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Department of Finance, Services and Innovation
Prequalification Scheme:
Performance and Management Services
Agency Guidelines – EARL
February 2017
COPYRIGHT
© State of New South Wales, 2012.
All rights reserved. No part of this RFT may be produced by any process, electronic or otherwise, in any material form or transmitted to any other person or stored electronically in any form, without the prior written permission of the State of New South Wales, except as permitted under the Copyright Act 1968.
All inquiries should be directed to;
Category Manager – Professional Services
SCHEDULE OF DOCUMENT AMENDMENTS
Revision Number / Date / Update Description1. / July 2016 / General Reformat and removal of Legal Services.
2. / December 2016 / New Application temporary closure.
3. / February 2017 / Rollover of Scheme for two years to 19 February 2019.
CONTACT DETAILS
NSW Procurement Service Centre
McKell Building
Level 11, 2-24 Rawson Place Sydney NSW 2000
Telephone: 1800 679 289
Email:
Web: www.procurepoint.nsw.gov.au
This Guideline should be read in conjunction with the Easy Access Registration List
Rules – Low Risk Engagements up to $50,000 Incl. GST and its ‘Definitions’.
This document is available at:
http://www.procurepoint.nsw.gov.au/performance-and-management-services-scheme
Table of Contents
Agency Guidelines – EARL- PERFORMANCE AND MANAGEMENT SERVICES SCHEME (PMSS) 4
INTRODUCTION 4
What services does the EARL cover? 4
What does the EARL not cover? 5
How do Applicants become registered EARL Service Providers? 5
How does the EARL operate? 6
Can an Agency engage consultancy services outside the EARL? 6
Does the EARL allow for additional flow-on engagements? 7
On what terms are EARL Service Providers to be engaged? 7
Indemnity 7
Engagement value and flow on arrangements 8
How is performance monitored and reported on? 8
Are there compliance requirements for engagements made under EARL? 9
Disclosure obligations under NSW annual reporting legislation 9
How long will the EARL operate for? 10
ATTACHMENT A - AGENCY FEEDBACK: CONTINUOUS IMPROVEMENT 11
Agency Guidelines – EARL- PERFORMANCE AND MANAGEMENT SERVICES SCHEME (PMSS)
INTRODUCTION
In July 2012, what is now the NSW Department of Finance, Services and Innovation established the Easy Access Registration List (EARL) to enable Applicants to register as EARL Service Providers for the provision of low risk performance and management services valued at up to $50,000 (inclusive of GST), to NSW Government Agencies (Agencies). EARL Service Providers are not required to submit referee reports during the application process.
The Department of Finance, Services and Innovation (DFSI) maintains a list of individuals and companies which offer services in one or more capability areas. Agencies may engage EARL Service Providers in the capability areas listed. This list is available on the NSW Governments ProcurePoint website and via the eQuote system.
The types of services offered under the EARL can be used by Agencies regardless of whether service providers are engaged as ‘consultants’ or as ‘contractors’.
A consultant is a person or organisation engaged under contract on a temporary basis to provide recommendations or specialist or professional advice to assist decision-making by the Agency. Generally, it is the advisory nature of the work that makes a Service Provider a consultant rather than a contractor.
The EARL aims to:
provide a list of Service Providers that Agencies can use for low risk engagements for listed capability services up to $50,000 including GST (and in certain limited circumstances through flow-on engagements up to $75,000 including GST)
· encourage agencies to engage with EARL providers where appropriate and provide opportunity for industry development.
provide for reporting on the performance of Service Providers.
The NSW Government Goods and Services Procurement Policy Framework for NSW Government Agencies (the ‘Procurement Policy’) outlines the responsibilities and standards of behaviour expected of Service Providers involved in procurement activities. EARL Service Providers must adhere to the standards established under the Procurement Policy to ensure that procedural fairness is observed during the procurement process.
What services does the EARL cover?
The EARL covers 27 consolidated capability areas set out in the “Description of Capabilities” at http://www.procurepoint.nsw.gov.au/performance-and-management-services-scheme.
Engagements of Service Providers should be undertaken for the provision of services that do not expose Agencies to a high level of risk. Agencies should use their discretion and consider risk when determining the suitability of engaging EARL Service Providers for work, as these Service Providers have not been assessed as rigorously as Service Providers with Full Prequalification.
Agencies are responsible for selecting the appropriate Service Provider, taking into account the potential business impact and the level of risk associated with the work to be undertaken by the Service Provider. To help determine the level and type of risk that may encounter, Agencies should refer to the NSW Procurement Risk Management Guidelines: http://www.procurepoint.nsw.gov.au/sites/default/files/documents/guidelines_risk_management.pdf
For the assistance of Agencies, DFSI considers the capabilities listed below (being a sub set of the available capabilities) as potentially "high risk":
1(a) / Agency and Program Reviews1(b) / Policy/Strategy Reviews
2(a) / Strategy and Planning
2(b) / Risk
2(c) / Major Project Procurement / Project Management
2(d) / Contracting
2(e) / Communication
4(d) / Audit and Assurance Services
4(e) / Investigation Services
4(f) / Agency Procurement Assessment (Goods and Services)
4(g) / Board and Committees Membership Appointment Advisory Services
6(a) / ICT Strategic Plans and Business Cases and Project Quality Assurance Reporting Services.
What does the EARL not cover?
The EARL will not cover areas of procurement already addressed by other NSW Government schemes or panel contracts, including (but not limited to):
· NSW Procurement (period) contracts
· Construction-related consultant prequalification schemes
· Contingent Workforce Prequalification Scheme
· ICT Services Prequalification Scheme
· Other NSW Prequalification schemes
· Legal Services
How do Applicants become registered EARL Service Providers?
Note: NEW Applications to EARL will be temporarily closed for a period up to 12 months after 31 December 2016. The current listed service providers as at 31 December 2016 will still be available for use.
Applicants must complete and submit an application using the online application form accessed by clicking the “Service Provider Application Form” link at http://www.procurepoint.nsw.gov.au/performance-and-management-services-scheme.
Information submitted with an application will be treated as confidential by DFSI unless otherwise required by law, but will be made available to Agencies when seeking registered EARL Providers for services.
How does the EARL operate?
A list of EARL Service Providers is available via the ProcurePoint website and the NSW Government’s eQuote system.
EARL Service Providers have stated experience in one or more of the capability areas covered by the EARL. The 27 capability areas are set out in the “Description of Capabilities” at http://www.procurepoint.nsw.gov.au/performance-and-management-services-scheme.
Once Applicants are registered, they become EARL Service Providers and may be engaged by Agencies to perform low risk work in their nominated capabilities for engagements up to $50,000 including GST (and in certain limited circumstances through flow-on engagements up to $75,000 including GST).
Can an Agency engage consultancy services outside the EARL?
Yes. The use of the EARL is not mandatory. All Agencies may refer work to Service Providers outside the EARL in circumstances where they consider specialist advice can be provided more efficiently and effectively. Agencies which seek to engage Service Providers outside the EARL will be required to comply with relevant Board Directions, the Procurement Policy, and the Small and Medium Enterprises Policy Framework (SME Policy). The link below takes you to some general information regarding procuring Consultants:
http://www.procurepoint.nsw.gov.au/policy-and-reform/goods-and-services/procurement-consultancy-services
The SME Policy was adopted by the NSW Procurement Board on 18 January 2013 and sets out the methods by which procurement must be undertaken to improve access for Small and Medium Enterprises (SME) to government goods and services procurement via Whole of Government contracts and prequalification schemes.
Government agencies located in non-metropolitan areas are partially exempt from requirements to purchase under Whole of Government State contracts and prequalification schemes, allowing them to direct source small purchases (valued up to $5,000, including GST) from any source (in regional areas, usually SMEs).
The alternative suppliers’ rates for the goods or services must be reasonable and consistent with normal market rates. Reasonableness is determined by individual agencies based on previous and current practices.
Note: Agencies should comply at all times with the requirements of the NSW Procurement Board and Procurement Policy.
Does the EARL allow for additional flow-on engagements?
A Service Provider registered on the EARL is available to be engaged by an Agency for low risk engagements up to $50,000 (inclusive of GST) against their registered capabilities.
It is recognised however that in certain limited circumstances, engagements of a Service Provider pursuant to EARL may exceed $50,000 (Incl. GST) because a flow-on engagement becomes necessary. The total value of the first and related flow-on engagements is not to exceed $75,000 (Incl. GST).
If the flow on engagement exceeds $75,000 (Incl. GST), then the Agency is obliged to approach a different Service Provider for a quote for the further work.
On what terms are EARL Service Providers to be engaged?
A Service Provider registered on the EARL is available to be engaged by an Agency for low risk engagements of up to $50,000 (including GST).
Applicants agree that, when registered under the Scheme, the terms and conditions of any engagement made under the Scheme will be those of the EARL Standard Form of Agreement – terms and conditions attached to the Easy Access Registration List Rules and agree that it is not necessary to sign the EARL Standard Form of Agreement – terms and conditions for each or any engagement, instead parties will complete a form of EARL Agreement Details in respect to each engagement.
The Service Provider agrees not to seek any amendment to the EARL Standard Form Agreement - terms and conditions. Agencies should not modify the terms of the agreement unless there are exceptional circumstances.
The details of scope of work, fees and other requirements for the engagement will be set out the EARL - Agreement Details between the parties.
Indemnity
Clause 10 of the EARL Standard Form of Agreement – Terms and Conditions within the “EARL Rules” provides that the Service Provider agrees to indemnify agencies against any losses caused by, among other things, the negligence of the Service Provider.
Agencies are given the option of limiting or ‘capping’ the Service Provider’s liability under Clause 10.3 to a monetary amount, which has to be specified within the EARL - Agreement Details.
The appropriateness of any cap on the Service Provider’s liability under Clause 10 of the agreement is a risk management matter for the agency to consider. Any such cap should comply with the Treasury Managed Fund’s contract of coverage. If there is any doubt, the advice of the Fund Manager should be sought by the agency.
When an agency engages a service provider, it must check that (where required) the service provider has valid Professional Indemnity insurance and that the level is adequate to meet any monetary limit that is set for that type of engagement (see Clause 14 of the EARL Standard Form of Agreement – Terms and Conditions within the “EARL Rules”).
Engagement value and flow on arrangements
EARL Service Providers are not to be engaged for work with a value exceeding $50,000 (Incl. GST). Flow on engagements should be avoided and Agencies should seek to accurately estimate the value of work before engaging under EARL. However, if there is a flow on engagement, the total payable to the EARL Service Provider is not to exceed $75,000 (Incl. GST). On reaching $75,000 (unless it is a necessary flow-on engagement) the Government Agency must seek a quote for work from another Service Provider.
Note: where the estimated cost of a project is more than $150,000 (including GST), an engagement can be made from the Prequalification Scheme: Performance and Management Services by inviting a minimum of three (3) service providers with full prequalification under that Scheme, to submit quotations. Open invitations to tender are not required.
How is performance monitored and reported on?
Quality assurance, value for money, and performance improvement are key objectives of the EARL. To help meet these objectives, Agencies are required to submit a Performance Report online in circumstances where, for example, a Service Provider’s performance is considered unsatisfactory.
Performance Reports are required to be submitted at the completion or termination of the relevant engagement, or whenever a critical aspect of performance is unsatisfactory.
Where an Agency considers that a Service Provider’s performance has been unsatisfactory, the Service Provider must be kept informed and afforded an opportunity to show cause as to why it should not be rated ‘unsatisfactory’.
Agencies should follow the steps outlined in the “EARL Rules” to ensure that they observe procedural fairness in the course of performance reporting.
Are there compliance requirements for engagements made under EARL?
Agencies using EARL Service Providers are required to understand and comply not only with the EARL Rules but also with the requirements of:
the Goods and Services Procurement Policy Framework for NSW Government
Agencies; and
Additional reporting and disclosure requirements apply to Agencies who engage service providers under:
the Government Information (Public Access) Act 2009 (the “GIPA Act”); and NSW annual reporting legislation.
Disclosure obligations under NSW annual reporting legislation
Annual Reports legislation requires agencies to include the following information concerning the engagement of consultants during the financial year in their Annual Reports:
For consultancies costing equal to or more than $50,000:
the name of the consultant; the title of the project (shown in a way that identifies the nature of the work); and the actual costs of engaging the consultant.
For consultancies costing less than $50,000:
the total number of engagements costing less than $50,000; and the total cost of all such engagements.
The Premier's Department Circular C2004-17: Guidelines for the Engagement and Use of Consultants (now archived) defined a consultant as:
‘A person or organisation engaged under contract on a temporary basis to provide recommendations or high level specialist or professional advice to assist decision making by management. Generally it is the advisory nature of the work that differentiates a consultant from other contractors.’