clause to carry out the Services in accordance with the Project Contracts, i.e. those contracts described as such in the Contract Particulars. This clause obliges the Consultant to ensure that, in performing the Services, it complies with the requirements of the underlying contracts in place for the delivery of the particular Services, as nominated by the Commonwealth.
This clause also provides that the Consultant obligations under the Contract will not be limited or affected by the expiry of the Term of the Panel Agreement. Rather, these obligations will continue until they have been discharged by the Consultant or the Contract has been terminated (whichever occurs first).
Clause 2.1 - Engagement
(a) The Consultant must carry out the Services in accordance with:
(i) this Contract; and
(ii) the Project Contracts.
(b) For the avoidance of doubt, the expiry of the Term under the Panel Agreement will not limit or affect the Consultant's obligations under this Contract, and they will continue in full force and effect until they have been discharged or the earlier termination of this Contract.
Clause 2.2 - Standard of Care
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Key Message
The Consultant is obliged to perform the Services to the required standard of care.
Services that do not meet the specified standard are unacceptable.
The Consultant (and its subconsultants) is an expert and the Commonwealth has engaged it to perform the Services as an expert.
User Guidance
The purpose of clause 2.2 is to ensure that the Services performed by the Consultant and its subconsultants are of the standard expected of an expert professional provider of the Services. That is a high standard which the Consultant must live up to.
The Consultant must also ensure that the Consultant Material (defined in clause 1.1 as all material brought, or required to be brought, into existence by the Consultant as part of, or for the purpose of, carrying out the Services including documents, equipment, reports, technical information, plan, charts, drawings, specifications, calculations, tables, schedules, data (stored by any means), photographs and finishes boards) meets the requirements of the Contract and must use its best endeavours to ensure it will be fit for its intended purpose.
This clause also requires the Consultant to perform the Services economically and within any budget that is notified to it by the Commonwealth and imposes on the Consultant a general obligation to act in the utmost good faith in the best interests of the Commonwealth and to keep the Commonwealth informed of any matters that may affect the Services or the Project.
Clause 2.2 - Standard of Care
The Consultant must:
(a) exercise the standard of skill, care and diligence in the performance of the Services that would be expected of an expert professional provider of the Services;
(b) warrants that each of its subconsultants will exercise the standard of skill, care and diligence that would be expected of an expert professional provider of the service being provided by the subconsultant;
(c) ensure that the Consultant Material complies with the requirements of the Contract;
(d) use its best endeavours to ensure that the Consultant Material will be fit for its intended purpose;
(e) ensure that the Services are provided economically and in accordance with any budgetary requirements of the Commonwealth notified to the Consultant; and
(f) exercise the utmost good faith in the best interests of the Commonwealth and keep the Commonwealth fully and regularly informed as to all matters affecting or relating to the scope or cost of the Services and the Project or otherwise.
Clause 2.3 - Authority to Act
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Key Message
The Consultant is an independent consultant and must not act as the agent, partner or joint venturer of the Commonwealth or take any steps to bind the Commonwealth by executing or entering into legal documents/contracts on behalf of the Commonwealth (without prior consent).
The Consultant must not act outside its authority. Seek advice from Directorate of Program Assurance if you consider the Consultant has acted outside its authority.
User Guidance
This clause limits the authority of the Consultant to act on behalf of the Commonwealth. In particular, the Defence Infrastructure Panel 2017-2022Contract Manual Volume 2: Contract ManagementCUFooterText 27
Consultant is prohibited, unless expressly authorised otherwise, from entering into contracts, other legal documents or arrangements, or taking steps to bind or commit the Commonwealth. In particular, this may occur when the Consultant is administering a project for the Commonwealth as a project manager and contract administrator.
This clause further clarifies the role of the Consultant as an independent consultant and prohibits the Consultant from purporting to be a partner or joint venturer of the Commonwealth.
Clause 2.3 - Authority to Act
Other than as expressly authorised, the Consultant has no authority to and must not:
(a) enter into any contracts, commitments or other legal documents or arrangements in the name of, or on behalf of, the Commonwealth; or
(b) take any act or step to bind or commit the Commonwealth in any manner, whether as a disclosed agent of the Commonwealth or otherwise.
The Consultant is an independent consultant and is not and must not purport to be a partner or joint venturer of the Commonwealth.
Clause 2.4 - Knowledge of the Commonwealth's Requirements
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Key Message
The Consultant is obliged to inform itself of the Commonwealth's requirements and the context in which it operates.
To the greatest extent possible the Commonwealth should work with the Consultant to clearly define and develop the Commonwealth's requirements.
Visit www.defence.gov.au/estatemanagement to learn more about Defence's requirements.
User Guidance
This clause ties in with the Consultant's general obligation under clause 2.2 to act in the utmost good faith in the best interests of the Commonwealth.
In particular, this clause requires the Consultant to inform itself of the Commonwealth's requirements with respect to the Services, to refer to the Commonwealth Material and the Commonwealth's Program and consult with the Commonwealth throughout performance of the Services.
Clause 2.4 - Knowledge of the Commonwealth's Requirements
The Consultant must:
(a) inform itself of the Commonwealth’s requirements for the Services and the Project;
(b) (without limitation) refer to the Commonwealth Material and the Commonwealth's Program; and
(c) consult the Commonwealth throughout the carrying out of the Services.
Clause 2.5 - Notice of Matters Impacting on the Services or the Project
Quick Links
Proforma notice
Key Message
The Consultant is obliged to give written notice of matters impacting on the Services or the Project.
The Consultant has an obligation to recommend to the Commonwealth how to minimise the impact of the matter on the project.
The Commonwealth needs to be informed of matters impacting on the Service or Project in order to respond appropriately. The Commonwealth should discuss such matters with the Consultant and seek more information or advice from Directorate of Program Assurance if necessary.
User Guidance
This clause requires the Consultant to give notice to the Commonwealth's Representative promptly upon becoming aware of any matter which:
(a) is likely to change or which has changed the scope, timing or cost of the Services or the Project;
(b) affects or may affect the Commonwealth's Program or the Consultant's approved program; or
(c) involves any error, omission or defect in any aspect of the Project or the Services.
This clause further prescribes that such notice should include, as far as practicable in the circumstances, particulars of the change, error, omission or defect, its likely impact, and a recommendation regarding how to minimise the impact upon the scope, timing and cost of the Services and the Project.
A proforma notice for notifying the Commonwealth's Representative of any matter which impacts or is likely to impact the Services is provided in this Manual.
Clause 2.5 - Notice of Matters Impacting on the Services or the Project
Without limiting clauses 13.1 to 13.5 (if applicable), if the Consultant becomes aware of any matter which:
(a) is likely to change or which has changed the scope, timing or cost of the Services or the Project;
(b) affects or may affect the Commonwealth's Program or the Consultant's approved program under clause 7.2; or
(c) involves any error, omission or defect in any continuing or completed aspect of the Project or the Services,
the Consultant must immediately give written notice of that matter to the Commonwealth's Representative containing, as far as practicable in the circumstances:
(d) particulars of the change, error, omission or defect;
(e) its likely impact; and
(f) the Consultant's recommendation as to how to minimise its impact upon the scope, timing and cost of the Services and the Project.
The Consultant must co-operate with Other Contractors and Project Contractors and co-ordinate the Services with the activities of Other Contractors and Project Contractors.
The Services will often be performed in support of a larger Commonwealth project and therefore, co-ordination can be important to the ultimate success of a project.
There is a positive obligation imposed on the Consultant to avoid interfering, disrupting or delaying the activity of the Project Contractor or Other Contractors.
User Guidance
This clause imposes obligations on the Consultant to co-operate and co-ordinate with the Project Contractors and Other Contractors (as defined in clause 1.1) regardless of whether such Project Contractors or Other Contractors are engaged on the same project or on a different project.
Clause 2.6 - Co-ordination
The Consultant must:
(a) permit Other Contractors to carry out their work;
(b) fully co-operate with the Project Contractors and Other Contractors;
(c) carefully co-ordinate and integrate the Services with the activities of the Project Contractors and Other Contractors;
(d) carry out the Services so as to avoid interfering with, disrupting or delaying, the activities of the Project Contractors and Other Contractors; and
(e) without limitation, provide whatever advice, support and co-operation is reasonable to facilitate the due carrying out of the activities of each Other Contractor and for the purposes of clause 5.9.
Clause 2.7 - Access to the Consultant's Premises
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Key Message
Access to the Consultant's premises may be required to verify information within the Consultant's possession or inspect the physical carrying out of the Services.
User Guidance
The purpose of this clause is to make it clear that the Consultant is obliged at all reasonable times to permit the Commonwealth's Representative, or any person authorised by the Commonwealth's Representative, to inspect the carrying out of the Services and any Project Documents. Thus, the Commonwealth has a right of access to the Consultant's premises if this is required to inspect the carrying out of the Services.
(a) give to the Commonwealth's Representative, or to any persons authorised in writing by the Commonwealth's Representative, access to premises occupied by the Consultant where Services are being carried out; and
(b) permit those persons referred to in paragraph (a) to inspect the carrying out of the Services and any Project Documents.
Clause 2.8 - Conflict of Interest
Quick Links
Proforma notice
Key Message
Conflicts of interest raise probity concerns and need to be dealt with expediently.
The Consultant warrants that no conflict of interest exists or is likely to arise and if one does arise it will notify the Commonwealth.
A conflict of interest may prevent the Consultant from performing the Services impartially and in the best interests of the Commonwealth.
A conflict of interest may be actual or perceived between the Consultant's duty to the Commonwealth and to a third party.
User Guidance
Clause 2.8 seeks to eliminate any conflict of interest that the Consultant or any of its subconsultants have or may have in the performance of their obligations.
The Consultant provides a warranty that no conflict exists or is likely to arise in its performance of the Services and that it will ensure that no such conflict arises. The Consultant also warrants that it will use its best endeavours to ensure that no conflicts exists or is likely to arise in the performance of the obligations of any subconsultants.
The Consultant must immediately notify the Commonwealth's Representative of any conflict of interest or risk of conflict of interest (including details of the steps it has taken or will take to avoid or mitigate the risks of the conflict of interest). The Consultant must also take all steps required by the Commonwealth's Representative to avoid or minimise such conflict or risk of conflict. A proforma notice is provided for this purpose in this Manual.
Clause 2.8 - Conflict of Interest
The Consultant warrants that:
(a) at the Award Date, no conflict of interest exists or is likely to arise in the performance of its obligations under this Contract;
(b) it will ensure that no conflict of interest arises or is likely to arise in the performance of its obligations under this Contract;
(c) to ensure that no conflict of interest exists or is likely to arise in the performance of the obligations of any subconsultants; and
(d) if any such conflict of interest or risk of such conflict of interest arises, the Consultant will:
(i) notify the Commonwealth's Representative immediately in writing of that conflict or risk;
(ii) include in the notice provided to the Commonwealth's Representative under subparagraph (i) details of the steps which the Consultant has taken (or will take) to prevent, end, avoid, mitigate, resolve or otherwise manage the conflict of interest; and
(iii) take all steps required by the Commonwealth's Representative to avoid or minimise the conflict of interest or risk of conflict of interest.
Clause 2.9 - Subcontracting
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Proforma notice Proforma Notice
Key Message
The Consultant may subcontract to approved subconsultants. The Commonwealth retains the right to approve the Consultant's subconsultants in order to ensure the quality of the Services meet the standard set out in clause 2.2.
The Consultant is responsible and liable for the acts and omissions of the subconsultants not the Commonwealth.
User Guidance
This clause sets out the conditions the Consultant must satisfy before a subconsultant may be validly engaged to perform any of the Services. Clause 2.9(a)(i) provides that the Consultant may engage those subconsultants specified in the Contract Particulars to perform the services specified in the Contract Particulars without further Commonwealth approval. This allows the Commonwealth to specify the use of particular subconsultants for discrete elements of the Services (this would usually be done at the time of calling for proposals under Section 3 of the Panel Agreement). If the Consultant wishes to engage a subconsultant which is not specified in the Contract Particulars, it must get written approval from the Commonwealth's Representative.
A proforma notice is provided in this Manual for the purpose of the Consultant requesting approval to engage a subconsultant other than one named in the Contract Particulars. A proforma notice for the Commonwealth's Representative to accept or reject the proposed subconsultant is provided in this Manual for that purpose.
Under clause 2.9(a)(ii), the Consultant remains liable to the Commonwealth for all of the Services regardless of whether they are ultimately subcontracted to a third party. Similarly, clause 2.9(a)(iii) provides that the Consultant will be liable to the Commonwealth for all acts, omissions and defaults of the subconsultants. However, given the advent of proportionate liability legislation in a number of State and Territory jurisdictions, the effect of this clause may be limited. Practically, the most effective way for the Commonwealth to minimise the adverse effect of the legislation is to take great care in approving any subconsultant to ensure that they have the requisite expertise, professional indemnity insurance and financial backing to perform or discharge their liabilities if they fail to perform.
Clause 2.9 - Subcontracting
(a) The Consultant:
(i) must not, without the prior written approval of the Commonwealth's Representative, which will not be unreasonably withheld, subcontract any Services, except to a subconsultant named in the Contract Particulars;
A. not be relieved of any of its liabilities or obligations under the Contract, including those under clauses 2.1 and 2.1(b); and
B. remain responsible for all subconsultants and for all Services which are or may be subcontracted as if it was itself executing the Services, whether or not any subconsultants default or otherwise fail to observe any of the requirements of the relevant subcontract;
(iii) will be vicariously liable to the Commonwealth for all acts, omissions and defaults of its subconsultants (and those of the employees and agents of its subconsultants) relating to, or in any way connected with, the Services;
(iv) must ensure that each subcontract contains provisions:
A. which bind the subconsultants to participate in any novation required by the Commonwealth under clause 11.5(a);
B. as required under the Contract; and
C. equivalent to the obligations under clause 5.9;
(v) must, if requested by the Commonwealth's Representative:
A. execute;
B. procure the relevant subconsultant to execute; and
C. deliver to the Commonwealth's Representative,
a Subconsultant Deed of Covenant duly completed with all relevant particulars:
D. as a condition precedent to seeking the prior written approval of the Commonwealth's Representative under this paragraph (a); or
E. where such approval is not required, within the time required by the Commonwealth's Representative and in any event before commencement of any work by the relevant subconsultant.
(b) No Subconsultant Deed of Covenant will be construed in any way to modify or limit any rights, powers or remedies of the Commonwealth against the Consultant whether under the Contract or otherwise.
Clause 2.10 - Statutory Requirements
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Key Message
A range of Approvals (statutory or government requirements) may be specified in the Contract Particulars. The Consultant is obliged to assist the Commonwealth in obtaining these Approvals.
The Consultant must ensure that statutory or government requirements are complied with by the Project Contractors.
User Guidance
This clause provides that the Consultant must assist the Commonwealth in obtaining the Approvals (e.g. licences, permits, consents) specified in the Contract Particulars. The Consultant must give the Commonwealth's Representative copies of all documents issued to the Consultant by any authority or official body having
jurisdiction over the Project. Further, the Consultant is obliged to monitor and report to the Commonwealth as to the compliance of Project Contractors with applicable Statutory Requirements - this obligation ties in with the fact that Project Contractors will usually bear the primary responsibility for complying with all Statutory Requirements under the Project Contracts.
Clause 2.10 - Statutory Requirements
The Consultant must:
(a) unless otherwise specified in the Contract Particulars, comply with all Statutory Requirements;
(b) without limiting paragraph (a):
(i) assist the Commonwealth in obtaining the Approvals specified in the Contract Particulars; and
(ii) promptly give the Commonwealth's Representative copies of all documents (including Approvals and other notices) that any authority, body or organisation having jurisdiction over the Project issues to the Consultant; and
(c) regularly and diligently monitor and report to the Commonwealth on whether the Project Contractors comply with all Statutory Requirements applicable to the Project.
Clause 2.11 - Change in Statutory Requirements or Variance with Contract
Quick Links
Proforma notice Proforma notice
Key Message
This clause is primarily directed at addressing any changes in Statutory Requirements or where a Statutory Requirement is at variance with the Contract.
Mutual obligations are imposed upon parties to notify the other upon becoming aware of a Statutory Requirement has changed or is at variance with the Contract.
The Fee may be altered to address extra costs reasonably incurred or savings made by the Consultant arising directly from the from the change or variance.
User Guidance
This clause clearly sets out that the parties must inform each other upon becoming aware of a change in a Statutory Requirement after the Award Date or a Statutory Requirement at variance with the Contract. A proforma notice is provided in this Manual for this purpose.
A proforma notice is provided in this Manual for the purpose of the Commonwealth's Representative instructing the Consultant as to how it must deal with the situation. Depending on the instruction of the Commonwealth's Representative, the Fee may be increased or decreased, with respect to any extra costs reasonably incurred, or savings made, by the Consultant.
Clause 2.11 - Change in Statutory Requirements or Variance with Contract
If:
(a) there is any change in a Statutory Requirement after the Award Date; or
(b) a Statutory Requirement is at variance with the Contract,
(c) the party discovering this must promptly notify the other;
(d) the Commonwealth's Representative will instruct the Consultant as to the course it is to adopt insofar as the Services are affected by the change or variance (as the case may be);
(e) the Fee will be:
(i) increased by any extra costs reasonably incurred by the Consultant; or
(ii) decreased by any saving made by the Consultant;
in carrying out the Services after the giving of the notice under paragraph (c) and arising directly from the change or variance (as the case may be) or the Commonwealth's Representative's instruction, in either case as determined by the Commonwealth's Representative; and
(f) if the Fee is adjusted under paragraph (e) and a Milestone Fee Payment Schedule applies, then the Milestone Fee Payment Schedule will be adjusted on a pro rata basis:
(i) to be agreed between the parties; and
(ii) failing agreement, determined by the Commonwealth's Representative.
Clause 2.12 - No authority to give directions or waive requirements
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Key Message
This clause is primarily directed at ensuring that the Consultant does not direct Project Contractors except to the extent expressly required to do so under the Contract or the Project Contract.
The Consultant cannot do anything that changes the legal basis of the Project Contractor's engagement (without express authority from the Commonwealth).
User Guidance
This clause clearly sets out that the Consultant is not entitled to perform certain functions under Project Contracts, namely, give directions to the Project Contractors (other than as expressly set out in the Terms of Engagement or the Project Contracts), waive or vary any requirements of a Project Contract or discharge or release a party from any of its obligations under a Project Contract. This clause is particularly relevant to Consultants engaged for Project Management and Contract Administration (PMCA) Services, under which the Consultant acts as agent of (and therefore on the instruction of) the Commonwealth.
Clause 2.12 - No authority to give directions or waive requirements
The Consultant has no authority to:
(a) give directions to the Project Contractors, other than as expressly set out in this Contract or the Project Contracts;
(b) waive or vary any requirements of a Project Contract; or
(c) discharge or release a party from any of its obligations under a Project Contract.
This clause sets out the following rules for interpreting the Brief:
(a) all requirements in the Brief (regardless how they are expressed) are requirements to be satisfied by the Consultant, unless stated otherwise;
(b) the Brief sets out minimum requirements for the Services, and does not limit or exclude obligations under the Contract; and
(c) if there is any ambiguity, discrepancy or inconsistency between the Brief any other requirement in the Contract (including any other requirement of the Brief), the requirement with the greater, higher or more stringent requirement, standard, level or service or scope (as applicable) applies.
Clause 2.13 - Interpretation of the Brief
(a) Requirements contained in the Brief, whether or not they include the expression "the Consultant must" or “the Consultant shall” or any equivalent expression, will be deemed to be requirements to be satisfied by the Consultant, unless stated otherwise.
(b) The Brief sets out the Commonwealth's minimum requirements, which must be met or exceeded by the Consultant in performing the Services. Nothing contained in the Brief will operate to limit or exclude the Consultant's obligations under the Contract.
(c) To the extent of any ambiguity, discrepancy or inconsistency between the Brief and any other requirement of the Contract (including any other requirement of the Brief), subject to clause 5.10, whichever requirement provides the greater, higher or more stringent requirement, standard, level of service or scope (as applicable) will prevail.
2.14 Co-ordination with other Projects/Programs
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Key Message
A Project may be part of a larger Commonwealth project or a program.
This clause requires co-ordination of the Project with such projects or programs to ensure the Commonwealth's objectives are maximised.
User Guidance
The Consultant must perform the Services in a way which will ensure that the Project is delivered in a manner that maximises the Commonwealth's objectives for the delivery of the Project, as well as the project or program specified in the Contract Particulars. This includes attending meetings, providing documents and information, considering and responding to proposals, and doing all such other things as required by the Commonwealth's Representative.
Clause 2.14 - Co-ordination with other Projects/Programs
The Consultant:
(a) acknowledges that the Project is part of the project or program set out in the Contract Particulars;
(b) must perform the Services in a manner which ensures that the way in which the Project is delivered maximizes the Commonwealth's objectives for the delivery of the Project and the project or program set out in the Contract Particulars, including the delivery of the maximum scope of work within budget and on time; and
(c) without limiting paragraph (b), must attend such meetings, provide such documents and information, consider and respond to such proposals and do all such other things as the Commonwealth's Representative may require for the purposes of paragraph (b).
2.15 Environment
Quick Links
Proforma notice
Key Message
Defence projects can involve significant environmental concerns, which will require proper management by the relevant Consultant. This clause contains options requirements and considerations necessary for the protection of the Environment on such projects.
User Guidance
This clause only applies if the Contract Particulars state it applies.
Quite apart from the general requirement to comply with all Statutory Requirements (unless otherwise specified under clause 2.10), clause 2.15 sets out the environmental requirements the Consultant must comply with in preparing Consultant Material and carrying out the Services.
This includes complying with:
(a) the Environmental Management Plan (as defined in clause 1.1) (if any); and
(b) Statutory Requirements and any other requirements contained in the Contract for the protection of the Environment.
The Consultant is obliged to ensure that in carrying out the Services it does not cause an Environmental Incident, and that it does not cause or contribute to any Contamination, either of the Site or elsewhere.
The Consultant must immediately inform the Commonwealth's Representative of:
(a) any non-compliance with clause 2.15;
(b) any breach of a Statutory Requirement for the protection of the Environment;
(c) any Environmental Incident; or
(d) any receipt of any notice, order or communication received from any authority for the protection of the Environment.
A proforma notice is provided in this Manual for this purpose.
Following the carrying out of the Services, the Consultant is responsible for cleaning up and restoring the Environment to the condition it was in before commencement of the Services. This includes cleaning up any Defence Infrastructure Panel 2017-2022Contract Manual Volume 2: Contract ManagementCUFooterText 37
Contamination or Environmental Harm that may be caused by the Consultant or it subconsultant whilst carrying out the Services.
If the requirement to clean up and restore the Environment was not caused by a failure of the Consultant to carry out the Services in accordance with the Contract, the Consultant is entitled to be paid the direct, reasonable and substantiated costs that it incurs in cleaning up and restoring the Environment. These costs will be determined by the Commonwealth's Representative.
Clause 2.15 - Environment
Clause 2.15 does not apply unless the Contract Particulars states it applies.
Without limiting the Consultant's other obligations under the Contract, the Consultant must:
(a) ensure that, in preparing the Consultant Material and in carrying out the Services:
(i) it complies with the Environmental Management Plan (if any);
(ii) other than to the extent identified in writing by the Commonwealth's Representative, it complies with all Statutory Requirements and other requirements of the Contract for the protection of the Environment;
(iii) it does not cause any Environmental Incident;
(iv) without limiting subparagraph (iii), it does not cause or contribute to any Contamination of the Site or any other land, air or water, or cause or contribute to any Contamination emanating from the Site; and
(v) it immediately notifies the Commonwealth's Representative of any non-compliance with the requirements of this clause 2.15, a breach of any Statutory Requirement for the protection of the Environment, any Environmental Incident or the receipt of any notice, order or communication received from an authority for the protection of the Environment (as the case may be); and
(b) clean up and restore the Environment, including any Contamination or Environmental Harm arising out of or in any way in connection with the Services, whether or not it has complied with all Statutory Requirements or other requirements of the Contract for the protection of the Environment. To the extent that the requirement to clean up and restore the Environment arises other than as a result of a failure by the Consultant to carry out the Services strictly in accordance with the requirements of the Contract, the Consultant will be entitled to the direct, reasonable and substantiated costs it incurs in cleaning up and restoring the Environment under this clause as determined by the Commonwealth's Representative.
2.16 Services Not Included
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Key Message
The Commonwealth may require that services related to the Project are carried out by the Commonwealth or by a contractor or person other than the Consultant.
User Guidance
This clause will be appropriate where any separate services will be carried out by:
Where this clause is used, the separate services which are to be carried out by the Commonwealth, Other Contractors and other persons should be described in as much detail as possible.
Clause 2.16 - Services Not Included
The services set out in the Contract Particulars to be carried out in relation to the Project are not included in the Services and will be carried out by the Commonwealth or by other persons (including Other Contractors).
2.17 Site Restrictions
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Key Message
The Site based Services to be performed by the Consultant may be subject to particular restrictions.
User Guidance
This clause will be appropriate where any of the Services will be carried out on Site and such Site based Services will be subject to certain restrictions.
Restrictions on Site based Services might include:
(a) days and hours of access;
(b) areas of Site or access; and
(c) that persons seeking access register, pass security clearances or other clearance processes.
Any relevant restrictions should be clearly set out in the Contract Particulars.
Clause 2.17 - Site Restrictions
The Site based Services must be performed subject to the restrictions in the Contract Particulars.
2.18 Cost Control
Quick Links
Key Message
Cost control is a critical issue where Consultants are performing PM/CA Services to ensure maximum cost certainty for the Commonwealth.
User Guidance
This clause only applies if the Services include PM/CA Services.
Under this clause, the Consultant has a “best endeavours” obligation to ensure that the Project is completed in
accordance with the Commonwealth's requirements for the lowest possible cost. To further this aim, the Consultant is required to review the cost plan(s) for the Project with the Commonwealth's Representative on a regular basis and to institute a system of cost control.
It is important that this clause is carefully administered by the Commonwealth's Representative to maximise certainty of cost for the Commonwealth.
Clause 2.18 - Cost Control
(a) This clause only applies if the Services include Project Management/Contract Administration Services.
(b) Without limiting clause 2.2(d), the Consultant must:
(i) use its best endeavours to ensure that the Project is completed in accordance with the Commonwealth's requirements for the lowest possible cost;
(ii) review the cost plan(s) for the Project with the Commonwealth's Representative on a regular basis (including at all times required by the Commonwealth's Representative) to:
A. ensure that the cost of the Project is in accordance with any cost plans for the Project approved by the Commonwealth; and
B. advise the Commonwealth's Representative how the design or any other aspect of the Project could be modified to ensure that the cost of the Project is in accordance with approved cost plans; and
(iii) initiate a system of cost control (to the satisfaction of the Commonwealth's Representative) throughout design and construction of the Project for the purposes of subparagraph (i) and (without limitation) advise the Commonwealth's Representative as to all alternative steps available where:
A. the tenders for any package of work forming part of the Project exceed the amount included for that work in the relevant approved cost plan; or
B. the out-turn cost incurred under any Project Contract exceeds (or appears likely to exceed) the amount included for that contract in the relevant approved cost plan.
(c) Without limiting paragraph (b), in performing the Services during the Planning Phase (if any), the Consultant must identify all project structuring, packaging, scoping, choice of delivery method, risk allocation, procurement, programming, costing and other issues which could have an effect on the out-turn cost of the Project.
2.19 Employers' Liability Insurance
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Proforma notice Proforma notice
Key Message
If the Services are performed or the Consultant's employees perform work, are employed or normally reside in Western Australia or any jurisdiction outside of Australia, the Consultant must hold and maintain Employer's Liability Insurance.
User Guidance
Employers Liability Insurance covers common law liability for death or injury to employees.
The requirement for this insurance only applies where the Services are performed or the Consultant's employees perform work, are employed or normally reside in Western Australia or any jurisdiction outside of Australia.
The Contract Particulars set out the minimum policy limit amounts required by the Consultant. This will vary depending on the "Probable Maximum Loss" associated with the risk, which is calculated on a project-by-project basis. Further assistance with respect to insurance is available from the Directorate of Program Assurance.
The Employers' Liability Insurance must be in place from the Award Date, obtained from an insurer with the requisite financial strength rating, and be on terms which are satisfactory to the Commonwealth's Representative.
To the extent permitted by law, the policy should be extended to provide indemnity to the Commonwealth for its statutory and common law liability to the Consultant's employees.
The Consultant must ensure that each of its subcontractors and subconsultants legally required to do so has similar insurance covering its statutory liability to employees.
The Consultant should notify the Commonwealth's Representative if the insurance required under clause 2.19 ceases to be available for the amounts of cover and in the terms specified in the Contract Particulars on commercially reasonable terms. A proforma notice is provided in this Manual for this purpose. In the event of such a notice, the Consultant must take all steps available (including steps required by the Commonwealth's Representative) to effect and maintain alternative arrangements that mitigate any risk to the Commonwealth.
On request from the Commonwealth, the Consultant must provide the Commonwealth with copies of certificates of currency and allow the Commonwealth's Representative to inspect the Consultant's insurance policies required under clause 2.19. A proforma notice for the Commonwealth's Representative to request this from the Consultant is provided in this Manual.
If requested, the insurance policy should be carefully examined for compliance with the Contract and, where necessary, the Commonwealth's Representative should seek specialist advice regarding insurance details provided by Consultants at the RFP stage.
Clause 2.19 - Employers' Liability Insurance
Without limiting clause 4.2 of the Panel Conditions or the Consultant's obligations under the Contract, if the Services are performed or the Consultant's employees perform work, are employed or normally reside in Western Australia or any jurisdiction outside of Australia, the Consultant must:
(a) from the Award Date cause to be effected and maintained or otherwise have the benefit of Employers' Liability Insurance, which must be:
(i) be for the amounts specified in the Contract Particulars;
(ii) with insurers having a Standard and Poors, Moodys, A M Best, Fitch's or equivalent rating agency's financial strength rating of A- or better; and
(iii) on terms which are satisfactory to the Commonwealth's Representative (confirmation of which must not be unreasonably withheld or delayed);
(b) ensure that:
(i) to the extent permitted by law, the insurance extends to provide indemnity to the Commonwealth in respect of any statutory and common law liability to the Consultant's employees; and
(ii) each of its subconsultants which is legally required to do so, has Employers' Liability Insurance covering the subconsultant in respect of its statutory and common law liability to its employees, in the same manner as the Consultant is required to do so under subparagraph (i);
(c) immediately notify the Commonwealth's Representative in writing if the insurance required under clause 2.19 ceases to be available for the amounts of cover and in terms specified in the Contract
(d) if it gives notice under paragraph (c), take all such reasonably available steps (including those required by the Commonwealth's Representative) to effect and maintain alternative arrangements which will mitigate any risk to the Commonwealth arising out of the matters raised in the notice; and
(e) where requested from time to time:
(i) provide the Commonwealth with copies of certificates of currency of; and
(ii) allow the Commonwealth's Representative to inspect,
the insurance policies the Consultant is required to maintain under clause 2.19.
The role of the Commonwealth is fundamental to the proper management and strategic oversight of the Consultants engaged under the DIP.
The Commonwealth should provide appropriate information, access to construction or other sites and directions to the Consultant that allows the Consultant to carry out its obligations under the DIP in an efficient and effective manner.
The Commonwealth should work proactively with the Consultant to consider options and make decisions based on sound advice from the Consultant. Proactive management and oversight by the Commonwealth reduces the risk of the Project not being delivered in accordance with its scope or the Commonwealth incurring additional cost and delay.
Clause 3.1 - Information and Services
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Key Message
The provision of all relevant information to the Consultant by the Commonwealth is necessary to allow the Consultant to perform the Services in an effective and efficient manner.
The Commonwealth should consider briefing the Consultant on any significant or relevant developments that may affect the Consultant's ability to perform the Services.
The Commonwealth should consider providing the Consultant with relevant stakeholder and end user information.
The information provided by the Commonwealth should be accurate and relevant.
Information provided by the Commonwealth does not relieve the Consultant of any of its obligations under the DIP.
User Guidance
This clause requires the Commonwealth to make available to the Consultant as soon as practicable all information, documents and particulars relating to the Project, including the Commonwealth's requirements for the Project.
Clause 3.1 - Information and Services
The Commonwealth must as soon as practicable make available to the Consultant all relevant information, documents and particulars relating to the Project and to the Commonwealth’s requirements for the Project, including the Commonwealth's Program.
Clause 3.2 - Requests for Additional Information by the Consultant
Quick Links
Proforma notice
Key Message
Additional information requested by the Consultant should be provided by the Commonwealth.
Additional information should be accurate and relevant.
Information provided by the Commonwealth does not relieve the Consultant of any of its obligations under the DIP.
The Consultant should provide notice of the details of the information requested to assist the Commonwealth in obtaining the relevant information.
User Guidance
This clause ties in with the Commonwealth's obligation under clause 3.1 to provide the Consultant with all information relevant to the Services.
If the Consultant, in its reasonable opinion, considers that in order for it to carry out the Services it requires additional information not provided to it by the Commonwealth or by an Other Contractor, it must notify the Commonwealth's Representative of the details of the additional information and the reasons why it is required by the Consultant.
A proforma notice is provided for the purpose of the Consultant requesting additional information in this Manual.
If the Commonwealth's Representative believes that such additional information requested by the Consultant is needed by the Consultant, then the Commonwealth must use its best endeavours to provide such additional information.
Clause 3.2 - Requests for Additional Information by the Consultant
If:
(a) the Consultant, in its reasonable opinion, considers that any additional information, documents or particulars are needed to enable it to carry out the Services; and
(b) the additional information, documents or particulars are not provided by the Commonwealth under this Contract or by an Other Contractor,
then:
(c) the Consultant must give notice in writing to the Commonwealth's Representative of the details of the additional information, documents or particulars and the reasons why they are required; and
(d) the Commonwealth must, if the Commonwealth's Representative believes that the additional information, documents or particulars are needed by the Consultant, use its best endeavours to arrange the provision of the additional information, documents or particulars.
The Commonwealth provides (subject to certain exceptions) the Consultant with access to the Site.
Access to the Site or Defence establishments may be necessary for the Consultant to perform the Services.
User Guidance
This clause delimits the Commonwealth's obligations in relation to providing Site access to the Consultant and, in particular, makes it clear that the Consultant's right of access is subject to the Project Contracts, any other party with whom the Commonwealth has made arrangements for access and, if required by the Contract Particulars, the Site Management Plan and the Work Health and Safety Plan having been finalised. The Commonwealth may be required to arrange access to other property which is necessary for the Consultant to carry out the Services.
Further, the Consultant is required to comply with all requirements notified by the Commonwealth when exercising its rights of access.
Clause 3.3 - Access
(a) Subject to:
(i) the Project Contracts;
(ii) any other agreement or arrangement with any party other than the Consultant; and
(iii) if required by the Contract Particulars, the Site Management Plan and the Work Health and Safety Plan having been finalised under clause 5.15,
the Commonwealth must:
(iv) as soon as practicable provide the Consultant with access to the Site; and
(v) arrange access to any other property which may be necessary for the Consultant to carry out the Services.
(b) The Consultant must, in exercising its rights of access, comply with all requirements notified by the Commonwealth.
Clause 3.4 - Request for Commonwealth Decisions by the Consultant
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Proforma notice Proforma notice
Key Message
The Commonwealth may be required to make decisions during performance of the Services in order to give direction to the Consultant concerning alternative courses of action.
The Consultant should provide all relevant information and options and provide all other
assistance that allows the Commonwealth to make an informed and considered decision.
To assist the decision making process, the Consultant may make recommendations to the Commonwealth that may be acted on.
The Commonwealth should make prompt decisions based on sound information. Seek advice from the Directorate of Program Assurance regarding making decisions if necessary.
User Guidance
This clause enables the Consultant to request the Commonwealth to consider the selection of an alternative course of action. Such a request must include all information required for the Commonwealth to make a decision on the appropriate course of action. The Commonwealth must make a decision in such reasonable time as not to delay or disrupt the carrying out of the Services.
A proforma notice is provided for the purposes of the Consultant requesting selection of an alternative course of action in this Manual. A proforma notice for the Commonwealth to accept or reject the proposed course of action is also provided in this Manual.
Clause 3.4 - Request for Commonwealth decisions by the Consultant
If:
(a) the Consultant requests the Commonwealth to consider the selection of alternative courses of action; and
(b) all information required to enable a decision to be made is provided by the Consultant or is otherwise available,
the Commonwealth must, in such reasonable time as not to delay or disrupt the carrying out of the Services, give a decision on the required course of action.
Clause 3.5 - Commercial-in-Confidence Information
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Key Message
The Commonwealth is and will be subject to a number of requirements and policies concerning internal and external scrutiny of its tendering and contracting processes to ensure transparency, accountability and value-for-money.
Accordingly, the Commonwealth must keep Commercial-in-Confidence Information confidential, subject to the disclosure requirements referred to in clause 3.5.
User Guidance
“Commercial-in-Confidence Information” is information described in an Official Order as being Commercial-in-Confidence Information and received from the Consultant.
The Commonwealth must keep such information confidential, subject to the types of disclosure referred to in 3.5(b).
Clause 3.5 - Commercial-in-Confidence Information
(a) Subject to paragraphs (b) and (c), the Commonwealth will take reasonable steps to protect the confidentiality of the Consultant's information described in the Official Order and received from the
(b) The obligation of confidentiality in paragraph (a) does not apply if the Commercial-in-Confidence Information is:
(i) disclosed by the Commonwealth to its legal or other advisers, or to its officers, employees, contractors or agents in order to comply with its obligations or to exercise its rights under or in connection with this Contract;
(ii) disclosed by the Commonwealth to its legal or other advisers, or to its officers, employees, contractors or agents in order to comply with the Commonwealth's management, reporting or auditing requirements;
(iii) disclosed by the Commonwealth to any responsible Minister or any Ministerial adviser or assistant;
(iv) disclosed by the Commonwealth to any House or Committee of the Parliament of the Commonwealth of Australia;
(v) disclosed to any Commonwealth department, agency or authority by virtue of or in connection with its functions, or statutory or portfolio responsibilities;
(vi) authorised or required by law to be disclosed; or
(vii) in the public domain otherwise than due to a breach of paragraph (a).
(c) The parties acknowledge that the Commercial-in-Confidence Information is regarded by the Consultant as confidential in nature for the justifications given by the Consultant in the Official Order and for the period asserted by the Consultant in the Official Order.
(d) The Consultant:
(i) must not, in marking information provided to the Commonwealth, misuse the term "confidential" or any similar term implying confidentiality; and
(ii) acknowledges that the marking of information as "confidential" or in similar terms does not affect the legal nature or character of the information.
Commonwealth and Consultant personnel are key to the successful delivery of the Services.
This is especially true for the DIP which engages Consultants who have proven qualifications and relevant experience to perform the Services.
The Commonwealth's Representative is the Commonwealth's agent and is the central point of contact for the Commonwealth and issues directions under the Contract on behalf of the Commonwealth.
The Consultant's key people are specified in the Contract and the Consultant is obliged to employ those persons.
Clause 4.1 - Commonwealth's Representative
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Key Message
The Commonwealth's Representative is the agent of the Commonwealth who represents the interests of the Commonwealth and is not obliged to act independently.
The Commonwealth's Representative is the central point of contact for issuing directions under the Contract and administering the Contract on behalf of the Commonwealth.
The Commonwealth's Representative should co-ordinate Commonwealth stakeholders and user groups to provide a central point of contact for the Consultant under the DIP.
The Commonwealth's Representative may give oral directions to the Consultant which should be confirmed in writing to provide a transparent record.
User Guidance
The requirement that the Commonwealth's Representative act as agent of the Commonwealth and not as a certifier when exercising the Commonwealth's Representative's functions under the Contract ensures that the Commonwealth's Representative can act on the Commonwealth's instructions and does not have to exercise its functions independently of these instructions. This is appropriate given that the Commonwealth's Representative will virtually always be a Commonwealth employee or officer.
As between the Consultant and the Commonwealth's Representative, the Consultant will be entitled to rely on the actions of the Commonwealth's Representative under the Contract. The Commonwealth will be bound by those actions of the Commonwealth's Representative, as against the Consultant, as the Commonwealth's Representative is the agent of the Commonwealth.
Disputes arising out of any direction of the Commonwealth's Representative may be referred to arbitration under clause 12.13. However, before this, the parties are required to undertake good faith negotiations with a view to resolving the dispute commercially.
A "direction" of the Commonwealth's Representative is defined widely in clause 1.1. That wide definition is then adopted throughout the Terms of Engagement, including for the purposes of the following clauses:
(a) clause 4.1(b), under which the Consultant must comply with a direction by the Commonwealth's
(b) clause 5.3(b), under which the Consultant is not relieved of any of its obligations because of a direction by the Commonwealth's Representative in relation to the Consultant Material;
(c) clause 5.13, under which the Consultant must comply with directions of the Commonwealth's Representative in preparing all drawings required to be provided under the Contract;
(d) clause 5.15(b)(ii), under which the Consultant must comply with directions of the Commonwealth's Representative concerning a Project Plan or the Consultant's non-compliance with a Project Plan;
(e) clause 6.1(c), under which the Consultant is not relieved of any of its obligations under the Contract as a result of any direction of the Commonwealth's Representative concerning the Consultant's quality assurance system or its compliance or non-compliance with that system;
(f) clause 6.3, under which the Consultant must re-reform the non-complying Services within the time specified in the Commonwealth's Representative's instruction so as to minimise the delay and disruption to the Project;
(g) clause 7.5(b), under which the Commonwealth's Representative may give a direction requiring the Consultant to use its best endeavours to achieve a Milestone by the Accelerated Milestone Date;
(h) clause 9.3, under which the Fee will be increased or decreased for Variations which have been the subject of a direction by the Commonwealth's Representative;
(i) clause 9.5, under which the Commonwealth may carry out any part of the Services which are omitted as a result of a Variation the subject of a direction by the Commonwealth's Representative;
(j) clause 11.2(f), under which the Commonwealth may give a written notice under clause 11.3 to the Consultant if the Consultant does not comply with any direction of the Commonwealth's Representative made in accordance with the Contract;
(k) clause 13.1, under which the Consultant must give a notice if it believes a direction by the Commonwealth's Representative constitutes a Variation;
(l) clause 13.2, under which the Consultant must give the notices under clause 13.3 if it wishes to make a Claim against the Commonwealth in respect of any direction by the Commonwealth's Representative (except for those particular Claims referred to in clause 13.2); and
(m) clause 18, under which the consultant must comply with a direction of the Commonwealth's Representative relating to a change in the Consultant's or a subconsultant's financial viability.
Contact with the Consultant
Set out below is guidance on the various ways in which the Commonwealth's Representative may have contact with the Consultant and also details of the specific functions of the Commonwealth's Representative under the Terms of Engagement:
(a) Notices under the Contract
As noted above, the Contract imposes obligations on the Consultant and the Commonwealth's Representative to give a notice to the other party in various circumstances. From the Consultant's perspective, its notices must be given to preserve various of its entitlements under the Contract. From the Commonwealth's perspective, the object of the Consultant's notice requirements is to ensure that the Commonwealth is kept fully informed of relevant developments and any circumstances in which it may be liable to pay extra money to the Consultant.
The purpose of the Commonwealth's notices is to ensure efficient contract administration, including the issuing of directions under the Contract.
All notices must be given in accordance with the particular requirements of the relevant provision of
the Contract (in particular, in terms of timing and content).
A suite of proforma notices is provided in this Manual.
(b) Directions
Before issuing a direction (the scope of which is widely defined under clause 1.1), the Commonwealth's Representative must ensure that it has the authority to issue the direction under the specific terms of the Contract. The Commonwealth's Representative must also be aware that, if a direction changes the obligations of the Consultant, the Consultant may have subsequent entitlements under the Contract against the Commonwealth. The Commonwealth's Representative must always confirm the implications of such directions before issuing them.
Whilst directions may be given orally, they should always be confirmed in writing so that written evidence exists if ever required to be called upon; this is, in any case, required by clause 4.1. Therefore, if an oral notice is given, it should be followed by the relevant completed proforma notice within 24 hours or otherwise as soon as practicable. A suite of proforma notices is provided as part of this Manual.
(c) Correspondence
Correspondence with the Consultant should be treated in the same manner as detailed for directions above.
Originals of correspondence from the Consultant should not be annotated with comments as these may need to be disclosed to a court or during an arbitration; many a court case and arbitration has changed course because of ill-conceived comments.
While notices under the Contract may generally be delivered by electronic mail (email) it should be noted that:
(i) all notices delivered by email must be in Portable Document Format (PDF), appended as an attachment to the email and must include the words "This is a notice under clause 13.7 of the Contract" in the subject field of the email; and
(ii) notices under clause 11 and 12, if delivered by email, must also be delivered by hand or prepaid express post.
(d) Reports and Meetings
It is essential in the interests of good contract administration that regular reporting and meetings (appropriate to the parties' needs) occur between the Commonwealth's Representative and the Consultant. These reports and meetings are a vital part of contract administration and are valuable for agreeing facts, committing people to objectives, and problem identification and solving.
Meetings must be planned and managed. Minutes should be accurately recorded of meetings and agreed and signed by both the Commonwealth's Representative and the Consultant (or their relevant representatives).
Minutes of meetings of any project review meeting should be taken by the Commonwealth's Representative and distributed to all attendees. The process for preparing minutes may, in practice, involve the Consultant preparing draft minutes for the Commonwealth's Representative's review, prior to agreement, clearance and then distribution. Accurate minutes will provide a written record of the discussion, instructions and decisions in such circumstances.
Notwithstanding clause 1.3(b), which provides that the provisions of the Terms of Engagement cannot be waived except in writing, the Commonwealth's Representative should ensure that there are no representations made at the meetings which might subsequently be argued to be a waiver of the Commonwealth's strict contractual rights.
Care also needs to be taken to ensure that matters discussed at meetings which constitute "directions"
Under the Terms of Engagement, it is to be expected that informal discussions and meetings will take place during the course of the Services. These informal interactions are important. However, it is imperative that the Commonwealth's Representative (and Assistant Commonwealth's Representatives) at all times takes utmost care during any such discussions or meetings not to impart, by implication or directly, any matters that should be dealt with formally.
Should matters requiring notification be discussed in a preliminary manner, the Commonwealth's Representative must ensure that formal notification (in writing) is issued promptly.
If there are any matters in doubt following informal contact the Commonwealth's Representative should take steps to clarify those matters and inform the Consultant.
At all times it is important to record such contact in a log or diary kept as a formal record of contact with the Consultant. This is particularly so in the case of telephone conversations which, if necessary, should be confirmed in writing if the subject matter impacts on the Consultant, the Services or the Project.
(f) Specific functions of the Commonwealth's Representative
The Commonwealth's Representative must operate in accordance with the express provisions of the Contract. This will include compulsory functions (many of which must be completed within a specified timeframe) and some discretionary powers (e.g. ordering a Variation) which the Commonwealth's Representative will typically exercise at the Commonwealth's discretion.
Whilst there is no express obligation under the Terms of Engagement that the Commonwealth's Representative act in any particular way when exercising its functions, the general expectation is that it will apply the provisions of the Contract. For this reason, this Manual repeatedly emphasises the need for contract administration personnel to be aware of - and apply - the terms of the Contract entered into by the Commonwealth. In other words, the Commonwealth's Representative should carefully consider its role under the Contract and the relevant circumstances when exercising its functions.
The following table lists all of the specific functions/duties of the Commonwealth's Representative under the Terms of Engagement.
In addition to these specific functions, the Commonwealth's Representative may also be required to carry out additional functions which are implicit or otherwise necessary to enable the persons involved with the Project to carry out their respective activities.
Once the relevant function is identified in the table below, it is necessary to go to the corresponding clause/s of the Terms of Engagement to determine the exact circumstances in which the function must, should, or may be exercised and any further constraints or instructions as to the exercise or discharge of that particular function. Commentary on each of these clauses is provided in the relevant part of the Manual.
CLAUSE COMMONWEALTH'S REPRESENTATIVE'S FUNCTIONS
2.5 Receive notice of matters impacting on the Services.
2.7 Inspect the carrying out of the Services and Project Documents and issue notices to Consultant authorising persons to access premises occupied by the Consultant or its subconsultants for inspections.
2.8(d) Receive notice of conflicts of interest from Consultant and instruct the Consultant on what steps to take to avoid or minimise a conflict of interest or risk of conflict of interest.
2.9(a) Determine whether to grant approval to the Consultant to appoint a subconsultant that is not
named in the Contract Particulars. Determine whether to request the Consultant execute and procure its approved subconsultants to execute Subconsultant Deeds of Covenant. Ensure it receives each requested Subconsultant Deed of Covenant duly executed with all relevant particulars.
2.10(b) Receive from the Consultant copies of all Approvals and other documents that any authority or official body issues to the Consultant.
2.11 Issue and receive notices regarding changes in Statutory Requirements and Statutory Requirements which are at variance with the Contact. Instruct the Consultant as to the course it is to adopt in relation to such changes or variances.
Determine the adjustment to the Fee and the Milestone Fee Payment Schedule arising from each change or variance.
2.14 Instruct the Consultant on what it is required to do with respect to co-ordination with other projects or programs.
2.15(a)(ii) Identify and provide written notice to the Consultant of any Statutory Requirements and other requirements under the Contract for the protection of the Environment with which the Consultant is not required to comply.
2.15(a)(v) Receive notification from the Consultant of any non-compliance with the requirements of clause 2.15, a breach of any Statutory Requirement for the protection of the Environment, any Environmental Incident, or the receipt of any notice, order or communications received from an authority for the protection of the Environment.
2.15(b) Determine any amount payable to the Consultant in relation to cleaning up and restoring the Environment.
2.18(b) Review cost plans for the Project with the Consultant on a regular basis. Review cost control system initiated by the Consultant. Receive notifications from the Consultant as to alternative steps where tenders for packages of work exceed the relevant amount included for that work in the approved cost plan or the out-turn cost incurred under a Project Contract is or is likely to exceed the amount in the approved cost plan.
2.19(a) Confirm that the terms of the Consultant's Employer's Liability Insurance is satisfactory.
2.19(b) and (c) Receive notices if the Consultant's Employer's Liability Insurance ceases to be available for the amounts and in terms required on commercially reasonable terms. Instruct the Consultant as to steps it must take to mitigate any risk to the Commonwealth arising out of the matters identified in any such notice.
2.19(e) Request copies of certificates of currency of, or access to the Commonwealth's insurance policies for, its Employer's Liability Insurance. Inspect the certificates of currency or insurance policies for compliance with the Contract.
3.2(c) and (d) Receive notices from the Consultant requesting additional information and determine whether additional information, documents or particulars are needed by the Consultant.
4.1 Confirm oral directions in writing.
4.2 Comply, if it is a substitute Commonwealth's Representative, with anything done by the former Commonwealth's Representative to the extent that it would have been bound.
4.4 Make/revoke appointments of Commonwealth's Representative's representatives and notify Consultant.
4.5 Determine whether to approve the Consultant's key people (and substitutes).
4.6 Instruct the Consultant to remove any person from the performance of the Services.
5.2 - Option 1 Receive Consultant Material from the Consultant. Review/reject any Consultant Material and provide necessary comments.
5.2 - Option 2 Receive and review the Consultant's documentation program. Receive Consultant Material from the Consultant. Review/reject any Consultant Material and provide necessary comments.
5.8 Determine whether to approve requests from the Consultant to update the Project DCAP.
5.9(b) Receive notices from the Consultant regarding notifiable incidents, work health and safety incidents or accidents, and other work health and safety matters.
5.9(c) Receive documentation required in relation to any notifiable incident.
5.9(e) and (f) Receive and review written assurances from the Consultant and subconsultants confirming their ongoing compliance with the WHS Legislation. Instruct the Consultant as to the relevant format and frequency required for written assurances.
5.9(g) Receive copies of notices and communications issued by a regulator or a health and safety representative to the Consultant in relation to the Services, or given by the Consultant or its subconsultants to a regulator or a health and safety representative to the Consultant in relation to the Services.
5.9(l) Request and receive from the Consultant any information or copies of documentation held by the Consultant or a subconsultant to enable the Commonwealth to comply with its obligations under the WHS Legislation.
5.9(m) Request, receive and review evidence of any work health and safety Approvals.
5.9(n) If the Consultant is a supplier, manufacturer, designer or importer for the purposes of the WHS Legislation, receive information concerning plants, structures or substances (as defined in the WHS Legislation).
5.10 Issue and receive notices regarding ambiguities, discrepancies and inconsistencies in the Contract and Project Documents. Instruct the Consultant as to the course it must take as a result of any ambiguities, discrepancies and inconsistencies.
5.13 Issue directions as to the requirements for drawings to be provided by the Consultant under the Contract.
5.14 Request and receive design certificates from the Consultant that the Consultant's Material complies with Statutory Requirements and the requirements of the Contract, and that the Works or Stage or Section comply with Consultant Material which has not been rejected under clause 5.2. Receive corresponding certificates from subconsultants that performs design work.
5.15 Review Project Plans submitted by the Consultant and notify the Consultant within the period of time notified set out in the Contract Particulars if they rejected. Notify the Consultant if there are any defects in a Project Plan which need to be corrected.
5.16 Receive written certification from an Accredited Building Surveyor regarding compliance with the Manual of Fire Protection Engineering and National Construction Code.
5.17 Receive Consultant Material prepared as Request for Information Services. Instruct the Consultant as to the time required for performance of the Request for Information Services.
5.18 Request the Consultant to provide access to Project Documents, facilities and personnel.
6.1(b) and 6.1(c) Monitor and audit the Consultant's quality system and direct the Consultant with respect to
6.2 Consider whether any Services have not been performed in accordance with the Contract and instruct the Consultant on how to proceed in relation to any non-complying Services.
7.2 Direct the Consultant to include any reasonable details in the program and ensure that it receives the program of the Services within 14 days of the Award Date.
7.2(c) Ensure that it receives, and determine whether to approve, copies of all programs required to be provided by the Consultant.
7.4 Instruct the Consultant to suspend/recommence the carrying out of all or part of the Services. Determine the costs payable to the Consultant as a result of the suspension.
7.5 Instruct the Consultant to use best endeavours to accelerate the Services. Ensure that it is kept fully and regularly informed of the Consultant's progress of the Services against the Accelerated Milestone Dates.
8.3 Receive resource plans for the Delivery Phase. Notify the Consultant in writing if the resource plan is approved or rejected. Notify the Consultant in writing as to matters to be included in the resource plan. Direct the Consultant as to reasonable steps it is to take to ensure the proposed Fee for the Delivery Phase does not exceed the Indicative Delivery Phase Fee. Consider whether a third party should be engaged to perform an external audit of the resource plan.
8.4 Undertake negotiations with the Consultant regarding the adjustment to the Indicative Delivery Phase Fee and the adjustment to the Milestone Fee Payment Schedule. If agreement is reached, prepare minutes recording the agreement.
8.6(b) If there is a failure to achieve Delivery Phase Agreement or Delivery Phase Approval, receive copies of Project Documentation, and instruct the Consultant as to any steps required to novate subconsultants to the Commonwealth.
8.6(d)(ii) Determine adjustments to the Fee and Milestone Fee Payment Schedule (if not agreed by the parties) arising out of the Commonwealth waiving the requirement to obtain Delivery Phase Agreement or Delivery Phase Approval before commencing certain parts of the Services for the Delivery Phase.
9.1 Issue a Variation Price Request setting out details of proposed Variation and ensure that it receives written notice from the Consultant in response to the Variation Price Request.
9.2 Instruct the Consultant to carry out a Variation by issuing a Variation Order.
9.3 Determine the cost of a Variation and any relevant adjustments to the Milestone Fee Payment Schedule.
10.2 and 10.3 Ensure that it receives payment claims at the times required. Determine the format of such claims and determine whether evidence attached to the claims is satisfactory. Request and receive further documentation and information from the Consultant required to assess payment claims.
10.4 Issue a payment statement to the Consultant (and a copy to the Commonwealth) within 10 business days of receiving a payment claim or at any other time if the Consultant fails to submit a claim in accordance with clause 10.2.
10.5 Ensure it receives tax invoices within 3 business days of the Consultant receiving payment statements.
10.7 Receive the completion payment claim and notice from the Consultant within 28 days after completion of the Services or such longer period as it agrees with the Consultant in writing.
10.10 Correct or modify any previous payment statement.
10.12 Ensure that it receives documentary evidence regarding payment of workers and subconsultants.
10.16 Receive Estate Information from the Consultant.
10.17 Receive and review the Estate Information program as part of the program submitted by the Consultant under clause 7.2. Confirm whether the Estate Information program is accepted or rejected. Ensure it receives the Estate Information in accordance with the approved Estate Information program.
10.18 Review/reject any Estate Information and provide necessary comments.
11.8 Determine the cost for work carried out prior to termination of the Contract in relation to which the Consultant would otherwise have been entitled to payment, and the cost of goods or materials (if any) reasonably ordered by the Consultant for the Services.
12.1 Ensure that it receives notice of a dispute.
13.1 Receive notices and written Claims from the Consultant of directions it considers constitute a Variation.
13.2 and 13.3 Receive notices and written Claims from the Consultant (other than payment, Variation and indemnity claims).
13.4 Receive notices of continuing events.
14.1(b)(i) Request and receive an Indigenous Participation Plan in accordance with the Indigenous Procurement Policy if the Fee exceeds $7.5 million. Review and approve/reject the Indigenous Participation Plan.
14.1(b)(ii) Notify the Consultant of the required form of, and matters to be included in, reports related to compliance with the Consultant's Indigenous Participation Plan.
14.2(b)(ii) Notify the Consultant of the required form of, and matters to be included in, reports related to compliance with the Indigenous Participation Policy and Consultant's Indigenous Participation Plan.
15.2 and 15.5 Identify and notify the Consultant of any required Confidential Information and information security requirements (including any Separation Arrangements).
15.2(d)(ii)B. Receive notices of actual or potential Confidential Information Incidents.
15.3 Request the return, destruction and erasure of Confidential Information. Receive Confidential Information returned. Receive statutory declarations and notifications regarding Confidential Information.
15.4 Request and receive evidence of the Consultant's compliance with clause 15. Request access to the Consultant's and Recipients' premises, records, information technology environment and equipment to monitor and assess compliance with clause 15.
16.3 and 16.6 Identify and notify the Consultant of any required Sensitive and Classified Information, security procedures, security processes and information security requirements (including any Separation Arrangements).
16.3(b) and (c) Receive and consider requests to copy, reproduce, disclose, use or deal with Sensitive and Classified Information. Notify the Consultant if it grants permission (including any conditions imposed) or refuses permission.
16.3(f)(ii)B. Receive notices of actual or potential Sensitive and Classified Information Incidents.
16.4 Request the return, destruction and erasure of Sensitive and Classified Information. Receive Sensitive and Classified Information returned. Receive statutory declarations and notifications regarding Sensitive and Classified Information.
16.5 Request and receive evidence of the Consultant's compliance with clause 16. Request access to the Consultant's and Recipients' premises, records, information technology environment and equipment to monitor and assess compliance with clause 16.
17.2 Receive details of any Material Change or Defence Strategic Interest Issue.
17.3 Notify the Consultant of whether it is required to meet with the Commonwealth, or provide information, documents or evidence, in relation to a Material Change or Defence Strategic Interest Issue. Receive any deed provided in response to the Material Change or Defence Strategic Interest Issue.
18(c) Ensure it is kept regularly and fully informed on all relevant financial viability matters.
18(d) Request and review a solvency statement. Request the Consultant to provide it or an independent financial adviser with financial information or documents, answer questions, co-operate with and do all things necessary to assist with a financial viability assessment.
18(f) Direct the Consultant to take necessary relevant steps where there has been or could be a change in the Consultant's or a subconsultants' financial viability.
Clause 4.1 - Commonwealth's Representative
(a) The Commonwealth's Representative will give directions and carry out all of the other functions of the Commonwealth's Representative under the Contract as the agent of the Commonwealth (and not as an independent certifier, assessor or valuer).
(b) The Consultant must comply with any direction by the Commonwealth's Representative given or purported to be given under a provision of this Contract.
(c) Except where the Contract otherwise provides, the Commonwealth's Representative may give a direction orally but will as soon as practicable confirm it in writing.
Clause 4.2 - Replacement of Commonwealth's Representative
Quick Links
Proforma notice
Key Message
The Commonwealth may replace the Commonwealth's Representative by notice to the Consultant.
User Guidance
The Commonwealth is entitled to change the Commonwealth's Representative at any time.
A proforma notice informing the Consultant that the Commonwealth's Representative has been replaced is provided in this Manual.
Clause 4.2 - Replacement of Commonwealth's Representative
(a) The Commonwealth may at any time replace the Commonwealth's Representative, in which event the Commonwealth will appoint another person as the Commonwealth's Representative and notify the
(b) Any substitute Commonwealth's Representative appointed under this clause 4.2 will be bound by anything done by the former Commonwealth's Representative to the same extent as the former Commonwealth's Representative would have been bound.
Clause 4.3 - Parties' Conduct
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Key Message
The Commonwealth and the Consultant must co-operate with each other.
The Commonwealth and Consultant should strive to maintain a working and productive relationship and avoid an adversarial approach where possible.
User Guidance
This clause places a general obligation on the parties to co-operate. It reflects the general law position.
Clause 4.3 - Parties' Conduct
Without limiting any of the rights or obligations of the Commonwealth and Consultant under the Contract, the Commonwealth and Consultant must co-operate with each other in carrying out their obligations under the Contract.
The Commonwealth may appoint other persons to perform the functions of the Commonwealth's Representative.
The Commonwealth's Representative is identified in the Contract Particulars for each engagement under the DIP.
User Guidance
As the Commonwealth's Representative's functions under the Contract are broad, it will often be necessary for the Commonwealth's Representative to delegate certain functions to others. These representatives will be set out in the Contract Particulars. The Consultant must comply with any instructions or directions issued by an assistant Commonwealth's Representative (ACR).
As at the Award Date, one or a number of ACRs may be listed in the Contract Particulars, together with their respective functions.
ACRs may also be appointed after the Award Date by the Commonwealth's Representative. The Consultant must also comply with any instructions or directions issued by ACRs appointed after the Award Date as long as the Commonwealth's Representative has provided written notice to the Consultant that the person has been appointed as its representative in respect of the described functions. A proforma notice is provided in this
The Commonwealth's Representative must also provide written notice to the Consultant of any revocation of authority to a representative under clause 4.4(a)(iii). A proforma notice for this purpose is provided in this Manual.
(i) by written notice to the Consultant appoint persons to exercise any of the Commonwealth's Representative's functions under the Contract;
(ii) not appoint more than one person to exercise a specific function under the Contract; and
(iii) revoke any appointment under paragraph (a) by notice in writing to the Consultant.
(b) As at the Award Date, the Commonwealth's Representative is deemed to have appointed the persons set out in the Contract Particulars.
(c) All references in the Contract to Commonwealth's Representative include a reference to a representative appointed under this clause 4.4.
Clause 4.5 - Contract Key People
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Proforma notice Proforma notice
Key Message
Engaging the Consultant and the appropriate key people is important to ensure the Commonwealth receives the high level of Services it expects and requires under the DIP.
The Consultant's key people are identified in the Project DCAP. This identification provides the Commonwealth with certainty as to the qualifications and experience of the persons performing the Services.
The Consultant's key people may not be replaced without the Commonwealth's consent. This prevents the Consultant from employing persons with less experience, ability and expertise than those proposed by the Consultant in its initial proposal.
The Consultant should establish appropriate succession planning to prevent disruption to the Services in the event key people leave its employment.
User Guidance
The primary purpose of this clause is to ensure that the Consultant retains the people on the project whom it advertised or represented would be put on the project in its initial proposal.
The Consultant must also nominate a person as the Consultant's Representative. This person must be named in the Project DCAP.
The Consultant must obtain the written approval of the Commonwealth's Representative if it wishes to replace any of these key people. Proformas are provided in this Manual for this request and the Commonwealth's Representative's response.
The Commonwealth's Representative has an absolute discretion as to whether to approve a replacement and is not required to give reasons for any rejection or approval.
(a) employ those people specified in the Project DCAP, including the Consultant's Representative, in the jobs specified in the Project DCAP;
(b) subject to paragraph (c), not replace the people referred to in paragraph (a) without the Commonwealth's Representative's prior written approval;
(c) if any of the people referred to in paragraph (a) die, become seriously ill or resign from the employment of the Consultant, replace them with persons approved by the Commonwealth's Representative of at least equivalent experience, ability and expertise; and
(d) put in place sufficient succession planning and training, to the satisfaction of the Commonwealth, to ensure that the Consultant is able to replace key people under paragraph (c) without any disruption to the Services or the Project.
Clause 4.6 - Removal of Persons
Quick Links
Proforma notice
Key Message
The removal of a person performing the Services is a serious step. The reasons and justification for removing a person should be carefully considered.
Seek advice from Directorate of Program Assurance and legal advice if contemplating directing removal of persons from the Services.
The Commonwealth's Representative opinion concerning the person must be "reasonable".
User Guidance
The Commonwealth may consider it appropriate to direct the removal of a person employed by the Consultant from the Services if in their "reasonable" opinion the person is guilty of misconduct, incompetence or negligence. Such a decision should be carefully considered. A proforma notice is included in this Manual which may be used by the Commonwealth's Representative to remove persons from the Services.
Clause 4.6 - Removal of Persons
(a) The Commonwealth's Representative may by notice in writing instruct the Consultant to remove any person from the performance of the Services who in the reasonable opinion of the Commonwealth's Representative is guilty of misconduct or is incompetent or negligent.
(b) The Consultant must ensure that the person referred to in paragraph (a) is not again employed in the Services.
The use, exchange and production of documentation is an important and tangible product of the Services under the DIP.
This clause establishes certain obligations to ensure such documentation meets the Commonwealth's requirements.
The clause secures the Commonwealth's intellectual property rights in the documentation to ensure the Commonwealth's full use of the documentation.
Clause 5.1 - Commonwealth's Documents
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Key Message
The provision of relevant documentation by the Commonwealth assists the Consultant to prepare its own documentation.
User Guidance
This clause establishes a general obligation on the Commonwealth to supply the Consultant with the Commonwealth Material. Depending on the type of project, documents provided by the Commonwealth to the Consultant might include documents relating to the condition of the Site or documents relating to the Commonwealth's requirements for the Services.
Clause 5.1 - Commonwealth's Documents
The Commonwealth must provide to the Consultant the Commonwealth Material.
Clause 5.2 - Consultant's Documents - Option 1
Quick Links
Proforma notice
Key Message
The Consultant must submit the Consultant Material in a timely manner and in accordance with the approved program. Both the Consultant and Commonwealth should proactively manage deadlines to ensure the Commonwealth's programming requirements are met.
The Consultant's Material must be submitted to the Commonwealth for review and may be reviewed by the Commonwealth. The review process allows the Commonwealth to work with the Consultant to ensure the Consultant's Material meets the Commonwealth's requirements. The Consultant's Material can be resubmitted to ensure it meets the Commonwealth's requirements.
The Consultant's Material must be free from any corporate branding, trademarks or logos to make it clear that the Consultant's Material is identified with the Commonwealth and not the
Option 1 will apply if the Services do not include any design services by the Consultant.
The Consultant must, within the time set out in the approved program under clause 7.2, prepare and submit for approval by the Commonwealth's Representative the Consultant Material. "Consultant Material" is defined in clause 1.1 as "all material brought, or required to be brought, into existence by the Consultant as part of, or for the purposes of, carrying out the Services". Examples of such material include reports, technical information, plans, charts, drawings, specifications and data.
This clause deliberately provides that the Commonwealth's Representative "may review" the Consultant Material rather than, for example, "will approve" or "will allow use of" the Consultant Material. This is to avoid the argument that the Commonwealth's Representative has participated in the process of preparing the Consultant Material and in that way affected the Consultant's obligations under clause 2.2, including its obligation to ensure that the Consultant Material complies with the requirements of the Contract.
The Commonwealth's Representative may reject all or part of any submitted Consultant Material. There is no express limit on the number of times that the Commonwealth's Representative may reject documents. The Commonwealth's Representative should provide reasons as to why the Consultant Material is being rejected. Although it is not expressly stated that the Commonwealth's Representative can only reject Consultant Material if it is not in accordance with the Terms of Engagement, the Consultant may be entitled to claim a Variation in that case. The Commonwealth's Representative should therefore only reject Consultant Material in such a case if the Commonwealth accepts the possibility of a Variation.
A proforma notice is provided in this Manual for use in the event that the Commonwealth's Representative rejects the submitted Consultant Material.
Clause 5.2 - Consultant's Documents - Option 1
This option 1 applies if the Services do not include design services by the Consultant.
(a) The Consultant must, within the time set out in the approved program under clause 7.2, submit to the Commonwealth's Representative for approval the Consultant Material.
(b) The Commonwealth's Representative may review any Consultant Material, or any resubmitted Consultant Material, prepared and submitted by the Consultant and reject any Consultant Material.
(c) If any Consultant Material is rejected, the Consultant must re-submit amended Consultant Material to the Commonwealth's Representative within the time frame specified by the Commonwealth's Representative.
(d) The Consultant must keep the Consultant Material free from any corporate brand, trademark, logo, trade name, stamp, symbol or similar identifying material other than that of the Commonwealth or the Department of Defence.
Clause 5.2 - Consultant's Documents - Option 2
Quick Links
Proforma notice
Key Message
The Consultant must design the parts of the Works specified in the Contract in accordance with the Brief and other requirements of the Contract.
The Consultant must submit a documentation program for approval which allows sufficient time for review of the Consultant Material by the Commonwealth's Representative. The Consultant
must submit the Consultant Material in accordance with the approved documentation program. Both the Consultant and Commonwealth should proactively manage deadlines to ensure the Commonwealth's programming requirements are met.
The Consultant's Material must be submitted to the Commonwealth Representative for review and may be reviewed by the Commonwealth Representative.
User Guidance
Option 2 will only apply if the Services include any design services by the Consultant.
The Consultant must design the parts of the Works the Contract requires it to design in accordance with the requirements set out in the Brief and the Contract, including preparing all relevant Consultant Material. "Consultant Material" is defined in clause 1.1 as "all material brought, or required to be brought, into existence by the Consultant as part of, or for the purposes of, carrying out the Services". Examples of such material include reports, technical information, plans, charts, drawings, specifications and data.
The Consultant must submit a documentation program, as part of the program required under clause 7.2, for approval by the Commonwealth's Representative. The Consultant must submit the Consultant Material in accordance with the approved documentation program.
The Consultant is responsible for co-ordinating the work of its subconsultants, including to ensure submission of the Consultant Material in accordance with the approved documentation program.
When considering a program submitted by the Consultant, the Commonwealth's Representative will need to ensure it provides the Commonwealth's Representative a reasonable opportunity to review the Consultant Material within the period of time allowed for review in clause 5.2. The program should also take into account the fact that the Commonwealth's Representative may, upon review, reject any of the Consultant Material submitted by the Consultant.
The Consultant must conduct design reviews at each of the milestones identified in the Project DCAP.
The Commonwealth's Representative may review any Consultant Material, or any resubmitted Consultant Material, prepared and submitted by the Consultant and reject any Consultant Material. If any Consultant Material is rejected, the Consultant must re-submit amended Consultant Material to the Commonwealth's Representative.
This clause deliberately provides that the Commonwealth's Representative "may review" the Consultant Material rather than, for example, "will approve" or "will allow use of" the Consultant Material. This is to avoid the argument that the Commonwealth's Representative has participated in the process of preparing the Consultant Material and in that way affected the Consultant's obligations under clause 2.2, including its obligation to ensure that the Consultant Material complies with the requirements of the Contract.
A proforma notice is provided in this Manual for use in the event that the Commonwealth's Representative rejects the submitted Consultant Material.
Clause 5.2 - Consultant's Documents - Option 2
This option 2 applies if the Services include any design services by the Consultant.
(a) The Consultant must:
(i) design the parts of the Works which the Contract requires it to design in accordance with the Brief and the other requirements of the Contract and for this purpose (but without limitation) prepare all relevant Consultant Material;
(ii) as part of the program it is to prepare under clause 7.2, submit to the Commonwealth's Representative for approval a documentation program which makes allowance for the Consultant Material to be submitted to the Commonwealth's Representative in a manner and at a rate which will give the Commonwealth's Representative a reasonable opportunity to review the Consultant Material within the period of time within which the Commonwealth's Representative may review the Consultant Material under this clause
(iii) be responsible for co-ordinating the work of its subconsultants, including by providing and directing all necessary personnel to administer, supervise, inspect, coordinate and control these subconsultants in a manner and at a rate of progress so that the Consultant complies with its obligations under paragraph (v);
(iv) conduct design reviews at each of the design review milestones as identified in the Project DCAP; and
(v) submit the Consultant Material it prepares to the Commonwealth's Representative in accordance with the documentation program approved by the Commonwealth's Representative under paragraph (ii).
(b) The Commonwealth's Representative may:
(i) review any Consultant Material or any resubmitted Consultant Material, prepared and submitted by the Consultant; and
(ii) within the number of days set out in the Contract Particulars of the submission by the Consultant of such Consultant Material or resubmitted Consultant Material, reject the Consultant Material.
(c) If any Consultant Material is rejected, the Consultant must submit amended Consultant Material to the Commonwealth's Representative.
Clause 5.3 - No obligation to review
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Key Message
The Commonwealth does not assume or owe any duty of care to the Consultant regarding the review process. The Consultant remains completely responsible for the Consultant Material.
The Commonwealth does not "approve" the Consultant Material. The Commonwealth should avoid transfer of risk by "approving" or representing to the Consultant that the Consultant Material meets the Commonwealth's requirements.
The review process may be used as an opportunity to improve the Consultant Material.
User Guidance
This clause anticipates the argument that responsibilities of the Consultant under the Contract might be undermined or derogated by the Commonwealth's participation in the process of finalising the Consultant Material.
This clause ties in with clause 5.2 and ensures that the Consultant's obligations regarding the Consultant Material are not affected by any comments, review, rejection or permission to use that material by the Commonwealth's Representative.
The Commonwealth's Representative should endeavour not to unduly interfere with the Consultant Material. To do otherwise may lead to the Consultant being relieved of sole responsibility for problems associated with such documentation and some or all of the risk being transferred to the Commonwealth.
Clause 5.3 - No obligation to review
(a) The Commonwealth's Representative does not assume or owe any duty of care to the Consultant to
review, or in reviewing, the Consultant Material submitted by the Consultant for errors, omissions or compliance with the Contract.
(b) No review of, comments upon, consent to or rejection of, or failure to review or comment upon or consent to or reject, any Consultant Material prepared by the Consultant or any other direction by the Commonwealth's Representative about, or any other act or omission by the Commonwealth's Representative or otherwise by or on behalf of the Commonwealth in relation to, the Consultant Material will:
(i) relieve the Consultant from, or alter or affect, the Consultant's liabilities or responsibilities whether under the Contract or otherwise according to law; or
(ii) prejudice the Commonwealth's rights against the Consultant whether under the Contract or otherwise according to law.
Clause 5.4 - Licence over the Consultant Material
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Key Message
The Consultant Material may contain intellectual property which may affect or restrict the use of the Consultant Material by the Commonwealth. In order to avoid this, the Consultant grants the Commonwealth a licence over the Intellectual Property in the Consultant Material.
The licence provides the Commonwealth with all rights necessary to use the Intellectual Property as if it were the owner of the Intellectual Property.
User Guidance
This clause is designed to ensure that the Commonwealth is able to exercise any of the rights held by the actual owner of the Intellectual Property in the Consultant Material. This includes all material brought or required to be brought into existence by the Consultant as part of carrying out the Services.
Whilst the clause does not purport to make the Commonwealth the owner of the Intellectual Property, its intent is to confer all of the rights of the owner via a perpetual licence which arises immediately upon the creation or provision to the Commonwealth of any Consultant Material, and which survives the termination of the Contract on any basis.
Importantly, the clause also allows the Commonwealth to use the licensed Consultant Material in any subsequent operation, maintenance or servicing of, or additions, alterations or repairs to the Project.
Clause 5.4 - Licence over the Consultant Material
The Consultant grants to the Commonwealth a perpetual, royalty-free, irrevocable, non-exclusive, worldwide licence to exercise all rights of the owner of the Intellectual Property Rights in the Consultant Material, including to use, re-use, reproduce, communicate to the public, modify and adapt any of the Consultant Material.
This licence:
(a) arises, for any Consultant Material, immediately the Consultant Material is:
(i) produced; or
(ii) provided, or required to be provided, to the Commonwealth or the Commonwealth's Representative,
under, for the purposes of or in connection with the Contract, the Services or the Project by, for or on
(i) any subsequent operation, maintenance or servicing of, or additions, alterations or repairs to the Project; and
(ii) use in any way for any other Commonwealth project; and
(d) survives the termination of this Contract on any basis.
Clause 5.5 - Intellectual Property Warranties
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Key Message
The Consultant provides certain intellectual property warranties that the Consultant Material is free from any intellectual property rights that may affect the Commonwealth's rights over the Consultant Material.
The intellectual property warranties are a representation of fact by the Consultant and provide additional protection to the Commonwealth.
User Guidance
In this clause the Consultant warrants it is able to grant the licences referred to in clause 5.4. This gives a separate right to the Commonwealth to take action against the Consultant if the warranties given are not true and correct.
Clause 5.5 - Intellectual Property Warranties
The Consultant warrants that:
(a) the Consultant owns all Intellectual Property Rights in the Consultant Material or, to the extent that it does not, is entitled to grant the assignments and licences contemplated by this Contract;
(b) use by the Commonwealth or any sublicensee or subsublicensee of the Consultant Material in accordance with this Contract will not infringe the rights (including Intellectual Property Rights and Moral Rights) of any third party;
(c) neither the Commonwealth nor any sublicensee or subsublicensee is liable to pay any third party any licence or other fee in respect of the use of the Consultant Material, whether by reason of Intellectual Property Rights or Moral Rights of that third party or otherwise; and
(d) the use by the Commonwealth or by any sublicense or subsublicensee of the Consultant Material in accordance with this Contract will not breach any laws (including any laws in respect of Intellectual Property Rights and Moral Rights).
The Consultant indemnifies the Commonwealth for any infringement of patent, registered design, trade mark or name, copyright, moral rights or other protected rights. This clause protects the Commonwealth from claims it has infringed such rights.
User Guidance
This clause mandates that the Consultant not infringe any intellectual property rights of other parties, and that the Consultant indemnifies the Commonwealth against any claim if it does infringe any such rights.
Clause 5.6 - Intellectual Property Rights
The Consultant must:
(a) ensure that the Services do not infringe any patent, registered design, trade mark or name, copyright, Moral Rights or other protected right; and
(b) indemnify the Commonwealth against any claims against, or costs, losses or damages suffered or incurred by, the Commonwealth arising out of, or in any way in connection with, any actual or alleged infringement of any patent, registered design, trade mark or name, copyright, Moral Rights or other protected right.
Clause 5.7 - Commonwealth Material
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Key Message
The Commonwealth Material is a valuable asset to the Commonwealth which remains the property of the Commonwealth. It can only be used by the Consultant for the purposes of the Services under the Contract.
The Commonwealth Material may contain its own intellectual property which may restrict the manner in which the Consultant uses the Commonwealth Material. The Commonwealth should inform the Consultant of such restrictions or conditions where appropriate.
User Guidance
This clause ensures that any materials given to the Consultant by the Commonwealth remain the property of the Commonwealth, are adequately protected and maintained while in the Consultant's possession are not used in any way that may infringe any copyright that a third party may have in the materials.
Clause 5.7 - Commonwealth Material
(a) The Commonwealth Material will remain the property of the Commonwealth.
(b) The Commonwealth must inform the Consultant of any Commonwealth Material in which third parties hold the copyright and of any conditions attaching to the use of that material because of that copyright. The Consultant may use that material only in accordance with those conditions.
(c) Without limiting clause 15 and if clause 16 applies, clause 16, the Consultant will be responsible for the protection, maintenance and return of the Commonwealth Material in its possession.
Clause 5.8 - Project DCAP
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Key Message
The Project Detailed Consultant's Activities Proposal (Project DCAP) is the Consultant's proposal or "reverse brief" for delivering the Services for each individual engagement under the DIP. It is a key document for planning and delivering the Services and forms part of the Contract between the Commonwealth and Consultant for each individual engagement.
The Project DCAP does not limit the Consultant's scope of Services or contractual obligations.
The Project DCAP should be refined and updated as necessary.
User Guidance
Under this clause, the Consultant provides warranties that the Project DCAP complies with the requirements of the Contract. Further, this clause provides an acknowledgement by the Consultant the Commonwealth has not made any representation or warranty concerning the Project DCAP's compliance with the Contract.
It is important the Commonwealth does not in proposing amendments to the Project DCAP seek to direct the Consultant as to how to perform the Services (as this may result in risk retransfer).
The Consultant must request the Commonwealth's Representative's approval for any updates or refinements to the Project DCAP.
Clause 5.8 - Project DCAP
The Consultant:
(a) warrants that the Project DCAP complies with the requirements of this Contract;
(b) acknowledges that the Project DCAP:
(i) does not limit the Consultant's obligations under this Contract; and
(ii) may require updating and refining throughout the execution of the Services:
A. to the extent that it does not reflect the tasks or other things to be done or provided to perform the Services in accordance with the Contract; and
B. without limiting subsubparagraph A, on account of Variations;
(c) must update and refine the Project DCAP as required by paragraph (b)(ii) with the written approval of the Commonwealth's Representative;
(d) will not be entitled to bring any Claim against the Commonwealth arising out of or in connection with any work which the Consultant is required to carry out arising out of or in connection with paragraph (b); and
(e) acknowledges that the Commonwealth has not made and does not make any representation or give any warranty with respect to the matter referred to in paragraph (a).
The Consultant must comply with all relevant Statutory Requirements (including the WHS Legislation) and other requirements of the Contract in respect of work health and safety (WHS).
This includes instituting necessary documentation and reporting procedures, and providing assurances to the Commonwealth's Representative regarding the ongoing compliance with the WHS Legislation by the Consultant or subconsultant.
If applicable, this also includes complying with and maintaining accreditation under the WHS Accreditation Scheme.
User Guidance
This clause provides that the Consultant must comply, and ensure subconsultants comply, with all applicable Statutory Requirements regarding WHS including the WHS Legislation. The Consultant must ensure that, where necessary, relevant persons are sufficiently authorised, licenced or accredited under the WHS Legislation or Statutory Requirements. The Consultant must provide written reports to the Commonwealth's Representative on WHS matters including "Notifiable Incidents" (defined in the WHS Legislation).
The Consultant is also expected to provide regular written assurances to the Commonwealth's Representative confirming its ongoing compliance with the WHS Legislation, in addition to instituting processes and procedures to ensure and confirm the same ongoing compliance by any subconsultants.
The clause also mandates the provision of certain documents from the Consultant to the Commonwealth's Representative, including all notices and communications issued by a regulator, agent of the regulator or a health and safety representative to the Consultant or subconsultant. If the Consultant is a supplier, manufacturer, designer or importer (as defined in the WHS Legislation) it must also provide information concerning any relevant plant, structure or substance (as defined in the WHS Legislation).
Where appropriate, the Consultant is also expected to comply with and maintain accreditation under the WHS Accreditation Scheme.
Clause 5.9 - Work Health and Safety
The Consultant must:
(a) ensure that in carrying out the Services and the Works:
(i) it complies with all Statutory Requirements and other requirements of the Contract in respect of work health and safety; and
(ii) it complies with its duty under the WHS Legislation to consult, cooperate and coordinate activities with all other persons who have a work health and safety duty in relation to the same matter;
(b) without limiting the Consultant's obligations under this Contract or otherwise at law or in equity, notify the Commonwealth's Representative:
(i) in respect of notifiable incidents within the meaning of the WHS Legislation, immediately (and in any event within 12 hours of such notifiable incident occurring);
(ii) in respect of work health and safety incidents or accidents (which are not notifiable incidents) where the nature of the incident or accident indicates a potential systemic failure to identify hazards and manage risks to health and safety, so far as is reasonably
practicable, within 24 hours of the incident or accident occurring; and
(iii) in respect of all other work health and safety matters arising out of or in any way in connection with the Services and the delivery of the Works, including the occurrence of any other incident or accident (not required to be reported in accordance with subparagraphs (i) or (ii)), within 30 days of such incident occurring;
(c) for the purposes of paragraph (b), in respect of any notifiable incident:
(i) immediately provide the Commonwealth's Representative with a copy of the notice required to be provided to the relevant Commonwealth, State or Territory regulator;
(ii) promptly provide the Commonwealth's Representative with a copy of an investigation report relating to the notifiable incident and any witness statements prepared as a result of the occurrence of the notifiable incident;
(iii) promptly provide the Commonwealth's Representative with copies of any notice(s) or other documentation issued by the relevant Commonwealth, State or Territory regulator; and
(iv) within 10 days of the date of notification to the relevant Commonwealth, State or Territory regulator, provide the Commonwealth's Representative with a summary of the related investigations, actions to be taken, and any impact on the Contract that may result from the notifiable incident;
(d) if applicable, comply with all requirements of and maintain accreditation under the WHS Accreditation Scheme;
(e) institute systems to:
(i) obtain regular written assurances from each subconsultant about their ongoing compliance with the WHS Legislation; and
(ii) provide, in a format specified by the Commonwealth Representative, the written assurances regarding the Consultant's ongoing compliance with the WHS Legislation:
A. on a quarterly basis; and
B. as otherwise directed by the Commonwealth Representative;
(f) provide the written assurances obtained under paragraph (e), to the Commonwealth Representative in accordance with paragraph (e);
(g) without limiting the Consultant 's obligations under this Contract or otherwise at law or in equity within 10 days of receipt provide to the Commonwealth Representative copies of:
(i) all formal notices and written communications issued by a regulator or agent of the regulator under or in compliance with the applicable WHS Legislation to the Consultant or subconsultant (as the case may be) relating to work health and safety matters;
(ii) all formal notices issued by a health and safety representative of the Consultant or subconsultant (as the case may be), under or in compliance with the applicable WHS Legislation; and
(iii) all formal notices, written communications and written undertakings given by the Consultant or subconsultant (as the case may be) to the regulator or agent of the regulator under or in compliance with the applicable WHS Legislation,
(iv) arising out of or in any way in connection with the carrying out of the Services and the Works by the Consultant;
(h) exercise a duty of the utmost good faith to the Commonwealth in carrying out the Services to enable
the Commonwealth to discharge the Commonwealth's duties under the WHS Legislation;
(i) ensure all subcontracts include provisions equivalent to the obligations of the Consultant in this clause 5.9;
(j) ensure that, if any Statutory Requirement requires that:
(i) a person:
A. be authorised or licensed (in accordance with the WHS Legislation) to carry out any work at that workplace, that person is so authorised or licensed, and complies with any conditions of such authorisation or licence; or
B. has prescribed qualifications or experience, or if not, is to be supervised by a person who has prescribed qualifications or experience (as defined in the WHS Legislation), that person has the required qualifications or experience or is so supervised; or
(ii) a workplace, plant or substance (or design), or work (or class of work) be authorised or licensed, that workplace, plant or substance, or work is so authorised or licensed;
(k) not direct or allow a person to carry out work, or use plant or a substance at a workplace unless, the authorisation, licensing, prescribed qualifications or experience required by any Statutory Requirement and paragraph (j) are met;
(l) without limiting the Consultant 's obligations under this Contract (including paragraph (c) in respect of notifiable incidents) or otherwise at law or in equity, within 10 days of a request by the Commonwealth Representative or anyone else acting on behalf of the Commonwealth, provide all information or copies of documentation held by the Consultant or a subconsultant to the Commonwealth Representative or anyone else acting on behalf of the Commonwealth to enable the Commonwealth to comply with its obligations under the WHS Legislation;
(m) if requested by the Commonwealth Representative or required by the WHS Legislation, produce evidence of any Approvals including any authorisations, licences, prescribed qualifications or experience, or any other information relevant to work health and safety (as the case may be) to the satisfaction of the Commonwealth Representative before the Consultant or any subconsultant commences such work; and
(n) where the Consultant is a supplier, manufacturer, designer or importer for the purposes of the WHS Legislation, promptly provide to the Commonwealth Representative information concerning:
(i) the purpose for which any plant, structure or substance (as defined in the WHS Legislation) has been designed or manufactured;
(ii) the results of any calculations, analysis, testing or examination carried out concerning the safety of the plant, substances or structures referred to in paragraph (i) (and the risks to the health and safety of persons); and
(iii) any conditions necessary to ensure the plant, substances or structures are without risks to health and safety when used for the purpose for which they were designed or manufactured.
The Panel Agreement, the Contract and the Project Documents may give rise to ambiguity where the meaning of a term or operation of a clause is uncertain. If a genuine ambiguity does arise, this clause provides for the resolution of such ambiguities.
Seek advice from the Directorate of Program Assurance where such ambiguities arise.
User Guidance
Ambiguities between contractual documents may sometimes arise. This is resolved via an order of precedence (or in the case of Contract and Project Documents, the higher standard, quality or quantum will prevail). The document higher in the order of precedence will prevail over the document lower in the order of precedence.
If an ambiguity is discovered it should be notified to the other party and the Commonwealth's Representative must instruct the Consultant of the appropriate course of action. Proforma notices are provided in this Manual for this purpose.
Clause 5.10 - Resolution of Ambiguities
If there is any ambiguity, discrepancy or inconsistency in the documents which make up the Contract or between the Contract and any Project Documents:
(a) the following order of precedence will apply:
(i) Official Order;
(ii) Contract Particulars;
(iii) Fee Schedule;
(iv) Terms of Engagement;
(v) Brief;
(vi) Panel Agreement;
(vii) Project DCAP; and
(viii) other document forming part of the Contract (if any) specified in the Contract Particulars;
(b) where the ambiguity, discrepancy or inconsistency is between the Contract and any Project Documents, the higher standard, quality or quantum will prevail but if this does not resolve the ambiguity, discrepancy or inconsistency, paragraph (a) will prevail;
(c) if it is discovered by the Consultant or the Commonwealth's Representative, then the party discovering it must promptly give notice to the other; and
(d) the Commonwealth's Representative must instruct the Consultant as to the course it must adopt within 14 days of the notice under paragraph (c).
The Consultant will be required to prepare its Consultant Material in accordance with the requirements in the Project DCAP. It will therefore be essential that the Project DCAP is consistent with the requirements set out in the Contract.
User Guidance
This clause requires the Consultant to warrant that preparation of Consultant material in accordance with the Project DCAP for the relevant Engagement, will ensure the Consultant Material complies with the requirements of the Contract and also that the Consultant will discharge its obligations under the Contract.
Clause 5.11 - Project DCAP
In addition to the requirements of clause 5.8(a), the Consultant warrants that preparation of the Consultant Material in accordance with the Project DCAP will ensure that the Consultant Material complies with the requirements of the Contract and that the Consultant otherwise discharges its obligations under the Contract.
Clause 5.12 - Proactive Review Of All Project Contractor Documentation
Quick Links
Proforma notice
Key Message
Where the Services include the Consultant administering Project Contracts on behalf of the Commonwealth, the Commonwealth relies upon the Consultant to conduct a proper review of the relevant Project Contractor Documentation. This prevents the Commonwealth receiving and spending time reviewing materials that are not of a sufficient standard or are inconsistent with the contractual requirements in the relevant Project Contracts.
User Guidance
The Consultant is required to promptly and fully review all Project Contractor Documentation prior to submitting it to the Commonwealth. The Consultant must not submit any Project Contract Documentation until it has been fully reviewed and the Consultant confirms it complies with the relevant Project Contract. In submitting such Project Contractor Documentation to the Commonwealth, the Consultant must provide recommendations and advice regarding the documentation to the Commonwealth.
If Project Contractor Documentation does not comply with the relevant Project Contract, the Consultant must provide comments and assistance so that the Project Contractor Documentation can be amended and finalised so that it complies with the relevant Project Contract.
The Consultant is responsible for coordinating the finalisation of Project Contractor Documentation. This includes requesting any information or direction required from the Commonwealth to assist in reviewing or finalising the relevant documentation.
The Consultant must proactively program and manage the development, review and finalisation of Project Contractor documentation in a manner that ensure there is no delay to the Project and that value for money is maximised.
The Consultant must promptly request any information, guidance or direction from the Commonwealth to assist it in reviewing Project Contractor Documentation, or to enable the Project Contractor to finalise any Project Contractor Documentation. A proforma notice has been included in this Manual for this purpose.
Clause 5.12 - Proactive Review Of All Project Contractor Documentation
(a) promptly and fully review all Project Contractor Documentation for compliance with the relevant Project Contract before submitting that Project Contractor Documentation to the Commonwealth;
(b) not submit Project Contractor Documentation to the Commonwealth unless it has been fully reviewed and complies with the relevant Project Contract;
(c) if any Project Contractor Documentation does not fully comply with the relevant Project Contract, provide the Project Contractor with all comments and other assistance necessary and appropriate to enable the Project Contractor to amend and finalise the Project Contractor Documentation so that it complies with the relevant Project Contract;
(d) in any event, provide the review of the Project Contractor Documentation to the Commonwealth advising of the actions required to finalise the documentation;
(e) for the purposes of this clause, be responsible for coordinating the finalisation of all Project Contractor Documentation, including by providing and directing all necessary personnel to administer, supervise, review, coordinate and control finalisation of all Project Contractor Documentation at a rate of progress so that the relevant Project Contractor complies with his obligations under the relevant Project Contract;
(f) if the Consultant requires any information, guidance, or other direction from the Commonwealth for the purpose of finalising its review of, or enabling the Project Contractor to finalise any Project Contractor Documentation - promptly request the information, guidance or direction from the Commonwealth;
(g) proactively program and manage the development, review and finalisation of all Project Contractor Documentation with the relevant Project Contractor so as to ensure that there are no delays to the completion of the project and that value for money for the Commonwealth is otherwise maximised;
(h) when Project Contractor Documentation is submitted to the Commonwealth, provide recommendations and advice in respect of such Project Contractor Documentation to the Commonwealth; and
(i) otherwise do all things necessary to ensure that the Commonwealth is able to efficiently and effectively review all Project Contractor Documentation.
Clause 5.13 - Drawings
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Key Message
Any drawings prepared under the Contract must be prepared by competent draftspersons and in accordance with the relevant requirements.
User Guidance
The Consultant is required to provide any drawings to the standard prescribed in the Contract (or where not prescribed, best industry standard), and in accordance with all Statutory Requirements, directions of the Commonwealth's Representative and, to the extent not inconsistent with the Contract, relevant standards of Standards Australia.
These requirements do not limit the Consultant’s obligations under the Contract.
Clause 5.13 - Drawings
Without limiting its other obligations under the Contract, all drawings which the Consultant is required to
provide under the Contract must be prepared by competent draftspersons in accordance with:
(a) the standard prescribed in the Contract (or, to the extent it is not so prescribed, a standard consistent with the best industry standard for drawings of a nature similar to those required for the Services);
(b) all Statutory Requirements;
(c) the directions of the Commonwealth's Representative; and
(d) to the extent that they are not inconsistent with the requirements of the Contract, the requirements of all relevant standards of Standards Australia.
Clause 5.14 - Certification
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Key Message
The Consultant must provide certificates that design carried out by the Consultant or subconsultants complies with the requirements in the Contract, and that the Works comply or the Stage or Section (as defined in the Project Contract) complies with the requirements in relevant Consultant Material.
User Guidance
This clause applies if the Services include any design services by the Consultant.
The form of the Consultant Design Certificate and the Subconsultant Design Certificate are published on the DEQMS website.
The Consultant must provide a Consultant Design Certificate certifying that:
(a) the Consultant Material complies with all Statutory Requirements and the requirements of the Contract; and
(b) the Works comply or the Stage or Section (as defined under the Project Contract) complies with Consultant Material which has been not reject by the Commonwealth's Representative under clause 5.2.
The Consultant must provide a corresponding design certificate from each subconsultant that performs design work forming part of the Services in the form of a Subconsultant Design Certificate.
The purpose of the certificates is for the Commonwealth to obtain a level of assurance from the Consultant that both the design and the Works (as constructed) comply with the requirements of the Contract including (in the case of construction) the design prepared in accordance with the Contract. The Consultant or subconsultant can identify exceptions in the certificate, although clearly it would be preferable for both the Commonwealth and the Consultant that this not occur.
The intended dynamic is that either the Consultant or relevant subconsultant resolve any outstanding issue before issuing their certificate or they will be drawn to the Commonwealth's attention and the Commonwealth can then require their rectification.
Clause 5.14 - Certification
This clause 5.14 applies if the Services include any design services by the Consultant.
Without limiting the Consultant's other obligations, the Consultant must, with each payment claim under clause 10.2 and, if requested by the Commonwealth's Representative, prior to Completion (as defined in the Project
Contract) of the Works or a Stage or Section (as the case may be and both as defined in the Project Contract), provide the Commonwealth's Representative:
(a) a certificate in the form of the consultant design certificate published on the DEQMS website as amended from time to time (Consultant Design Certificate) which certifies that (to the extent then applicable):
(i) the Consultant Material complies with:
A. all Statutory Requirements; and
B. the requirements of the Contract; and
(ii) the Works comply or the Stage or Section (as the case may be and both as defined in the Project Contract) complies (as the case may be) with the Consultant Material which has not been rejected by the Commonwealth's Representative under clause 5.2; and
(b) a corresponding certificate from each subconsultant that performs design work forming part of the Services in the form of the subconsultant design certificate published on the DEQMS website as amended from time to time (Subconsultant Design Certification) which certifies that (to the extent then applicable):
(i) all design carried out by that subconsultant complies with:
A. subject to the subcontract, all Statutory Requirements; and
B. the requirements of the subcontract; and
(ii) the Works comply or the Stage or Section (as the case may be and both as defined in the Project Contract) complies (as the case may be) with the design carried out by that subconsultant,
except to the extent set out in such certificates.
Clause 5.15 - Project Plans
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Proforma notice Proforma notice
Key Message
This clause provides the procedure for dealing with Project Plans.
User Guidance
The areas in which the Consultant is required to provide Project Plans are detailed in the Contract Particulars. These areas will have been determined by the Commonwealth at the time of request for proposal. The Project Plans may include an Environmental Management Plan, Method of Work Plan for Airfield Activities, Work Health and Safety Plan and/ or Site Management Plan. Guidance on what is to be included within each of these plans can be found within their respective definitions in clause 1.1.
A Work Health and Safety Plan must be specified if the Engagement involves any of the following Services:
(a) Project Management and Contract Administration Services;
(b) Aircraft Pavement and Ground Lighting Services;
(c) Property Acquisition and Disposal Services; or
The Consultant must prepare Project Plans (based on the outline approach to preparing the Project Plans submitted in the Consultant’s proposal for the Services) by the date set out in the Contract Particulars, and so as to ensure no delay or disruption to the Services. The Consultant must re-submit any rejected Project Plans until such time as the Commonwealth's Representative does not reject the Project Plans in the time provided under the Contract. After a Project Plan has been finalised, the Consultant must also:
(e) regularly review, update and amend each Project Plan (including if requested to do so by the Commonwealth's Representative);
(f) continue to correct any defects or omissions in any Project Plan; and
(g) document and maintain detailed records of all audits or other monitoring of each Project Plan.
A proforma notice for the Consultant to submit Project Plans is provided below in this Manual, as is a proforma notice for the Commonwealth's Representative to reject the Project Plans.
This clause also makes it clear that compliance with submitted Project Plans does not relieve the Consultant of its other obligations under the Contract or otherwise according to law.
The Consultant will not be relieved of its obligations under the Contract or otherwise according to law where the Commonwealth's Representative or other relevant person fails (due to negligence or otherwise) to detect a defect or omission in the Project Plans.
Clause 5.15 - Project Plans
(a) The Consultant must:
(i) carry out the Services in accordance with, and otherwise implement, the Project Plans; and
(ii) for the purposes of subparagraph (i):
A. prepare draft Project Plans based on the outline approach to preparing the Project Plans and performing the Services to be covered by the Project Plans, submitted by the Consultant in its proposal for the Services and otherwise in accordance with the requirements of the Contract and submit them to the Commonwealth's Representative so as to ensure that there is no delay or disruption to the Services and in any event no later than the number of days set out in the Contract Particulars after the Award Date for each Project Plan;
B. not commence any of the Services to which any Project Plan applies, unless the Commonwealth's Representative has had the number of days set out in the Contract Particulars to review the draft Project Plans and has not rejected them;
C. if any draft Project Plan is rejected, submit an amended draft of the Project Plan to the Commonwealth's Representative;
D. in any event, finalise each Project Plan so as to ensure that there is no delay or disruption to the Services and in any event in accordance with the requirements of the Contract;
E. after the Project Plans have been finalised, continue to regularly review its Project Plans, including in accordance with any obligations imposed by the definition of each Project Plan and to correct any defects in or omissions from a Project Plan (whether identified by the Commonwealth's Representative or the Consultant) and submit an amended draft of the Project Plan to the Commonwealth's Representative, after which
subsubparagraphs A-D will apply (to the extent applicable); and
F. document and maintain detailed records of inspections or audits undertaken as part of any Project Plan.
(b) The Consultant will not be relieved from compliance with any of its Contract obligations or from any of its liabilities whether under the Contract or otherwise according to law as a result of:
(i) the implementation of and compliance with the requirements of any Project Plan;
(ii) any direction by the Commonwealth's Representative concerning a Project Plan or the Consultant's compliance or non-compliance with a Project Plan;
(iii) any audit or other monitoring by the Commonwealth's Representative of the Consultant's compliance with a Project Plan; or
(iv) any failure by the Commonwealth's Representative, or anyone else acting on behalf of the Commonwealth, to detect any defect in or omission from a Project Plan including where any such failure arises from any negligence on the part of the Commonwealth's Representative or other person.
Clause 5.16 - Manual Of Fire Protection Engineering And National Construction Code Certification
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Key Message
This clause requires the Consultant to obtain certifications from an Accredited Building Surveyor regarding compliance with MFPE and the National Construction Code. See the definition of “Accredited Building Surveyor” in clause 1.1.
User Guidance
This clause only applies if the Contract Particulars states it applies.
The Consultant is required to provide the Commonwealth's Representative with written certification from an Accredited Building Surveyor:
(a) that the Consultant Material submitted under clause 5.2 complies with the MFPE and the National Construction Code - such certification is to be provided at the time it submits the Consultant Material to the Commonwealth's Representative;
(b) that Consultant Material issued for the purpose of engaging a Project Contractor complies with the MFPE and National Constriction Code - such certification is to be provided at the time it submits the Consultant Material; and
(c) that the Project or a Stage/Section complies (as defined in the Project Contract) with the MFPE and the National Construction Code - as a condition precedent to Completion of the Project or such Stage/Section,
except to the extent of any dispensation which is granted by the Assistant Secretary Environment and Engineering (ASEE), and identified in the certification. If there is an inconsistency between the MFPE and the National Construction Code, the MFPE prevails.
Clause 5.16 - Manual Of Fire Protection Engineering And National Construction Code Certification
Clause 5.16 does not apply unless the Contract Particulars state it applies.
The Consultant must provide to the Commonwealth's Representative written certification from an Accredited Building Surveyor:
(a) at the time it submits any Consultant Material under clause 5.2 - that the Consultant Material submitted at that time complies with the MFPE and the National Construction Code;
(b) before issue of any Consultant Material for the purpose of engaging a Project Contractor - that the Consultant Material to be issued at that time complies with the MFPE and the National Construction Code; and
(c) prior to Completion (as defined in the Project Contract) of the Project or a Stage or a Section (as the case may be and as defined in the Project Contract) - that the Project complies or the Stage or the Section (as the case may be and as defined in the Project Contract) comply (as the case may be) with the MFPE and the National Constriction Code,
except to the extent of any dispensation granted by the ASEE and identified in the certification. To the extent that there is any inconsistency between the MFPE and the National Construction Code, the MFPE prevails.
Clause 5.17 - Requests For Information
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Key Message
The Services may include the Consultant responding to Requests for Information. It is important that such Request for Information Services are performed properly, as they may have implications for the Project (including cost and time implications under Project Contracts).
User Guidance
All documentation provided by the Consultant in responding to Requests for Information will be deemed to be “Consultant Material” for the purposes of the Contract.
Without limiting the Contract or any Project Contract, the Consultant is required to:
(a) perform the Request for Information Services so as to fully address each Request for Information, reduce the need for further Requests for Information and minimise any exposure to delay and extra costs under the Project Contract;
(b) submit/resubmit the relevant Consultant Material in accordance clause 5.2;
(c) perform the Request for Information Services within the time required by the Project Contract or (if no time is specified in the Project Contract) by the Commonwealth's Representative; and
(d) ensure its personnel, subconsultants and other resources have appropriate qualifications, experience and availability to perform the Request for Information Services.
Clause 5.17 - Requests For Information
Without limiting the Contract, the Services may include responding to Requests for Information (Request for Information Services). All documentation provided as part of the Request for Information Services will be deemed to form part of the Consultant Material.
Without limiting the Contract or any Project Contract, the Consultant must:
(a) perform the Request for Information Services so as to ensure that the Request for Information
Services fully address each Request for Information, reduce the need for further Requests for Information and minimise the Commonwealth’s exposure to delay and extra costs under Project Contracts to the maximum extent possible;
(b) submit (or resubmit) the Consultant Material prepared as Request for Information Services to the Commonwealth's Representative in accordance with clause 5.2 of the Terms of Engagement;
(c) perform the Request for Information Services within the time required by the Project Contract, or if no time is specified in the Project Contract, by the time required by the Commonwealth's Representative including so as to minimise the Commonwealth’s exposure to delay and extra costs under Project Contracts to the maximum extent possible; and
(d) for the purposes of performing the Request for Information Services, ensure that its personnel, subconsultants and other resources have appropriate availability, qualifications, experience, ability and expertise.
Clause 5.18 - Access to Project Documents
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Key Message
The Australian National Audit Office (ANAO) requires particular rights to access the Consultant's premises and to review certain project documents on Commonwealth projects. This clause therefore provides a general right for the Commonwealth (and any nominated person or other person acting on behalf of the Commonwealth, which may include the ANAO) to access the Consultant's premises and the Consultant Material.
User Guidance
At any time during the performance of the Services and for a period of 10 years after the completion of the Services, the Consultant must make available to the Commonwealth's Representative on request, access to its premises, Project Documents, facilities and personnel (including subconsultants).
Clause 5.18 - Access to Project Documents
The Consultant must at the request of the Commonwealth's Representative at any time during the performance of the Services and the period of 10 years following the completion of the Services:
(a) make the Project Documents available for inspection and copying by the Commonwealth's Representative or any other person nominated by the Commonwealth's Representative;
(b) provide to the Commonwealth's Representative such copies of the Project Documents as the Commonwealth's Representative may require;
(c) provide all such facilities and assistance and answer all such questions which may be required to enable the Commonwealth's Representative or any nominated persons to identify the amounts being (or proposed to be) incurred or expended by the Consultant in performing the Services; and
(d) make available any officers, employees, agents or subconsultants for interviews with the Commonwealth's Representative or any nominated persons.
The Commonwealth is entitled to expect high quality Services from the Consultant. This clause ensures the Consultant maintains a quality assurance system and that non-complying Services can be identified and if necessary re-performed by the Consultant.
Clause 6.1 - Quality Assurance
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Key Message
Quality assurance is maintained through the Consultant's quality assurance system.
The Commonwealth may audit the quality assurance system.
Nothing the Commonwealth directs concerning the Consultant's quality assurance system changes the Consultant's obligation to perform the Services in accordance with the Contract.
User Guidance
This clause provides for the implementation of the quality assurance system as specified in the Project DCAP and the Commonwealth's Representative's access to that system for the purpose of monitoring and quality auditing.
Compliance with a submitted quality assurance system does not relieve the Consultant of its other obligations under the Contract.
Clause 6.1 - Quality Assurance
The Consultant:
(a) must implement the quality assurance system specified in the Project DCAP;
(b) must allow the Commonwealth's Representative access to the quality system of the Consultant so as to enable monitoring and quality auditing; and
(c) will not be relieved from compliance with any of its Contract obligations or from any of its liabilities whether under the Contract or otherwise according to law as a result of:
(i) the implementation of and compliance with the quality assurance requirements of the Contract;
(ii) any direction by the Commonwealth's Representative concerning the Consultant’s quality assurance system or its compliance or non-compliance with that system;
(iii) any audit or other monitoring by the Commonwealth's Representative of the Consultant’s compliance with the quality assurance system; or
(iv) any failure by the Commonwealth's Representative, or anyone else acting on behalf of the Commonwealth, to detect any defect in the Services including where any such failure arises from any negligence on the part of the Commonwealth's Representative or other
The Commonwealth is entitled to expect Services that comply with the Contract and the Commonwealth's requirements.
This clause provides a remedy to the Commonwealth for non-complying Services submitted by the Consultant.
User Guidance
This clause enables the Commonwealth's Representative to instruct the Consultant to respond to any non-complying Services in any one or more of the following ways:
(a) to re-perform the non-complying Services by a specified time;
(b) to take all reasonable steps to mitigate the effect of the non-compliance on the Commonwealth; and
(c) to take all reasonable steps to put the Commonwealth as closely as possible in the position in which it would have been if the Consultant had carried out the Services in accordance with the Contract.
Alternatively, the Commonwealth's Representative may advise the Consultant that the Commonwealth will accept the non-complying Services despite the non-compliance.
Clause 6.3 provides that, where the Commonwealth's Representative gives a direction under clause 6.2, the Consultant must re-perform the non-complying Services within the time specified and so as to minimise delay and disruption to the execution of the Project in general.
A proforma notice for the Commonwealth's Representative to notify the Consultant of non-complying Services, and issue instructions, is provided in this Manual.
Clause 6.2 - Non-Complying Services
If the Commonwealth's Representative discovers or believes that any Services have not been performed in accordance with the Contract, the Commonwealth's Representative may give the Consultant an instruction specifying the non-complying Services and doing one or more of the following:
(a) requiring the Consultant to:
(i) re-perform the non-complying Services and specifying the time within which this must occur; and
(ii) to take all such steps as are reasonably necessary to:
A. mitigate the effect on the Commonwealth of the failure to carry out the Services in accordance with the Contract; and
B. put the Commonwealth (as closely as possible) in the position in which it would have been if the Consultant had carried out the Services in accordance with the Contract;
(b) advising the Consultant that the Commonwealth will accept the non-complying Services despite the
Clause 6.3 - Re-performance of the Non-complying Services
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Key Message
This clause identifies the steps the Consultant should take when directed by the Commonwealth to re-perform non-complying Services in accordance with clause 6.2.
User Guidance
The Consultant is obliged to re-perform the Services in a timely manner and minimise any delay or disruption to the Project.
Clause 6.3 - Re-performance of the Non-complying Services
If a direction is given under clause 6.2, the Consultant must re-perform the non-complying Services:
(a) within the time specified in the Commonwealth's Representative's instruction;
(b) so as to minimise any delay and disruption to the Services; and
(c) so as to minimise the delay and disruption to the Project.
The Commonwealth is entitled to expect the Service be performed in a timely manner, taking into consideration the operational requirements involved with material security issues.
This clause ensures the Consultant will develop a program for the services and achieve Completion in accordance with that program.
Clause 7.1 - Progress
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Key Message
The Consultant has a best endeavours obligation to achieve Completion of each Milestone in accordance with the approved program.
The Consultant must co-ordinate its activities in accordance with the timeframes specified in the relevant Project Contracts.
User Guidance
This clause sets out the primary obligations of the Consultant to complete the Services. Essentially the Consultant must perform the Services in a timely manner, use its best endeavours to achieve Completion of each Milestone by the time set out in the Consultant's approved program, and perform the Services within the time limits specified in the Project Contracts.
Clause 7.1 - Progress
The Consultant must:
(a) perform the Services in a timely manner;
(b) use its best endeavours to achieve completion of each Milestone within the time set out in the approved program under clause 7.2; and
(c) without being limited by paragraph (b), perform the Services within any time limits specified in the Project Contracts.
The program is a management tool to assist all parties.
The program is not part of the Contract and cannot relieve the Consultant from, or alter any of its liabilities or obligations under the DIP and the Contract.
Compliance with programming requirements is a condition precedent to payment under the DIP.
User Guidance
Clause 7.2 requires the Consultant to provide the Commonwealth's Representative with a program within 14 days of the Award Date. Programs are used as a management tool to assist the parties and the Commonwealth's Representative. The extent to which the programming provisions are relevant will heavily depend on the nature of the Services to be provided.
Not only must the Consultant prepare a program within 14 days of entering into the Contract it must also update the program periodically at specific intervals to take account of any changes to the program or delays which may have occurred.
Unlike some standard form contracts used in the construction industry, where the program forms part of the contract, under the definition of the term 'Contract' at clause 1.1 and clause 7.2 the program is not part of the Contract. This is to overcome the potentially inconsistent obligations which may arise if the Consultant has to comply with both the Contract and the program.
Further, clause 7.3 provides that not only is the program not part of the Contract, but any approval, review or comment or any failure to review or comment upon a program by the Commonwealth's Representative does not alter the Consultant's liabilities or obligations under the Contract.
The program is to contain the details required by the Contract (including the Milestones) and which the Commonwealth's Representative otherwise reasonably directs.
Apart from being a general indication of projected sequencing and durations, a simple program will be of extremely limited use to a Commonwealth's Representative.
To be useful, a program should be to a large scale and:
(a) include sufficient detail to describe the major elements of the Services;
(b) include allowance for usual details / events;
(c) identify key activities by others, such as:
(i) supply of documentation or information by Commonwealth's Representative;
(ii) approval processes by both the Commonwealth's Representative or Commonwealth and other authorities; and
(iii) dates for Milestones dependent on the Commonwealth;
(d) provide estimated duration of activities and key precedence relationships between critical or near-critical activities;
(e) provide the sequence of activities which constitute the critical path at the time of inception of the program and its logic; and
(f) provide the levels of administrative, management and supervisory staff required over the duration of the Contract.
(a) within 14 days of the Award Date, prepare a program of the Services which must:
(i) be based upon the Commonwealth's Program; and
(ii) contain the details required by the Contract (including the Milestones) and which the Commonwealth's Representative otherwise reasonably directs;
(b) update the program periodically at least at intervals of no less than that specified in the Contract Particulars to take account of:
(i) changes to the program;
(ii) changes to the Commonwealth's Program; or
(iii) delays which may have occurred;
(c) give the Commonwealth's Representative copies of all programs for approval; and
(d) provide all programs in a format compatible with the software described in the Contract Particulars.
Clause 7.3 - Consultant Not Relieved
Any review of, comments upon or approval of, or any failure to review or comment upon, a program by the Commonwealth's Representative will not relieve the Consultant from or alter its liabilities or obligations under the Contract.
Clause 7.4 - Suspension
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Proforma notice Proforma notice
Key Message
The Commonwealth's Representative may, at times, be required to suspend the Services performed under the Contract for a variety of reasons, such as for safety reasons or policy reasons.
The power to suspend does not have to be exercised for the benefit of the Consultant.
Where the suspension arises due to a fault of the Consultant, the Consultant may make no claim for costs.
If a suspension arises from other causes the Consultant may claim extra costs reasonably incurred (which it is obliged to mitigate).
User Guidance
The Consultant has no right to suspend the Services under the Contract unless it is ordered to do so by the Commonwealth's Representative under this clause (or if Security of Payment Legislation permits such a suspension).
The Commonwealth's Representative may in its absolute discretion order the Consultant to suspend the Services. The Consultant will be entitled to claim payment for its extra costs, unless the suspension is the result of the Consultant's failure to perform its contractual obligations. The entitlement to payment for those extra costs is the Consultant's only entitlement to make a claim in these circumstances. The Consultant will not be entitled to costs which could have reasonably been avoided (i.e. it must mitigate the extra costs incurred).
A proforma notice for instructing the Consultant to suspend work is provided in this Manual. A proforma notice is also provided in this Manual for the purposes of instructing the Consultant to re-commence performance of the
(i) may instruct the Consultant to suspend and, after a suspension has been instructed, to re-commence, the carrying out of all or a part of the Services; and
(ii) is not required to exercise the Commonwealth's Representative's power under subparagraph (i) for the benefit of the Consultant.
(b) If a suspension under this clause 7.4 arises as a result of:
(i) the Consultant's failure to carry out its obligations in accordance with the Contract, the Consultant will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the suspension; or
(ii) a cause other than the Consultant's failure to carry out its obligations in accordance with the Contract:
A. an instruction to suspend under this clause 7.4 will entitle the Consultant to be paid by the Commonwealth the extra costs reasonably incurred by it as a result of the suspension as determined by the Commonwealth's Representative;
B. the Consultant must take all steps possible to mitigate the extra costs incurred by it as a result of the suspension; and
C. the Consultant will not be entitled to make any other Claim against the Commonwealth arising out of, or in any way in connection with, the suspension other than under this subparagraph (ii).
(c) Except to the extent permitted by the relevant Security of Payment Legislation, the Consultant may only suspend the Services when instructed to do so under this clause 7.4.
Clause 7.5 - Acceleration
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Proforma notice
Key Message
The Commonwealth may require the Services to be accelerated because of changes in the Project program or for operational reasons.
In the event the Commonwealth's Representative directs that an acceleration occur, the Consultant will be required to use its best endeavours to accelerate the Services to achieve Completion of a Milestone by a date earlier than that specified in the approved program.
User Guidance
The Commonwealth's Representative can provide the Consultant with written notice requiring it to achieve Completion of a Milestone by a date earlier than the date in the approved program under clause 7.2. The Consultant only has a "best endeavours" obligation to achieve the "Accelerated Milestone Date".
The intention is that the Commonwealth be able to require the Consultant to complete the Services earlier than originally agreed, to meet the Commonwealth's operational requirements. In exchange, the Consultant is entitled
to any extra costs properly and reasonably incurred.
A proforma notice for the Commonwealth's Representative to instruct the Consultant to accelerate is provided in this Manual.
Clause 7.5 - Acceleration
(a) The Commonwealth's Representative may at any time and from time to time, by written notice to the Consultant, require the Consultant to use its best endeavours to achieve a Milestone by a date earlier than the date in the then approved program under clause 7.2 (Accelerated Milestone Date).
(b) If a direction is given by the Commonwealth's Representative under paragraph (a), the Consultant must:
(i) use its best endeavours to:
A. accelerate the performance of the Services; and
B. otherwise do all things necessary,
to achieve Completion of the Milestone by the Accelerated Milestone Date; and
(ii) keep the Commonwealth's Representative fully and regularly informed of the progress of the Services against the Accelerated Milestone Date.
(c) The Consultant will:
(i) be entitled to its extra costs properly and reasonably incurred in complying with paragraph (a); and
(ii) not be entitled to make any Claim, other than for payment of an amount in accordance with subparagraph (i), arising out of or in connection with a direction by the Commonwealth's Representative under paragraph (a).
CLAUSE 8 - PHASES - PLANNING PHASE AND DELIVERY PHASE
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Policy Background
Clause 8 should be used where the Commonwealth wants to phase the performance of the Services, including where the project is subject to certain approvals, and/or where the scope of the Delivery Phase is not sufficiently certain at time of request for proposal. This clause will always apply to contracts under the DIP for PM/CA Services.
This clause allows for a two-phased delivery of the Services, comprising the Planning Phase and the Delivery Phase. The Planning Phase includes two sub-phases which comprise Delivery Phase Agreement and Delivery Phase Approval.
Prior to Delivery Phase Agreement, the Consultant is to prepare a resource plan for the Delivery Phase (including its proposed Fee for the Services in the Delivery Phase and a proposed Milestone Fee Payment Schedule for the Delivery Phase). The Consultant and the Commonwealth must also undertake genuine and good faith negotiations to reach agreement as to the adjustment to the Indicative Delivery Phase Fee and Milestone Fee Payment Schedule submitted by the Consultant as part of its proposal for the Services.
Prior to Delivery Phase Approval, all Government Approval, Parliamentary Approval and other relevant approvals must be obtained for the Project. Delivery Phase Agreement and Delivery Phase Approval under any relevant Project Contract must all be achieved.
The Commonwealth may elect not to proceed with the Consultant to the Delivery Phase if:
(a) it does not approve the resource plan submitted by the Consultant for the Delivery Phase;
(b) it is not satisfied with the performance of the Consultant under the Contract in the Planning Phase;
(c) Delivery Phase Agreement and Delivery Phase Approval under the Project Contract (if any) are not achieved;
(d) it does not agree with the adjustment to the Fee for the Delivery Phase proposed by the Consultant;
(e) the Commonwealth does not obtain Government Approval, Parliamentary Approval, and all necessary approvals in accordance with the PGPA Act; and
(f) the Consultant otherwise fails to comply with all of its obligations under the Contract.
Accordingly, the Commonwealth may proceed to have the Services performed by a third party and use the Project Documents prepared in the Planning Phase.
Clause 8.1
This clause 8 applies if:
(a) the Services involve Project Management/Contract Administration Services and a Project Contract involves managing contractor delivery; or
(b) the Contract Particulars otherwise states it applies.
The Consultant must acknowledge that the Services are being delivered in two phases.
User Guidance
The Consultant must acknowledge that the Services are being divided into two distinct phases and agree to the purpose for this delivery approach.
The Consultant must agree that there may not be a Delivery Phase, and that it may not been engaged to carry out the Services for any Delivery Phase.
The Consultant must also acknowledge that there may be periods of inactivity between the Planning Phase and the Delivery Phase, and agree that between the phases it will retain suitable, qualified personnel available to perform the Services.
Clause 8.2 - General
(a) The Services are divided into two distinct phases, being the Planning Phase and the Delivery Phase.
(b) The Consultant acknowledges and agrees that the purpose of this division is to:
(i) enable the Commonwealth to ascertain (in its absolute discretion) whether it will maximise value for money by having the Consultant proceed with the Services for the Delivery Phase;
(ii) allow for various departmental, government and parliamentary approvals required for the Works; and
(iii) give the Commonwealth an opportunity to establish whether it is satisfied (in its absolute discretion) with the performance of the Consultant before proceeding from the Planning Phase to the Delivery Phase.
(c) The Consultant acknowledges and agrees that as a result of the matters described in paragraph (b):
(i) there may not be a Delivery Phase;
(ii) if there is a Delivery Phase, the Consultant may not be engaged to carry out the Services for the Delivery Phase; and
(iii) there may be periods of inactivity of various durations in and between the Planning Phase and the Delivery Phase (if any), whether as a result of a delay in any direction under clause 8.4(a) or 8.4(b) or otherwise. Such periods of inactivity will not amount to a suspension under clause 7.4 or entitle the Consultant to any Claim against the Commonwealth.
(d) Notwithstanding paragraph (c), the Consultant must ensure that, in and between the Planning Phase and the Delivery Phase (if any), it retains appropriate, suitably qualified personnel available to perform the Services.
The Consultant must (prior to the Date for Delivery Phase Agreement) prepare and submit to the Contract Administrator for approval a resource plan for Delivery Phase Services.
User Guidance
The Consultant must submit a resource plan for the Delivery Phase which must:
(a) identify all the services required for completion of the Project (which a competent and experienced Consultant would anticipate and provide for in its resource plan);
(b) include a detailed breakdown of cost in respect each part of the Services for the Delivery Phase;
(c) include the proposed Fee for the Services in the Delivery Phase;
(d) include a proposed Milestone Fee Payment Schedule (if applicable) for the Services in the Delivery Phase;
(e) be prepared having regard to all relevant considerations set out under clause 8.3; and
(f) address all other matters required by the Commonwealth's Representative.
If any resource plan is rejected, the Consultant must submit an amended resource plan. The Consultant must cooperate with various people in the preparation of the resource plan.
If a resource plan is approved by the Commonwealth's Representative, it will issue a written notice to the Consultant. If the Consultant does not prepare a resource plan which is approved prior to the Date for Delivery Phase Agreement (as applicable), the Commonwealth may issue a notice not to proceed with the relevant phase.
The Commonwealth's Representative may engage a third party to perform an external audit to determine whether to approve a resource plan. The Consultant must cooperate with the Commonwealth's Representative.
A proforma notice is included in this Manual for the Commonwealth's Representative to give notice to the Consultant of additional matters to be considered in preparing a resource plan.
Proforma notices have also been included in this Manual for the purposes of the Commonwealth's Representative rejecting or approving a resource plan submitted by the Consultant.
Clause 8.3 - Resources for Delivery Phase
(a) Prior to the Date for Delivery Phase Agreement, the Consultant must:
(i) prepare a resource plan, based on the Indicative Delivery Phase Resource Plan, for the Services for the Delivery Phase; and
(ii) submit the resource plan to the Commonwealth's Representative for approval.
(b) The resource plan to be prepared under paragraph (a) must:
(i) identify in detail all services required for completion of the Project, which a competent and experienced Consultant would anticipate and provide for in its resource plan;
(ii) include a detailed breakdown of cost in respect of each part of the Services for the Delivery Phase;
(iii) include the proposed Fee for the Services for the Delivery Phase;
(iv) if a Milestone Fee Payment Schedule applies, include a proposed Milestone Fee Payment Schedule for the Services for the Delivery Phase;
(v) include all such other matters as the Commonwealth's Representative may require in writing; and
(vi) be prepared having regard to all relevant considerations including:
A. the Indicative Delivery Phase Resource Plan and the Indicative Delivery Phase Fee Proposal;
B. the paramount importance to the Commonwealth of balancing between minimising the cost of the Services for the Delivery Phase and achieving completion of the Project (on the one hand) and optimising the level of resources provided by the Consultant for the performance of the Services for the Delivery Phase (on the other hand);
C. demonstrably maximising value for money for the Commonwealth and complying with the Commonwealth Procurement Rules; and
D. all other relevant considerations, arising out of or in connection with or reasonably incidental to or to be inferred from the considerations in subsubparagraphs A - C, which the Commonwealth's Representative may from time to time notify to the Consultant in writing.
(c) The Consultant must:
(i) if any resource plan submitted by the Consultant is rejected by the Commonwealth's Representative, submit a revised resource plan;
(ii) in the process of preparing the resource plan or a revised resource plan, co-operate with the Commonwealth, the Commonwealth's Representative and all other people nominated by the Commonwealth's Representative for the purpose of furthering the considerations referred to in paragraph (b)(vi); and
(iii) take all possible steps necessary to ensure that the proposed Fee for the Delivery Phase does not exceed the Indicative Delivery Phase Fee, including all such reasonable steps directed by the Commonwealth's Representative.
(d) If the resource plan is approved by the Commonwealth's Representative, then the Commonwealth's Representative will issue a written notice to the Consultant.
(e) If the Consultant does not prepare a resource plan (or a revised resource plan) which is approved by the Commonwealth's Representative under paragraph (d) before the Date for Delivery Phase Agreement, then the Commonwealth may elect to issue a notice under clause 8.5(a)(ii)A or 8.5(a)(ii)B.
(f) To assist the Commonwealth's Representative in determining whether or not to approve a resource plan (or a revised resource plan):
(i) the Commonwealth's Representative may engage a third party to perform an external audit of the resource plan; and
(ii) the Consultant must co-operate with the Commonwealth's Representative and that third party.
Clause 8.4 - Adjustment of Indicative Delivery Phase Fee and any Milestone Fee Payment Schedule
This clause sets out further requirements regarding the process of preparing and agreeing the Consultant's resource plan for the Delivery Phase.
User Guidance
This clause provides the Consultant must (as part of preparing and submitting its resource plan for approval) the Consultant must undertake genuine and good faith negotiation with the Commonwealth's Representative to reach agreement as to any adjustment required to the Indicative Delivery Phase Fee (as a result of any design development, resource planning and programming carried out by the Consultant or by Project Contractor under the Project Contract in the Planning Phase) and any applicable Milestone Fee Payment Schedule, having regard to the Delivery Phase Fee Proposal and the Schedule of Rates.
If the agreement is reached by the required date, the Commonwealth's Representative will prepare minutes recording the agreement and the parties’ rights and obligations will be subject to the matters agreed, as recorded.
Any preparation or issue of minutes of agreement under this clause does not constitute a notice or election by Defence to proceed with the Services for the Delivery Phase.
If agreement is not reached prior to the Date for Delivery Phase Agreement (as applicable), the Commonwealth may elect to issue a notice not to proceed with the Services for the Delivery Phase.
Clause 8.4 - Adjustment of Indicative Delivery Phase Fee and any Milestone Fee Payment Schedule
(a) As part of the process of preparing the resource plan for the approval of the Commonwealth's Representative under clause 8.3 and in any event by no later than the Date for Delivery Phase Agreement, the Consultant must undertake genuine and good faith negotiations with the Commonwealth's Representative to reach agreement as to:
(i) the adjustment (if any) required to the Indicative Delivery Phase Fee as a result of any design development, resource planning and programming carried out by the Consultant or by the Project Contractor under the Project Contract in the Planning Phase; and
(ii) if a Milestone Fee Payment Schedule applies, the adjustment (if any) required to the Milestone Fee Payment Schedule,
having regard to the Indicative Delivery Phase Fee Proposal and, in the case of the adjustment (if any) to the Indicative Delivery Phase Fee, the Schedule of Rates.
(b) If agreement on all of the matters in paragraph (a) is reached by the Date for Delivery Phase Agreement:
(i) the Commonwealth's Representative will prepare written minutes recording the agreement; and
(ii) the parties' rights and obligations under the Contract will be subject to the matters agreed, as recorded in the minutes.
(c) If:
(i) agreement on all the matters in paragraph (a) is not reached; or
(ii) the Commonwealth's Representative does not issue written certification that the Commonwealth is satisfied with the performance of the Consultant under the Contract up to the Date for Delivery Phase Agreement,
This clause is critical in determining whether the project will proceed to the Delivery Phase.
User Guidance
Under this clause, the Commonwealth is required to give one of the following notices to the Consultant:
(a) a notice that the Delivery Phase Agreement has been achieved (including the date on which it was achieved). A proforma notice titled ‘Notice of Delivery Phase Agreement’ is provided in this Manual below; or
(b) if Delivery Phase Agreement has not been achieved, a notice advising the Consultant of this and stating whether and the extent to which clause 8.8 applies. A proforma notice titled ‘Notice of failure to achieve Delivery Phase Agreement’ is provided in this Manual below.
If Delivery Phase Agreement has been achieved and the notice duly issued, the Commonwealth must also (in due course) issue a notice advising the Consultant of whether Delivery Phase Approval has been achieved (and if so, the date on which it was achieved). A proforma notice titled ‘Notice of Delivery Phase Approval’ is provided in this Manual below. Similarly, it must notify if Delivery Phase Approval has not been achieved, and a proforma notice titled ‘Notice of failure to achieve Delivery Phase Approval’ is provided in this Manual below.
Note also that the Terms of Engagement are silent as to what is to happen if Delivery Phase Approval is obtained after the Date for Delivery Phase Approval. This is because the Commonwealth has an absolute discretion to unilaterally extend the Date for Delivery Phase Agreement or the Date for Delivery Phase Approval at any time under clause 8.5(d). A proforma notice titled ‘Extension of [Planning Phase Milestone Date/Date for Delivery Phase Agreement/Date for Delivery Phase Approval]’ is provided in this Manual below to allow the Commonwealth's Representative to extend the Date for Delivery Phase Agreement, the Date for Delivery Phase Approval. If the Commonwealth is prepared to allow Delivery Phase Approval to occur after the original date, it should always exercise the power to extend, to create a new Date for Delivery Phase Approval.
Clause 8.5(f) aims to limit the Consultant’s ability to make any claims against the Commonwealth as a result of any Act of Prevention. It is stated that any Act of Prevention (which is defined broadly) which will prevent:
(c) the Consultant from finalising an approved resource plan by the Date for Delivery Phase Agreement;
(d) achieving agreement on the matters in clauses 8.4(a)(i) - 8.4(a)(ii) by the Date for Delivery Phase Agreement;
(e) satisfaction with the performance of the Consultant under the Contract by the Date for Delivery Phase Agreement,
will not:
(f) entitle the Consultant to bring a Claim against the Commonwealth; or
(g) limit or affect any right of the Commonwealth or the Commonwealth's Representative, including the right of the Commonwealth to elect not to proceed with the Consultant to the Delivery Phase or to issue a notice under clauses 8.5(a)(ii).
The reason that this provision is included arises out of the general law rule known as the “prevention principle”. Defence Infrastructure Panel 2017-2022Contract Manual Volume 2: Contract ManagementCUFooterText 93
That is, under the general law one party cannot complain of a failure of the other party to perform a contractual obligation, if the first party has prevented the other party from performing that obligation. Clause 8.5(f) seeks to exclude the application of this principle to the Planning Phase process, to the extent possible.
While clause 8.5(f) appears to give the Commonwealth significant protection against any consequences flowing from Acts of Prevention, if any Acts of Prevention could prevent the Consultant from doing anything in (c) - (e) above, then the Commonwealth should immediately obtain legal advice from a member of the Defence Legal Panel.
Clause 8.5 - Delivery Phase Agreement and Delivery Phase Approval
(a) The Commonwealth must:
(i) if Delivery Phase Agreement is achieved, issue a written notice to the Consultant stating the date upon which Delivery Phase Agreement was achieved;
(ii) if Delivery Phase Agreement has not been achieved (whether because of the circumstances referred to in clause 8.3(e) or 8.4(c) or otherwise), issue a written notice so advising the Consultant; and:
A. stating that clause 8.6(d) does not apply; or
B. stating the date from which and to the extent to which clause 8.6(d) is to apply;
(iii) after a notice has been issued under subparagraph (i):
A. if Delivery Phase Approval is obtained, issue a written notice to the Consultant stating the date upon which Delivery Phase Approval was obtained; and
B. if Delivery Phase Approval has not been obtained, issue a written notice so advising the Consultant.
(b) If the Commonwealth issues a notice under clause 8.5(a)(ii)B or 8.5(a)(iii)B, then the parties must comply with their respective obligations in accordance with the Contract, subject to clause 8.4(b)(ii).
(c) The Consultant acknowledges that:
(i) it will have no entitlement to perform the Services for the Delivery Phase unless the Commonwealth issues a notice under clause 8.5(a)(ii)B or 8.5(a)(iii)B; and
(ii) without limiting clause 8.2, the splitting of the Services as between the Planning Phase and the Delivery Phase is solely for the benefit of the Commonwealth, to enable the Commonwealth to ascertain whether it will maximise value for money for the Commonwealth and otherwise further the considerations referred to in clause 8.3(b)(vi) in engaging the Consultant to perform the Services for the Delivery Phase and the rights and obligations of the parties and the functions of the Commonwealth's Representative are to be construed accordingly.
(d) The Commonwealth may at any time and from time to time, by written notice to the Consultant unilaterally extend the Date for Delivery Phase Agreement or the Date for Delivery Phase Approval.
(e) Neither an extension of the Date for Delivery Phase Agreement or the Date for Delivery Phase Approval under paragraph (d), nor the issue of a notice under paragraph (a)(ii) or (a)(iii)B, will:
(i) limit or affect the Consultant's obligations or liabilities under this Contract or prejudice the right of the Commonwealth to exercise any right or remedy (including recovery of damages, whether while electing to keep the Contract on foot or after termination) which it may have where the Consultant breaches the Contract, whether under the Contract or otherwise according to law; or
(ii) entitle the Consultant to bring a Claim against the Commonwealth.
(f) The Consultant acknowledges that any Act of Prevention which prevents:
(i) finalisation of a resource plan which is approved by the Commonwealth's Representative as required under clause 8.3(a) by the Date for Delivery Phase Agreement;
(ii) agreement on all the matters in clause 8.4(a)(i) - 8.4(a)(ii) as required under clause 8.4(a) by the Date for Delivery Phase Agreement; or
(iii) satisfaction with the performance of the Consultant under the Contract as required under clause 8.4(c)(ii) by the Date for Delivery Phase Agreement,
will not:
(iv) entitle the Consultant to bring a Claim against the Commonwealth; or
(v) limit or affect any right of the Commonwealth or the Commonwealth's Representative, including the right of the Commonwealth to elect not to engage the Consultant to perform the Services for the Delivery Phase or to issue a notice under clause 8.5(a)(ii),
whether on the basis that the obligation to finalise or agree the relevant matter or achieve the relevant satisfaction referred to in subparagraph (i) or (ii) has become an obligation to finalise or agree the relevant matter or achieve the relevant satisfaction within a reasonable time or on any other basis at law or in equity.
Clause 8.6 - Failure to Achieve Delivery Phase Agreement or Delivery Phase Approval
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Key Message
This clause sets out the Consultant’s entitlements and obligations, and the Commonwealth's entitlements, where the Consultant fails to achieve Delivery Phase Agreement or Delivery Phase Approval.
User Guidance
If the Consultant fails to achieve Delivery Phase Agreement or Delivery Phase Approval, unless the Commonwealth waives the requirement to achieve Delivery Phase Agreement or Delivery Phase Approval under clause 8.6(d), the Consultant will:
(a) have no entitlement to perform the Services for the Delivery Phase;
(b) be entitled to payment of the Fee due and payable for the Services completed before the issue of the notice; and
(c) not be entitled to payment of any portion of the Fee or to make any Claim (to the extent permitted by law) other than for the amount stated above.
The Consultant must then:
(d) hand over to the Commonwealth's Representative copies of Project Documents prepared by the Consultant;
(e) take all steps necessary to novate to Defence any of the subconsultants required by the Commonwealth's Representative to be novated; and
(f) cooperate with the Commonwealth and any third parties required by the Commonwealth's Representative, and take all other steps necessary, to ensure that the Commonwealth is able to re-tender or procure the performance of the Services for the Delivery Phase.
The Commonwealth is then entitled to:
(g) re-tender the performance of the Services for the Delivery Phase or procure the performance of the Services for the Delivery Phase in any other manner which it may determine; and
(h) use the Project Documents for those purposes.
However, as mentioned above, clause 8.6(d) enables the Commonwealth to, in its absolute discretion, waive the requirement that the Consultant achieve Delivery Phase Agreement and Delivery Phase Approval before it commences performing certain parts of the Services for the Delivery Phase. This clause provides the mechanism for the Commonwealth to allow the Consultant to commence these parts of the Services and for the determination of the fees to be paid for such services.
However, as stated above, the Commonwealth cannot waive the requirement to obtain Parliamentary Approval compliance. Advice must be sought from the Directorate of Program Assurance before taking any action under this clause.
Clause 8.6 - Failure to Achieve Delivery Phase Agreement or Delivery Phase Approval
If the Commonwealth issues a notice under clause 8.5(a)(ii)A or 8.5(a)(iii)B, then:
(a) subject to paragraph (d), the Consultant will:
(i) have no entitlement to perform the Services for the Delivery Phase;
(ii) be entitled to payment of the Fee and due and payable for the Services completed in accordance with the Contract before issue of the relevant notice; and
(iii) not be entitled to payment of any portion of the Fee or to make any Claim (to the extent permitted by law) against the Commonwealth arising out of, or in any way in connection with, the relevant notice, this Contract, the Services or the Project other than for the amount payable under subparagraph (ii);
(b) subject to paragraph (d), the Consultant must:
(i) immediately hand over to the Commonwealth copies (or, where required by the Commonwealth's Representative, originals) of all Project Documents prepared by the Consultant to the date of issue of the relevant notice (whether complete or not);
(ii) immediately take all steps necessary to novate to the Commonwealth any of the subconsultants required by the Commonwealth's Representative to be novated; and
(iii) co-operate with the Commonwealth and any third parties required by the Commonwealth's Representative and take all other steps necessary to ensure that the Commonwealth is able to re-tender or procure the performance of the Services for the Delivery Phase under paragraph (c)(i);
(c) subject to paragraph (d), the Commonwealth may:
(i) re-tender the performance of the Services for the Delivery Phase (whether with or without obtaining a tender from the Consultant) or procure the performance of the Services for the Delivery Phase in any other manner which the Commonwealth may determine; and
(ii) use the Project Documents for the purposes of re-tendering or procuring the performance of the Services under subparagraph (i); and
(d) the Commonwealth may waive the requirement that the Consultant obtain Delivery Phase
Agreement and Delivery Phase Approval before performing certain parts of the Services for the Delivery Phase, in its notice under clause 8.5(a)(ii), in which case:
(i) the relevant provisions of the Contract will apply to those Services as if they were the only services included in the Services for the Delivery Phase; and
(ii) the Fee and any Milestone Fee Payment Schedule will be adjusted:
A. as agreed by the parties; or
B. if not agreed within 14 days of the notice, by the reasonable amount as determined by the Commonwealth's Representative.
CLAUSE 9 - VARIATION
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Policy Background
A Variation is the primary means by which the Commonwealth can change the scope of services under the Contract. The Commonwealth may have multiple reasons for directing a Variation, such as operational reasons or national security reasons. As such, it is critical that the Commonwealth's Representative follow the procedure set out in clause 9 when issuing a Variation.
Valuation of Variations is an area of administration which is often not accorded the appropriate timely action. It is also often an area of high disputation between contracting parties relative to value.
Whilst the Terms of Engagement do not expressly state any time constraint as to when valuation of a Variation is to occur, it is important, if possible, to finalise all implications of a Variation (both time and cost) at the time of its instruction.
A Variation is defined in clause 1.1 as being (unless otherwise stated) any change to the Services, including any addition, increase, decrease, omission, deletion, demolition to or from the Services. Note that the definition is in relation to a change in the scope of work. Thus, a Variation will not necessarily involve a change to the Fee.
At any time under the Contract, the Commonwealth's Representative may issue a Variation Price Request to the Consultant detailing a proposed Variation. As agent of the Commonwealth, the Commonwealth's Representative should only propose a Variation if it is required by the Commonwealth.
It is a strategic decision whether or not to change the Services. Advice should be sought from the Directorate of Program Assurance if a significant change is contemplated.
The Consultant must respond to any Variation Price Request providing details of the effect the Variation would have on the contract program and the effect on the Fee (if any).
In the first instance, a Variation is usually priced by the Consultant and submitted to the Commonwealth's Representative for agreement. As a consequence, the onus will generally be on the Consultant to present adequate detail and substantiation of the amounts and quantities included in its Variation proposal.
Records will be essential, from the perspective of both the Commonwealth's Representative and the Consultant, particularly if the payment method is not agreed and, even if agreed, in the case of a dispute arising.
Direct costs of material, travel expenses, etc., should be supported as necessary by the Consultant by invoices and other cost breakdowns and basic materials as appropriate.
A Variation is any change to the Services, including any addition, increase, decrease, omission or deletion to or from the Services.
A Variation Price Request allows the Commonwealth's Representative to outline a proposed Variation and also ascertain the effect (if any) that Variation will have on the Fee and the approved program.
This process allows the Commonwealth to conduct a cost benefit analysis of the proposed Variation prior to committing to the Variation. Furthermore, it increases the likelihood the parties will agree on the time and cost consequences of any Variation.
User Guidance
All Variations ordered by the Commonwealth's Representative should be issued using the proforma Variation Price Request provided in this Manual or by issuing a Variation Order under clause 9.2 (in which case any adjustment to the Fee will be determined later).
Variations can only be ordered prior to Completion of the Services.
The Consultant must respond to a Variation Price Request within 14 days of receipt. A proforma response to a Variation Price Request is provided in this Manual. In any event, whether or not the Consultant provides a compliant response within 14 days, the Commonwealth's Representative is entitled to issue a Variation Order and determine any adjustment to the Fee in accordance with clause 9.2.
Clause 9.1 - Variation Price Request
(a) The Commonwealth's Representative may, at any time, issue a document titled "Variation Price Request" to the Consultant which will set out details of a proposed Variation which the Commonwealth is considering with respect to the Services.
(b) The Consultant must immediately take all action required under any relevant subcontract in relation to each subconsultant that would be involved in carrying out the proposed Variation.
(c) Within 14 days of the receipt of a "Variation Price Request", the Consultant must provide the Commonwealth's Representative with a written notice in which the Consultant sets out:
(i) the adjustment (if any) to the Fee to carry out the proposed Variation; and
(ii) the effect (if any) which the proposed Variation will have on the then approved program.
Clause 9.2 - Variation Order
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Proforma notice
Key Message
The Commonwealth's Representative may, at any time, issue a written Variation Order to the Consultant instructing it to perform a Variation.
A Variation Order is a direction for the purposes of clause 4.1 and, as such, the Consultant is bound to comply with this order.
Once the Commonwealth is ready to order a Variation, the proforma Variation Order provided in this Manual should be used as this clause requires the Variation Order to be in writing.
There are three different ways in which the Variation can be priced under clause 9.2 (assuming that the Variation will have a cost impact on the Consultant in carrying it out). Option (a) should be selected when the Commonwealth's Representative has issued a Variation Price Request and is satisfied with the Consultant's proposed adjustment to the Fee. Options (b) and (c) are available where no Variation Price Request was issued, when the Commonwealth's Representative does not accept the Consultant's proposed adjustment to the Fee, or where there has been no response to a Variation Price Request.
Clause 9.2 - Variation Order
Whether or not the Commonwealth's Representative has issued a "Variation Price Request" under clause 9.1, the Commonwealth's Representative may at any time instruct the Consultant to carry out a Variation by a written document titled "Variation Order", in which the Commonwealth's Representative will state one of the following:
(a) the proposed adjustment to the Fee as set out in the Consultant's notice under clause 9.1 (if any) is agreed and the Fee will be adjusted accordingly; or
(b) any adjustment to the Fee will be determined under clauses 9.3(b) and 9.3(c).
No Variation will invalidate the Contract irrespective of the nature, extent or value of the services the subject of the Variation.
Clause 9.3 – Cost of Variation
Clause 9.4 – Rates and Prices
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Key Message
A Variation in the scope of Services may mean an adjustment to the Fee is required. The Terms of Engagement provide three ways to value the adjustment to the Fee as a result of a Variation directed by the Commonwealth’s Representative.
The applicable method of valuation for a Variation will be stated by the Commonwealth’s Representative in the Variation Order.
User Guidance
Where the Consultant has issued a response to a Variation Price Request which has been accepted in the Commonwealth's Representative's Variation Order, the Fee will be adjusted as agreed.
Where the Commonwealth's Representative has not issued a Variation Price Request or has not accepted the Consultant's written notice in response to a Variation Price Request, or where the Consultant did not issue a written response to a Variation Price Request, the cost of the Variation will be determined in accordance with clause 9.3(b) and (c).
Under clause 9.3(b), the Commonwealth's Representative determines the cost of the Variation by reference to any relevant rates or prices set out in the Schedule of Rates, found at Appendix 2 of the Panel Conditions. It is important to note that the question of applicability of rates or prices as a means of valuing a Variation under clause 9.3(b) requires careful consideration by the Commonwealth's Representative.
Generally, it is up to the Consultant to clearly demonstrate to the Commonwealth's Representative's satisfaction
that such rates or prices are not applicable against the background of the surrounding circumstances.
Where the Schedule of Rates does not apply, the parties may agree the cost of the Variation or, if they cannot agree, the Commonwealth's Representative will determine a reasonable amount under clause 9.3(c).
There is no express requirement under the Terms of Engagement that the Commonwealth's Representative notify the Consultant of the amount by which the Fee is to be adjusted under clause 9.3, nevertheless it would be good practice to ensure that this is done.
Further, if a Milestone Fee Payment Schedule applies, it is adjusted either as agreed by the parties or determined by the Commonwealth's Representative.
Clause 9.3 - Cost of Variation
The Fee will be increased or decreased for all Variations which have been the subject of a direction by the Commonwealth's Representative:
(a) as agreed under clause 9.2(a);
(b) if paragraph (a) does not apply, in accordance with the rates and prices in the Schedule of Rates, if and insofar as the Commonwealth's Representative determines that those rates or prices are applicable to, or it is reasonable to use them for valuing, the Variation; or
(c) to the extent paragraphs (a) and (b) do not apply, by a reasonable amount:
(i) to be agreed between the parties; or
(ii) failing agreement, determined by the Commonwealth's Representative; and
(d) if the Fee is adjusted under this clause 9.3 and a Milestone Fee Payment Schedule applies, the Milestone Fee Payment Schedule will be adjusted on a pro rata basis:
(i) to be agreed between the parties; or
(ii) failing agreement, determined by the Commonwealth's Representative.
Clause 9.4 - Rates and Prices
Where any rates and prices in the Schedule of Rates are used under clause 9.3(b), the rates and prices will be deemed to cover:
(a) all labour, materials, overheads and profit related to the work the subject of the Variation and compliance with the Consultant’s obligations under the Contract; and
(b) all costs and expenses which will be incurred by the Consultant arising out of or in any way in connection with the Variation.
Clause 9.5 - Omissions
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Key Message
The Commonwealth’s Representative may, under a Variation Order, omit any part of the Services that were to be performed by the Consultant.
This clause expressly provides the Commonwealth’s Representative may omit any part of the Services, by way of Variation Order, that were to be performed by the Consultant without exposing
the Commonwealth to any risk that the Consultant may validly terminate the Contract over any allegation that the Commonwealth has repudiated the Contract at common law.
User Guidance
Under this clause, the Commonwealth's Representative is entitled to issue a Variation that omits any part of the Services. The Commonwealth may then elect to carry out the omitted work itself or by engaging Other Contractors.
This clause is very important, as otherwise at common law handing over of work in this manner could constitute a repudiation of the contract.
Nonetheless, given the common law restrictions on exercising such a power, the Commonwealth's Representative should not attempt to exercise this power without first seeking specialist advice.
Clause 9.5 - Omissions
If a Variation, which is the subject of a direction by the Commonwealth's Representative, omits any part of the Services, the Commonwealth may thereafter carry out this omitted work either itself or by engaging Other Contractors.
Clause 9.6 – All Work Included
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Key Message
The Consultant cannot claim a Variation for work it has not factored into its Fee regardless of whether it is outlined in the Brief if the work is necessary to deliver and complete the Services.
User Guidance
The Consultant cannot claim, and the Commonwealth will not consider, a Variation for any Services which are required and for which the Consultant has failed to factor into its Fee. The Consultant must allow for all work necessary for the Services and cannot claim for such work simply because it is not expressly mentioned in the Brief.
Clause 9.6 - All Work Included
The Consultant has allowed for the provision of all work necessary for the Services, whether or not expressly mentioned in the Brief.
Any such work:
(a) must be undertaken and provided by the Consultant; and
(b) forms part of the Services and will not entitle the Consultant to make a Claim except as otherwise provided for in the Panel Agreement.
Security of payment. Security of Payment (SOP) legislation in all States and Territories imposes strict payment requirements on the Commonwealth. The Contract and clause 10 reflect these statutory requirements. In order to avoid proceedings under the SOP legislation, the Commonwealth should properly assess and verify each payment claim in a timely manner. If a proceeding are commenced under SOP legislation seek advice from the Directorate of Program Assurance without delay.
Payment Claims and Payment Statements. Proforma payment claims and payment statements are provided in this Manual.
Late payment. The Commonwealth must issue a payment statement within 10 days of receiving a valid payment claim.
Set-off. Debts and amounts due to the Commonwealth can be set-off against payment due to the Consultant. Advice should be sought from Directorate of Program Assurance before set-off is used to deduct amounts due to the Consultant.
Payment of workers and subconsultants. The Consultant must provide evidence that it has paid its subcontractors and subconsultants and compliance with this requirement is a condition precedent to payment.
Policy Background
Clause 10 sets up the contractual mechanisms for assessing the amount due to the Consultant and other amounts under the Contract. Assessment of such amounts is to be done by the Consultant submitting a payment claim, the Commonwealth assessing that claim and issuing a payment statement for the amount due to the Consultant.
It is for the Commonwealth to determine the value of the Services completed in accordance with the Contract, notwithstanding the Consultant's claim. The Commonwealth must not merely acquiesce to demands of the Consultant in respect of payment.
It is important for Consultants to remember that the Commonwealth is neither obligated, nor in the position to compensate, a Consultant for an inadequate proposal. The Commonwealth legally cannot disburse Commonwealth money without a clear and substantiated legal basis for the claim.
If there is any doubt as to the legal or factual basis for a claim, expert professional advice (be it legal, engineering, accounting or otherwise) should be sought.
Whilst the Commonwealth may probe and test the veracity and validity of the claim, it is to be remembered that the onus of proof (on the balance of probability) lies with the Consultant as claimant and the Commonwealth should not attempt to "make the claim" for the Consultant.
In essence, the Consultant should provide the claims in a format, and with such backup detail as is necessary, to allow the Commonwealth to readily establish the progress and value of the services provided under the Contract during the relevant claim period. Ideally, there should be some discussion and agreement at the commencement of the Project about the nature and extent of information to be submitted by the Consultant with each payment claim.
Clause 10.3 establishes a number of conditions precedent to the entitlement of the Consultant to submit payment claims, but the requirements of each project will dictate the other details that the Commonwealth requires to assess the claim. These details should be communicated to a Consultant as early on in the Project as possible to minimise delays and potential problems occurring later.
Further information is available from the Directorate of Program Assurance.
Security of Payment Legislation
In addition to the contractual entitlement to progress payments contained in clause 10, security of payment (SOP) SOP legislation in place in all States and Territories creates a statutory entitlement to progress payments as long as the requirements of the legislation giving rise to the relevant entitlement are satisfied.
The New South Wales, Victorian, Queensland, South Australia, Tasmania and Australian Capital Territory legislation goes further by also establishing a statutory procedure for a Consultant to claim and recover progress payments to which it is entitled. That statutory procedure exists independently of, and in addition to, any contractual procedure for claiming progress payments.
The Commonwealth requires (so far as it is able) all progress payment claims submitted under each Contract to also be claims under the relevant statutory procedure to the extent that the relevant New South Wales, Victorian, Queensland, South Australian, Tasmanian or Australian Capital Territory SOP legislation applies. If the proforma payment claim included in this Manual is used and completed properly by a Consultant, the claim will be both a claim under the Contract and under the relevant statutory procedure.
Where a claim has been made under the relevant statutory procedure in New South Wales, Victoria, Queensland, Tasmania, South Australia or the Australian Capital Territory, there are quite serious implications for the Commonwealth if the Commonwealth's Representative fails to adequately respond to the claim within the time required by the Contract and the SOP legislation. These implications are explained in more detail below under the heading "Clause 10.14 Security of Payment Legislation".
Clause 10 has been drafted so that the requirements of the statutory procedure, in terms of documents and timeframes, are also reflected in the Contract.
Therefore, if the parties meet the requirements of clause 10, they should also satisfy the requirements of the relevant statutory procedures applicable in New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory.
On the other hand, the Western Australian and Northern Territory SOP legislation implies terms for making claims for progress payments and responding to such claims, unless the contract makes express written provision about such matters.
Clause 10 has been drafted so that it contains those express written provisions. The result is that the terms about such matters set out in the SOP legislation are not implied.
Although clause 10 has been drafted to align with the SOP legislation around Australia, each SOP legislation regime imposes additional rights and responsibilities on the respective parties which cannot (and should not) be included in the Contract or contracted out of by the parties.
For this reason, it is essential that Commonwealth personnel are familiar with the requirements of the relevant SOP legislation. Further information is available from the Directorate of Program Assurance .
Clause 10.1 - Payment Obligation
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Key Message
The Commonwealth is obliged to pay the Consultant amounts (including the Fee) properly due under the Contract.
The Commonwealth may set-off (deduct) amounts due to the Consultants against debts or other amounts due to the Commonwealth.
Seek advice from Directorate of Program Assurance before applying set-off provisions.
User Guidance
The Commonwealth is contractually required to pay the Consultant the Fee and any other amounts which are payable to the Consultant under the Contract. This payment obligation is subject to the Commonwealth's right to set-off, which is set out in clause 10.11.
The set-off right entitles the Commonwealth to deduct from moneys which it would otherwise be paying to the Consultant:
(a) any debt or other moneys due from the Consultant to the Commonwealth; and
(b) any claim to money which the Commonwealth may have against the Consultant whether for damages or otherwise, whether under the Contract or otherwise at law relating to the Services; or
(c) any debt or claim referred to in paragraphs (a) or (b) from any moneys which may be or thereafter become payable to the Consultant by the Commonwealth in respect of any variation which is the subject of a "Variation Order" under clause 9.2.
Clause 10.1 - Payment Obligation
Subject to clause 10.11 and to any other right to set-off which the Commonwealth may have, the Commonwealth will pay the Consultant:
(a) the Fee; and
(b) any other amounts which are payable by the Commonwealth to the Consultant under the Contract.
Clause 10.2 - Payment Claims
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Proforma payment claim
Key Message
The Consultant claims payment from the Commonwealth by submitting a payment claim.
Payment claims must provide sufficient information to justify the Consultant's claim for payment. The Consultant's payment claim should provide sufficient details, calculations, supporting documentation and other information in respect of all amounts claimed by the Consultant. If sufficient information is not provided, the Commonwealth's Representative has the power to ask for further information in support of a payment claim.
Each Payment Claim should relate to the Fee, Schedule of Rates or amount agreed in accordance with the Contract. The primary issue when assessing Payment Claims will often be to confirm that the amount being claimed represents either the contractually stipulated (or, if not stipulated, an appropriate) portion of the lump sum to pay at the relevant time, having regard to the progress of the Services.
The proforma payment claim provided in this Manual may be used to prepare the Consultant's payment claims.
User Guidance
Clause 10.2 requires the Consultant to issue payment claims at certain times as stated in the Contract Particulars.
(a) is subject to certain "conditions precedent" being satisfied, as set out in clause 10.3;
(b) is in the format which the Commonwealth's Representative reasonable requires;
(c) is based on the Schedule of Rates to the extent it is relevant;
(d) must show separate amounts claimed for the Fee and other amounts claimed; and
(e) must attach sufficient details, calculations and other supporting documentation to enable the Commonwealth to fully and accurately determine the amounts then payable.
A proforma payment claim is provided in this Manual. The proforma payment claim provides that the payment claim is made under the Contract.
The Commonwealth can request (in writing) at any time for information/documentation to be provided by the Consultant in relation to any payment claim. A proforma notice titled 'Request for documentation or information' is provided in this Manual.
If a payment claim is not issued in a form that matches the proforma payment claim (or such other form as the Commonwealth requires) the requirements of clause 10.2 or the conditions precedent to making the claim set out in or 10.3 may not have been satisfied, in which case it will not be a valid claim under the Contract. However, the Commonwealth must nonetheless issue a payment statement under clause 10.4 in response to the payment claim.
The payment statement should set out the reasons why the conditions precedent are not met and/or the non-conforming circumstances and include a statement that the amount claimed is therefore not due under the terms of the Contract. However, before issuing such a payment statement, advice should be obtained from the Directorate of Program Assurance. In doing so, the Commonwealth must bear in mind that it must issue the payment statement within the timeframe specified in clause 10.4.
Clause 10.2 - Payment Claims
Subject to clause 10.3, the Consultant must give the Commonwealth's Representative claims for payment on account of the Fee and all other amounts then payable by the Commonwealth to the Consultant under the Contract:
(a) at the times stated in the Contract Particulars until completion of the Services or termination of the Contract (whichever is earlier);
(b) unless terminated earlier, after completion of the Services, within the time required by clause 10.7:
(c) in the format which the Commonwealth's Representative reasonably requires;
(d) which are based on the Schedule of Rates to the extent it is relevant;
(e) which show separately the amounts (if any) claimed on account of:
(i) the Fee; and
(ii) all other amounts then payable by the Commonwealth to the Consultant under the Contract; and
(f) which set out or attach sufficient details, calculations, supporting documentation and other information in respect of all amounts claimed by the Consultant:
(i) to enable the Commonwealth's Representative to fully and accurately determine (without needing to refer to any other documentation or information) the amounts then payable by the Commonwealth to the Consultant under the Contract; and
(ii) including any such documentation or information which the Commonwealth's Representative may by written notice from time to time require the Consultant to set out or attach, whether in relation to a specific payment claim or all payment claims
The Consultant must satisfy the conditions precedent before submitting a valid payment claim.
The Commonwealth may issue a payment statement that rejects a payment claim if a condition precedent has not been met. Denying payment on the basis that the Consultant has not complied with a condition precedent may be a more effective remedy to ensure compliance in respect of such issues as insurance, programming, payment of workers and subconsultants than exercising other contractual remedies.
User Guidance
Unless all of the conditions precedent to payment set out in clause 10.3 are satisfied, the Consultant has no right to payment under the Contract.
The conditions precedent provide the Commonwealth with a strong mechanism for ensuring that certain obligations under the Contract are met. Such requirements relate to the Consultant's obligations in respect of insurance, programming and the payment of workers and subconsultants.
If the Consultant submits a payment claim which includes one or more amounts in respect of which the Consultant has failed to comply with the requirements of clause 10.2(f), the Consultant is not entitled to payment of, and the Commonwealth is not liable to pay, those amounts claimed with deficient documentation/information, unless the Commonwealth (in its absolute sole discretion) notifies the Consultant of documentation/information required and the Consultant subsequently provides the requested documentation/information to the Commonwealth within the time nominated by the Commonwealth. A proforma notice titled 'Identification of particular information or documentation not provided pursuant to clause 10.2(f)', is provided in this Manual.
It is important to note though, that clause 10.4 provides that the Commonwealth must issue a payment statement in response to the payment claim, notwithstanding that the conditions precedent have not been satisfied. This is a risk management strategy to address the requirements of the various SOP legislations.
As discussed in the commentary on clause 10.4 and under the heading "Clause 10.14 Security of Payment Legislation", the Commonwealth should identify in the payment statement the reasons why the Consultant is not entitled to the progress payment under the Contract, citing the specific conditions precedent that have not been satisfied.
Clause 10.3 - Conditions Precedent
(a) The Consultant's entitlement to submit a payment claim under clause 10.2 is conditional upon the Consultant having:
(i) obtained the insurance required under clause 4.2 of the Panel Agreement and (if requested) provided evidence of this to the Commonwealth's Representative;
(ii) complied with clause 5.9;
(iii) complied with its programming obligations under clause 7.2; and
(b) If the Consultant has not satisfied the conditions in paragraph (a) at the time of submitting a payment claim, then:
(i) the payment claim is deemed to have been invalidly submitted under clause 10.2;
(ii) the Commonwealth's Representative will not be obliged to include in any payment statement under clause (d) any amount included in the payment claim; and
(iii) the Commonwealth will not be liable to pay any amount included in the payment claim.
(c) If the Consultant:
(i) submits a payment claim; and
(ii) has failed to comply with the requirements of clause 10.2(f) in relation to any amount (or portion of any amount) claimed in the payment claim,
then:
(iii) the Consultant will not be entitled to payment of;
(iv) the Commonwealth's Representative will not be obliged to include in any payment statement under clause (d); and
(v) the Commonwealth will not be liable to pay,
the amount (or the portion of the amount) claimed in the payment claim in relation to which the Consultant has failed to comply with the requirements of clause 10.2(f), unless:
(vi) the Commonwealth's Representative issues a written notice to the Consultant identifying the documentation or information which the Consultant has failed to provide under clause 10.2(f); and
(vii) the Consultant provides that documentation or information to the Commonwealth's Representative within the time required in the Commonwealth's Representative's notice.
(d) If the Consultant is required to carry out any design services as part of the Services, the Consultant's entitlement to submit a payment claim under this clause 10.2 is also conditional upon the Consultant having provided the Commonwealth's Representative with duly executed copies of the certificates required under clause 5.14.
Clause 10.4 - Payment Statements
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Proforma payment statement
Key Message
Payment statements are issued by the Commonwealth in response to a payment claim submitted by the Consultant.
Payment statements should accurately record the Commonwealth's assessment of the Consultant's payment claim.
Payment statements should be issued for every payment claim and especially when a claim is rejected or reduced (via set-off).
A proforma payment statement may be used to prepare the Commonwealth's payment
The Commonwealth must provide to the Consultant a payment statement in the form set out in this Manual within 10 business days of receiving a payment claim.
A payment statement must set out all the details required under clause 10.4 . The proforma payment statement in this Manual facilitates this.
It is important to ensure that all reasons for reducing the value claimed, withholding payment (such as a right of set off) or refusing payment claimed (such as where the payment claim has not been issued in accordance with the requirements of clause 10.2 and 10.3) are set out in full in the payment statement - see the further discussion of this issue under the heading "Clause 10.14 Security of Payment Legislation".
As noted with respect to clause 10.3, a payment claim will not be validly issued under the Terms of Engagement unless the conditions precedent set out in clause 10.3 have been satisfied. However, the Commonwealth must nonetheless issue a payment statement within 10 business days. The Commonwealth should identify in the payment statement the reasons why the Consultant is not entitled to the progress payment under the Contract, citing the specific conditions that have not been satisfied.
Before issuing such a payment statement, advice should be obtained from the Directorate of Program Assurance. In doing so, Commonwealth personnel must bear in mind that the Commonwealth must issue the payment statement within the timeframe specified in clause 10.4.
Issuing a payment statement within the relevant timeframe ensures that the requirements of the Terms of Engagement are satisfied and, where the New South Wales, Victorian, Queensland, South Australia, Tasmania or Australian Capital Territory legislation applies, to avoid the Commonwealth becoming liable under that legislation to pay the whole of the claimed amount - see the further discussion of this issue below under the heading "Clause 10.14 Security of Payment Legislation".
Because there are serious consequences if a payment statement is not issued within the relevant period, specialist legal advice should be sought immediately if there is a failure to do this.
If the Commonwealth makes an error or otherwise wishes to amend something in a payment statement after it has been issued, it can, for the purpose of the Contract, correct or modify the payment statement in a subsequent payment statement (see clause 10.10). However, insofar as the payment statement is a response to a claim made under the Security of Payment Legislation in New South Wales, Victoria Queensland, South Australia, Tasmania or Australian Capital Territory the payment statement cannot be corrected or modified by any subsequent payment statement.
For the purposes of clauses 10.4 and 10.5, a "business day" is defined in clause 1.2(l). The relevant period within which the payment statement is to be issued should be calculated carefully in each State and Territory.
Clause 10.4 - Payment Statements
The Commonwealth's Representative:
(a) must, within 10 business days of receiving a payment claim submitted or purported to be submitted in accordance with clause 10.2; or
(b) may, if the Consultant fails to submit any such claim in accordance with clause 10.2, at any time,
give the Consultant (with a copy to the Commonwealth), on behalf of the Commonwealth, a payment statement which states:
(c) the payment claim to which it relates (if any);
(d) the Consultant's total value of entitlement under the Contract;
(f) the amount (if any) which the Commonwealth's Representative believes to be then payable by the Commonwealth to the Consultant on account of the Fee and otherwise in accordance with the Contract and which the Commonwealth proposes to pay to the Consultant; and
(g) if the amount in paragraph (f) is less than the amount claimed in the payment claim:
(i) the reason why the amount in paragraph (f) is less than the amount claimed in the payment claim; and
(ii) if the reason for the difference is that the Commonwealth has retained, deducted, withheld or set-off payment for any reason, the reason for the retention, deduction, withholding or setting-off.
Any evaluation, or issue of a payment statement, by the Commonwealth's Representative will not:
(h) constitute approval of any Services nor will it be taken as an admission or evidence that the part of the Services covered by the payment statement has been satisfactorily carried out in accordance with the Contract; or
(i) constitute a waiver of the requirements of clauses 10.2 and 10.3 in relation to any payment claim other than to the extent (if any) to which the Commonwealth expressly waives such requirements in respect of the payment claim the subject of the payment statement.
Clause 10.5 - Payment
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Key Message
The Commonwealth must pay the Consultant amounts set out in the Payment Statement with certain time limits.
User Guidance
Regardless of any requirement for a tax invoice to be provided under (a), the Commonwealth must, within 10 business days (or 5 business days if any of the Services are being carried out in Queensland) of receiving the copy of the payment statement under clause 10.4, pay the Consultant the amount set out as then payable in the payment statement. If a tax invoice has not been provided the Commonwealth is still required to make the payment, but is not required to pay the GST component.
Specific limitations on the period of time for payment are imposed by SOP legislation around Australia.
In Queensland and New South Wales, the Contract can only provide for a maximum of 15 business days between the date of the payment claim and the date of payment. If the Contract provides for a longer period, the clause is void and payment is due 10 business days after a progress claim under the statutory regime is made. The limitation does not apply to contracts for work that is not building work, which may include some of the Services under the DIP. However, for reasons of consistency across Defence's suite of contracts, the standard period for Queensland is 5 business days.
In Western Australia, a contract can only provide for a maximum of 50 days between the date of the payment claim and the date of payment. If the contract provides for a longer period, the clause is read as requiring payment to be made within 50 days of the payment claim. The standard period for Western Australia is 10 business days.
In the Northern Territory, a contract can only provide for a maximum of 50 days between the date of the payment claim and the date of payment. If the contract provides for a longer period, the clause is read as Defence Infrastructure Panel 2017-2022Contract Manual Volume 2: Contract ManagementCUFooterText 109
requiring payment to be made within 28 days of the payment claim. The standard period for the Northern Territory is 10 business days.
In all other jurisdictions, the standard or default period is 10 business days.
Clause 10.5 - Payment
(a) Within 3 business days of the Consultant receiving a payment statement under clause (d), the Consultant must give the Commonwealth's Representative a tax invoice for the amounts set out as then payable in the payment statement.
(b) Subject to clause 10.13(c), within:
(i) subject to paragraph (b)(ii), if none of the Services are being carried out in Queensland, 10 business days; or
(ii) if any of the Services are being carried out in Queensland, 5 business days,
of the Commonwealth receiving a payment statement under clause 10.4, the Commonwealth will pay the Consultant the amounts set out as then payable in the payment statement.
Clause 10.6 - Payment on Account
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Key Message
Payment by the Commonwealth is not an admission by the Commonwealth that the Consultant has complied with the Contract.
User Guidance
Clause 10.6 (and the final part of clause 10.4) seeks to preserve the Commonwealth's right to subsequently make claims in respect of work even if the relevant amounts have been included in a payment statement or paid for by the Commonwealth.
Clause 10.6 - Payment on Account
Any payment of moneys under clause 10.5 is not:
(a) evidence of the value of Services or that Services have been satisfactorily carried out in accordance with the Contract;
(b) an admission of liability; or
(c) approval by the Commonwealth or the Commonwealth's Representative of the Consultant’s performance or compliance with the Contract,
but is only to be taken as payment on account.
Clause 10.7 - Completion Payment Claim and Notice
Clause 10.8 - Release after Completion Payment Claim and Notice
The Consultant has 28 days from completion of the Services (or such other agreed period) to submit a completion payment claim.
No other claims may be made following the submission of a completion payment claim and the Commonwealth is released from liability for all such potential further claims.
User Guidance
Clause 10.7 requires the Consultant to issue a payment claim including all amounts which the Consultant claims from the Commonwealth under the Contract and notice of any other amounts which the Consultant claims from the Commonwealth (outside the Contract) in respect of anything that occurred in connection with the Services prior to completion of the Services. This must be done within 28 days of completion (or such longer period as agreed by the Commonwealth's Representative).
The payment claim and notice required under this clause are in addition to any other notice which the Consultant is required to issue in order to protect its entitlements under the Contract. In turn, clause 10.8 provides a release to the Commonwealth in respect of matters which occurred prior to completion which are not set out in a claim under clause 10.7.
Payment claims that are issued in relation to a completion payment claim are also considered to be "progress claims" under the terms of the SOP legislation.
Matters that are time barred cannot be included in the payment claim or notice.
Clause 10.7 - Completion Payment Claim and Notice
Within 28 days (or such longer period agreed in writing by the Commonwealth's Representative) after completion of the Services, the Consultant must give the Commonwealth's Representative:
(a) a payment claim which complies with clause 10.2 and which must include all amounts which the Consultant claims from the Commonwealth on account of all amounts payable under the Contract; and
(b) notice of any other amounts which the Consultant claims from the Commonwealth,
in respect of any fact, matter or thing arising out of or in any way in connection with the Services or the Contract which occurred prior to completion.
The payment claim and notice required under this clause 10.7 are in addition to the other notices which the Consultant must give to the Commonwealth's Representative under the Contract in order to preserve its entitlements to make any such Claims.
Without limiting the previous paragraph, the Consultant cannot include in this payment claim or notice any Claims which are barred by clause 13.5.
Clause 10.8 - Release after Completion Payment Claim and Notice
After the date for submitting the payment claim and notice under clause 10.7 has passed, the Consultant releases the Commonwealth from any Claim in respect of any fact, matter or thing arising out of or in any way in connection with the Services or the Contract which occurred prior to completion, except any Claim included in a payment claim or notice under clause 10.7 which is given to the Commonwealth's Representative within the time required by and in accordance with the terms of clause 10.7.
Interest is the Consultant's remedy for late payment.
Avoid interest payments by paying the Consultant within the time specified in the Contract.
User Guidance
Except where the New South Wales, Victorian, Queensland, South Australia, Tasmania or Australian Capital Territory SOP legislation applies, this clause limits the Commonwealth's liability to pay interest on late payments and damages to the rate stated in the Contract Particulars. The rate payable will depend on whether the interest payment is in respect of late payments or damages.
By stating that this will "be the Consultant's sole entitlement to interest including damages for loss of use of, or the cost of, borrowing, money" this clause is intended to limit the Commonwealth's liability for what are sometimes referred to as Hungerfords v Walker (1989) 171 CLR 125 damages for loss of the use of the overdue money.
The rate in respect of damages will be the Australian Taxation Office-sourced General Interest Charge rate at the due date for payment. This rate can be found on the Australian Taxation Office web site: www.ato.gov.au.
Where the New South Wales, Victorian, Queensland, South Australia, Tasmania or Australian Capital Territory security of payment legislation applies, the Consultant will be entitled to statutory interest on late payments at the higher of the rate for late payments which is stated in the Contract or the rate which is identified in the applicable SOP legislation.
For example, if a project is located in Queensland and the Engagement involves the performance of building work (as defined in the Queensland Building Services Authority Act 1991 (Qld)), the Consultant will be entitled to interest under the Queensland security of payment legislation at the higher of the rate provided for in the Contract, or the rate which is the sum of 10% plus the rate comprising the annual rate as published from time to time by the Reserve Bank for 90 day bills.
Clause 10.9 - Interest
(a) The Commonwealth will pay simple interest at the rate stated in (c) on any:
(i) amount which has been set out as payable by the Commonwealth's Representative in a payment statement under clause 10.4, but which is not paid by the Commonwealth within the time required by the Contract; and
(ii) damages.
(b) This will be the Consultant’s sole entitlement to interest including damages for loss of use of, or the cost of borrowing, money.
(c) The interest rate is the Australian Taxation Office-sourced General Interest Charge Rate current at the due date for payment or such other rate nominated in writing from time to time by the Commonwealth's Representative.
The Commonwealth can correct mistakes in previous payment statements.
User Guidance
Under this clause, the Commonwealth's Representative may correct or modify anything written in a previous payment statement in a subsequent payment statement (subject to any relevant SOP legislation provisions).
Clause 10.10 - Correction of Payment Statements
The Commonwealth's Representative may, in any payment statement:
(a) correct any error in any previous payment statement; and
(b) modify any previous payment statement,
issued by the Commonwealth's Representative.
Clause 10.11 - Right of Set-Off
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Key Message
The Commonwealth may deduct set-off debts and other amounts due to the Commonwealth from payments due to the Consultant.
Seek advice from Directorate of Program Assurance before using the set-off provision of the Contract.
User Guidance
As noted above, this clause makes it clear that the Commonwealth may deduct debts or other moneys due from the Consultant to the Commonwealth from any moneys otherwise due to the Consultant.
To avoid arguments about the scope of the right to set off, the Contract's set-off provisions expressly state that the payment obligation (under clause 10.1) is subject to the set-off right. Within the actual set-off clause, it is stated that the debt, moneys due or claim to money which the Commonwealth wishes to set-off against the moneys otherwise due to the Consultant, may arise under the Contract or otherwise at law relating to the Services. Further, the Commonwealth may deduct any debt or claim from moneys which may be or thereafter become payable to the Consultant in respect of any Variation the subject of a 'Variation Order' under clause 9.2.
The amount of any such deduction should always be contained in the payment statement issued in response to the Consultant's payment claim. Failure to do so may mean that the Commonwealth has to pay the full amount of the payment statement, without any further right of set-off, by virtue of the SOP legislation.
Clause 10.11 - Right of Set-Off
The Commonwealth may:
(a) deduct from moneys otherwise due to the Consultant:
(i) any debt or other moneys due from the Consultant to the Commonwealth; and
(ii) any claim to money which the Commonwealth may have against the Consultant whether for damages or otherwise, whether under the Contract or otherwise at law, relating to the
(b) without limiting paragraph (a), deduct any debt or claim referred to in paragraph (a)(i) or (a)(ii) from any moneys which may be or thereafter become payable to the Consultant by the Commonwealth in respect of any Variation the subject of a "Variation Order" under clause 9.2.
Clause 10.12 - Payment of Workers and Subconsultants - Option 1 (NSW only)
Clause 10.12 - Payment of Workers and Subconsultants - Option 2 (all other States and Territories)
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Proforma statutory declaration
Key Message
The Consultant must provide evidence of payment of its workers and subconsultants to the Commonwealth.
User Guidance
The purpose of the clause is to ensure that the Consultant pays its workers, subconsultants and suppliers and that subconsultants and suppliers also pay their workers.
Option 1 will apply if Services are being carried out in New South Wales. If no Services are being carried out in New South Wales, Option 2 will apply.
Under Option 1, the Consultant is required to provide, with each payment claim:
(a) a supporting statement (as defined in section 13(9) of the Building and Construction Industry Security of Payment Act 1999 (NSW)) and prescribed by the Building and Construction Industry Security of Payment Regulation 2008 (NSW);
(b) a written statement which complies with section 127 of the Industrial Relations Act 1996 (NSW), section 175B of the Workers Compensation Act 1987 (NSW) and Schedule 2 Part 6 of the Payroll Tax Act 2007 (NSW) which is in a form approved by the Commonwealth's Representative, and covers the period of the relevant payment claim; and
(c) copies of all relevant certificates of currency of Workers Compensation Insurance which the Consultant has in place in relation to the Services.
Under Option 2, the Consultant is required to provide, with each payment claim:
(a) a statutory declaration, together with any supporting evidence which may be reasonably required by the Commonwealth's Representative, duly signed by the Consultant or, where the Consultant is a corporation, by a representative of the Consultant who is in a position to know the facts declared, that, except to the extent disclosed in the statutory declaration (such disclosure to specify all relevant amounts, workers and subconsultants):
(i) all workers who have at any time been employed by the Consultant in connection with the Services have at the date of the payment claim been paid all moneys due and payable to them in respect of their employment in connection with the Services; and
(ii) all subconsultants have been paid all moneys due and payable to them in respect of the Services; and
(b) documentary evidence that, except to the extent otherwise disclosed (such disclosure to specify all relevant amounts and workers), as at the date of the payment claim, all workers who have been employed by a subconsultant have been paid all moneys due and payable to them in respect of their
A proforma statutory declaration is provided in this Manual for the purposes of the Consultant providing the statutory declaration required under Option 2.
The Commonwealth is entitled to withhold from any payment otherwise due to the Consultant any amounts disclosed as unpaid under this clause. If required, the withholding must be done in the payment statement issued in response to the relevant payment claim. If that has not occurred, then the Commonwealth should not withhold the payment, and should pay the full amount stated as payable in the payment statement to avoid potential claims under the SOP legislation.
Clause 10.12 - Payment of Workers and Subconsultants - Option 1 (NSW only)
This option 1 applies if Services are being carried out by the Consultant in New South Wales.
The Consultant is not entitled to give the Commonwealth's Representative a payment claim under clause 10.2 and the Commonwealth is not obliged to make any payment under clause 10.5 unless the Consultant has provided the Commonwealth's Representative with:
(a) a supporting statement (as defined in section 13(9) of the Building and Construction Industry Security of Payment Act 1999 (NSW)) and prescribed by the Building and Construction Industry Security of Payment Regulation 2008 (NSW);
(b) a written statement for the purposes of, and which complies with, section 127 of the Industrial Relations Act 1996 (NSW), section 175B of the Workers Compensation Act 1987 (NSW) and Schedule 2 Part 6 of the Payroll Tax Act 2007 (NSW) which is in a form approved by the Commonwealth's Representative, and covers the period of the relevant payment claim; and
(c) copies of all relevant certificates of currency in respect of Workers Compensation Insurance which the Consultant has in place in connection with the Services.
The Commonwealth is entitled to withhold from any payment which would otherwise be due to the Consultant under the Contract the amount disclosed as unpaid under this clause 10.12.
Clause 10.12 - Payment of Workers and Subconsultants - Option 2 (all other States and Territories)
This option 2 applies if the Consultant is not carrying out Services in New South Wales.
The Consultant must with each payment claim under clause 10.2 provide the Commonwealth's Representative with:
(a) a statutory declaration, together with any supporting evidence which may be reasonably required by the Commonwealth's Representative, duly signed by the Consultant or, where the Consultant is a corporation, by a representative of the Consultant who is in a position to know the facts declared, that, except to the extent disclosed in the statutory declaration (such disclosure to specify all relevant amounts, workers and subconsultants):
(i) all workers who have at any time been employed by the Consultant in connection with the Services have at the date of the payment claim been paid all moneys due and payable to them in respect of their employment in connection with the Services; and
(ii) all subconsultants have been paid all moneys due and payable to them in respect of the Services; and
(b) documentary evidence that, except to the extent otherwise disclosed (such disclosure to specify all relevant amounts and workers), as at the date of the payment claim, all workers who have been employed by a subconsultant have been paid all moneys due and payable to them in respect of their employment in connection with the Services.
The Commonwealth is entitled to withhold from any payment which would otherwise be due to the Consultant under the Contract the amount disclosed as unpaid under this clause 10.12.
The Consultant must provide a tax invoice to the Commonwealth which includes any GST payable.
User Guidance
Generally, rates and prices under the Contract are to be tendered on a GST exclusive basis and "grossed-up" for any applicable GST under clause 10.13.
The Consultant must provide a tax invoice to the Commonwealth in order to charge GST.
Clause 10.13 - GST
(a) Subject to paragraph (b), where any supply occurs under or in connection with the Contract or the Services for which GST is not otherwise provided, the party making the supply (Supplier) will be entitled to increase the amount payable for the supply by the amount of any applicable GST.
(b) Where an amount is payable to the Supplier for a supply under or in connection with the Contract or the Services which is based on the actual or reasonable costs incurred by the Supplier, the amount payable for the supply will be reduced by the amount of any input tax credits available to the Supplier (or a representative member on the Supplier's behalf) in respect of such costs before being increased for any applicable GST under paragraph (a).
(c) As a condition precedent to any amount on account of GST being due from the recipient to the Supplier in respect of a taxable supply, the Supplier must provide a tax invoice to the recipient in respect of that supply.
(d) If the amount paid to the Supplier in respect of the GST (whether because of an adjustment or otherwise):
(i) is more than the GST on the supply, then the Supplier shall refund the excess to the recipient; or
(ii) is less than the GST on the supply, then the recipient shall pay the deficiency to the Supplier.
(e) In this clause 10.13 terms defined in GST Legislation have the meaning given to them in GST Legislation.
Clause 10.14 - Security of Payment Legislation
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Proforma payment claim Proforma payment statement
Key Message
The Commonwealth is subject to the SOP legislation in all States and Territories which (once invoked by the Consultant) provides for the resolution of payment disputes by adjudication in
Strict timelines apply to payment claims made under SOP legislation.
Advice should be sought immediately from the Directorate of Program Assurance if the Consultant commences proceeding under SOP legislation.
User Guidance
The provisions in this clause are intended to assist in the administration of the processes under, and compliance with, the relevant SOP legislation.
For instance, the SOP legislation requires the person who is liable to pay the payment claim to issue the payment statement. Clause 10.14 provides that, for the purposes of the legislation, the Commonwealth's Representative issues payment statements as agent of the Commonwealth.
Similarly, in Victoria, the Commonwealth is entitled to provide security rather than payment for adjudicated amounts if it institutes dispute resolution proceedings in relation to the claim.
In addition, clause 10.14(e) contains provisions intended to ensure confidentiality of Commonwealth information in the event that an adjudication application is made and the Commonwealth provides information in response to that application.
The Commonwealth must ensure that they are familiar with the requirements of the SOP legislation (if any) which applies to the contracts they are administering. To assist with that familiarisation, the following discussion provides an overview of the legislation.
Security of payment legislation
In response to decades of lobbying by subcontractor groups seeking security for the payment of subcontractors, legislation has been enacted in all States and Territories directed at securing progress payments for contractors, subcontractors, consultants and suppliers in the building and construction industry.
The current security of payment legislation is as follows:
(a) Building and Construction Industry Security of Payment Act 1999 (NSW), which applies to contracts entered into after 26 March 2000;
(b) Building & Construction Industry Security of Payment Act 2002 (Vic), which applies to contracts entered into after 31 January 2003;
(c) Building & Construction Industry Payments Act 2004 (Qld), which applies to contracts entered into after 1 October 2004;
(d) Construction Contracts Act 2004 (WA), which applies to contracts entered into after 1 January 2005;
(e) Construction Contracts (Security of Payment) Act 2004 (NT), which applies to contracts entered into after 1 July 2005;
(f) Building and Construction Industry (Security of Payment) Act 2009 (ACT), which applies to contracts entered into after 1 July 2010;
(g) Building and Construction Industry Security of Payment Act 2009 (TAS), which applies to contracts entered into after 17 December 2009; and
(h) Building and Construction Industry Security of Payment Act 2009 (SA), which applies to contracts entered into after 10 December 2011.
Apart from some very limited types of contracts which are excluded from the legislation, the legislation in each jurisdiction applies to all contracts for the performance of construction work and related goods and services in that jurisdiction. That is, the New South Wales legislation applies to all contracts for construction work and related goods and services performed in New South Wales, and the Western Australian legislation applies to all
contracts for construction work and related goods and services performed in Western Australia, and so on.
The definition of construction work and related goods and services in all the legislation is very wide in scope, although there are some differences in the wording of the definition in each regime. Universally, the definition captures activities such as the construction, alteration, repair, restoration, maintenance, extension or demolition of buildings and structures, roadworks, power lines, aircraft runways, railways, pipelines, reservoirs and more. It also includes the installation of heating, lighting, air conditioning, ventilation, power supply, drainage, sanitation, water supply, security and communication systems, and fire protection, as well as the erection/dismantling of scaffolding, prefabrication of components, and painting and decorating.
The legislative regimes also extend to the supply of related goods and services for construction work. This term is also widely defined in each regime, and captures materials and components to form part of any building, structure or work arising from construction work; plant or materials used in construction work, the provision of labour, architectural, engineering, quantity surveying and design services. The wide definition has a number of consequences. For instance, the New South Wales legislation will apply to a contract for a related good or services if that good or service is to be used in construction work being performed in New South Wales, even though that good or service is being supplied or performed outside of New South Wales. The same consequences arise in respect of the other jurisdictions with security of payment legislation.
If the SOP legislation applies to the Services (or the provision of any related goods and services) under the Contract, it is likely that it will also apply to subcontracts which the Consultant lets. In such circumstances, the Commonwealth will be required to comply with the relevant SOP legislation in respect of payments to the Consultant, and the Consultant will also be required to comply with the provisions of the SOP legislation in the administration of its subcontracts (to which the SOP legislation applies). Legislation in New South Wales and Victoria gives a subconsultant an entitlement to obtain payment of adjudicated amounts out of money that is payable or becomes payable by the Commonwealth to the Consultant in circumstances where:
(a) an adjudicator has determined that an amount is payable by the Consultant to the subconsultant;
(b) that adjudicated amount has not been paid;
(c) the subconsultant has obtained judgment for the adjudicated amount and a debt certificate has issued; and
(d) a notice of claim is given to the Commonwealth (which notice operates as an assignment of the obligation of the Commonwealth to pay money owed to the Consultant).
In New South Wales, the relevant legislation is the Contractor Debts Act 1997 (NSW), and in Victoria it is the Building & Construction Industry Security of Payment Act 2002 (Vic).
Although the SOP legislation is similar in intent and objectives, each State and Territory SOP legislation is different and has its own complexities. Advice on the impact of the security of payment legislation on a particular contract should be sought from the Directorate of Program Assurance, if necessary. Given the short timeframes provided for under the SOP legislation generally, this advice should always be sought as a matter of utmost urgency.
Achieving the purpose of the legislation
The SOP legislation in each jurisdiction is common in granting a statutory entitlement to progress payments. The legislation is also common in providing a process of rapid adjudication of payment disputes with the goal of obtaining a quick, interim, determination of those disputes and the payment of any amount which is determined by the adjudicator as being payable. The determination does not finally decide the rights of the parties. They may continue to pursue those rights through court, arbitration or any other dispute resolution process. Significantly however, except in Victoria, or in very rare instances where a stay of the determination might be obtained, where a claimant is determined by an adjudicator to be entitled to payment of an amount, that amount must be paid now by the other party, despite the disputed entitlement being referred to court, arbitration or other dispute resolution process. The Victorian legislation stands alone in permitting security to be given in the form of a bank guarantee or payment into a designated trust account as an alternative to payment of a determined amount to the claimant.
The SOP legislation in New South Wales, Victoria, Queensland, South Australia, Tasmania and Australian
Capital Territory also includes a statutory process for the making of progress payment claims and responding to them. This statutory process exists alongside and is in addition to any contractual provisions dealing with the making of progress claims and responding to them. The statutory process involves:
(a) the claimant making a payment claim which is stated to be a claim under the relevant Act; and
(b) the respondent responding to the payment claim within a very limited timeframe (10 business days) by way of a payment schedule.
If a claimant disputes the amount that the respondent proposes to pay in respect of the claim, it can refer the dispute to the rapid adjudication process. Compliance with the statutory procedure is the only way for a claimant to access the rapid adjudication process in those states. Enlivening the statutory process for making progress payment claims and responding to them is at the sole discretion of a claimant, and it is only a claimant who can refer a dispute to the rapid adjudication process.
The SOP legislation in Western Australia and the Northern Territory does not provide a similar statutory process. The contract alone governs the process by which progress payments are claimed and responses made, although the legislation implies terms about those matters into the contract if the written contract is silent about them. If, as a result of that contractual claim and response process, there is a dispute about payment, that payment dispute can be referred by either party to the rapid adjudication process for interim determination. Disputes about the return of retention of money and security may also be referred by either party to adjudication.
Where projects are to be undertaken in New South Wales, Victoria, Queensland, South Australia, Tasmania and Australian Capital Territory it is extremely important that the Commonwealth understands how and when progress payments are to be claimed and responded to under the statutory process in those states, and the timeframes involved. There are potentially serious implications for the Commonwealth under the SOP legislation in those states if the requirements and timeframes are not strictly followed.
Nonetheless, the following discussion is also important to projects in other jurisdictions because the statutory process for making payment claims and responding which exists in New South Wales, Victoria, Queensland South Australia, Tasmania and Australian Capital Territory has been incorporated into clause 10 and is therefore reflected in contractual obligations.
Payment Claim
Under the New South Wales, Victorian, Queensland, South Australia, Tasmania and Australian Capital Territory legislation, a consultant is entitled to submit a payment claim under the statutory process from each reference date. Relevantly, "reference date" means the date for submitting payment claims stated in the contract. Clause 10.2(a) and (b) prescribe the "reference dates" for the purposes of the Contract. It is very important that the Contract Particulars be completed because, in the absence of any stated date, the reference date will be, for the purposes of the New South Wales, Queensland, South Australian, Tasmanian and Australian Capital Territory legislation, the last day of each month in which work was performed or related goods and services supplied, and under the Victoria, it will be 20 business days after work was performed or related goods and services supplied.
There are certain statutory requirements for a valid payment claim:
(a) it is in writing and addressed to the respondent (i.e. the Commonwealth);
(b) it clearly identifies or describes the construction work or related goods and services to which it relates;
(c) it states the amount claimed as payable; and
(d) it states that it is made under the relevant legislation.
So far as possible, these requirements have been incorporated into clause 10 and in the proforma payment claim set out in this Manual. Whether the elements described in (b) and (c) are satisfied depends on what detail the Consultant provides in its claim. Whether the element described in (d) is satisfied depends on the Consultant ticking the relevant box in the proforma or, if the proforma is not used, including the statement prescribed by the legislation that it is a claim under the applicable security of payment legislation.
Statutory payment claims can only be served within a period prescribed under the Contract, or within 12 months (except in South Australia it is 6 months) after the construction work or supply of related goods and services the subject of the payment claim were carried out or supplied, whichever is the later.
The Commonwealth must carefully examine all documentation received by the claimant to identify whether it is a valid payment claim under the Contract and, if the New South Wales, Victorian, Queensland, South Australia, Tasmanian or Australian Capital Territory SOP legislation applies, if it is a valid claim under the relevant legislation. If the claim is not valid, that fact and the reason why the Commonwealth says the claim is not valid (whether under the Contract or under the legislation) must be set out in the payment statement which responds to the claim (discussed below)
Payment Statement
The most important feature of the progress claim regime set up by the New South Wales, Victorian, Queensland, South Australian, Tasmania and Australian Capital Territory SOP legislation is the need for a respondent to issue a payment schedule within 10 business days of receiving a payment claim made under the relevant SOP legislation. In South Australia, a payment schedule must be provided within the time required by the relevant contract or within 15 business days after the payment claim is served, whichever is earlier. Clause 10.4 provides for the delivery of a payment schedule (called payment statement) within 10 business days of receipt of a payment claim. This reflects the time period within which a payment schedule must be issued under the New South Wales, Victorian, Queensland, South Australian, Tasmanian and Australian Capital Territory legislation.
For contracts subject to the New South Wales, Victorian, Queensland, South Australian, Tasmania or Australian Capital Territory SOP legislation, it is vital that a payment schedule is issue within that time period. If a payment schedule is not served within that time period, the Commonwealth will become liable under the legislation to pay the full amount of the claim (as a statutory debt) on the due date for the progress payment to which the claim relates. The Consultant will be entitled to recover the unpaid portion of the claim as a debt in summary proceedings, and the Commonwealth cannot bring any cross claim or raise any defence in relation to matters arising under the Contract in those proceedings. The Consultant is also given a statutory right to suspend the work under the Contract by giving written notice of suspension and is not liable for any loss or damage suffered by the Commonwealth as a result of that suspension.
Regardless of whether or not a payment claim complies with the contractual or statutory requirements for a valid payment claim, the Commonwealth must nonetheless issue a payment schedule in response to the claim. The Commonwealth must not refuse to deal with the claim because in his or her view the payment claim is invalid. The reason for that is because, on a strict interpretation of the New South Wales, Victorian, Queensland, South Australian, Tasmanian and Australian Capital Territory SOP legislation, if a payment schedule is not issued, the Commonwealth becomes liable to pay the whole of the amount claimed. While that liability may be able to be ultimately resisted if the payment claim is in fact invalid, it is clearly preferable to not have to argue the issue in the first place, and this can be achieved by issuing a payment schedule within time. This need to issue a payment schedule has been reinforced in the Defence contracts by including a contractual requirement that a payment schedule issue (clause 10.4).
The New South Wales, Victorian, Queensland, South Australian, Tasmanian and Australian Capital Territory legislation does not prescribe a format for a payment schedule, except that it must:
(a) identify the payment claim to which it relates; and
(b) state the amount of the payment, if any, that the respondent proposes to make (this is known as the 'scheduled amount'); and
(c) if the scheduled amount is less than the claimed amount, state the reasons why it is less.
As noted in the earlier discussion of clause 10.4, the Commonwealth must ensure that all reasons for reducing the payment claimed, withholding payment or refusing the payment claimed are set out in the payment statement. While setting out the reasons is a requirement of clause 10.4 and reflects good practice in any event, it is critical where the New South Wales, Victorian, Queensland, South Australian, Tasmanian or Australian Capital Territory SOP legislation applies. In those jurisdictions, if the Consultant subsequently disputes the payment schedule and refers the dispute to adjudication, the Commonwealth will be limited to making submissions on the reasons for reduction that were included in the payment schedule.
If the Commonwealth complies with clause 10.4 and uses the proforma payment statement that is included in this Manual, it should ensure that the Commonwealth meets the requirements and timeframe of the legislation in relation to the delivery of payment schedules. Of course, as with the Consultant's completion of the payment claim, much depends on the information that is inserted into the proforma payment statement.
Adjudication
Upon receipt of an adjudication application, the Commonwealth must immediately notify the Directorate of Program Assurance and seek legal advice.
The Commonwealth has only a very short timeframe within which to respond to the adjudication application:
(a) in New South Wales, Victoria and South Australia the time for submitting a response is the later of 5 business days after receiving a copy of the application or 2 business days after receiving notice of an adjudicator's acceptance of the application;
(b) in Queensland, the time for submitting a response is:
(i) in relation to a payment claim for an amount less than $750,000 (excl. GST), the later of 10 business days after receiving a copy of the adjudication application or 7 business days after receiving notice of an adjudicator’s acceptance of the adjudication application; or
(ii) in relation to a payment claim for an amount more than $750,000 (excl. GST), the later of 15 business days after receiving a copy of the adjudication application or 12 business days after receiving notice of an adjudicator’s acceptance of the adjudication application;
(c) in Western Australia, the time for submitting a response is 14 days after receipt of an adjudication application;
(d) in the Northern Territory, the time for submitting a response is 10 working days after receipt of an adjudication application;
(e) in Tasmania, the time for submitting a response is the later of 10 business days after receiving a copy of the application or 5 business days after receiving notice of an adjudicator's acceptance of the application; and
(f) in Australian Capital Territory, the time for submitting a response is the later of 7 business days after receiving a copy of the application or 5 business days after receiving notice of an adjudicator's acceptance of the application.
Clause 10.14 - Security of Payment Legislation
(a) The Consultant agrees with the Commonwealth that:
(i) a payment claim submitted to the Commonwealth's Representative under clause 10.2 which also purports to be a payment claim under the relevant Security of Payment Legislation is received by the Commonwealth's Representative as agent for the Commonwealth;
(ii) if any of the Services:
A. are not being carried out in Western Australia, unless otherwise notified to the Consultant by the Commonwealth in writing, the Commonwealth's Representative will give payment statements and carry out all other functions of the Commonwealth under the relevant Security of Payment Legislation as the agent of the Commonwealth; or
B. are being carried out in Western Australia, unless otherwise notified to the Consultant by the Commonwealth in writing, the Commonwealth's Representative will give payment statements and carry out all other functions of the Commonwealth under the relevant Security of Payment
Legislation (including receiving adjudication applications) as the agent of the Commonwealth;
(iii) to the extent permitted by and for the purposes of the relevant Security of Payment Legislation, the "reference dates" are those of the dates prescribed in clauses 10.2(a) and 10.2(b) on which the Consultant has satisfied the requirements of clause 10.3(a); and
(iv) a reference to a "payment statement" is also a reference to a "payment schedule" for the purposes of the relevant Security of Payment Legislation.
(b) Failure by the Commonwealth's Representative to set out in a payment statement issued under the relevant Security of Payment Legislation or otherwise an amount which the Commonwealth is entitled to retain, deduct, withhold or set-off from the amount which would otherwise be payable to the Consultant by the Commonwealth will not prejudice:
(i) the Commonwealth's Representative's ability or power to set out in a subsequent payment statement an amount which the Commonwealth is entitled to retain, deduct, withhold or set-off from the amount which would otherwise be payable to the Consultant by the Commonwealth; or
(ii) the Commonwealth's right to subsequently exercise its right to retain, deduct, withhold or set-off any amount under this Contract.
(c) The Consultant agrees that the amount set out in the payment statement in accordance with clause 10.4(f) is, to the extent permitted by and for the purposes of the relevant Security of Payment Legislation, the amount of the "progress payment" calculated in accordance with the terms of this Contract, which the Consultant is entitled to in respect of the Contract.
(d) The Consultant irrevocably chooses the person set out in the Contract Particulars as, to the extent permitted by and for the purposes of the relevant Security of Payment Legislation and to the extent that the relevant Services are to be carried out in:
(i) the Northern Territory or Western Australia, the appointed adjudicator or, where there is no appointed adjudicator, the prescribed appointer; or
(ii) any other State or Territory in which Security of Payment Legislation applies, the authorised nominating authority.
(e) The Consultant must not at any time, without the written consent of the Commonwealth, divulge or suffer or permit its servants, subconsultants or agents to divulge to any person any communication, submission or statement made or evidence or information used by or relied upon by the Commonwealth or any details thereof in respect of an adjudication application made under the relevant Security of Payment Legislation (in this paragraph, the Information).
For the avoidance of doubt:
(i) the Consultant's obligation in respect of the Information applies in respect of any subsequent proceedings before a court, arbitrator, expert or tribunal save where the Consultant is unable by requirement of law to comply with its obligation in respect of the Information;
(ii) notwithstanding the Consultant's obligation in respect of the Information, the Commonwealth may divulge to any person the Information;
(iii) the Commonwealth may divulge or suffer or permit its servants or agents to divulge to any person any communication, submission or statement made or evidence or information used by or relied upon by the Consultant or any details thereof in respect of an adjudication application made under the relevant Security of Payment Legislation; and
(iv) any Information which the Commonwealth provides or relies upon in respect of an
adjudication application made under the relevant Security of Payment Legislation is made without prejudice to the Commonwealth's right to vary, modify, supplement or withdraw the Information in any subsequent proceedings before a court, arbitrator, expert or tribunal.
Clause 10.15 - Accounting Records
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Key Message
The Consultant is required to maintain accounting records.
User Guidance
Accounting records are important for the Commonwealth to maintain a transparent record of the Services and for auditing purposes.
This clause requires the Consultant to keep accurate and up to date accounting records in relation to Variations and all amounts paid to the Consultant on account of the Fee.
This is required in order that the Consultant can substantiate any claims, and the Commonwealth's Representative can be properly and fully informed through the perusal of proper accounts, when considering any payment claims made by the Consultant.
Clause 10.15 - Accounting Records
The Consultant must keep accurate and up to date accounting records including books of account, labour time sheets, invoices for materials, final accounts and any other documents or paper which show all details in relation to:
(a) all Variations; and
(b) all other amounts payable to the Consultant other than on account of the original Fee specified in the Contract Particulars.
Clause 10.16 - Estate Information
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Key Message
Estate Information refers to Project Documents and other documents, drawings, records or information required for the occupation, use, operation and maintenance of the Works.
Estate Information must be provided by the Consultant to the Commonwealth during (and after) the carrying out of the Project.
The provision of accurate and complete Estate Information is a key requirement for the Commonwealth, to ensure the successful use, operation and maintenance of completed projects after handover.
This clause requires the Consultant to do all things necessary to assist the Commonwealth (and Other Contractors) to:
(a) occupy, use, operate and maintain the Services; and
(b) comply with its obligations in relation to the Estate Register Information Model (ERIM) obligations, its Spatial Data Management Plan obligations and Garrison Estate Management (GEMS) obligations.
The Consultant is also required to provide to the Commonwealth's Representative all Estate Information necessary for the occupation, use, operation and maintenance of the Works. The Consultant warrants that all Estate Information will be complete, fit for purpose and free from errors and omissions.
Clause 10.16 - Estate Information
Without limiting clause 2.6, the Consultant must:
(a) do all things necessary to assist the Commonwealth and Other Contractors to:
(i) occupy, use, operate and maintain the Services (as defined in the Project Contract); and
(ii) without limiting subparagraph (i), comply with:
A. Estate Register Information System (ERIM) obligations;
B. Spatial Data Management Plan obligations; and
C. Garrison Estate Management System (GEMS) obligations;
(b) without limiting paragraph (a), provide all Project Documents and such other documents, drawings, records or other information required for the occupation, use, operation and maintenance of the Works (Estate Information) to the Commonwealth's Representative:
(i) as a condition precedent to Completion of the Works or a Stage (as the case may be and in each case as defined in the Project Contract); and
(ii) in respect of any work carried out after the Date of Completion of the Works or a Stage (as the case may be and in each case as defined in the Project Contract), the earlier of:
A. 30 days after the completion of such work; or
B. 30 days after the end of the Defects Liability Period for the Works or a Stage (as the case may be in each case as defined in the Project Contract),
such information being 100% complete and to the satisfaction of the Commonwealth; and
(c) the Consultant warrants that all Estate Information will be complete, fit for purpose and free from errors and omissions.
Clause 10.17 - Estate Information Program
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Key Message
The Consultant must submit Estate Information in accordance with an approved program in order to ensure the Commonwealth's Representative has a reasonable opportunity to review the Estate
This clause obliges the Consultant to prepare and submit a program to the Commonwealth's Representative for approval (as part of its program under clause 7.2) which describes how the Consultant will comply with the Estate Information requirements (eg, the documents to be submitted and the timeframes within which they will be provided).
The program must allow the Contract Administrator a reasonable period within which to review the relevant Estate Information.
Clause 10.17 - Estate Information Program
The Consultant must:
(a) as part of the program it is to prepare under clause 7.2 submit to the Commonwealth's Representative for approval an Estate Information program which makes allowance for the Estate Information to be submitted to the Commonwealth's Representative in a manner and at a rate which will give the Commonwealth's Representative a reasonable opportunity to review the Estate Information; and
(b) submit the Estate Information to the Commonwealth's Representative in accordance with the Estate Information program approved by the Commonwealth's Representative under paragraph (a).
Clause 10.18 - Commonwealth's Representative may Review Estate Information
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Key Message
This clause provides the Commonwealth's Representative with a discretion to review Estate Information submitted by the Consultant.
User Guidance
Under this clause, the Commonwealth's Representative may review the Estate Information submitted (or resubmitted) by the Consultant in accordance with the Contract. Further, the Commonwealth's Representative may reject any Estate Information submitted by the Consultant.
The rights of the Contract Administrator under this clause may be exercised in the Commonwealth's Representative absolute discretion. That is, the Commonwealth's Representative is not obliged (or required) to exercise its right to review the Estate Information – however, the Consultant must still provide the Commonwealth's Representative with the opportunity to do so.
Clause 10.18 - Commonwealth's Representative may Review Estate Information
(a) The Commonwealth's Representative may:
(i) review any Estate Information, or any resubmitted Estate Information, prepared and submitted by the Consultant; and
(ii) reject the Estate Information.
(b) If any Estate Information is rejected, the Consultant must submit amended Estate Information to the Commonwealth's Representative.
Clause 11 sets out the procedure that must be followed if the Commonwealth is contemplating terminating the Contract before the Consultant's obligations have been fully discharged.
These rights are expressed to be exercised by the Commonwealth rather than the Commonwealth's Representative. This is deliberate - termination is a very serious matter and is not to be contemplated without appropriate strategic consideration (including specialist legal and other advice). For this reason, a detailed analysis of clause 11 is beyond the scope of this Manual.
Notwithstanding this, by way of summary, the Terms of Engagement provides for three categories of circumstances in which the Commonwealth may terminate the Contract:
(a) for default (clauses 11.2, 11.3 and 11.5);
(b) for insolvency of the Consultant (clauses 11.4 - 11.5); and
(c) for "convenience" (clause 11.7).
Each of these categories has its own procedures to be followed and consequences. These are outlined below.
Clause 11.1 – Preservation of Rights
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Key Message
The Commonwealth’s general law rights will be preserved in the event of a breach of the Contract by the Consultant.
User Guidance
The purpose of this clause is to prevent the termination provisions in clause 10 from being read or interpreted as a "code". That is, this clause seeks to ensure that, whilst the Terms of Engagement creates a right to terminate the Contract in accordance with clause 11 , the Commonwealth has access to any common law rights or remedies in the event of default.
Clause 11.1 - Preservation of Rights
Subject to clause 11.6, nothing in this clause 11 or that the Commonwealth does or fails to do pursuant to this clause 11 will prejudice the right of the Commonwealth to exercise any right or remedy (including recovering damages) which it may have where the Consultant breaches (including repudiates) the Contract.
Seek legal advice and advice from Directorate of Program Assurance before exercising rights under this clause.
This clause sets out the grounds upon which the Commonwealth may provide a Notice of Default to the Consultant.
Clause 11.2(g) also includes a catch-all clause so that the Commonwealth may issue a Notice of Default to the Consultant if it is in substantial breach of the Contract.
User Guidance
If the Consultant does any of the things listed in clause 11.2(a) - (g) (note the catch-all reference in paragraph (g) to substantial breaches not otherwise set out in paragraphs (a) - (f)), the Commonwealth is entitled to issue a written notice to the Consultant notifying it of its default under the Contract. A proforma 'Notice of Default' is included in this Manual below. Such a notice should be prepared with appropriate legal advice and only issued following obtaining legal advice and must be in accordance with clause 11.3.
Clause 11.2 - Consultant Default
The Commonwealth may give a written notice under clause 11.3 to the Consultant if the Consultant:
(a) does not commence the Services in accordance with the requirements of the Contract;
(b) suspends the Services other than in accordance with clause 7.4 or otherwise does not proceed with the Services regularly and diligently;
(c) fails to comply with any of its obligations regarding any insurance required under the Contract or under the Panel Agreement;
(d) fails to exercise the standard of skill, care and diligence required by the Contract;
(e) fails to comply with any of its obligations under clause 2.9 or 5.9;
(f) does not comply with any direction of the Commonwealth's Representative made in accordance with the Contract; or
(g) is otherwise in substantial breach of the Contract.
Clause 11.3 - Contents of Notice of Default
A notice under this clause 11.3 must state:
(a) that it is a notice under clause 11.3;
(b) the breach relied upon; and
(c) that the Commonwealth requires the Consultant to remedy the breach within the number of days set out in the Contract Particulars of receiving the notice.
Clause 11.4 – Termination for Insolvency or Breach
Seek legal advice and advice from Directorate of Program Assurance before exercising rights under this clause.
This clause outlines the consequences of an Insolvency Event or a failure of the Consultant to remedy a breach of Contract, notified to the Consultant under a notice of default, within the number of days outlined in the Contract Particulars.
User Guidance
The Commonwealth has a right of immediate termination by written notice for both:
(a) an un-remedied breach the subject of a notice under clause 11.3; and
(b) the occurrence of an "Insolvency Event" (as defined in clause 1.1).
Clause 11.4 - Termination for Insolvency or Breach
If:
(a) an Insolvency Event occurs to the Consultant or, where the Consultant comprises 2 or more persons, to any one of those persons;
(b) the Consultant does not remedy a breach of Contract the subject of a notice under clause 11.3 within the number of days set out in the Contract Particulars of receiving the notice under clause 11.3; or
(c) the Consultant fails to comply with:
(i) clause 15; or
(ii) if clause 16 applies, clause 16,
then the Commonwealth may by written notice to the Consultant immediately (and without having to first give a notice under clause 11.3 (except in the case of paragraph (b)) terminate the Contract.
Clause 11.5 – Commonwealth’s Entitlements after Termination
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Key Message
This clause outlines the Commonwealth’s rights upon exercising a termination under clause 11.4 for a repudiation of the Contract by the Consultant.
The Commonwealth can require the Consultant to novate any or all subcontracts between the Commonwealth and the subconsultants to the Commonwealth or its nominee.
The Commonwealth should not make any further payments to the Consultant until it has satisfied all claims which it has against the Consultant, by deducting these from monies otherwise owing to the Consultant.
User Guidance
Where the Contract has been terminated under clause 11.4, the Consultant has certain "hand over" obligations. These are set out in clause 11.5. In the event of termination under clause 11.4, the Consultant may still retain one bona fide copy of the Project Documents so as to comply with any Statutory Requirements or recognised
Clause 11.5 - Commonwealth’s Entitlements after Termination
Subject to clause 11.1, if the Commonwealth terminates the Contract under clause 11.4 or if the Consultant repudiates the Contract and the Commonwealth otherwise terminates the Contract:
(a) the Commonwealth will:
(i) be entitled to require the Consultant to novate to the Commonwealth, or the Commonwealth's nominee, any or all subcontracts between the Consultant and its subconsultants as required by the Commonwealth;
(ii) to the extent permitted by the relevant Security of Payment Legislation, not be obliged to make any further payments to the Consultant, including any money the subject of a payment claim under clause 10.2 or a payment statement under clause 10.4; and
(iii) be entitled to recover from the Consultant any costs, losses or damages incurred or suffered by it as a result of, or arising out of, or in any way in connection with, such termination; and
(b) the Consultant must immediately hand over to the Commonwealth all copies of:
(i) documents provided by the Commonwealth in connection with the Services (including the Commonwealth Material); and
(ii) subject to clauses 15.3 and 16.4 Project Documents prepared by the Consultant to the date of termination (whether complete or not).
Clause 11.6 – Consultant’s Entitlements after Termination
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Key Message
This clause outlines the Consultant’s rights in the event the Commonwealth repudiates the Contract and the Consultant, in response, validly terminates the Contract.
This clause also removes any option under general law for the Consultant to claim any amount by quantum meruit following a repudiation of the Contract by the Commonwealth.
User Guidance
If the Commonwealth has repudiated the Contract and the Consultant has validly terminated the Contract in response, the Consultant's entitlement to claim will be limited to an amount determined in accordance with clause 11.8 (see below). Repudiation means for example not paying the Consultant's amounts due and owing to it.
This clause expressly prevents the Consultant from claiming an amount in such circumstances via a quantum meruit action. Under the general law, the Consultant could have the right to elect to recover on the basis of either damages or a quantum meruit, and would naturally choose the basis which resulted in greater compensation for the Consultant.
Again, if any allegation is made that the Commonwealth has repudiated the Contract (and, therefore, that clause 10.6 applies), urgent legal advice should be sought.
Clause 11.6 - Consultant’s Entitlements after Termination
If the Commonwealth repudiates the Contract and the Consultant terminates the Contract, the Consultant will:
(a) be entitled to claim an amount determined in accordance with clause 11.8 as if the Commonwealth had terminated the Contract under clause 11.7; and
(b) not be entitled to a quantum meruit.
This clause 11.6 will survive the termination of the Contract.
Clause 11.7 – Termination for Convenience
Clause 11.8 – Costs
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Key Message
Seek legal advice and advice from Directorate of Program Assurance before exercising rights under this clause.
This clause provides the Commonwealth with the right to terminate the Contract for its sole convenience and complete the uncompleted part of the Services itself or engage another consultant.
The Consultant’s entitlement to compensation following such termination for convenience is calculated by reference to the subclauses in clause 11.8(a).
User Guidance
Exercising the power to terminate for "convenience" should, as stated above, not be considered without appropriate strategic and legal advice. Should the Commonwealth wish to exercise this right, then it must provide written notice to the Consultant stating its intention to do so.
Users should note that the Consultant will be entitled to payment in accordance with clause 11.8 if the Commonwealth exercises its right to terminate under clause 11.7.
The amount payable under clause 11.8 are the limits upon the Commonwealth's liabilities arising out of its use of clause 11.7 and the Consultant is not entitled to make any Claim regarding the termination.
Clause 11.7 - Termination for Convenience
Without prejudice to any of the Commonwealth's other rights under this Contract, the Commonwealth may:
(a) at any time for its sole convenience and for any reason by written notice to the Consultant terminate the Contract effective from the time stated in the Commonwealth’s notice or if no such time is stated, at the time the notice is given to the Consultant; and
(b) thereafter, complete the uncompleted part of the Services either itself or by engaging Other Contractors.
Clause 11.8 - Costs
If the Commonwealth terminates the Contract under clause 11.7, the Consultant:
(a) will be entitled to payment of the following amounts as determined by the Commonwealth's Representative:
(i) for Services carried out prior to the date of termination, the amount which would have
been payable if the Contract had not been terminated and the Consultant submitted a payment claim for Services carried out to the date of termination; and
(ii) the cost of goods or materials (if any) reasonably ordered by the Consultant for the Services for which the Consultant is legally bound to pay provided that:
A. the value of the goods or materials is not included in the amount payable under subparagraph (i); and
B. title in the goods and materials will vest in the Commonwealth upon payment; and
(b) must:
(i) take all steps possible to mitigate the costs referred to in paragraph (a)(ii); and
(ii) immediately hand over to the Commonwealth all copies of all:
A. documents provided by the Commonwealth in connection with the Services (including the Commonwealth Material); and
B. subject to clauses 15.3 and 16.4 Project Documents prepared by the Consultant to the date of termination (whether complete or not).
The amount to which the Consultant is entitled under this clause 11.8 will be a limitation upon the Commonwealth’s liability to the Consultant arising out of, or in any way in connection with, the termination of the Contract (whether under clause 11.7 or deemed to be under clause 11.7 through the operation of clause 11.6(a)) and the Consultant will not be entitled to make any Claim against the Commonwealth arising out of, or in any way in connection with, the termination of the Contract other than for the amount payable under this clause 11.8.
This clause 11.8 will survive the termination of the Contract by the Commonwealth under clause 11.7 or by the Consultant following repudiation by the Commonwealth.
Seek legal advice and advice from Directorate of Program Assurance before exercising rights under this clause.
Despite the obligation for the parties to co-operate, disputes may occur. When they occur they are dealt with in a structured and controlled manner under the Contract.
Clause 12 sets out a procedure for the resolution of disputes. Essentially, there are 4 steps:
(a) commencing the process (clause 12.1);
(b) expert determination (clauses 12.2 -12.10) - note this stage only applies if the dispute or difference relates to a direction of the Commonwealth's Representative; if not, the parties are to proceed directly to executive negotiation;
(c) executive negotiation (clause 12.11); and
(d) arbitration (clause 12.12 - 12.13).
The intent of the provisions is that:
(e) disputes be resolved at the earliest stage possible; and
(f) to the extent possible, disputes not be the subject of court proceedings.
This clause provides both parties with a clear process to be adhered to in the event of a dispute or difference. This eliminates the need for the parties to litigate at first instance or come to an agreement upon a method for resolution in order to resolve the dispute or difference. A proforma 'Notice of Dispute' is included in this Manual below.
Clause 12.1 – Notice of Dispute
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Proforma notice
Key Message
The process for dealing with disputes or differences that arise between the parties is outlined in clause 12 . Parties may notify each other in writing if a dispute or difference arises.
User Guidance
This clause establishes the general position that, where disputes arise between the Consultant and the Commonwealth / Commonwealth's Representative, the dispute must be determined in accordance with clause 12 .
Where a dispute or difference arises, either the Commonwealth or the Consultant may give notice in writing to the Commonwealth's Representative and the other party specifying the nature of the dispute, particulars of the party's reasons for being dissatisfied and the position that the party believes is correct.
Legal advice should be obtained before issuing a notice of dispute.
If a dispute or difference arises between the Consultant and the Commonwealth or between the Consultant and the Commonwealth's Representative in respect of any fact, matter or thing arising out of, or in any way in connection with, the Services, the Project or the Contract, or either party's conduct before the Contract, the dispute or difference must be determined in accordance with the procedure in this clause 12.
Where such a dispute or difference arises, either party may give a notice in writing to the Commonwealth's Representative and the other party specifying:
(a) the dispute or difference;
(b) particulars of the party's reasons for being dissatisfied; and
(c) the position which the party believes is correct.
Clause 12.2 – Expert Determination
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Key Message
This clause refers disputes or differences arising out of a direction by the Commonwealth's Representative to expert determination.
As the Commonwealth’s Representative is an agent of the Commonwealth, and not an independent certifier, it must act in accordance with any instruction from the Commonwealth. This clause provides the Consultant with comfort that, despite the nature of the relationship between the Commonwealth and the Commonwealth’s Representative, this is an opportunity for a dispute to be referred to an independent expert.
User Guidance
As noted above, the Commonwealth's Representative is expressed (under clause 4.1) to act as agent of the Commonwealth (and not as a certifier, assessor or valuer) when exercising all its functions under the Contract.
To afford the Consultant a measure of comfort that the Commonwealth's Representative is acting in accordance with the Contract, disputes arising out of certain directions of the Commonwealth's Representative are referred to expert determination if the parties cannot otherwise resolve the dispute within 14 days.
Only use this clause having sought legal advice.
Clause 12.2 - Expert Determination
If the dispute or difference is in relation to a direction of the Commonwealth's Representative is not resolved within 14 days after a notice is given under clause 12.1, the dispute or difference must be submitted to expert determination.
Clauses 12.3-12.9 outline the requirements of the appointment of an expert to determine the dispute or differences arising from a direction of the Commonwealth’s Representative, the role of the expert and the process of the determination.
The expert determination will be substituted for the direction of the Commonwealth’s Representative over which the dispute or difference has occurred, unless either party gives a notice of appeal to the other party.
User Guidance
These clauses set out the procedures to be followed in conducting the expert determination. These will be supplemented by the agreement between the Commonwealth, the Consultant and the expert which is required to be executed under clause 12.9.
A detailed analysis of these provisions is beyond the scope of this Manual. Almost inevitably, complex factual and legal issues must be considered by the parties before an expert determination. If any issues arise (including a request by either party, or the expert, to alter these procedures), appropriate specialist advice should be sought.
Clause 12.3 - The Expert
(a) The expert determination under clause 12.2 is to be conducted by:
(i) the independent industry expert specified in the Contract Particulars; or
(ii) where no such independent industry expert is specified or paragraph (b) applies, an independent industry expert appointed by the person specified in the Contract Particulars.
(b) If the expert appointed under this clause 12.3:
(i) is unavailable;
(ii) declines to act;
(iii) does not respond within 14 days to a request by one or both parties for advice as to whether he or she is able to conduct the determination;
(iv) does not enter into the agreement in accordance with clause 12.9(b) within 14 days of his or her appointment under this clause 12; or
(v) does not make a determination within the time required by clause 12.8,
the jurisdiction of the expert shall lapse and a further expert must be appointed under paragraph (a).
(c) If there has been an appointment under paragraph (a) and one of the events in paragraph (b) has occurred, the further expert appointed under paragraph (a) shall not be an expert previously appointed under paragraph (a) in respect of the same dispute or difference.
Clause 12.4 - Not Arbitration
An expert determination conducted under this clause 12 is not an arbitration and the expert is not an arbitrator. The expert may reach a decision from his or her own knowledge and expertise.
Clause 12.5 - Procedure for Determination
The expert will:
(a) act as an expert and not as an arbitrator;
(b) proceed in any manner he or she thinks fit;
(c) conduct any investigation which he or she considers necessary to resolve the dispute or difference;
(d) examine such documents and interview such persons, as he or she may require; and
(e) make such directions for the conduct of the determination as he or she considers necessary.
Clause 12.6 - Disclosure of Interest
The expert must:
(a) disclose to the parties any:
(i) interest he or she has in the outcome of the determination;
(ii) conflict of interest;
(iii) conflict of duty;
(iv) personal relationship which the expert has with either party, or either party's representatives, witnesses or experts; and
(v) other fact, matter or thing which a reasonable person may regard as giving rise to the possibility of bias; and
(b) not communicate with one party to the determination without the knowledge of the other.
Clause 12.7 - Costs
Each party will:
(a) bear its own costs in respect of any expert determination; and
(b) pay one-half of the expert’s costs.
Clause 12.8 - Conclusion of Expert Determination
Unless otherwise agreed between the parties, the expert must notify the parties of his or her decision upon an expert determination conducted under this clause 12 within 28 days from the acceptance by the expert of his or her appointment.
(a) The expert will not be liable to the parties arising out of, or in any way in connection with, the expert determination process, except in the case of fraud.
(b) The parties must enter into an agreement with the appointed expert on such terms as the parties and the expert may agree.
Clause 12.10 - Determination of Expert
The determination of the expert:
(a) must be in writing;
(b) will be substituted for the relevant direction of the Commonwealth's Representative unless a party gives notice of appeal to the other party within 21 days of receiving such determination in which case, subject to clauses 12.11 and 12.12, any such appeal will be by way of a hearing de novo; and
(c) will be final and binding, unless a party gives notice of appeal to the other party within 21 days of receiving such determination.
Clause 12.11 – Executive Negotiation
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Key Message
All other disputes or differences not referred to an expert under clause 12.2, and any expert determination which becomes the subject of a notice of appeal under clause 12.10 are to be referred to Executive Negotiators to resolve the dispute.
If within 21 days the dispute is not resolved it will proceed to arbitration.
User Guidance
Before a dispute is submitted to arbitration, it must first be referred for executive negotiation in an attempt to resolve it. The representatives are required to undertake "genuine and good faith negotiations" to resolve the dispute or, if the dispute or difference cannot be resolved by them, to agree upon a procedure to resolve the dispute (including mediation or further expert determination).
Clause 12.11 - Executive Negotiation
(a) If:
(i) clause 12.2 applies, and a notice of appeal is given under clause 12.10; or
(ii) clause 12.2 does not apply,
the dispute or difference is to be referred to the Executive Negotiators.
(b) The Executive Negotiators must within:
(i) 21 days of:
A. if the dispute or difference is not one which is to be referred to expert determination under clause 12.2, the notice of dispute given under clause 12.1; or
B. otherwise, the notice of appeal given under clause 12.10; or
(ii) such longer period of time as the Executive Negotiators may agree in writing,
meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference and, if they cannot resolve the dispute or difference, endeavour to agree upon a procedure to resolve the dispute or difference (such as mediation or further expert determination).
Clause 12.12 – Arbitration Agreement
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Key Message
All disputes not resolved by Executive Negotiation are to be referred to arbitration by a written notice from either party.
User Guidance
The clause provides that all disputes subject of a notice under clause 12.1 will be determined by arbitration in accordance with clause 12.13.
Clause 12.12 - Arbitration Agreement
If, within:
(a) 21 days of the notice of dispute given under clause 12.1; or
(b) such longer period of time as the Executive Negotiators may agree in writing,
the Executive Negotiators:
(c) or either party refuse or fail to meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference;
(d) cannot resolve the dispute or difference; or
(e) have not reached agreement upon a procedure to resolve the dispute or difference,
the dispute or difference will be referred to arbitration by a written notice by either party to the other party.
Clause 12.13 – Arbitration
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Key Message
Arbitration is the dispute resolution technique which most closely resembles litigation but the parties have the benefit of agreeing to the terms on which the arbitration will be conducted. These terms are outlined in this clause.
By agreeing to these terms prior to executing the Contract, the aim is to achieve a quality decision that is time efficient and cost effective in the event a dispute proceeds to arbitration.
The dispute will be referred to arbitration if the Executive Negotiators are unable to resolve, or agree upon a procedure to resolve, the dispute or difference within 21 days or such later period as agreed.
Arbitration is a method of dispute resolution to which parties can agree to submit. Unlike expert determination, the process of arbitration is more formal, partly governed by legislation and can produce final and binding outcomes. The parties are also able to agree on the procedure which will govern the arbitration. The Commonwealth has sought to do this in clause 12.13 by specifying the rules of the arbitration, the seat of the arbitration and appropriate law (Victoria) to apply in order to provide a procedure focused on achieving quality decisions both efficiently and cost effectively.
Because arbitrations result in formal and binding awards, appropriate and specific legal advice must be taken in preparation for any arbitration. Accordingly, no further general guidance is provided here.
Clause 12.13 -Arbitration
(a) Arbitration pursuant to this clause will be conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC Rules) current at the time of the reference to arbitration and as otherwise set out in this clause.
(b) The seat of the arbitration will be Melbourne, Australia and hence the proper law of the arbitration shall be Victoria.
(c) Nothing in this clause is intended to modify or vary the rights of appeal contained in the Commercial Arbitration Act 2011 (Vic). For the avoidance of doubt, the second sentence of Article 34(6) of the ICC Rules (in force from 1 January 2012) or its equivalent in any subsequent version of the ICC Rules shall not apply.
(d) The parties agree that:
(i) they have entered into the arbitration agreement under this clause 12 for the purposes of achieving a just, quick and cheap resolution of any dispute or difference;
(ii) any arbitration conducted pursuant to this clause will not mimic court proceedings of the seat of the arbitration and the practices of those courts will not regulate the conduct of the proceedings before the arbitrator; and
(iii) in conducting the arbitration, the arbitrator must take into account the matters set out in subparagraphs (i) and (ii).
(e) One arbitrator will be appointed.
(f) All evidence in chief will be in writing unless otherwise ordered by the arbitrator.
(g) Discovery will be governed by the substantive and procedural rules and practices adopted by the Federal Court of Australia at the time of arbitration.
(h) The oral hearing will be conducted as follows:
(i) the oral hearing will take place in Melbourne, Australia and all outstanding issues must be addressed at the oral hearing;
(ii) the date and duration of the oral hearing will be fixed by the arbitrator at the first preliminary conference. The arbitrator must have regard to the principles set out in paragraph (d) when determining the duration of the oral hearing;
(iii) oral evidence in chief at the hearing will be permitted only with the permission of the arbitrator for good cause;
(iv) the oral hearing will be conducted on a stop clock basis with the effect that the time available to the parties will be split equally between the parties so that each party will have the same time to conduct its case unless, in the opinion of the arbitrator, such a split
would breach the rules of natural justice or is otherwise unfair to one of the parties;
(v) not less than 28 days prior to the date fixed for the oral hearing, each party will give written notice of those witnesses (both factual and expert) of the other party that it wishes to attend the hearing for cross examination; and
(vi) in exceptional circumstances, the arbitrator may amend the date of hearing and extend the time for the oral hearing set under subparagraph (ii).
(i) Unless otherwise ordered, each party may only rely upon one expert witness in respect of any recognised area of specialisation.
Clause 12.14 – Proportional Liability
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Key Message
Proportional liability legislation will not be considered or applied in either an expert determination or arbitration (if this is permissible by law).
User Guidance
A number of Australian jurisdictions have implemented proportional liability legislation.
Such proportional liability legislation has the potential to disrupt and impact on the risk allocation set out in the Contract, including provisions in respect of:
(a) governing law of the Contract (clause 1.3(a));
(b) joint and several liability (clause 1.3(d)); and
(c) arbitration (clause 12.13).
In essence, the proportional liability regime allows a party to reduce its liability, including liability under a contract, to the amount that a court considers just having regard to the extent of its responsibility for the underlying loss and damage (excluding personal injury), notwithstanding that it may have assumed responsibility for the full amount of that loss and damage under the express terms of the relevant contract.
It is unclear whether or not, in calculating the proper amount in light of a person's responsibility for loss or damage, a court will take the express provisions of the relevant contract into account.
Courts commonly make findings as to the degree to which plaintiffs and various defendants have contributed to the loss and damage, especially in circumstances where there are "contribution proceedings" on foot between various defendants.
The difference with proportional liability legislation is that the burden of:
(a) locating and joining parties to the action which may have been responsible for the loss and damage; and
(b) the risk that such parties may be impecunious or otherwise inaccessible,
will usually rest with the plaintiff rather than the other defendants.
Under the wording of at least some proportional liability legislation, the obligations of financial guarantors, performance bond issuers and insurers do not appear to fall within the ambit of the legislation and will not be
The proportional liability legislation is new and complex legislation which is not identical in each State and Territory. As a result, legal advice concerning its potential or actual impact should be obtained.
Clause 12.14 - Proportional Liability
(a) Notwithstanding anything else, to the extent permissible by law, the expert or the arbitrator (as the case may be) will have no power to apply or to have regard to the provisions of any proportional liability legislation which might, in the absence of this provision, have applied to any dispute referred to arbitration or expert determination pursuant to this clause.
(b) If any of the Services are being carried out in Western Australia, all of the provisions comprising Part 1F of the Civil Liability Act 2002 (WA) are hereby expressly excluded from application to this Contract.
Clause 12.15 – Continuation of Services
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Key Message
The Consultant must continue to carry out the Services and comply with the Contract despite the existence of a dispute or difference.
User Guidance
Clause 12.15 makes it clear that the Consultant is not entitled to suspend or cease its activities and other obligations under the Contract on the grounds that the parties are in dispute in relation to a particular issue or matter under the Contract.
Clause 12.15 - Continuation of Services
Despite the existence of a dispute or difference between the parties the Consultant must:
(a) continue to carry out the Services; and
(b) otherwise comply with its obligations under the Contract.
Strict requirements apply to the giving and receiving of notices that control the manner in which Claims can be made under the Contract.
Failure to comply with the notice provisions may risk a Claim being rejected.
Notice provisions of the Terms of Engagement allow the Commonwealth to control the claims process in a prompt, consistent and predictable manner.
Avoid "banked up" Claims. Submit and consider Claims promptly.
Time is of the essence. Time bars should be carefully considered by the Commonwealth before a Claim is considered to avoid the Commonwealth waiving its right to bar a Claim. A late Claim may be rejected.
Clause 13 deals with the giving and receiving of notices with respect to Variations and other Claims.
Clause 13 aims to ensure that Claims for extra money are dealt with promptly throughout the engagement and not "banked up". It does this by barring, under clause 13.5, any Claims that have not been made in accordance with the relevant provisions of clause 13.1 (in the case of alleged Variations) or 13.2 - 13.4 (in the case of other Claims).
Commonwealth staff who are in any doubt as to whether a Claim has been made in accordance with clause 13 (including as to the timeframes for submission of notices) should seek appropriate advice immediately.
It should be noted that the actions of the Commonwealth or the Commonwealth's Representative in respect of time bar/notification provisions can affect the standing of a particular provision at law (i.e. through estoppel or waiver). Such action may be as simple as proceeding to consider the merits of the Claim notwithstanding non-compliance with time bars.
That is, if by the Commonwealth's or the Commonwealth's Representative's actions, it could be argued by the Consultant that the Commonwealth or the Commonwealth's Representative represented to the Consultant that it was not going to rely upon the notice provisions, then the Commonwealth or the Commonwealth's Representative may not be able to rely on them at a later date. In such circumstances, the Commonwealth may be no longer able to subsequently reject the Claim in reliance on that clause or clauses.
Accordingly, Commonwealth personnel must carefully consider their actions upon receipt of a Claim. It is strongly suggested that - in the absence of exceptional circumstances which must, in any case, be the subject of specialist advice - the express wording of the Contract be applied to protect the Commonwealth's position. This can be done by using the proforma notices provided in this Manual.
Directions given by the Commonwealth during the course of the Contract may unintentionally amount to a change in the scope of the Services.
The Consultant must give notice to the Commonwealth within 7 days if it considers that a directions constitutes a Variation and before commencing work on the subject matter of the direction.
The Consultant must continue to carry out the Services in accordance with the Contract and all directions of the Commonwealth's Representative, including any direction in respect of which notice has been given under clause 13.1.
The Consultant must give a second (more detailed) notice within 21 days after giving the earlier notice under clause 13.1(a). The Consultant must continue to carry out the Services in accordance with the Contract and any direction in respect of which a notice has been given under clause 13.1.
The Commonwealth should avoid giving directions that risk a unintended changes in scope of the Services by carefully considering the impact of a direction against the existing scope.
User Guidance
This clause deals with the situation where the Consultant claims that a direction, other than one framed as a "Variation Order", constitutes a Variation (and therefore may entitle the Consultant to extra payment under clause 9). This may arise because the Commonwealth, in issuing a direction, has not considered that it represents a change in the Services and therefore a Variation.
Clause 13.1(a) requires the Consultant to notify the Commonwealth within 7 days of receiving a direction if it believes the direction constitutes a Variation and no Variation Order notice has been issued. A proforma notice titled 'Notice of Variation' is provided in this Manual.
The Consultant must also provide a written Claim under clause 13.1(b) within 21 days of submitting its written notice under clause 13.1(a). This Claim must include the details required under clause 13.3(b).
Before issuing a direction regarding the Services the Commonwealth should consider whether it will change (either increase or decrease) the scope of the Services and therefore whether it is in fact a Variation.
Clause 13.1 - Notice of Variation
If a direction by the Commonwealth's Representative, other than a "Variation Order" under clause 9.2, constitutes or involves a Variation, the Consultant must, if it wishes to make a Claim against the Commonwealth arising out of, or in any way in connection with, the direction:
(a) within 7 days of receiving the direction and before commencing work on the subject matter of the direction, give notice to the Commonwealth's Representative that it considers the direction constitutes or involves a Variation;
(b) within 21 days after giving the notice under paragraph (a), submit a written claim to the Commonwealth's Representative which includes the details required by clause 13.3(b); and
(c) continue to carry out the Services in accordance with the Contract and all directions of the Commonwealth's Representative, including any direction in respect of which notice has been given under this clause 13.1.
All Claims (excluding payment, Variation and indemnity claims) must be submitted in accordance with clause 13.3.
User Guidance
Where the Consultant wishes to make a Claim against the Commonwealth in respect of any direction by the Commonwealth's Representative or in respect of any other fact, matter or thing (including a breach of contract by the Commonwealth) under or in connection with the Contract or the Services, other than those which involve:
(a) payment under clause 10 on account of the unadjusted Fee;
(b) a Variation instructed in accordance with clause 9.2 or to which clause 13.1 applies; or
(c) contribution or indemnity for loss or damage caused or contributed to by the negligence of the Commonwealth where the Commonwealth or a third party (other than a sub-consultant, etc.) makes a claim against the Consultant,
it must submit notices as required by clause 13.3.
Note that where the Claim is alleged to arise in connection with a provision of the Contract, the Consultant is required to submit a Claim under clause 13 in addition to any notice or other document required under the relevant provision (see also clause 13.6).
Clause 13.2 - Notice of Other Claims
Except for claims for:
(a) payment under clause 10 on account of the unadjusted Fee;
(b) a Variation instructed in accordance with clause 9.2 or to which clause 13.1 applies; or
(c) contribution or indemnity for loss or damage caused or contributed to by the negligence of the Commonwealth, where the Commonwealth or a third party (other than a subconsultant of the Consultant or other party for whom the Consultant is legally responsible) makes a claim (whether in tort, under statute or otherwise at law) against the Consultant,
the Consultant must give the Commonwealth's Representative the notices required by clause 13.3 if it wishes to make a Claim against the Commonwealth in respect of any direction by the Commonwealth's Representative or any other fact, matter or thing (including a breach of the Contract by the Commonwealth) under, arising out of, or in any way in connection with, the Services or the Contract, including anything in respect of which:
(d) it is otherwise given an express entitlement under the Contract; or
(e) the Contract expressly provides that:
(i) specified costs are to be added to the Fee; or
(ii) the Fee will be otherwise increased or adjusted,
as determined by the Commonwealth's Representative.
The prescribed notices procedure involves the Consultant issuing two notices - an initial notice outlining the Claim (within 7 days of the Claim arising) and a subsequent detailed notice of Claim (within 21 days of the first notice).
Receipt of the first notice is an opportunity for the Commonwealth to investigate and prepare for the second more detailed Claim.
User Guidance
Under clause 13.3(a), the Consultant must issue an initial written notice containing certain details within 21 days of the first occurrence of the thing upon which the Claim is based. A proforma notice for this purpose titled ' Notice of Claim (Initial )' is provided in this Manual.
Clause 13.3(b) sets out the provisions relating to a further notice which must be issued within 21 days of issuing a Notice of Variation under clause 13.1 or a notice of Claim under clause 13.3(a). A proforma notice for this purpose titled ''Notice of Claim ' is provided in this Manual.
Again, if Commonwealth personnel are in any doubt about whether an alleged Claim has been barred by clause 13.5, appropriate advice should be sought immediately.
Clause 13.3 - Prescribed Notices
The notices referred to in clause 13.2 are:
(a) a written notice within 7 days of the first occurrence of the direction or other fact, matter or thing upon which the Claim is based, expressly specifying:
(i) that the Consultant proposes to make a Claim; and
(ii) the direction or other fact, matter or thing upon which the Claim will be based; and
(b) a written Claim within 21 days of giving the written notice under paragraph (a), which must include:
(i) detailed particulars concerning the direction or other fact, matter or thing upon which the Claim is based;
(ii) the legal basis for the Claim, whether based on a term of the Contract or otherwise and if based on a term of the Contract clearly identifying the specific term;
(iii) the facts relied upon in support of the Claim in sufficient detail to permit verification; and
(iv) details of the amount claimed and how it has been calculated.
The Consultant must notify the Commonwealth of 'continuing events' the subject of a Claim every 28 days.
Be aware of the risk that the nature or extent of a Claim may change over time.
User Guidance
The Consultant must keep the Commonwealth informed of continuing events by notice every 28 days from the time the Claim was submitted.
The Consultant is to submit a notice of continuing events, every 28 days after the written Claim under clause 13.1(b) or 13.3(b) was submitted, if the direction or fact, matter or thing upon which the Claim is based, or the consequences, are continuing.
Although this document contains the same information as a Claim under clause 13.3(b), a separate proforma notice titled 'Notice of Continuing Events' is provided in this Manual.
Clause 13.4 - Continuing Events
If the direction or fact, matter or thing upon which the Claim under clause 13.1(b) or clause 13.2 is based or the consequences of the direction or fact, matter or thing are continuing, the Consultant must continue to give the information required by clause 13.3(b) every 28 days after the written claim under clause 13.1(b) or 13.3(b) (as the case may be) was submitted or given to the Commonwealth's Representative, until after the direction or fact, matter or thing upon which the Claim is based has, or the consequences thereof have, ceased.
Clause 13.5 - Time Bar
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Key Message
Time is of the essence when submitting Claims. The Consultant cannot "bank up" its Claims and submit them at completion of the Services. Claims must be submitted and dealt with promptly.
The Consultant risks losing its entitlement to make a Claim if it does not submit its Claims promptly and within the time bar period.
The Commonwealth can rely on time bar provisions to reject a Claim.
User Guidance
As stated above, the purpose of this clause is to ensure that the Consultant complies with the notice provisions. Failure to do so will bar the Consultant from making any Claim against the Commonwealth in relation to that direction, fact, matter or thing, or the consequences.
Clause 13.5 - Time Bar
If the Consultant fails to comply with clause 13.1, 13.2, 13.3 or 13.4:
(a) the Commonwealth will not be liable (insofar as it is possible to exclude such liability) upon any Defence Infrastructure Panel 2017-2022Contract Manual Volume 2: Contract ManagementCUFooterText 145
Claim by the Consultant; and
(b) the Consultant will be absolutely barred from making any Claim against the Commonwealth,
arising out of, or in any way in connection with, the relevant direction or fact, matter or thing (as the case may be) to which clause 13.1 or 13.2 applies.
Clause 13.6 - Other Provisions Unaffected
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Key Message
The notice provisions in clause 13 do not limit the Consultant's obligations to give notice under other provisions of the Contract.
User Guidance
As noted above in relation to clause 13.2, where the Consultant seeks to make a Claim in respect of an alleged entitlement under the Contract, it has to submit a separate notice under clause 13 in addition to any notice required under the relevant provision. This is made clear in clause 13.6.
Clause 13.6 - Other Provisions Unaffected
Nothing in clauses 13.1 - 13.5 will limit the operation or effect of any other provision of the Contract which requires the Consultant to give notice to the Commonwealth's Representative in order to preserve an entitlement to make a Claim against the Commonwealth.
Clause 13.7 - Address for Service
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Key Message
Notice must be delivered signed, in writing, by hand, post or email to the proper address for serving of notices.
User Guidance
This clause requires that any notice to be given under the Contract must be in writing and must be delivered to the address set out in the Contract Particulars or last notified in writing to the party giving the notice. This can be by way of prepaid post or email, with the exception of clauses 11 and 12. Notices submitted under clauses 11 and 12 must, if sent by email, also be delivered by hand or prepaid express post.
Clause 13.7 - Address for Service
Any notice to be given or served under or arising out of a provision of this Contract must:
(a) be in writing;
(b) be delivered by hand, sent by prepaid express post or sent by email (except for notices under clause 11 and 12) which, if sent by email must additionally be delivered by hand or sent by prepaid express post), as the case may be, to the relevant address or email address:
(ii) last notified in writing to the party giving or serving the notice,
for the party to whom or upon which the notice is to be given or served;
(c) be signed by the party giving or serving the notice or (on the party's behalf) by the solicitor for or attorney, director, secretary or authorised agent of the party giving or serving the notice; and
(d) in the case of notices sent by email:
(i) be in Portable Document Format (pdf) and appended as an attachment to the email; and
(ii) include the words "This is a notice under clause 13.7 of the Contract" in the subject field of the email.
Clause 13.8 - Receipt of Notices
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Key Message
Receipt of notices is deemed to occur at certain times stipulated in the Contract in order to provide certainty as to the strict time limits that apply to the giving and receiving of notices under the Contract.
User Guidance
Clause 13.8 sets out the dates upon which a notice will be deemed to have been given and received depending on the form of service chosen. This is especially important given the importance (noted above) of time in relation to notices under clause 13 and elsewhere.
Clause 13.8 - Receipt of Notices
(a) Subject to paragraph (b), a notice given or served in accordance with clause 13.7 is taken to be received by the party to whom or upon whom the notice is given or served in the case of:
(i) delivery by hand, on delivery;
(ii) prepaid express post sent to an address in the same country, on the fifth day after the date of posting;
(iii) prepaid express post sent to an address in another country, on the seventh day after the date of posting; and
(iv) email, the earlier of:
(v) delivery to the email address to which it was sent; or
(vi) one hour after the email enters the server of the email address to which it was sent, provided that no delivery or transmission error is received by the sender within one hour of the time of sending shown on the "sent" email.
(b) In the case of notices under clause 11 and 12 if the notice is sent by email as well as being delivered by hand or sent by prepaid express post in accordance with clause 13.7(b), the notice is taken to be received by the party to whom or upon whom the notice is given or serviced on the earlier of:
(i) the date the notice sent by email is taken to be received; or
This clause reflects the Commonwealth’s commitment to creating opportunities for Indigenous businesses to grow and employ more people, under the Indigenous Procurement Policy (IPP).
The IPP is a policy implemented by the Department of the Prime Minister and Cabinet and is broken down into three key components:
(a) to set a target for purchasing from Indigenous enterprises;
(b) to set-aside and direct some Commonwealth contracts to Indigenous enterprises; and
(c) to prescribe minimum Indigenous participation requirements for certain Commonwealth contracts.
A copy of the Commonwealth’s Indigenous Procurement Policy is available online at: https://www.dpmc.gov.au/sites/default/files/publications/indigenous_procurement_policy_1.pdf
Clause 14.1 Indigenous Procurement Policy - Option 1 (Non High Value Contract)
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Proforma notice
Key Message
This clause contains obligations on the Consultant, intended to further the objectives and aims of the IPP. This clause will apply for Contracts which are not "High Value Contracts" (as defined in the IPP). Additional obligations will apply if the Fee exceeds $7.5 million at any time.
User Guidance
This clause requires the Consultant to use its reasonable endeavours to increase its purchasing from Indigenous Enterprises and employment of Indigenous Australians in carrying out the Services in accordance with the IPP. The term “reasonable endeavours” is not a strict obligation to do a particular thing, but does require the Consultant to take reasonable steps (in the circumstances) to meet such an obligation.
If at any time the Fee exceeds $7.5 million, the Contract will become a High Value Contract for the purposes of the IPP. The Consultant will then be required to prepare and submit an Indigenous Participation Plan (in accordance with the IPP) to the Commonwealth's Representative for approval. The Consultant will be required to comply with, and report on its compliance with, the approved Indigenous Participation Plan. A proforma notice has been included in this Manual for use by the Commonwealth's Representative to request an Indigenous Participation Plan if the Fee exceeds the relevant threshold.
The Consultant's Indigenous Participation Plan will be recorded in a central database accessible by the Commonwealth and the public, and may be used in evaluation of future tenders submitted by the Consultant.
Clause 14.1 - Indigenous Procurement Policy - Option 1 (Non High Value Contract)
This option 1 applies if the Contract is not a High Value Contract.
(a) The Consultant must use its reasonable endeavours to increase its:
(i) purchasing from Indigenous Enterprises; and
(ii) employment of Indigenous Australians,
in carrying out the Services, in accordance with the Indigenous Procurement Policy.
(b) If at any time the Fee exceeds $7.5 million (such that the Contract becomes a High Value Contract), the Consultant must:
(i) within 14 days of a request from the Commonwealth's Representative, prepare and submit an Indigenous Participation Plan in accordance with the Indigenous Procurement Policy (including any requirement that applies in respect of a Remote Area) to the Commonwealth's Representative for approval; and
(ii) once approved by the Commonwealth's Representative, the Consultant must:
A. comply with the Indigenous Participation Plan; and
B. report at least quarterly in such form and on such matters as the Commonwealth's Representative may require from time to time, including a detailed explanation of the Consultant's compliance with the Indigenous Participation Plan.
(c) The Consultant acknowledges and agrees that the reports under paragraph (b)(ii)B:
(i) will be recorded in a central database accessible by the Commonwealth and the public;
(ii) will not be Commercial-In-Confidence Information for the purposes of clause 11.2 of the Panel Agreement; and
(iii) may be used in the evaluation of future tenders submitted by the Consultant to the Commonwealth.
Where the Contract is a "High Value Contract" (as defined under the IPP), the Consultant will be required to comply with an Indigenous Participation Plan in relation to performing the Services.
User Guidance
If the Contract is a "High Value Contract", the Consultant will be required to prepare and submit an Indigenous Participation Plan. The Consultant will be required to comply with the Indigenous Participation Plan throughout performing the Services. The Consultant must report to the Commonwealth's Representative its compliance with the IPP and its Indigenous Participation Plan.
The Indigenous Participation Plan will be recorded in a central database accessible by the Commonwealth and
the public, and may also be used in evaluation of future tenders submitted by the Consultant.
This Consultant will also be required to use reasonable endeavours to increase its purchasing from Indigenous Enterprises and employment of Indigenous Australians in carrying out the Services in accordance with the IPP. The term “reasonable endeavours” is not a strict obligation to do a particular thing, but does require the Consultant to take reasonable steps (in the circumstances) to meet such an obligation.
This option 2 applies if the Contract is a High Value Contract.
(a) The Consultant must use its reasonable endeavours to increase its:
(i) purchasing from Indigenous Enterprises; and
(ii) employment of Indigenous Australians,
in carrying out the Services, in accordance with the Indigenous Procurement Policy.
(b) The Consultant must:
(i) comply with the Indigenous Participation Plan; and
(ii) report:
A. at least quarterly; and
B. within 7 days of the expiry of the last Defects Liability Period (as defined in the Project Contract),
in such form and on such matters as the Commonwealth's Representative may require from time to time, including a detailed explanation of the Consultant's compliance with:
C. the mandatory minimum requirements of the Indigenous Procurement Policy (which apply on and from 1 July 2016); and
D. the Indigenous Participation Plan,
together with an explanation of any non-compliances.
(c) The Consultant acknowledges and agrees that the reports under paragraph (b)(ii)A and (b)(ii)B:
(i) will be recorded in a central database accessible by the Commonwealth and the public;
(ii) will not be Commercial-In-Confidence Information for the purposes of clause 11.2; and
(iii) may be used in the evaluation of future tenders submitted by the Consultant to the Commonwealth.
CLAUSE 15 - INFORMATION SECURITY - CONFIDENTIAL INFORMATION
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Policy Background
The DEQMS suite of contracts has always included a strict obligation of confidentiality in relation to Project Documents.
Following recent project experiences, those existing provisions have been expanded to clarify the Commonwealth's requirements in relation to confidentiality and to provide further details on what the Consultant must do in order to comply with its obligations.
It should be noted that Confidential Information does not include (and, therefore, the confidentiality provisions below will not apply to) any document, drawing, information or communication (whether in written, oral or electronic form) given to the Consultant by the Commonwealth, the Commonwealth's Representative or anyone on the Commonwealth’s behalf, whether or not owned by the Commonwealth which:
(a) is in the possession of the Consultant without restriction in relation to its disclosure or use before the date of its receipt from the Commonwealth, the Commonwealth's Representative or anyone on the Commonwealth’s behalf;
(b) is in the public domain otherwise than due to a breach of clause 15; or
(c) has been independently developed or acquired by the Consultant.
Clause 15.1 - Consultant's warranty
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Key Message
This clause requires the Consultant to acknowledge that Confidential Information is confidential.
User Guidance
Under this clause, the Consultant acknowledges and agrees that the Confidential Information is confidential. The term “Confidential Information” is defined in clause 1.1.
The Consultant also warrants to the Commonwealth that, on the Award Date and on each date it submits a payment claim, it is not aware of any breach by either the Consultant or any Recipient (as defined in clause 1.1) of the obligations under clause 15.
Clause 15.1 - Consultant's warranty
(a) The Consultant acknowledges and agrees that the Confidential Information is confidential.
(b) The Consultant warrants that on the Award Date and on the date of submitting each payment claim under clause 10.2, it is not aware of any of any breach of this clause 15 by the Consultant or any Recipient.
Clause 15.2 - Confidential Information Requirements
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Proforma notice
Key Message
This clause requires the Consultant to comply with obligations regarding confidentiality and information security. The Consultant must also ensure compliance with these obligations by any Recipient of Confidential Information.
User Guidance
This clause requires the Consultant to ensure that it complies with (and any Recipients of Confidential Information comply with) and put in place arrangements to ensure their compliance with:
(a) clause 15; and
(b) any other requirements in relation to Confidential Information and information security notified by the Commonwealth's Representative.
The Consultant is also obliged to ensure that any Recipients of Confidential Information do not do (or omit to do) anything that, if done (or not done) by the Consultant, would amount to a breach of the above.
The Consultant must not copy (or otherwise reproduce), disclose, use or deal with any Confidential Information for any purpose other than performing the Services, and must not cause, permit or allow any such copying, use, or disclosure (subject to clause 16, if it applies).
Clause 15.2(d) sets out the Consultant’s obligations in relation to the handling, usage, access and storage of Confidential Information (the “Confidential Information Requirements”) and requires the Consultant to immediately detect, notify and take all steps necessary to mitigate the effect of any Confidential Information Incident (as defined in clause 1.1). A proforma notice is included in this Manual for this purpose.
If the Commonwealth or the Commonwealth's Representative suspects, or is notified of, a threatened or actual breach of this clause, advice should be sought from the Directorate of Program Assurance as a matter of urgency.
Clause 15.2 - Confidential Information Requirements
(a) The Consultant must:
(i) strictly comply with:
A. this clause 15; and
B. all other Confidential Information and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements); and
(ii) immediately put in place arrangements to ensure that it strictly complies with:
A. this clause 15; and
B. all other Confidential Information and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements).
(b) Subject to, if clause 16 applies, clause 16, the Consultant must not:
(i) copy or otherwise reproduce in any form or medium the contents of the Confidential Information (or any part of it) or otherwise cause, permit or allow the Confidential
Information (or any part of it) to be copied or reproduced in any form or medium; or
(ii) disclose, use or deal with, the Confidential Information (or any part of it) or otherwise cause, permit or allow the Confidential Information (or any part of it) to be disclosed, used or dealt with,
for any purpose other than carrying out the Services.
(c) The Consultant must ensure that all Recipients of Confidential Information:
(i) strictly comply with:
A. this clause 15; and
B. all other Confidential Information and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements);
(ii) immediately put in place arrangements to ensure that they strictly comply with:
A. this clause 15; and
B. all other Confidential Information and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements); and
(iii) do not do or omit to do anything which, if done or omitted to be done by the Consultant, would be a breach of:
A. this clause 15; or
B. all other Confidential Information and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements).
(d) The Consultant must:
(i) ensure:
A. the Confidential Information (or any part of it); and
B. all documents, materials, media, information technology environments and all other things on or in which the Confidential Information (or any part of it) may be or is recorded, contained, set out, referred to, stored, processed or communicated (including via electronic or similar means),
are strictly kept:
C. secure and protected at all times from all unauthorised use, access, configuration administration (or similar); and
D. otherwise in accordance with all Separation Arrangements; and
(ii) immediately:
A. detect all actual or potential Confidential Information Incidents;
B. notify the Commonwealth's Representative if it becomes aware of any actual or potential Confidential Information Incident;
C. take all steps necessary to prevent, end, avoid, mitigate, resolve or otherwise manage the adverse effect of any actual or potential Confidential
D. strictly comply with all other Confidential Information and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements),
(together the Confidential Information Requirements).
Clause 15.3 - Return, destruction and erasure of Confidential Information
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Proforma notice Proforma notice
Key Message
This clause is intended to ensure the appropriate return, destruction or erasure of Confidential Information following the termination of the Contract, the expiry of the last Defects Liability Period under the Project Contract, or at any other time upon request from the Commonwealth's Representative.
User Guidance
The Consultant must, within 7 days:
(a) securely and appropriately return, destroy or erase any Confidential Information as directed by the Commonwealth or Commonwealth's Representative (and ensure any Recipient does the same);
(b) provide the Commonwealth's Representative with a statutory declaration attesting to the above; and
(c) promptly notify the Commonwealth's Representative of any Confidential Information which has not been securely and appropriately returned, destroyed or erased.
However, the Consultant may retain one copy of any Confidential Information required to be kept by any Statutory Requirement (in which case, the Consultant must provide full details to the Commonwealth's Representative).
A proforma notice has been included in this Manual below for the Commonwealth's Representative to use to request the return, destruction or erasure of Confidential Information. A proforma notice has also been included for the Consultant to notify the Commonwealth's Representative of Confidential Information that cannot be returned, destroyed or erased.
Clause 15.3 - Return, destruction and erasure of Confidential Information
(a) Within 7 days of:
(i) a request from the Commonwealth's Representative, at any time;
(ii) the termination of the Contract under clause 11 or otherwise at law; or
(iii) the expiry of the last Defects Liability Period under the Project Contract,
the Consultant must:
(iv) subject to paragraph (b), as directed by the Commonwealth's Representative or the Commonwealth in the request or notice (as the case may be) (if any) promptly:
A. securely and appropriately return all copies of the Confidential Information (in a tangible form) to the Commonwealth's Representative;
B. securely and appropriately destroy and erase all copies of the Confidential Information (whether in a tangible or intangible form);
C. ensure all Recipients of Confidential Information (or any part of it) promptly securely and appropriately return, destroy and erase all copies of the Confidential Information (whether in a tangible or intangible form);
D. provide the Commonwealth's Representative with a statutory declaration in a form approved by the Commonwealth from an authorised officer whose identity and position is approved by Commonwealth (acting reasonably) confirming that the Confidential Information (whether in a tangible form or intangible form) has been securely and appropriately returned, destroyed or erased by the Consultant and all Recipients; and
E. promptly notify the Commonwealth's Representative of all Confidential Information (or any part of it) which the Consultant knows or ought to know:
1) has not been securely and appropriately returned, destroyed or erased by the Consultant and all Recipients; and
2) is beyond the Consultant 's or a Recipient's possession, power, custody or control,
giving full particulars (including the nature and extent of the Confidential Information, precise location, entity in possession, custody or control and all relevant Confidential Information and information security arrangements).
(b) Where required by law, the Consultant may keep one copy of the Confidential Information for its records.
(c) The Consultant acknowledges and agrees that the return, destruction or erasure of the Confidential Information does not affect the Consultant's obligations under this clause 15.
Clause 15.4 - Compliance with clause 15
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Proforma notice
Key Message
This clause empowers the Commonwealth's Representative to request evidence and access to the Consultant’s (and all Recipients’) premises to ensure proper compliance with the terms of clause 15.
User Guidance
The Commonwealth's Representative may request:
(a) under clause 15.4(a)– evidence of the Consultant’s (and all Recipients’) compliance with clause 15, including by providing a statutory declaration to this effect; and/or
(b) under clause 15.4(b)– access to the Consultant’s (and all Recipients’) premises, records or technological information to allow the Commonwealth and/or the Commonwealth's Representative to monitor and assess compliance with clause 15.
A proforma notice has been included in this Manual below for this purpose.
Within 24 hours (or such period notified by the Commonwealth's Representative) of receipt of a request by the Commonwealth's Representative, at any time, the Consultant must:
(a) provide the Commonwealth's Representative with:
(i) evidence of the Consultant's and all Recipients' compliance with clause 15 (including any Separation Arrangements and the Confidential Information Requirements), including all arrangements that the Consultant or the Recipients have in place; and
(ii) a statutory declaration in a form approved by the Commonwealth from an authorised officer whose identity and position is approved by Commonwealth (acting reasonably) in respect of the Consultant's and all Recipients' compliance with clause 15 (including any Separation Arrangements and the Confidential Information Requirements); and
(b) as directed by the Commonwealth's Representative in the request, provide the Commonwealth's Representative and the Commonwealth with access to the Consultant's and all Recipients' premises, records, information technology environment and equipment to enable the Commonwealth's Representative and the Commonwealth to monitor and assess the Consultant's and all Recipients' compliance with clause 15 (including any Separation Arrangements and Confidential Information Requirements).
Clause 15.5 - Acknowledgement, release and indemnity
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Key Message
In recognition of the importance of maintaining the confidentiality of the Confidential Information, the Consultant is required to provide particular acknowledgements, releases and indemnities.
User Guidance
The Consultant acknowledges and agrees that a failure to strictly comply with clause 15 (or other confidentiality requirements notified by the Commonwealth's Representative) may result in termination of the Contract and/or may be considered by the Commonwealth in connection with any future procurement process involving the Consultant.
Further, the Consultant:
(a) under clause 15.5(b)– releases the Commonwealth from any costs, expenses, liabilities, and damages arising from the exercise by the Commonwealth of any if its discretions under clause 15 (eg, the discretion to terminate for breach); and
(b) under clause 15.5(c)– indemnifies the Commonwealth for any cost, expense, loss, liability or damage incurred by the Commonwealth as a result of any failure to comply with clause 15, or exercise of discretion by the Commonwealth under clause 15.
Clause 15.5 - Acknowledgement, release and indemnity
Without limiting any other provision of this Contract, the Consultant:
(a) acknowledges and agrees that:
(i) the Commonwealth has engaged the Consultant to carry out the Services strictly on the basis of, and in reliance upon, the obligations, warranties and releases set out in this
(ii) without limiting any other right or remedy of the Commonwealth, if the Consultant has failed to strictly comply with:
A. this clause 15; or
B. any other Confidential Information or information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements),
the Commonwealth may (in its absolute discretion) do any one or more of the following:
C. terminate the Contract under clause 11 or otherwise at law; or
D. take such failure into account in assessing any future registration of interest or tender submitted by the Consultant; and
(iii) the exercise of any of the Commonwealth's absolute discretions under this clause 15 is not capable of being the subject of a dispute or difference for the purposes of clause 12 or otherwise subject to review;
(b) releases the Commonwealth from all Claims arising out of or in connection with the exercise of any of the Commonwealth's absolute discretions under this clause 15; and
(c) indemnifies the Commonwealth in respect of all Claims arising out of or in connection with:
(i) the Consultant being in breach of this clause 15; or
(ii) the exercise of any of the Commonwealth's absolute discretions under this clause 15.
CLAUSE 16 - INFORMATION SECURITY - SENSITIVE AND CLASSIFIED INFORMATION
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Policy Background
An assessment needs to be made as early as possible in the Project as to whether or not there is any Sensitive and Classified Information which is to be disclosed or otherwise used in connection with the Project.
“Sensitive and Classified Information” is defined in clause 1.1 as being any document, drawing, information or communication (whether in written, oral or electronic form) issued or communicated to the Consultant by the Commonwealth, the Commonwealth's Representative or anyone on the Commonwealth’s behalf, whether or not owned by the Commonwealth:
(a) marked as “sensitive information” or “for official use only”;
(b) identified at the time of issue or communication as “Sensitive Information”;
(c) marked with a national security classification or as “Classified Information”;
(d) identified at the time of issue or communication as “Classified Information”; or
(e) the Consultant knows or ought to know is subject to, or ought to be treated as Sensitive and Classified Information in accordance with, the provisions of all Commonwealth Requirements and Statutory Requirements (including the Australian Government Protective Security Policy, the Australian Government Protective Security Framework, the Australian Government Protective Security Manual, the Australian Government Physical Security Management Protocol, the Australian Government Personnel Security Management Protocol, the Australian Government Information Security Manual and the Defence Security Manual); and
(f) everything recording, containing, setting out or making reference to the document, drawing, information or communication (whether in written, oral or electronic form), including documents, notes, records, memoranda, materials, software, disks and all other media, articles or things.
As can be seen, the requirements in relation to Sensitive and Classified Information are more onerous than those in relation to Confidential Information.
The Commonwealth will need to determine whether the following provisions are required on a project-by-project basis. Where it is not necessary to disclose Sensitive and Classified Information, then the Contract Particulars should state that the relevant clause does not apply.
Clause 16.1 - Sensitive and Classified Information, generally
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Key Message
This clause makes it clear that the obligations set out in clause 16 are in addition to and do not limit those in clause 15 relating to confidentiality.
User Guidance
The Consultant acknowledges that part of the Confidential Information under the Contract is Sensitive and Classified Information.
Clause 16.1 - Sensitive and Classified Information, generally
(a) Nothing in this clause 16 limits or otherwise affects clause 15.
(b) The Consultant acknowledges and agrees that part of the Confidential Information is Sensitive and Classified Information.
Clause 16.2 - Consultant's warranties
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Key Message
This clause contains warranties regarding Sensitive and Classified Information. This is intended to obtain assurance that the Consultant is not in breach of its obligations regarding Sensitive and Classified Information, as well as to ensure only persons with the appropriate security clearances access any Sensitive and Classified Information.
User Guidance
Under this clause, the Consultant warrants to the Consultant, on the Award Date, and on each date it submits a payment claim, that it is not aware of any breach by either the Consultant or any Recipient (as defined in clause 1.1) of the obligations under clause 16.
Further, the Consultant warrants that each Recipient of Sensitive and Classified Information has applied for, obtained, and held a security clearance at or above the level(s) set out in the Contract Particulars before and during their access to the Sensitive and Classified Information.
Clause 16.2 - Consultant's warranties
(a) The Consultant warrants that, on the Award Date and on the date of submitting each payment claim under clause 10.2, it is not aware of any of any breach of this clause 16 by the Consultant or any Recipient.
(b) The Consultant warrants that each Recipient of the Sensitive and Classified Information (or any part of it) involved in carrying out the Services, properly applied for, obtained and held a current security clearance at or above the level/s specified by the Commonwealth in the Contract Particulars:
(i) before the Recipient was issued with the Sensitive and Classified Information; and
(ii) at all times during the Recipient's access to the Sensitive and Classified Information.
Clause 16.3 - Sensitive and Classified Information Requirements
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Proforma notice Proforma notice Proforma notice
Key Message
This clause requires the Consultant to comply with Sensitive and Classified Information Requirements, security procedures, security processes and information security requirements. The Consultant must also ensure compliance with these obligations by any Recipient of Confidential Information.
This clause requires the Consultant to ensure that it complies with (and any Recipients of Sensitive and Classified Information comply with) and put in place arrangements to ensure their compliance with:
(a) clause 16; and
(b) any other requirements in relation to Sensitive and Classified Information and information security notified by the Contract Administrator.
The Consultant is also obliged to ensure that any Recipients of Sensitive and Classified Information do not do (or omit to do) anything that, if done (or not done) by the Consultant, would amount to a breach of the above.
The Consultant must not copy (or otherwise reproduce), disclose, use or deal with any Sensitive and Classified Information for any purpose including performing the Services. If the Consultant wishes to do so, it must notify the Commonwealth's Representative in writing providing details of the proposed copying, reproduction, disclosure or use. The Commonwealth's Representative may grant permission (including whether with or without such conditions as the Commonwealth thinks fit) or refuse permission. A proforma notice has been included in this Manual for the Consultant to make such a request. A proforma notice has also been included for the Commonwealth's Representative's response.
Clause 16.3(f) sets out the Consultant’s obligations in relation to the handling, usage, access and storage of Sensitive and Classified Information (the “Sensitive and Classified Information Requirements”) and requires the Consultant to immediately detect, notify and take all steps necessary to mitigate the effect of any Sensitive and Classified Information Incident (as defined in clause 1.1). A proforma notice has been included for the Consultant to notify the Commonwealth's Representative of any Classified Information Incident.
If the Commonwealth or the Commonwealth's Representative suspects, or is notified of, a threatened or actual breach of this clause, advice should be sought from the Directorate of Program Assurance as a matter of urgency.
Clause 16.3 - Sensitive and Classified Information Requirements
(a) The Consultant must:
(i) strictly comply with:
A. this clause 16; and
B. all other Sensitive and Classified Information, security procedures, security processes and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements); and
(ii) immediately put in place arrangements to ensure that it strictly complies with:
A. this clause 16; and
B. all other Sensitive and Classified Information, security procedures, security processes and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements).
(b) Subject to paragraph (c)(i) the Consultant must not:
(i) copy or otherwise reproduce in any form or medium the contents of the Sensitive and Classified Information (or any part of it) or otherwise cause, permit or allow the Sensitive and Classified Information (or any part of it) to be copied or reproduced in any form or medium; or
(ii) disclose, use or deal with, the Sensitive and Classified Information (or any part of it) or otherwise cause, permit or allow the Sensitive and Classified Information (or any part of it) to be disclosed, used or dealt with,
for any purpose, including carrying out the Services. If the Consultant wishes to copy, reproduce, disclose, use or deal with the Sensitive and Classified Information for the purpose of carrying out the Services, it must notify the Commonwealth's Representative providing details of the proposed copying, reproduction, disclosure, use or dealing with the Sensitive and Classified Information (or any part of it) (including all names, addresses and current security clearances of proposed Recipients).
(c) Where a request for copying, reproduction, disclosure use or dealing is made under paragraph (b), the Commonwealth's Representative will notify the Consultant that the Commonwealth (in its absolute discretion) either:
(i) grants permission, whether with or without such conditions as the Commonwealth thinks fit (including conditions requiring the Recipient of Sensitive and Classified Information (or any part of it) to properly apply for, obtain and hold a current security clearance level at or above the level/s specified in the Contract Particulars before the Recipient is issued with the Sensitive and Classified Information (or any part of it) and at all times during the Recipient's access to the Sensitive and Classified Information or to enter into a deed in a form approved by the Commonwealth); or
(ii) refuses permission.
(d) If the Commonwealth grants permission under paragraph (c)(i), the Consultant must strictly comply with any conditions under paragraph (c)(i).
(e) The Consultant must ensure that all Recipients of Sensitive and Classified Information:
(i) strictly comply with:
A. this clause 16; and
B. all other Sensitive and Classified Information, security procedures, security processes and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements);
(ii) immediately put in place arrangements to ensure that they strictly comply with:
A. this clause 16; and
B. all other Sensitive and Classified Information, security procedures, security processes and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements); and
(iii) do not do or omit to do anything which, if done or omitted to be done by the Consultant, would be a breach of:
A. this clause 16; or
B. any other Sensitive and Classified Information, security procedures, security processes and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements).
(f) The Consultant must:
(i) ensure:
A. the Sensitive and Classified Information (or any part of it); and
B. all documents, materials, media, information technology environments and all other things on or in which the Sensitive and Classified Information (or any part of it) may be or is recorded, contained, set out, referred to, stored,
processed or communicated (including via electronic or similar means);
are strictly kept:
C. at locations in Australia only (unless the Consultant or a Recipient (as the case may be) is listed on the ASD Certified Cloud Services List or is otherwise approved in writing by the Commonwealth (in its absolute discretion));
D. in information technology environments which are accredited or certified by the Commonwealth (in its absolute discretion) at or above the level/s specified in the Contract Particulars:
1) before the Consultant (or Recipient) was issued with the Sensitive and Classified Information; and
2) at all times during the Consultant's (or Recipient's) access to the Sensitive and Classified Information,
and are not introduced into or kept in any information technology environment that is accredited or certified at a lower level;
E. for caveated or compartmented information (or any part of it) forming part of the Sensitive and Classified Information, in information technology environments which are specifically accredited or certified by the Commonwealth (in its absolute discretion) at or above the level/s specified in the Contract Particulars:
1) before the Consultant (or Recipient) was issued with such caveated or compartmented information (or any part of it); and
2) at all times during the Consultant's (or Recipient's) access to such caveated or compartmented information (or any part of it),
and are not introduced into or kept in any information technology environment that is accredited or certified at a lower level;
F. secure and protected at all times from all unauthorised use, access, configuration administration (or similar);
G. without limiting subsubparagraph F, secure and protected at all times from all use, access, configuration, administration (or similar) from any location outside of Australia;
H. in accordance with all Commonwealth requirements and policies, Statutory Requirements and Defence Requirements (including the Australian Government Protective Security Policy, the Australian Government Protective Security Policy Framework, the Australian Government Protective Security Manual, the Australian Government Physical Security Management Protocol, the Australian Government Personnel Security Management Protocol, the Australian Government Information Security Manual and the Defence Security Manual); and
I. in accordance with all Separation Arrangements; and
(ii) immediately:
A. to the maximum extent possible, detect all actual or potential Sensitive and Classified Information Incidents;
B. notify the Commonwealth's Representative if it becomes aware of any actual
or potential Sensitive and Classified Information Incident;
C. take all steps necessary to prevent, end, avoid, mitigate, resolve or otherwise manage the adverse effect of any actual or potential Sensitive and Classified Information Incident; and
D. strictly comply with all other Sensitive and Classified Information security procedures, security processes and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements),
(together the Sensitive and Classified Information Requirements).
Clause 16.4 - Return, destruction and erasure of Sensitive and Classified Information
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Proforma notice Proforma notice
Key Message
This clause is intended to ensure the appropriate return, destruction or erasure of Sensitive and Classified Information following the termination of the Contract, the expiry of the last Defects Liability Period under the Project Contract, or at any other time upon request from the Commonwealth's Representative.
User Guidance
The Consultant must, within 7 days:
(a) securely and appropriately return, destroy or erase any Sensitive and Classified Information as directed by the Commonwealth or Commonwealth's Representative (and ensure any Recipient does the same);
(b) provide the Commonwealth's Representative with a statutory declaration attesting to the above; and
(c) notify the Commonwealth's Representative of any Sensitive and Classified Information which has not been securely and appropriately returned, destroyed or erased.
However, the Consultant may retain one copy of any Sensitive and Classified Information required to be kept by any Statutory Requirement (in which case, the Consultant must provide full details to the Commonwealth's Representative).
A proforma notice has been included in this Manual below for the Commonwealth's Representative to use to request the return, destruction or erasure of Sensitive and Classified Information. A proforma notice has also been included for the Consultant to notify the Commonwealth's Representative of Sensitive and Classified Information that cannot be returned, destroyed or erased.
Clause 16.4 - Return, destruction and erasure of Sensitive and Classified Information
(a) Within 7 days of receipt of:
(i) a request from the Commonwealth's Representative, at any time;
(ii) the termination of the Contract under clause 11 or otherwise at law; or
(iii) the expiry of the last Defects Liability Period under the Project Contract,
(iv) subject to paragraph (b), as directed by the Commonwealth's Representative or the Commonwealth in the request or notice (as the case may be) and in accordance with all Commonwealth requirements and policies, Statutory Requirements and Defence Requirements, (including the Australian Government Protective Security Policy, the Australian Government Protective Security Policy Framework, the Australian Government Protective Security Manual, the Australian Government Physical Security Management Protocol, the Australian Government Personnel Security Management Protocol, the Australian Government Information Security Manual and the Defence Security Manual), promptly:
A. securely and appropriately return all copies of the Sensitive and Classified Information (in a tangible form) to the Commonwealth's Representative;
B. securely and appropriately return, destroy and erase all copies of the Sensitive and Classified Information (whether in a tangible or intangible form);
C. ensure all Recipients of Sensitive and Classified Information (or any part of it) promptly securely and appropriately return, destroy and erase all copies of the Sensitive and Classified Information (whether in a tangible or intangible form); and
D. provide the Commonwealth's Representative with a statutory declaration in a form approved by the Commonwealth from an authorised officer whose identity and position is approved by Commonwealth (acting reasonably) confirming that the Sensitive and Classified Information (whether in a tangible form or intangible form) has been securely and appropriately returned, destroyed or erased by the Consultant and all Recipients; and
(v) promptly notify the Commonwealth's Representative of all Sensitive and Classified Information (or any part of it) which the Consultant knows or ought to know:
A. has not been securely and appropriately returned, destroyed or erased by the Consultant and all Recipients; and
B. is beyond the Consultant's or a Recipient's possession, power, custody or control,
giving full particulars (including the nature and extent of the Sensitive and Classified Information, precise location, entity in possession, custody or control and all relevant Sensitive and Classified Information security procedures, security processes and information security arrangements).
(b) Where required by law, the Consultant may keep one copy of the Sensitive and Classified Information for its records.
(c) The Consultant acknowledges and agrees that the return, destruction or erasure of the Sensitive and Classified Information does not affect the Consultant's obligations under this clause 16.
Clause 16.5 - Compliance with clause 16
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Proforma notice
Key Message
This clause empowers the Commonwealth's Representative to request evidence and access to the
Consultant’s (and all Recipients’) premises to ensure proper compliance with the terms of clause 16.
User Guidance
This clause empowers the Commonwealth's Representative to request evidence and access to the Consultant’s (and all Recipients’) premises to ensure proper compliance with the terms of clause 16.
The Commonwealth's Representative may request:
(a) under clause 16.5(a)– evidence of the Consultant’s (and all Recipients’) compliance with clause 16, including by providing a statutory declaration to this effect; and/or
(b) under clause 16.5(b)– access to the Consultant’s (and all Recipients’) premises, records or technological information to allow the Commonwealth and/or the Commonwealth's Representative to monitor and assess compliance with clause 16.
A proforma notice has been included in this Manual below for this purpose.
Clause 16.5 - Compliance with clause 16
Within 12 hours (or such period notified by the Commonwealth's Representative in its request) of receipt of a request by the Commonwealth's Representative, at any time, the Consultant must:
(a) provide the Commonwealth's Representative with:
(i) evidence of the Consultant's and all Recipients' compliance with clause 16 (including any Separation Arrangements and the Sensitive and Classified Information Requirements), including all arrangements that the Consultant and the Recipients have in place; and
(ii) a statutory declaration in a form approved by the Commonwealth from an authorised officer whose identity and position is approved by Commonwealth (acting reasonably) in respect of the Consultant's and all Recipients' compliance with clause 16 (including any Separation Arrangements and the Sensitive and Classified Information Requirements); and
(b) as directed by the Commonwealth's Representative in the request, provide the Commonwealth's Representative and the Commonwealth with access to the Consultant's and all Recipients' premises, records, information technology environment and equipment to enable the Commonwealth's Representative and the Commonwealth to monitor and assess the Consultant's and all Recipients' compliance with clause 16 (including any Separation Arrangements and Sensitive and Classified Information Requirements).
Clause 16.6 - Acknowledgement, release and indemnity
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Key Message
In recognition of the importance of maintaining the confidentiality of the Sensitive and Classified Information, the Consultant is required to provide particular acknowledgements, releases and indemnities.
User Guidance
The Consultant acknowledges and agrees under this clause that a failure to strictly comply with clause 16 (or other confidentiality requirements notified by the Commonwealth's Representative) may result in termination of the Contract and/or may be considered by the Commonwealth in connection with any future procurement Defence Infrastructure Panel 2017-2022Contract Manual Volume 2: Contract ManagementCUFooterText 166
process involving the Consultant.
Further, the Consultant:
(a) under clause 16.6(b)– releases the Commonwealth from any costs, expenses, liabilities, and damages arising from the exercise by the Commonwealth of any if its absolute discretions under clause 16 (e.g. the discretion to terminate for breach); and
(b) under clause 16.6(c)– indemnifies the Commonwealth for any cost, expense, loss, liability or damage incurred by the Commonwealth as a result of any failure to comply with clause 16, or any exercise by the Commonwealth of its absolute discretions under clause 16.
Clause 16.6 - Acknowledgement, release and indemnity
Without limiting any other provision of the Contract, the Consultant:
(a) acknowledges and agrees that:
(i) the Commonwealth has engaged the Consultant to carry out the Services strictly on the basis of, and in reliance upon, the warranties, obligations and releases set out in this clause 16;
(ii) without limiting any other right or remedy of the Commonwealth, if the Consultant has failed to strictly comply with:
A. this clause 16; or
B. any other Sensitive and Classified Information or security procedures, security processes and information security requirements notified by the Commonwealth's Representative (including any Separation Arrangements),
the Commonwealth may (in its absolute discretion) do any one or more of the following:
C. terminate the Contract under clause 11 or otherwise at law; or
D. take such failure into account in assessing any future registration of interest or tender submitted by the Consultant; and
(iii) the exercise of any of the Commonwealth's absolute discretions under this clause 16 is not capable of being the subject of a dispute or difference for the purposes of clause 12 or otherwise subject to review;
(b) releases the Commonwealth from all Claims arising out of or in connection with the exercise of any of the Commonwealth's absolute discretions under this clause 16; and
(c) indemnifies the Commonwealth in respect of all Claims arising out of or in connection with:
(i) the Consultant being in breach of this clause 16; or
(ii) the exercise of any of the Commonwealth's absolute discretions under this clause 16.
CLAUSE 17 - MATERIAL CHANGE OR DEFENCE STRATEGIC INTEREST ISSUE
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Policy Background
This clause contains prohibitions on Changes in Control regarding the Consultant (without the Commonwealth's prior consent), and on the Consultant taking action which may adversely affect or impact Defence's strategic interests. They also set out the Commonwealth's specific requirements in relation to Changes of Control.
If a Material Change is proposed in relation to a Consultant or if a Consultant otherwise proposes to do any thing which may adversely affect Defence's strategic interests, this will clearly have significant impacts for the Commonwealth and the project on which the Consultant is engaged. Accordingly, the Directorate of Program Assurance should be notified immediately if any notice is received under this clause, and further advice should thereafter be sought in relation to what further steps are necessary and/or appropriate in order to protect Defence’s strategic interests.
Clause 17.1 - Consultant's warranty
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Key Message
This clause is intended to obtain assurances that the Consultant is not in breach of its obligations regarding any Material Change or Defence Strategic Interest Issue.
User Guidance
Under this clause, the Consultant warrants to the Commonwealth, on the Award Date, and on each date it submits a payment claim, that it is not aware of any “Material Change” or any “Defence Strategic Interest Issue” relating to the Consultant.
Clause 1.1 defines each of those terms.
A "Material Change" is any actual, potential or perceived material change to the circumstances of the Consultant, including any specific change set out in the definition of "Material Change" in clause 1.1.
A "Defence Strategic Interest Issue" is any issue that involves an actual, potential or perceived risk of an adverse effect on the interests of the Commonwealth, including the specific issues set out in the definition of "Defence Strategic Interest Issue" in clause 1.1.
Clause 17.1 - Consultant's warranty
The Consultant warrants that, on the Award Date and on the date of submitting each payment claim under clause 10.2, it is not aware of any:
Clause 17.2 - Consultant must notify Material Change or Defence Strategic Interest Issue
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Proforma notice
Key Message
The Consultant must immediately notify the Commonwealth of any Material Change or Defence Strategic Interest Issue.
User Guidance
This clause obliges the Consultant to immediately notify the Commonwealth's Representative if it becomes aware of any Material Change or Defence Strategic Interest Issue. The notice provided by the Consultant under this clause must include details of the steps the Consultant has taken (or will take) to prevent, end, avoid, mitigate, resolve or otherwise manage the risk of any adverse effect of any such Material Change or Defence Strategic Interest Issue on the interests of the Commonwealth. A proforma notice has been included in this Manual for this purpose.
Clause 17.2 - Consultant must notify Material Change or Defence Strategic Interest Issue
If, at any time, the Consultant becomes aware of any:
(a) Material Change; or
(b) Defence Strategic Interest Issue,
the Consultant must immediately notify the Commonwealth's Representative, providing details of:
(c) the Material Change or Defence Strategic Interest Issue; and
(d) the steps which the Consultant has taken (or will take) to prevent, end, avoid, mitigate, resolve or otherwise manage the risk of any adverse effect of the Material Change or Defence Strategic Interest Issue on the interests of the Commonwealth.
This clause sets out the process that must be followed if the Consultant notifies the Commonwealth, or if the Commonwealth otherwise considers, that there exists (or is likely to exist) a Material Change or Defence Strategic Interest Issue in relation to the Consultant.
User Guidance
If the Consultant notifies the Commonwealth, or the Commonwealth otherwise considers, that a Material Change or Defence Strategic Interest Issue exists or is likely to exist in relation to the Consultant, it may notify the Consultant that the Commonwealth requires it to:
(a) meet with the Commonwealth and clarify the nature and extent of the Material Change or Defence Strategic Interest Issue, including the steps the Consultant has taken (or will take) to manage any risks to the Commonwealth; and/or
(b) provide the Commonwealth's Representative with information, documents or evidence regarding the Material Change or Defence Strategic Interest Issue, including the steps the Consultant has taken (or will take) to manage any risks to the Commonwealth.
The Commonwealth's Representative may (regardless of whether or not it has issued a notice referred to above) notify the Consultant that:
(c) the Consultant is to continue to perform the Services (with or without such conditions as the Commonwealth sees fit); or
(d) the Commonwealth has elected to treat the Material Change or Defence Strategic Interest Issue as an Insolvency Event for the purposes of clause 11.4.
The Commonwealth may also elect to treat a the Material Change or Defence Strategic Interest Issue as an Insolvency Event for the purposes of clause 11.4, if the Consultant is in breach of the requirements in clauses 17.1 to 17.3.
Clause 17.3 - Commonwealth may act
(a) Without limiting any other provision of the Contract, if:
(i) the Consultant notifies the Commonwealth's Representative under clause 17.2; or
(ii) the Commonwealth otherwise considers (in its absolute discretion) that there exists (or is likely to exist) a Material Change or Defence Strategic Interest Issue in relation to the Consultant,
the Commonwealth may (in its absolute discretion) do any one or more of the following:
(iii) the Commonwealth's Representative will notify the Consultant that the Commonwealth requires it to:
A. meet with the Commonwealth to provide further information, documents or evidence in relation to, and otherwise clarify, the:
1) nature and extent of the Material Change or Defence Strategic Interest Issue; and
2) steps which the Consultant has taken (or will take) to prevent, end, avoid, mitigate, resolve or otherwise manage the risk of any adverse effect of the Material Change or Defence Strategic Interest Issue on the interests of the Commonwealth,
by the date specified in the notice;
B. provide the Commonwealth's Representative with further information,
documents or evidence in relation to, and otherwise clarify, the:
1) nature and extent of the Material Change or Defence Strategic Interest Issue; and
2) steps which the Consultant has taken (or will take) to prevent, end, avoid, mitigate, resolve or otherwise manage the risk of any adverse effect of the Material Change or Defence Strategic Interest Issue on the interests of the Commonwealth,
by the date specified in the notice; or
(iv) regardless of whether or not the Commonwealth's Representative has notified the Consultant under subparagraph (iii), the Commonwealth may (in its absolute discretion) notify the Consultant that:
A. the Consultant may continue to perform the Services, whether with or without such conditions as the Commonwealth thinks fit (in its absolute discretion) including the Consultant:
1) implementing Separation Arrangements; or
2) completing, duly executing and returning to the Commonwealth's Representative a deed in a form approved by the Commonwealth; or
by the date specified in the notice; or
B. the Commonwealth has elected to treat the Material Change or Defence Strategic Interest Issue as an Insolvency Event for the purposes of clause 11.4.
(b) Without limiting any other provision of the Contract, if the Consultant:
(i) is in breach of the warranty under clause 17.1;
(ii) fails to notify the Commonwealth's Representative under clause 17.2; or
(iii) fails to comply with any of the requirements or conditions notified under clause 17.3,
then the Commonwealth may (in its absolute discretion) notify the Consultant that the Commonwealth the Commonwealth has elected to treat the Material Change or Defence Strategic Interest Issue as an Insolvency Event for the purposes of clause 11.4.
Clause 17.4 - Acknowledgements, release and Indemnity
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Key Message
In recognition of the importance of the requirements regarding Material Changes and Defence Strategic Interest Issues, the Consultant is required to provide particular acknowledgements, releases and indemnities.
(a) under clause 17.4(a)– to empower the Commonwealth to take action (in its absolute discretion) if a Material Change occurs or a Defence Strategic Interest Issue arises (whether or not the Consultant has given notice of same under clause 17.3);
(b) under clause 17.4(b)– to agree that the exercise of any of the Commonwealth's discretions under clause 17 is not capable of being the subject of a dispute or otherwise subject to review;
(c) under clause 17.4(c)– to release the Commonwealth from claims relating to any and all costs, losses, damages or liabilities suffered by the Consultant or other entity arising out of the Commonwealth exercising any of its absolute discretions under clause 17; and
(d) under clause 17.4(d)– to indemnify the Commonwealth against any all costs, losses, damages or liabilities suffered a failure by the Consultant to comply with clause 17, or as a result of the Commonwealth exercising its discretion under clause 17.
Clause 17.4 - Acknowledgements, release and Indemnity
Without limiting any other provision of the Contract, the Consultant:
(a) acknowledges and agrees that if it:
(i) is in breach of the warranty under clause 17.1;
(ii) fails to notify the Commonwealth's Representative under clause 17.2; or
(iii) fails to comply with any of the requirements or conditions notified under clause 17.3,
the Commonwealth may (in its absolute discretion) do any one or more of the following:
(iv) terminate this Contract under clause 11.4 or otherwise at law; or
(v) take such failure into account in assessing any future registration of interest or tender lodged by the Consultant;
(b) acknowledges and agrees that the exercise of any of the Commonwealth's absolute discretions under this clause 17 is not capable of being the subject of a dispute or difference for the purposes of clause 1.1 or otherwise subject to review;
(c) releases the Commonwealth from all Claims arising out of in connection with the exercise of any of the Commonwealth's absolute discretions under this clause 17;
(d) indemnifies the Commonwealth in respect of all Claims arising out of in connection with:
(i) the Consultant:
A. being in breach of the warranty under clause 17.1;
B. failing to notify the Commonwealth's Representative under clause 17.2; or
C. failing to comply with any of the requirements or conditions notified under clause 17.3; or
(ii) the exercise of any of the Commonwealth's absolute discretions under this clause 17; and
(e) acknowledges and agrees that the Commonwealth has entered into this Contract strictly on the basis of, and in reliance upon, the acknowledgments, warranties, releases and indemnities set out in this clause 17.
A financial viability assessment is an assessment of the financial viability and capability of the consultant (or subconsultant) for the purposes of performing the services under a contract. Ensuring the financial viability of consultants and subconsultants is a key issue on Commonwealth projects to ensure that over the life of the project:
(a) the consultant or subconsultant has the ability to perform the services specified in the contract or subcontract; and
(b) the consultant or subconsultant can otherwise fulfil the promises and obligations provided for in the contract or subcontract.
There are potentially very significant ramifications for the Commonwealth if a consultant or subconsultant does not have sufficient financial viability during the course of a project or contract.
Any assessment by the Commonwealth's Representative of a consultant's financial viability must be as complete and conclusive as possible. This will assist the Commonwealth to determine whether any action needs to be taken.
Clause 18 clause contains a number of obligations intended to minimise "financial risk" to the Commonwealth during the term of the Contract . This includes notice obligations, the option to conduct financial viability assessments, and the ability of the Commonwealth to take action where an actual or potential financial risk is identified.
This clause must be carefully administered by the Commonwealth's Representative to proactively identify and manage any specific risks in relation to the Consultant or a subconsultant. If the Commonwealth's Representative is notified of a financial viability issue, or otherwise considers a financial viability issue has occurred or is likely to occur, it must immediately seek advice from the Directorate of Program Assurance.
Quick Links
Proforma notice
Key Messages
It is of critical importance to the Commonwealth that the Consultant (and its subconsultants) has the necessary financial viability to perform the Services and to otherwise meet all of its obligations under the Contract.
This clause contains various warranties and acknowledgements from the Consultant regarding the Consultant's financial viability. This clause also provides requirements for the Consultant to notify the Commonwealth of matters that could impact on its financial viability and to provide solvency statements and other related financial information.
This clause allows the Commonwealth's Representative to direct the Consultant to take action where there is or could be an adverse change in the financial viability of the Consultant or a subconsultant.
User Guidance
The Consultant:
(a) warrants to the Commonwealth, on the Award Date, and on each date it submits a payment claim, that it has the financial viability to perform the Services and meet its obligations under the Contract;
(b) acknowledges that the Commonwealth has entered into the Contract in reliance on the Consultant’s warranties under clause 18.
The Consultant is obliged under clause 18(b) to pay all subconsultants in accordance with the relevant subcontract.
Clauses 18(c) to (f) describe the process through which the Consultant is obliged to notify the Commonwealth's Representative of any matters which could affect or impact upon the Consultant’s ability to perform the Contract (including any actual or potential change in its and/or its subconsultants’ financial viability) – and the steps that the Commonwealth may take in response to any such notice.
In particular:
(a) under clause 18(c), the Consultant is obliged to keep the Commonwealth's Representative fully and regularly informed of matters which may affect it and its subconsultants’ ability to perform the Contract and/or the relevant subcontract (as the case may be);
(b) under clause 18(d), the Commonwealth's Representative may at any time request the Consultant:
(i) to provide a statement signed by the Consultant or a subconsultant attesting to the solvency of the Consultant or the relevant subconsultant; and/or
(ii) make a Financial Representative of the Consultant or any subconsultant available to the Commonwealth's Representative or other entity engaged by the Commonwealth to answer questions and provide information relating to the Consultant’s or the subconsultant’s financial viability;
(c) under clause 18(e), the Commonwealth's Representative may direct the Consultant to take such steps as the Commonwealth considers necessary to secure the performance of the Contract (including those steps set out in this subclause) if the Commonwealth considers (in its absolute discretion) that a change in either the Consultant’s or a subconsultant’s financial viability may adversely affect the Consultant’s or subconsultant’s ability to perform the Consultant or the subcontract (as the case may be); and
(d) under clause 18(f), the Consultant is required to comply with any steps the Commonwealth considers necessary to better secure a subconsultant’s ability to perform the relevant subcontract.
The Consultant must:
(e) acknowledge that clause 18 does not limit the Commonwealth’s rights, does not require the Commonwealth or the Commonwealth's Representative to exercise any discretion, does not give the Consultant (or any subconsultant) any rights and is not capable of giving rise to a dispute or difference for the purposes of clause 11.1; and
(f) provide an assurance to the Commonwealth that any subcontract entered into by the Consultant will contains terms which are equivalent to those set out in clause 18.
A proforma notice has been included in the Manual for the Commonwealth's Representative to request financial viability information.
Clause 18 - Financial Viability
(a) The Consultant:
(i) warrants that, on the Award Date and on the date of submitting each payment claim under clause 10.2:
A. it has the financial viability necessary to perform the Services, achieve Completion and otherwise meet its obligations under the Contract (including
the payment of all subconsultants (in accordance with paragraph (b)); and
B. each subconsultant engaged in the Services has the financial viability necessary to perform its activities in accordance with the relevant subcontract; and
(ii) acknowledges and agrees that the Commonwealth has entered into this Contract and if applicable, has made payments to the Consultant under clause 10.5, strictly on the basis of and in reliance upon the warranties set out in clause 18.
(b) The Consultant must pay all subconsultants in accordance with the payments terms in all subcontracts.
(c) The Consultant must keep the Commonwealth's Representative fully and regularly informed as to all financial viability matters which could adversely affect:
(i) the Consultant's ability to perform the Services, achieve Completion or otherwise meet its obligations under the Contract; and
(ii) a subconsultant's ability to perform its activities in accordance with the relevant subcontract,
including any potential or actual change in:
(iii) the Consultant's financial viability; or
(iv) a subconsultant's financial viability.
(d) The Commonwealth's Representative may (in its absolute discretion) at any time request the Consultant to:
(i) provide the Commonwealth's Representative with a solvency statement in the form required by the Commonwealth with respect to:
A. the Consultant, properly completed and duly executed by the Consultant; or
B. a subconsultant, properly completed and duly executed by the subconsultant;
(ii) make:
A. its Financial Representative available; and
B. ensure a subconsultant makes its Financial Representative available,
to provide the Commonwealth's Representative and any independent financial adviser engaged by the Commonwealth with financial information and documents (including internal monthly management accounts), answer questions, co-operate with and do everything necessary to assist the Commonwealth, the Commonwealth's Representative and the independent financial adviser engaged by the Commonwealth for the purpose of demonstrating that:
C. the Consultant has the financial viability necessary to perform the Services, achieve Completion and otherwise meet its obligations under the Contract (including the payment of all subconsultants in accordance with paragraph (b); or
D. a subconsultant has the financial viability necessary to perform its activities in accordance with the relevant subcontract.
(e) If the Commonwealth considers (in its absolute discretion) that there could be or has been a change in:
(iii) the Consultant's ability to perform the Services, achieve Completion or otherwise meet its obligations under the Contract; or
(iv) a subconsultant's ability to perform its activities in accordance with the relevant subcontract,
the Commonwealth's Representative may (in its absolute discretion) direct the Consultant to take such steps as the Commonwealth considers necessary to secure the performance of the Services, Completion and the meeting of its obligations under the Contract.
(f) If the Commonwealth's Representative gives a direction under paragraph (e), then the Consultant must take such steps as the Commonwealth considers necessary to better secure a subconsultant's ability to perform its activities in accordance with the relevant subcontract, including any of the steps notified by the Commonwealth.
(g) The Consultant acknowledges and agrees that:
(i) nothing in clause 18 will limit, reduce, or otherwise affect any of the rights of the Commonwealth under other provisions of the Contract or otherwise at law or in equity;
(ii) neither the Commonwealth nor the Commonwealth's Representative is required to exercise any discretion under clause 18 for the benefit of the Consultant (or any subconsultant);
(iii) clause 18 does not give the Consultant (or any subconsultant) any rights; and
(iv) (the exercise or failure to exercise a discretion under clause 18 is not capable of being the subject of a dispute or difference for the purposes of clause 12.1 of the Contract or otherwise subject to review.
The Consultant must ensure that each subcontract includes provisions equivalent to the obligations of the Consultant in clause 18.
SECTION 2 - PROFORMA DOCUMENTS AND NOTICES1. INTRODUCTION
The proforma documents and notices have been developed for use with each clause that requires a notice to be given under the Terms of Engagement or that requires the use of a collateral document in a form required by the Commonwealth (such as a payment statement).
1. General description of the Services to which the payment claim relates:
[INSERT]
2. This payment claim is for the following amounts (if any) claimed on account of:
(a) the Fee $[INSERT]
(b) all other amounts then payable by the Commonwealth to the Consultant under the Contract
$[INSERT]
(c) GST $[INSERT]
Total Amount Claimed (including GST) $[INSERT]
The Services to which this payment claim relates, together with all other details, calculations, supporting documentation and other information in respect of the amounts claimed (including details of any GST) is/are set out in the Particulars to this payment claim.
The Services to which this payment claim relates, together with all other details, calculations, supporting documentation and other information in respect of the amounts claimed (including details of any GST) is/are set out below or attached as follows:
This is a payment statement by the Commonwealth which replies to the following payment claim served by the Consultant:
Project: [INSERT]
Contract Number: [INSERT]
Payment claim number (if any): [INSERT]
Date of payment claim (if any): [INSERT]
Date of receipt of payment claim: [INSERT]
Total Amount Claimed (including GST):
[INSERT]
The amount of payment (if any) that the Commonwealth's Representative believes to be payable and that the Commonwealth proposes to pay in respect of the payment claim is:
(a) Amount $[INSERT]
(b) GST $[INSERT]
Schedule Amount (including GST)
$[INSERT]
The calculation of the Schedule Amount is set out in the Particulars to this payment statement.
If the Schedule Amount is less than the Total Amount Claimed, the reasons why the amount is less, including any reason why the Commonwealth is retaining, deducting, withholding or setting-off moneys otherwise due to the Consultant, are set out in the Particulars to this payment statement.
[Note: The Commonwealth's Representative must select Option 1 or Option 2 and complete the details for that selected option. The option which is not selected must be deleted. The text beneath the heading OPTIONS 1 AND 2 is to be included whether Option 1 or Option 2 is selected.]
[OPTION 1]
The Schedule Amount is $NIL because:
[COMMONWEALTH'S REPRESENTATIVE TO INSERT REASONS FOR THE "NIL" AMOUNT]
Further and without prejudice to the above, if the Consultant is entitled to a progress payment, the amount of the progress payment to which the Consultant is entitled differs from the Total Amount Claimed. The amount to which the Consultant is entitled is $[INSERT] calculated as follows:
(1) Consultant's total value of entitlement under the Contract: $[INSERT]
(2) Amount previously paid to the Consultant: $[INSERT]
(3) Amount (if any) payable (but for (5)) in respect of this payment claim excluding GST [(1) - (2)]:
(a) the Contract Price $[INSERT]
(b) other amounts payable by the Commonwealth to the Consultant under the Contract
$[INSERT]
(4) GST $[INSERT]
(5) Amount which the Commonwealth is entitled to retain, deduct, withhold or set-off against moneys otherwise due to the Consultant, in respect of which the Consultant has not yet become entitled or otherwise is not included in the Schedule Amount:
$[INSERT]
The reasons why the amount of the entitlement is less than the Total Amount Claimed, including the reasons why the Commonwealth is retaining, deducting, withholding or setting-off moneys otherwise due to the Consultant are set out below or attached as follows:
[TO BE INSERTED BY COMMONWEALTH'S REPRESENTATIVE]
[OPTION 2]
The Schedule Amount is calculated as follows:
(1) Consultant's total value of entitlement under the Contract: $[INSERT]
(2) Amount previously paid to the Consultant: $[INSERT]
(3) Amount (if any) payable (but for (5)) in respect of this payment claim [(1) - (2)]:
(a) the Fee $[INSERT]
(b) other amounts payable by the Commonwealth to the Consultant under the Contract
$[INSERT]
(4) GST $[INSERT]
(5) Amount which the Commonwealth is entitled to retain, deduct, withhold or $[INSERT]
set-off against moneys otherwise due to the Consultant, in respect of which the Consultant has not yet become entitled or otherwise is not included in the Schedule Amount:
The reasons why the Schedule Amount is less than the Total Amount Claimed, including the reasons why the Commonwealth is retaining, deducting, withholding or setting-off moneys otherwise due to the Consultant are set out below or attached as follows:
[TO BE INSERTED BY COMMONWEALTH'S REPRESENTATIVE]
[OPTIONS 1 AND 2]
Description of attachments referred to in Particulars (if any):
Attachment
[TO BE INSERTED BY COMMONWEALTH'S REPRESENTATIVE]
IMPORTANT NOTE:
Any evaluation or issue of a payment statement by the Commonwealth's Representative will not:
(a) constitute approval of any work nor will it be taken as an admission or evidence that the part of the Services covered by the payment statement has been satisfactorily carried out in accordance with the Contract; or
(b) constitute a waiver of the requirements of clauses 10.2 and 10.3 in relation to any payment claim other than to the extent (if any) to which the Commonwealth expressly waives such requirements in respect of the payment claim the subject of the payment statement.
This payment statement is a "payment schedule" for the purposes of any Security of Payment Legislation.
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
NOTICE OF MATTERS IMPACTING ON THE SERVICES OR THE PROJECT
Clause 2.5
In accordance with clause 2.5 of the Terms of Engagement, the Consultant gives the Commonwealth's Representative notice that the following matter:
[Insert details of particular matter]
[Option 1] is likely to change or which has changed the scope, timing or cost of the Services or the Project;
[OR]
[Option 2] affects or may affect the Commonwealth's Program or the Consultant's approved program under clause 7.2 of the Terms of Engagement;
[OR]
[Option 3] involves an error, omission or defect in a continuing or completed aspect of the Works or the Project;
as follows:
[Consultant must provide:
(a) particulars of the change, error, omission or defect; and
(b) its likely impact.]
In order to minimise the impact of this matter upon the scope, timing and cost of the Services and the Project, the Consultant recommends the following:
[Insert Consultant's recommendation(s)]
[Signature]
Consultant
[Insert date]
[Instructions to Consultant:
Consultant to delete whichever of Options 1, 2 and 3 are not applicable and complete additional details where required.]
To: [Insert name of Commonwealth's Representative]
CUFooterText 183
[Insert Name/Description of Contract] (Contract)
CONFLICT OF INTEREST
Clause 2.8(d)(i)
In accordance with clause 2.8(d)(i) of the Terms of Engagement, the Consultant notifies the Commonwealth's Representative that a [conflict of interest/potential conflict of interest] has arisen in the following matter:
[Insert details of particular matter and parties involved/potentially involved in the conflict/potential conflict]
The Consultant [has taken/will take] the following steps to prevent, end, avoid, mitigate, resolve or otherwise manage the [conflict of interest/potential conflict of interest]:
[Insert details of the steps the Consultant has taken or will take to precent, end, avoid, mitigate, resolve or otherwise manage the conflict/potential conflict]
[Signature]
Consultant
[Insert date]
CUFooterText 184
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
APPLICATION TO SUBCONTRACT
Clause 2.9(a)
In accordance with clause 2.9(a) of the Terms of Engagement, the Consultant applies for the Commonwealth's Representative's approval to subcontract the following parts of the Services to the following subconsultant:
Proposed subconsultant:
[Insert details including evidence that the subconsultant is registered or licensed to carry out the Services, where required by law]
Services to be subcontracted:
[Insert details of Services to be subcontracted]
The Consultant acknowledges that:
(a) it will be fully responsible for the Services despite subcontracting these parts of the Services;
(b) it will be vicariously liable to the Commonwealth for all acts, omissions and defaults of its subconsultants (and those of the employees and agents of its subconsultants) relating to, or in any way connected with, the Services; and
(c) it must ensure that each subcontract contains the provisions required under clause 2.9(a)(iv) of the Terms of Engagement, including provisions which bind the subconsultants to participate in any novation required by the Commonwealth under clause 11.5(a) of the Terms of Engagement.
[Signature]
Consultant
[Insert date]
CUFooterText 185
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
SUBCONTRACT [APPROVAL/REJECTION]
Clause 2.9(a)
The Commonwealth's Representative refers to the Consultant's application dated [insert date application received] to subcontract to the following subconsultant the following parts of the Services:
[Set out the subconsultant and the parts of the Services which the subconsultant will carry out]
In accordance with clause 2.9(a) of the Terms of Engagement, the Commonwealth's Representative
[Option 1] rejects the Consultant's application.
[OR]
[Option 2] approves the Consultant's application.
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Commonwealth's Representative to delete whichever of Options 1 and 2 is not applicable.]
CUFooterText 186
To: [Insert name and ABN of Consultant]OR [Commonwealth]
[Insert Name/Description of Contract] (Contract)
NOTICE OF CHANGE IN STATUTORY REQUIREMENT
Clause 2.11
In accordance with clause 2.11(c) of the Terms of Engagement, the [Consultant/Commonwealth] notifies the [Commonwealth/Consultant] of the following
[Option 1] change in a Statutory Requirement after the Award Date:
[OR]
[Option 2] variance between a Statutory Requirement and the Contract:
[Insert details of change in Statutory Requirement or variance between Statutory Requirement and the Contract].
[Signature of authorised officer]
For and on behalf of the Commonwealth
[OR]
[Signature]
Consultant
[Insert date]
[Instructions to Consultant and Commonwealth's Representative:
Delete the Option which is inapplicable.]
CUFooterText 187
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
INSTRUCTION IN RESPONSE TO CHANGE IN STATUTORY REQUIREMENT
Clause 2.11(d)
The Commonwealth's Representative refers to the [Consultant's/Commonwealth's] notice dated [insert date of notice] concerning [a change in a Statutory Requirement after the Award Date/variance between a Statutory Requirement and the Contract]:
[Insert details of change in Statutory Requirement or variance between Statutory Requirement and the Contract].
In accordance with clause 2.11(d) of the Terms of Engagement, the Consultant is instructed to proceed with the Services insofar as they are affected by the [change/variance] as follows:
[Insert details of how the Consultant is to proceed].
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Under clause 2.11(e) of the Terms of Engagement, the Commonwealth's Representative is to determine the amount by which the Fee is to be increased or decreased in order to take into account costs reasonably incurred by the Consultant or savings made by the Consultant in carrying out the Services arising directly from the change or variance, or from carrying out the Commonwealth Representative's instruction. Accordingly, the Commonwealth's Representative should take into account the cost implications of any instruction given.]
CUFooterText 188
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
NOTICE OF ENVIRONMENTAL MATTER
Clause 2.15(a)(v)
In accordance with clause 2.15(a)(v) of the Terms of Engagement, the Consultant notifies the Commonwealth's Representative of [a non-compliance with the requirements of clause 2.15 of the Terms of Engagement/a breach of a Statutory Requirement for the protection of the Environment/an Environmental Incident/the receipt of a notice, order or communication received from an authority for the protection of the Environment]:
[Insert details of the non-compliance with the requirements of clause 2.15 of the Terms of Engagement, breach of a Statutory Requirement for the protection of the Environment, Environmental Incident or receipt of a notice, order or communication received from an authority for the protection of the Environment (as the case may be).]
[Signature]
Consultant
[Insert date]
CUFooterText 189
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
CESSATION OF EMPLOYERS' LIABILITY INSURANCE POLICY
Clause 2.19(c)
In accordance with clause 2.19(c) of the Terms of Engagement, the Consultant notifies the Commonwealth's Representative that the Employer's Liability Insurance required under clause 2.19 of the Terms of Engagement has ceased to be available for the amounts of cover and in terms specified in the Contract Particulars on commercially reasonable terms.
[Insert details including details of any proposed replacement insurance policy or other proposed steps to mitigate any risk to the Commonwealth].
[Signature]
Consultant
[Insert date]
CUFooterText 190
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
REQUEST TO PRODUCE EVIDENCE OF CURRENCY FOR EMPLOYERS' LIABILITY INSURANCE
Clause 2.19(e)
In accordance with clause 2.19(e) of the Terms of Engagement, the Commonwealth's Representative requests that the Consultant provide copies of certificates of currency for the Consultant's Employers' Liability Insurance required under clause 2.19 of the Terms of Engagement to the Commonwealth's Representative within [insert] days receipt of this notice.
The Commonwealth's Representative also requests that the Consultant makes the Consultant's Employer's Liability Insurance policies available for inspection by the Commonwealth's Representative within [insert] days of receipt of this notice.
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
The Commonwealth's Representative may request the Consultant to provide certificates of currency for Employer's Liability Insurance and to allow the Commonwealth's Representative to inspect the Employer's Liability Insurance policies at any time.
Employer's Liability Insurance is only required if the Services are performed or the Consultant's employees perform work, are employed or normally reside in Western Australia or any jurisdiction outside Australia.]
CUFooterText 191
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
REQUEST FOR ADDITIONAL INFORMATION
Clause 3.2(c)
In accordance with clause 3.2(c) of the Terms of Engagement, the Consultant notifies the Commonwealth's Representative that the following additional [information/documents/particulars] are required by the Consultant for the following reasons:
[Specify information/documents/and/or particulars required and reasons why they are required]
[Signature]
Consultant
[Insert date]
[Instruction to Commonwealth's Representative:
If the Commonwealth's Representative believes that the additional information, documents or particulars are needed by the Consultant, then the Commonwealth must use its best endeavours to arrange for the provision of the additional information, documents or particulars.]
CUFooterText 192
To: The Commonwealth
[Insert Name/Description of Contract] (Contract)
REQUEST FOR ALTERNATIVE COURSE OF ACTION
Clause 3.4
In accordance with clause 3.4 of the Terms of Engagement, in relation to [Consultant to specify matter to which proposed consideration of alternative course of action relates], the Consultant requests the Commonwealth to consider the selection of the following alternative courses of action:
[Consultant to insert details of proposed alternative courses of action]
The following information required to enable the decision to be made is attached:
[Consultant to insert description of attached information.]
[Signature]
Consultant
[Insert date]
[Instructions to both parties:
Commonwealth must give a decision in such reasonable time as not to delay or disrupt the carrying out of the Services.]
CUFooterText 193
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
RESPONSE TO REQUEST FOR ALTERNATIVE COURSE OF ACTION
Clause 3.4
The Commonwealth refers to the Request for Alternative Course of Action submitted by the Consultant on [insert date]:
[Describe Request for Alternative Course of Action]
In accordance with clause 3.4 of the Terms of Engagement, the Commonwealth has decided as follows:
[Insert details of Commonwealth's decision]
[Signature of authorised officer]
For and on behalf of the Commonwealth
[Insert date]
[Instructions to Commonwealth's Representative:
If the Consultant has not provided sufficient information, then this should be sought. If the Commonwealth's Representative suspects that the decision could vary the scope of work and result in a Variation, the Commonwealth's Representative should confirm this with the Consultant before issuing any direction.]
CUFooterText 194
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
REPLACEMENT OF COMMONWEALTH'S REPRESENTATIVE
Clause 4.2
In accordance with clause 4.2 of the Terms of Engagement, the Commonwealth gives notice that the appointment of the Commonwealth's Representative under the Contract has been terminated.
The Commonwealth appoints [insert name of replacement Commonwealth's Representative] as the new Commonwealth's Representative.
[Signature of authorised officer]
For and on behalf of the Commonwealth
[Insert date]
[Instructions to all parties:
Any substitute Commonwealth's Representative will be bound by anything done by the former Commonwealth's Representative to the same extent that the former Commonwealth's Representative would have been bound.]
CUFooterText 195
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
APPOINTMENT OF ASSISTANT COMMONWEALTH'S REPRESENTATIVE
Clause 4.4(a)
In accordance with clause 4.4(a) of the Terms of Engagement, the Commonwealth's Representative appoints [insert name of assistant Commonwealth's Representative] to exercise the following functions of the Commonwealth's Representative under the Contract:
[Set out relevant functions and clauses of Contract]
[Signature]
Commonwealth's Representative
[Insert date]
CUFooterText 196
To: [Insert name and ABN of Consultant]
[Insert Name/description of Contract] (Contract)
REVOCATION OF APPOINTMENT OFASSISTANT COMMONWEALTH'S REPRESENTATIVE
Clause 4.4(a)(iii)
In accordance with clause 4.4(a)(iii) of the Terms of Engagement, the Commonwealth's Representative notifies the Consultant that the appointment of the assistant Commonwealth's Representative identified below has been revoked.
Assistant Commonwealth's Representative
[Commonwealth's Representative to insert details including date of appointment under clause 4.4(a)(i), name of assistant Commonwealth's Representative and functions which the assistant Commonwealth's Representative was appointed to exercise]
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to the Commonwealth's Representative:
Commonwealth's Representative may revoke any appointment made under clause 4.4(a)(i).]
CUFooterText 197
To: [insert name of Commonwealth's Representative]
[Insert Name/description of Contract] (Contract)
APPLICATION FOR REPLACEMENT OF KEY PERSON
Clause 4.5(b)
In accordance with clause 4.5(b) of the Terms of Engagement, the Consultant requests the Commonwealth's approval to replace the following key person:
Position:
[Consultant to identify position that key person is to fill]
Current key person:
[Consultant to insert details]
Replacement person:
[Consultant to identify]
Reasons:
[Consultant to insert]
[Signature]
Consultant
[Insert date]
CUFooterText 198
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
RESPONSE TO REQUEST TO REPLACE KEY PERSON
Clause 4.5(b)
The Commonwealth's Representative has received the Consultant's request in accordance with clause 4.5(b) of the Terms of Engagement dated [insert date of notice requesting replacement of key person] to replace the following key person:
[Insert details of key person to be replaced.]
[Option 1] The Commonwealth's Representative approves the replacement and instructs the Consultant, under clause 4.5(b), to replace the relevant person in accordance with its request.
[OR]
[Option 2] The Commonwealth's Representative does not approve the replacement. If the Consultant nevertheless intends to proceed to replace the key person, please provide details of an alternative replacement person for the written approval or rejection (as the case may be) of the Commonwealth's Representative.
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to the Commonwealth's Representative:
Commonwealth's Representative to delete whichever of Options 1 and 2 is not applicable.]
CUFooterText 199
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
REMOVAL OF PERSON
Clause 4.6
In accordance with clause 4.6 of the Terms of Engagement, the Commonwealth's Representative instructs the Consultant to remove [insert name of person] from the performance of the Services.
The removal of [insert name of person] is instructed because the person is, in the Commonwealth's Representative's reasonable opinion
[Option 1] guilty of misconduct.
[AND/OR]
[Option 2] incompetent.
[AND/OR]
[Option 3] negligent.
The Consultant must ensure that [insert name of person] is not again employed in the performance of the Services.
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Delete the Options which are inapplicable. The Commonwealth's Representative is not required to provide any further details.]
CUFooterText 200
To: [Insert name and ABN of Consultant]
[Insert Name/description of Contract] (Contract)
REJECTION OF CONSULTANT MATERIAL
Clause 5.2(b)
The Commonwealth's Representative refers to the following Consultant Material submitted by the Consultant on [insert date]:
[Describe Consultant Material.]
In accordance with clause 5.2(b) of the Terms of Engagement, this Consultant Material is:
[Option 1] rejected.
[OR]
[Option 2] rejected as to the following aspects:
[Commonwealth's Representative to specify which aspects rejected.]
The Consultant must re-submit the Consultant Material by [insert date].
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Commonwealth's Representative to delete whichever of Options 1 and 2 is not applicable and insert additional details as required.]
CUFooterText 201
To: [Insert name and ABN of Consultant or Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
NOTICE OF AMBIGUITY
Clause 5.10(c)
The [Commonwealth's Representative/Consultant] has discovered an ambiguity, discrepancy or inconsistency in the documents [which make up the Contract Documents/between the Contract and the Project Documents] as follows:
[Insert details of ambiguity.]
[Signature]
[Commonwealth's Representative/Consultant]
[Insert date]
CUFooterText 202
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
RESOLUTION OF AMBIGUITY
Clause 5.10(d)
The Commonwealth's Representative refers to the Consultant's notice given pursuant to clause 5.10(c) of the Terms of Engagement submitted by the Consultant on [insert date].
In accordance with clause 5.10(d) of the Terms of Engagement, the ambiguity, discrepancy or inconsistency is resolved as follows:
[Insert course of action to resolve ambiguity.]
[Signature]
Commonwealth's Representative
[Insert date]
CUFooterText 203
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
REQUEST FOR ADDITIONAL INFORMATION FOR FINALISATION OF PROJECT CONTRACTOR DOCUMENTATION
Clause 5.12(f)
In accordance with clause 5.12(f) of the Terms of Engagement, the Consultant notifies the Commonwealth's Representative that [information/guidance/a direction] is required from the Commonwealth by the Consultant to enable the Project Contractor to finalise the Project Contractor Documentation as follows:
[Provide details of the information, guidance or direction required and the reasons why it is required (including the relevant Project Contractor and Project Contract Documentation to which it relates.]
[Signature]
Consultant
[Insert date]
CUFooterText 204
To: [Insert name of Commonwealth's Representative]
[Insert name/description of Contract] (Contract)
PROJECT PLANS
Clause 5.15(a)(ii)
In accordance with clause 5.15(a)(ii) of the Terms of Engagement, the Consultant [submits/resubmits] the attached [draft Project Plan(s)/amended draft Project Plan(s)] for review by the Commonwealth's Representative:
[Insert details of attached Project Plans].
[Signature]
Consultant
[Insert date]
[Instructions to Commonwealth's Representative:
The Consultant must submit/resubmit draft Project Plans until such plans have been reviewed and not rejected by the Commonwealth's Representative within the time specified in the Contract Particulars.]
CUFooterText 205
To: [Insert name and ABN of the Consultant]
[Insert Name/Description of Contract] (Contract)
REJECTION OF [DRAFT/RESUBMITTED] PROJECT PLANS
Clause 5.15(a)(ii)B
The Contract Administrator refers to the following [draft/resubmitted] Project Plan(s) submitted by the Consultant on [insert date]:
[Insert description of draft/resubmitted Project Plan(s)].
In accordance with clause 5.15(a)(ii)B of the Terms of Engagement, the [draft/resubmitted] Project Plan(s) [is/are] rejected in the following aspects, and amended draft Project Plan(s) must be submitted:
[Insert description of the aspects of the Project Plans which are rejected].
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Under clause 5.15(a)(ii) of the Terms of Engagement, the Consultant is to finalise each Project Plan so as to ensure that there is no delay or disruption to the Services and in any event in accordance with the requirements of the Contract.]
CUFooterText 206
To: [Insert name and ABN of Consultant]
[Insert Name/description of Contract] (Contract)
NON-COMPLYING SERVICES
Clause 6.2
The Commonwealth's Representative has [discovered/believes] that the following non-complying Services have been performed:
[Commonwealth's Representative to describe the non-complying Services.]
In accordance with clause 6.2 of the Terms of Engagement, the Commonwealth's Representative instructs the Consultant as follows:
[Option 1] The Consultant must re-perform the [non-complying Services/the following part of the non-complying Services] within the following time period:
[Specify part of non-complying Services (if relevant) and time for correction.]
The Consultant must take such steps as are reasonably necessary to:
(a) mitigate the effect on the Commonwealth of the failure to carry out the Services in accordance with the Contract; and
(b) put the Commonwealth (as closely as possible) in the position in which it would have been if the Consultant had carried out the Services in accordance with the Contract.
[OR]
[Option 2] The Consultant is advised that the Commonwealth will accept the [non-complying Services/ the following part of the non-complying Services] despite the non-compliance:
[Specify part of non-complying Services (if relevant).]
As a result of that acceptance, the Commonwealth intends to reduce the amounts payable to the Consultant under the Contract by the amount of [if this option is to be used, then Commonwealth's Representative to consider any set-off available. This should be discussed with the Directorate of Program Assurance].
The above does not affect the Consultant's liability or responsibility, or the Commonwealth's rights, under the Contract or otherwise. [Use this paragraph for each Option]
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Commonwealth's Representative may give the Consultant instruction to take one of the Options listed above. If the Consultant is directed to re-perform the Services it must do so within the time specified in the Commonwealth's Representative's instruction.]
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To: [insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
SUSPENSION
Clause 7.4(a)(i)
In accordance with clause 7.4(i) of the Terms of Engagement, the Consultant is instructed to suspend
[Option 1] all of the Services.
[OR]
[Option 2] the following part(s) of the Services:
[Set out which part(s) of the Services are to be suspended (if relevant).]
You will be notified in accordance with clause 7.4(a)(i) of the Terms of Engagement if you are to recommence those Services.
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Commonwealth's Representative to delete whichever of Options 1 and 2 is not applicable and insert additional details where required. Se clause 7.4(b) for implications as to costs for a suspension.]
CUFooterText 208
To: [insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
RE-COMMENCEMENT AFTER SUSPENSION
Clause 7.4(a)(i)
The Commonwealth's Representative refers to its notice of suspension dated [insert date of notice to suspend]
In accordance with clause 7.4(a)(i) of the Terms of Engagement, the Consultant is instructed to recommence performance of
[Option 1] all of the Services.
[OR]
[Option 2] the following part(s) of the Services:
[Set out which part(s) of the Services are to be recommenced .]
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Commonwealth's Representative to delete whichever of Options 1 and 2 is not applicable and insert details as required. See clause 7.4(b) for cost implications of a suspension.]
CUFooterText 209
To: [insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
INSTRUCTION TO ACCELERATE
Clause 7.5
In accordance with clause 7.5 of the Terms of Engagement, the Consultant is instructed to use its best endeavours to achieve completion of the following Milestone by a date earlier than the date for completion of the Milestone in the approved program (Accelerated Milestone Date):
[Set out details of Milestone.]
The Accelerated Milestone Date is:
[Set out Accelerated Milestone Date.]
[Signature]
Commonwealth's Representative
[Insert date]
[Instruction to Commonwealth's Representative:
An instruction to accelerate will be most effective if issued after discussions with the Consultant to identify what is actually achievable. Refer to clause 7.5 for cost implications of an acceleration instruction.]
CUFooterText 210
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
NOTICE OF ADDITIONAL RELEVANT CONSIDERATIONS
Clause 8.3(b)(vi)D.
In accordance with clause 8.3(b)(vi)D. of the Terms of Engagement, the Commonwealth's Representative notifies the Consultant that it is required to have regard to the following relevant considerations in preparing its resource plan for the Services in the Delivery Phase:
[Insert additional relevant considerations]
[Signature]
Commonwealth's Representative
[Insert date]
CUFooterText 211
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
REJECTION OF RESOURCE PLAN FOR THE DELIVERY PHASE
Clause 8.3(c)(i)
The Commonwealth's Representative refers to the Consultant's proposed resource plan for the Services for the Delivery Phase submitted by the Consultant on [insert date].
In accordance with clause 8.3(c)(i) of the Terms of Engagement, the resource plan is rejected as to the following aspects and an amended resource plan must be submitted by [insert date]:
[Insert description of which aspects of the resource plan are rejected]
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Under clause 8.3(f) the Commonwealth's Representative may engage a third party to perform an external audit of a proposed resource plan to assist in determining whether to approve the proposed resource plan.]
CUFooterText 212
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
APPROVAL OF RESOURCE PLAN FOR THE DELIVERY PHASE
Clause 8.3(d)
The Commonwealth's Representative refers to the Consultant's proposed resource plan for the Services for the Delivery Phase submitted by the Consultant on [insert date].
In accordance with clause 8.3(d) of the Terms of Engagement, the Commonwealth's Representative notifies the Consultant that the resource plan is approved.
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Under clause 8.3(f) the Commonwealth's Representative may engage a third party to perform an external audit of a proposed resource plan to assist in determining whether to approve the proposed resource plan.]
CUFooterText 213
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
NOTICE OF DELIVERY PHASE AGREEMENT
Clause 8.5(a)(i)
In accordance with clause 8.5(a)(i) of the Terms of Engagement, the Commonwealth's Representative notifies the Consultant that Delivery Phase Agreement was achieved on [insert date].
[Signature]
Commonwealth's Representative
[Insert date]
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To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
NOTICE OF FAILURE TO ACHIEVE DELIVERY PHASE AGREEMENT
Clause 8.5(a)(ii)
In accordance with clause 8.5(a)(ii) of the Terms of Engagement, the Commonwealth notifies the Consultant that Delivery Phase Agreement was not achieved by the date of this notice and
[Option 1] clause 8.6(d) of the Terms of Engagement does not apply.
[OR]
[Option 2] from [insert date] clause 8.6(d) of the Terms of Engagement applies to the extent as follows:
[Identify in detail each part of the Services for which the Commonwealth intends to waive the requirement to achieve Delivery Phase Agreement].
The parties must agree the Consultant's Delivery Phase Fee and Milestone Fee Payment Schedule on or before [insert date]. [Delete if Option 1 applies]
The Commonwealth notifies the Consultant that the following conditions will apply:
[Identify any other conditions the Commonwealth requires to apply in waiving the requirement to achieve Delivery Phase Agreement]. [Delete if Option 1 applies]
[Signature of authorised officer]
For and on behalf of the Commonwealth
[Insert date]
[Instructions to Commonwealth:
Delete the Option which is inapplicable, depending on whether it intends for clause 8.6(d) of the Terms of Engagement to apply or not.]
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To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
NOTICE OF DELIVERY PHASE APPROVAL
Clause 8.5(a)(iii)A.
In accordance with clause 8.5(a)(iii)A. of the Terms of Engagement, the Commonwealth's Representative notifies the Consultant that Delivery Phase Approval was achieved on [insert date].
[Signature]
Commonwealth's Representative
[Insert date]
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To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
NOTICE OF FAILURE TO ACHIEVE DELIVERY PHASE APPROVAL
Clause 8.5(a)(iii)B
In accordance with clause 8.5(a)(iii)B. of the Terms of Engagement, the Commonwealth notifies the Consultant that Delivery Phase Approval was not achieved by the date of this notice and
[Option 1] clause 8.6(d) of the Terms of Engagement does not apply.
[OR]
[Option 2] from [insert date] clause 8.6(d) of the Terms of Engagement applies to the extent as follows:
[Identify in detail each part of the Services for which the Commonwealth intends to waive the requirement to achieve Delivery Phase Approval].
The parties must agree the Consultant's Delivery Phase Fee and Milestone Fee Payment Schedule on or before [insert date]. [Delete if Option 1 applies]
The Commonwealth notifies the Consultant that the following conditions will apply:
[Identify any other conditions the Commonwealth requires to apply in waiving the requirement to achieve Delivery Phase Approval]. [Delete if Option 1 applies]
[Signature of authorised officer]
For and on behalf of the Commonwealth
[Insert date]
[Instructions to Commonwealth:
Delete the Option which is inapplicable, depending on whether it intends for clause 8.6(d) of the Terms of Engagement to apply or not.]
CUFooterText 217
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
EXTENSION OF DATE FOR [DELIVERY PHASE AGREEMENT/ DELIVERY PHASE APPROVAL]
Clause 8.5(d)
In accordance with clause 8.5(d) of the Terms of Engagement, the Commonwealth notifies the Consultant that
[Option 1] the Date for Delivery Phase Agreement
[AND/OR]
[Option 2] the Date for Delivery Phase Approval
is extended from [insert original date] to [insert date].
[Signature of authorised officer]
For and on behalf of the Commonwealth
[Insert date]
[Instructions to Commonwealth:
Delete any Option which is inapplicable. ]
CUFooterText 218
To: [insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
VARIATION PRICE REQUEST
Clause 9.1
In accordance with clause 9.1 of the Terms of Engagement, the Commonwealth's Representative notifies the Consultant that the Commonwealth is considering the following Variation:
[Commonwealth's Representative to set out details of proposed Variation.]
The Consultant must provide the Commonwealth's Representative with a written notice which sets out:
(a) the adjustment (if any) to the Fee to carry out the proposed Variation; and
(b) the effect (if any) the proposed Variation will have on the current approved program,
within 14 days of the receipt of this Variation Price Request.
[Signature]
Commonwealth's Representative
[Insert date]
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To: [insert name of Commonwealth's Representative]
[Insert Name/description of Contract] (Contract)
REPLY TO VARIATION PRICE REQUEST
Clause 9.1
The Consultant refers to the Commonwealth's Representative's Variation Price Request dated [insert date of Variation Price Request].
The adjustment (if any) to the Fee to carry out the proposed Variation is [set out adjustment].
The effect (if any) the proposed Variation will have on the current approved program is [set out details of the effect which the proposed Variation will have on the current approved program (including each date for completion of Milestones)].
[Signature]
Consultant
[Insert date]
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To: [insert name and ABN of Consultant]
[Insert Name/description of Contract] (Contract)
VARIATION ORDER
Clause 9.2
In accordance with clause 9.2 of the Terms of Engagement, the Consultant is instructed to proceed with
[Option 1] the Variation specified in the Variation Price Request dated [insert date of Variation Price Request].
[OR]
[Option 2] the following Variation:
[Set out description of the Variation.]
[AND]
[Option 3A] The proposed adjustment to the Fee as set out in the Consultant's notice dated [insert date of Consultant's Variation Price Request Reply] is agreed and the Fee will be adjusted accordingly.
[OR]
[Option 3B] Any adjustment to the Fee will be determined in accordance with clauses 9.3(b) and 9.3(c) of the Terms of Engagement.
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Commonwealth's Representative to select Option 1 or Option 2 and either Option 3A or Option 3B, delete whichever is not applicable and insert details as required.]
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To: [insert name and ABN of Consultant]
[Insert Name/description of Contract] (Contract)
REQUEST FOR DOCUMENTATION OR INFORMATION
Clause 10.2(f)(ii)
In accordance with clause 10.2(f)(ii) of the Terms of Engagement, the Commonwealth's Representative notifies the Consultant that the following information or documentation is required to be set out or attached to
[Option 1] payment claim [insert reference]:
[OR]
[Option 2] all payment claims:
[Insert details of documentation or information required].
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Delete the Option which is inapplicable.]
CUFooterText 222
To: [insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
IDENTIFICATION OF PARTICULAR INFORMATION NOT PROVIDED PURSUANT TO CLAUSE 10.2(f)
Clause 10.3(c)(vi)
In accordance with clause 10.3(c)(vi) of the Terms of Engagement, the Commonwealth's Representative notifies the Consultant that the following information or documentation was required under clause 10.2(f) of the Terms of Engagement:
[Insert details of documentation or information required].
The Consultant must provide that information or documentation to the Commonwealth's Representative on or before [insert date].
[Signature]
Commonwealth's Representative
[Insert date]
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To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
STATUTORY DECLARATION IN RELATION TO PAYMENT OF WORKERS AND SUBCONSULTANTS [FOR ALL STATES AND TERRITORIES OTHER THAN NSW]
Clause 10.12
I, [name of person making the declaration], of [address of person making the declaration], [occupation of person making the declaration], make the following declaration under the Statutory Declarations Act 1959:
1. In this statutory declaration:
"Commonwealth" means Commonwealth of Australia.
"Consultant" means [details of Consultant as appropriate];
"Services" has the meaning given to it in the Contract.
2. I hold the position of [managing director or other title] of the Consultant and am duly authorised by the Consultant to make this declaration on its behalf.
3. I make this declaration on behalf of the Consultant and on behalf of myself.
4. There are no moneys due and payable to any workers at any time employed by the Consultant in respect of any work which the Consultant has carried out for the Commonwealth in relation to the Services or any subconsultants as at [insert date of payment claim to which the declaration is attached], being the date of payment by the Commonwealth for that work.
I understand that a person who makes a false statement in a statutory declaration is guilty of an offence and I make this solemn declaration by virtue of the Statutory Declarations Act 1959, and subject to the penalties under section 11 of the Statutory Declarations Act 1959, and I believe that the statements contained in this declaration to be true in every particular.
___________________________________________________Signature of declarant
Declared at on the day of 20 .
Before me: _________________________________________
___________________________________________________Full name of witness
___________________________________________________Address of witness
___________________________________________________Qualification of witness
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Note 1 A person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment for which is imprisonment for a term of 4 years — see section 11 of the Statutory Declarations Act 1959.
Note 2 Chapter 2 of the Criminal Code applies to all offences against the Statutory Declarations Act 1959 — see section 5A of the Statutory Declarations Act 1959.
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To: [insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
NOTICE OF DEFAULT
Clause 11.3
This is a notice under clause 11.3 of the Terms of Engagement.
The Commonwealth hereby gives notice to the Consultant that the Consultant has:
[Option 1] not commenced the Services in accordance with the requirements of the Contract, in the following aspects:
[Insert particulars of breach]
[OR]
[Option 2] suspended the Services other than in accordance with clause 7.4 or otherwise not proceeded with the Services regularly and diligently as follows:
[Insert particulars of suspension or failure to proceed regularly and diligently]
[OR]
[Option 3] failed to comply with any of its obligations regarding any insurance required under the Contract or the Panel Agreement:
[Insert particulars of failure]
[OR]
[Option 4] failed to exercise the standard of skill, care and diligence required by the Contract:
[Insert particulars of failure]
[OR]
[Option 5] failed to comply with its obligations under clause 2.9 (Subcontracting) or clause 5.9 (Work Health and Safety) of the Terms of Engagement:
[Insert particulars of failure]
[OR]
[Option 6] not complied with a direction of the Commonwealth's Representative made in accordance with the Contract, specifically:
[Insert details of direction given by Commonwealth's Representative]
[OR]
[Option 6] substantially breached the Contract in the following manner:
[Insert details of breach]
The Commonwealth therefore requires the Consultant to remedy the abovementioned breach within [insert number of days] of receiving this notice.
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[Signature of authorised officer]
For and on behalf of the Commonwealth
[Insert Date]
[Instructions to Commonwealth:
Commonwealth to delete whichever of Options 1, 2, 3, 4, 5, 6 and 7 are not applicable and insert additional details as required.
All notices of default must be settled by a member of the Legal Panel.]
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To: [Insert name and ABN of Consultant/The Commonwealth]
[Insert Name/Description of Contract] (Contract)
NOTICE OF DISPUTE
Clause 12.1
In accordance with clause 12.1 of the Terms of Engagement, the [Consultant/Commonwealth] gives notice of the following dispute or difference:
[Specify the details of the dispute or difference which relates to any fact, matter or thing arising out of, or in any way in connection with, the Services, the Project or the Contract, or either party's conduct before the Contract.]
The [Consultant/Commonwealth] is dissatisfied for the following reasons:
[Give the particulars of the party's reasons for being dissatisfied.]
The [Consultant/Commonwealth] believes the following position to be correct:
[Set out position.]
[Option 1:]
[Signature of Consultant]
Consultant
[Option 2:]
[Signature of authorised officer]
For and on behalf of the Commonwealth
[Insert date]
[Instructions to Commonwealth, Consultant and Commonwealth's Representative:
Select name of other party to Contract where appropriate and select either Option 1 or Option 2 for signing notice as appropriate.
This notice must be issued to the Commonwealth's Representative as well as the other party.]
[Instructions to Commonwealth:
All notices of dispute should be settled by a member of the Legal Panel.]
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To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
NOTICE OF VARIATION
Clause 13.1(a)
The Consultant refers to the Commonwealth's Representative direction dated [insert date direction communicated to Consultant] concerning [insert details of direction].
In accordance with clause 13.1(a) of the Terms of Engagement, the Consultant gives notice that it considers the direction constitutes or involves a Variation for the following reasons:
[Insert preliminary reasons]
[Signature]
Consultant
[Insert date]
CUFooterText 229
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
CLAIM FOR VARIATION
Clause 13.1(b)
The Consultant refers to its notice of Variation dated [insert date] concerning the Commonwealth's Representative direction dated [insert date of direction].
In accordance with clause 13.1(b) of the Terms of Engagement, the Consultant makes the following Claim:
[The Claim must include the following:
(a) detailed particulars concerning the direction or other fact, matter or thing upon which the Claim is based;
(b) the legal basis for the Claim, whether based on a term of the Contract or otherwise, and if based on a term of the Contract, clearly identifying the specific term;
(c) the facts relied upon in support of the Claim in sufficient detail to permit verification; and
(d) details of the amount claimed and how it has been calculated.]
[Signature]
Consultant
[Insert date]
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To: [Insert name of Contract Administrator]
[Insert Name/Description of Contract] (Contract)
NOTICE OF CLAIM (INITIAL)
Clauses 13.2 and 13.3(a)
In accordance with clauses 13.2 and 13.3(a) of the Terms of Engagement, the Consultant gives notice that it proposes to make a Claim against the Commonwealth.
The Claim will be based upon the following:
[Specify the relevant direction or other fact, matter or thing upon which the Claim will be based.]
[Signature]
Consultant
[Insert date]
CUFooterText 231
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
NOTICE OF CLAIM
Clauses 13.2 and 13.3(b)
The Consultant refers to its notice dated [insert date] giving notice that the Consultant proposes to make a Claim against the Commonwealth based on [set out relevant direction or other fact, matter or thing].
In accordance with clauses 13.2 and 13.3(b) of the Terms of Engagement, the Consultant makes the following Claim:
[The Claim must include the following:
(a) detailed particulars concerning the direction or other fact, matter or thing upon which the Claim is based;
(b) the legal basis for the Claim, whether based on a term of the Contract or otherwise, and if based on a term of the Contract, clearly identifying the specific term;
(c) the facts relied upon in support of the Claim in sufficient detail to permit verification; and
(d) details of the amount claimed and how it has been calculated.]
[Signature]
Consultant
[Insert date]
CUFooterText 232
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
NOTICE OF CONTINUING EVENTS
Clause 13.4
The Consultant refers to its Claim dated [insert date] based on [set out relevant direction or other fact, matter or thing].
The [direction/fact/matter/thing] upon which the Claim is based is continuing.
The consequences of the [direction/fact/matter/thing] are continuing.
In accordance with clause 13.4 of the Terms of Engagement, the Consultant provides the following information:
[The information must include the following:
(a) particulars concerning the direction or other fact, matter or thing upon which the Claim is based;
(b) the legal basis for the Claim, whether based on a term of the Contract or otherwise, and if based on a term of the Contract, clearly identifying the specific term;
(c) the facts relied upon in support of the Claim in sufficient detail to permit verification; and
(d) details of the amount claimed and how it has been calculated.]
[Signature]
Consultant
[Insert date]
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To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
REQUEST FOR INDIGENOUS PARTICIPATION PLAN
Clause 14.1
The Fee for the Contract has exceeded $7.5 million and the Contract has become a High Value Contract for the purposes of clause 14 of the Terms of Engagement.
In accordance with clause 14.1 of the Terms of Engagement, the Consultant is requested to prepare and submit within 14 days of this notice an Indigenous Participation Plan in accordance with the Indigenous Procurement Policy (including any requirement that applies in respect of a Remote Area) to the Commonwealth's Representative for approval.
[Signature]
Commonwealth's Representative
[Insert date]
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To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
NOTICE OF CONFIDENTIAL INFORMATION INCIDENT
Clause 15.2(d)(ii)B
In accordance with clause 15.2(d)(ii)B. of the Terms of Engagement, the Consultant gives the Commonwealth's Representative notice that it has become aware of the following [actual/potential] Confidential Information Incident:
[Insert full details of the actual or potential Confidential Information Incident including relevant date(s)]
[Signature]
Consultant
[Insert date]
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To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
REQUEST FOR RETURN, DESTRUCTION AND ERASURE OF CONFIDENTIAL INFORMATION
Clause 15.3(a)(i)
This notice applies to:
[Option 1] all Confidential Information under the Contract.
[Option 2] the following Confidential Information under the Contract:
[Insert details of relevant Confidential Information]
In accordance with clause 15.3(a)(i) of the Terms of Engagement, the Commonwealth's Representative requests the Consultant by [insert date] to:
(a) securely and appropriately return all copies of the Confidential Information (in a tangible form) to the Commonwealth's Representative;
(b) securely and appropriately destroy and erase all copies of the Confidential Information (whether in a tangible or intangible form);
(c) ensure all Recipients of the Confidential Information (or any part of it) promptly, securely and appropriately return, destroy and erase all copies of the Confidential Information (whether in a tangible or intangible form);
(d) provide the Commonwealth's Representative with a statutory declaration (in a form approved by the Commonwealth and from an authorised officer whose identify and position is approved by the Commonwealth in accordance with clause 15.3(a)D. of the Terms of Engagement), confirming that the Confidential Information (whether in a tangible form or intangible form) has been securely and appropriately returned, destroyed or erased by the Consultant and all Recipients;
(e) notify the Commonwealth's Representative of all relevant Confidential Information (or any part of it) which the Consultant knows or ought to know:
(i) has not been securely and appropriately returned, destroyed or erased by the Consultant and all Recipients; and
(ii) is beyond the Consultant 's or a Recipient's possession, power, custody or control,
giving full particulars (including the nature and extent of the Confidential Information, precise location, entity in possession, custody or control and all relevant Confidential Information and information security arrangements).
Where required by law, the Consultant may keep one copy of the Confidential Information for its records.
The return, destruction or erasure of the Confidential Information does not affect the Consultant's obligations under clause 15 of the Terms of Engagement.
[Signature]
Commonwealth's Representative
[Insert date]
CUFooterText 236
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
CONFIDENTIAL INFORMATION CANNOT BE RETURNED, DESTROYED OR ERASED
Clause 15.3(a)(iv)E
The Consultant refers to the Commonwealth's Representatives' notice dated [insert date] requesting the return, destruction and erasure of Confidential Information.
The Consultant notifies the Commonwealth's Representative that the following Confidential Information:
(a) has not been securely and appropriately returned, destroyed or erased by the Consultant and all Recipients; and
(b) is beyond the Consultant 's or a Recipient's possession, power, custody or control:
[Insert full particulars including the nature the nature and extent of the Confidential Information, precise location, entity in possession, custody or control and all relevant Confidential Information and information security arrangements.]
[Signature]
Consultant
[Insert date]
CUFooterText 237
To: [Insert name and ABN of Consultant]
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
COMPLIANCE WITH CLAUSE 15
Clause 15.4
In accordance with clause 15.4 of the Terms of Engagement, the Commonwealth's Representative requests the Consultant within [insert time period (note the Terms of Engagement state 24 hours or such other period as notified by the Commonwealth's Representative)] of this notice to provide the Commonwealth's Representative with:
(a) evidence of the Consultant's and all Recipients' compliance with clause 15 (including any Separation Arrangements and the Confidential Information Requirements), including all arrangements that the Consultant or the Recipients have in place;
(b) a statutory declaration (in a form approved the Commonwealth and from an authorised officer whose identity and position is approved the Commonwealth in accordance in accordance with clause 15.4(a)(ii) of the Terms of Engagement) in respect of the Consultant's and all Recipients' compliance with clause 15 of the Terms of Engagement (including any Separation Arrangements and the Confidential Information Requirements); and
(c) provide the Commonwealth's Representative and the Commonwealth with the following access to the Consultant's and all Recipients' premises, records, information technology environment and equipment to enable the Commonwealth's Representative and the Commonwealth to monitor and assess the Consultant's and all Recipients' compliance with clause 15 of the Terms of Engagement (including any Separation Arrangements and Confidential Information Requirements):
[insert details of access required].
[Signature]
Commonwealth's Representative
[Insert date]
CUFooterText 238
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
REQUEST TO [COPY/REPRODUCE/DISCLOSE/USE/DEAL WITH] SENSITIVE AND CLASSIFIED INFORMATION
Clause 16.3(b)
In accordance with clause 16.3(b) of the Terms of Engagement, the Consultant requests the Commonwealth's Representative's approval to [copy/reproduce/disclose/use/deal with] the following Sensitive and Classified Information:
[Provide details of:
(a) the relevant Sensitive and Classified Information;
(b) particulars of the relevant copying, reproducing, disclosure, use of or dealing the Sensitive and Classified Information; and
(c) details of all proposed Recipients including names, addresses and security clearances.]
[Signature]
Consultant
[Insert date]
CUFooterText 239
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
RESPONSE TO REQUEST TO DISCLOSE, USE OR DEAL WITH SENSITIVE AND CLASSIFIED INFORMATION
Clause 16.3(c)
The Commonwealth's Representative has received the Consultant's request in accordance with clause 16.3(b) of the Terms of Engagement dated [insert date of notice] to [copy/reproduce/disclose/use/deal with] the following Sensitive and Classified Information:
[Insert details of Sensitive and Classified Information and proposed Recipients .]
[Option 1] The Commonwealth's Representative grants permission to the Consultant to [copy/reproduce/disclose/use/deal with] the Sensitive and Classified Information as set out in the Consultant's request.
[Option 2] The Commonwealth's Representative grants permission to the Consultant to [copy/reproduce/disclose/use/deal with] the Sensitive and Classified Information, subject to the Consultant complying strictly with the following conditions:
[Insert details of the relevant conditions]
[OR]
[Option 3] The Commonwealth's Representative refuses permission for the Consultant to [copy/reproduce/disclose/use/deal with] the Sensitive and Classified Information.
[If Option 1 or Option 2 applies] The Consultant must ensure that all Recipients of Sensitive and Classified Information comply with the requirements in clause 16.3(e) of the Terms of Engagement.
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to the Commonwealth's Representative:
The Commonwealth's Representative may impose such conditions on the copying, reproduction, disclosure, use or dealing with Sensitive and Classified Information as it sees fit (including conditions requiring the Recipient of Sensitive and Classified Information (or any part of it) to properly apply for, obtain and hold a current security clearance level at or above the level/s specified in the Contract Particulars before the Recipient is issued with the Sensitive and Classified Information (or any part of it) and at all times during the Recipient's access to the Sensitive and Classified Information or to enter into a deed in a form approved by the Commonwealth).
Appropriate advice must be sought before the Commonwealth's Representative grants any request to disclose, reproduce, use or deal with any Sensitive and Classified Information.]
CUFooterText 240
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
NOTICE OF SENSITIVE AND CLASSIFIED INFORMATION INCIDENT
Clause 16.3(f)(ii)B.
In accordance with clause 16.2(f)(ii)B. of the Terms of Engagement, the Consultant gives the Commonwealth's Representative notice that it has become aware of the following [actual/potential] Sensitive and Classified Information Incident:
[Insert details of Sensitive and Classified Information Incident including relevant date(s)]
[Signature]
Consultant
[Insert date]
CUFooterText 241
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
REQUEST FOR RETURN, DESTRUCTION AND ERASURE OF SENSITIVE AND CLASSIFIED INFORMATION
Clause 16.4
This notice applies to:
[Option 1] all Sensitive and Classified Information under the Contract.
[Option 2] the following Sensitive and Classified Information under the Contract:
[Insert details of relevant Sensitive and Classified Information]
In accordance with clause 16.4(a) of the Terms of Engagement, the Commonwealth's Representative requests the Consultant by [insert date] to:
(a) securely and appropriately return all copies of the Sensitive and Classified Information (in a tangible form) to the Commonwealth's Representative;
(b) securely and appropriately destroy and erase all copies of the Sensitive and Classified Information (whether in a tangible or intangible form);
(c) ensure all Recipients of the Sensitive and Classified Information (or any part of it) promptly securely and appropriately return, destroy and erase all copies of the Sensitive and Classified Information (whether in a tangible or intangible form);
(d) provide the Commonwealth's Representative with an statutory declaration (in a form approved by the Commonwealth and from an authorised officer whose identity and position is approved by the Commonwealth in accordance with clause 16.4(a)(iv)D. of the Terms of Engagement) confirming that the Sensitive and Classified Information (whether in a tangible form or intangible form) has been securely and appropriately returned, destroyed or erased by the Consultant and all Recipients;
(e) notify the Commonwealth's Representative of all Sensitive and Classified Information (or any part of it) which the Consultant knows or ought to know:
(i) has not been securely and appropriately returned, destroyed or erased by the Consultant and all Recipients; and
(ii) is beyond the Consultant 's or a Recipient's possession, power, custody or control,
giving full particulars (including the nature and extent of the Sensitive and Classified Information, precise location, entity in possession, custody or control and all relevant Sensitive and Classified Information and information security arrangements).
The return, destruction and erasure of the Sensitive and Classified Information by the Consultant must be in accordance with all Commonwealth requirements and policies, Statutory Requirements and Defence Requirements (including the Australian Government Protective Security Policy, the Australian Government Protective Security Policy Framework, the Australian Government Protective Security Manual, the Australian Government Physical Security Management Protocol, the Australian Government Personnel Security Management Protocol, the Australian Government Information Security Manual and the Defence Security Manual).
Where required by law, the Consultant may keep one copy of the Sensitive and Classified Information for its records.
CUFooterText 242
The return, destruction or erasure of the Sensitive and Classified Information does not affect the Consultant's obligations under clause 16 of the Terms of Engagement.
[Signature]
Commonwealth's Representative
[Insert date]
CUFooterText 243
To: [Insert name of Commonwealth's Representative]
[Insert Name/Description of Contract] (Contract)
SENSITIVE AND CLASSIFIED INFORMATION CANNOT BE RETURNED, DESTROYED OR ERASED
Clause 16.4(a)(v)
The Consultant refers to the Commonwealth's Representatives' notice dated [insert date] requesting the return, destruction or erasure of Sensitive and Classified Information.
The Consultant notifies the Commonwealth's Representative that the following Sensitive and Classified Information:
(a) has not been securely and appropriately returned, destroyed or erased by the Consultant and all Recipients; and
(b) is beyond the Consultant 's or a Recipient's possession, power, custody or control:
[Insert full particulars including the nature the nature and extent of the Sensitive and Classified Information, precise location, entity in possession, custody or control and all relevant Sensitive and Classified Information and information security arrangements.]
[Signature]
Consultant
[Insert date]
CUFooterText 244
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
COMPLIANCE WITH CLAUSE 16
Clause 16.5
In accordance with clause 16.5 of the Terms of Engagement, the Commonwealth's Representative requests the Consultant within [insert time period (note the Terms of Engagement state 12 hours or such other period as notified by the Commonwealth's Representative)] of this notice provide the Commonwealth's Representative with:
(a) evidence of the Consultant's and all Recipients' compliance with clause 16 (including any Separation Arrangements and the Confidential Information Requirements), including all arrangements that the Consultant or the Recipients have in place;
(b) a statutory declaration (in a form approved the Commonwealth and from an authorised officer whose identity and position is approved the Commonwealth in accordance in accordance with clause 16.5(a)(ii) of the Terms of Engagement) in respect of the Consultant's and all Recipients' compliance with clause 16 of the Terms of Engagement (including any Separation Arrangements and the Confidential Information Requirements); and
(c) provide the Commonwealth's Representative and the Commonwealth with the following access to the Consultant's and all Recipients' premises, records, information technology environment and equipment to enable the Commonwealth's Representative and the Commonwealth to monitor and assess the Consultant's and all Recipients' compliance with clause 16 of the Terms of Engagement (including any Separation Arrangements and Confidential Information Requirements):
[insert details of access required].
[Signature]
Commonwealth's Representative
[Insert date]
CUFooterText 245
To: [Insert name of Commonwealth's Representative]
In accordance with clause 17.2 of the Terms of Engagement, the Consultant notifies the Commonwealth's Representative that it has become aware of the following [Material Change/Defence Strategic Interest Issue]:
[Insert details of the Material Change or Defence Strategic Interest Issue]
The Consultant [has taken/will take] the following steps to prevent, end, avoid, mitigate, resolve or otherwise manage the risk of any adverse effect of the [Material Change or Defence Strategic Interest Issue] on the interests of the Commonwealth:
[Insert details of the steps the Consultant has taken or will take to precent, end, avoid, mitigate, resolve or otherwise manage risk of any adverse effect of the Material Change or Defence Strategic Interest Issue on the interests of the Commonwealth]
[Signature]
Consultant
[Insert date]
CUFooterText 246
To: [Insert name and ABN of Consultant]
[Insert Name/Description of Contract] (Contract)
REQUEST TO FOR FINANCIAL VIABILITY INFORMATION
Clause 18(d)
[Option 1] In accordance with clause 18(d)(i) of the Terms of Engagement, the Commonwealth's Representative requests that the Consultant provide to the Commonwealth's Representative by [insert date] a solvency statement in [the form attached/a form approved by the Commonwealth's Representative (in its absolute discretion)] with respect to:
(a) the Consultant, properly completed and duly executed by the Consultant; or
(b) its subconsultant [insert name and ABN or relevant subconsultant], properly and duly executed by the subconsultant.
[AND/OR]
[Option 2] In accordance with clause 18(d)(ii) of the Terms of Engagement, the Commonwealth's Representative requests that the Consultant:
(a) make its Financial Representative available; and
(b) ensures [insert subconsultant name and ABN] makes its Financial Representative available,
as set out below, to provide the Commonwealth's Representative and any independent financial adviser engaged by the Commonwealth with financial information and documents (including internal monthly management accounts), answer questions, co-operate with and do everything necessary to assist the Commonwealth, the Commonwealth's Representative and the independent financial adviser engaged by the Commonwealth for the purpose of demonstrating that:
(c) the Consultant has the financial viability necessary to perform the Services, achieve Completion and otherwise meet its obligations under the Contract (including the payment of all subconsultants in accordance with clause 18(b) of the Terms of Engagement); or
(d) [insert subconsultant name] has the financial viability necessary to perform its activities in accordance with its relevant subcontract.
[Insert details of how and when the Consultant and the subconsultant's Financial Representative are to be made available to the Commonwealth.]
[Signature]
Commonwealth's Representative
[Insert date]
[Instructions to Commonwealth's Representative:
Select Option 1 and/or Option 2 and complete relevant details. Delete any Option which does not apply.]
