Department of Defence - DSC-1 Contract Manual - Volume 5
DESIGN SERVICES CONTRACT (DSC-1 2003)
CONTRACT MANUAL
VOLUME 5:
PROFORMA NOTICES
[Last Amended: 26may 2011]
DISCLAIMER:
This Manual has been prepared solely for the purpose of providing internal guidance to Defence personnel. Any use by non-Defence personnel is unauthorised. No responsibility will be taken by the Commonwealth of Australia or the advisers assisting in the preparation of theManual, 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.
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Department of Defence - Design Services Contract (DSC-1 2003) Contract Manual - Volume 5
1.General information about the Manual
1.1General
The Department of Defence Design Services Contract (DSC-1 2003) Contract Manual (Manual) comprises six volumes, being:
(a)Volume 1: Introduction to DSC-1 2003;
(b)Volume 2: Completing the Tender and Contract Documents;
(c)Volume 3: Clause-by-clause Guidance (for the Conditions of Contract);
(d)Volume 4: Flowcharts (for the Conditions of Contract);
(e)Volume 5: Proforma Notices (for the Conditions of Contract); and
(f)Volume 6: Clausebyclause Guidance for the Special Conditions.
This Volume 5 provides proforma notices to be used by all parties in fulfilling their notification obligations under the Contract.
This Manual has been prepared solely for the purpose of providing internal guidance to Defence personnel. Any use by non-Defence 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.
This Manual is structured as an on-line reference tool located on the Defence Infrastructure Management website (see A printable version of each volume of the Manual is also available on the Defence Infrastructure Management website. However, it is anticipated that the Manual will be updated and supplemented from time to time. For this reason, if personnel have printed a version of the Manual, they should refer regularly to the Defence Infrastructure Management website to ensure that they are referring to the latest release. The release reference is printed on the front page of each volume of the Manual. Personnel should also be aware that legal and policy changes will impact on the content of this Manual from time to time. Personnel are responsible for ensuring that they understand how such changes may impact on their project.
The Contract identifies defined terms (generally, these are defined in clause 1.1 of the Conditions of Contract) by using a capital letter – e.g."Act of Prevention","Completion"etc. The Manual follows this convention.
1.2No substitute for reading the Contract
The Manual does not attempt to discuss all aspects of tender and contract administration in detail, so it is no substitute for reading the Contract and – if necessary – obtaining policy, legal or other specialist guidance.
Further, the Manual does not provide detailed advice in relation to matters not expected to arise in the day-to-day administration of the Contract, such as termination of the Contract or dealing with disputes. The need to seek specialist advice in extraordinary circumstances such as these is flagged throughout the Manual. If such circumstances arise, Defence and the Contract Administrator will need to seek specialist advice. If in doubt, contact the Directorate of Construction Contracts.
2.background to Notices
The Conditions of Contract refer to notices or instructions required in certain circumstances, including the occurrence of an event or for the making of a request. This Volume 5 contains proforma notices to assist the parties in complying with the formal notification requirements of the Conditions of Contract. The proforma notices indicate from and to whom particular notices or instructions must be sent and set out the information which must be contained in the notice to fulfil the requirements of the particular provision of the Conditions of Contract.
Text in italics and square brackets are instructions to the persons preparing the notice, indicating information that should be provided and/or completed.
Where more than one option is provided, the person preparing the notice should carefully consider the terms and delete those which are not applicable.
Additional instructions are provided at the bottom of the notice in bold italics. These should be considered and then deleted before the notice is issued.
Legal advice should always be sought before issuing any notices under clauses 11 and 12 which is why they have not been included in this Volume 5.
3.index to notices
This index provides a list of all clauses in relation to which proforma notices have been prepared. Notices are contained in this Volume 5 in the order in which they appear in this index.
Clause Number / Title of Notice2.5 / Notice of matters impacting on the Services or the Works
2.8(c)(i) / Notice of conflict of interest
2.9(a) / Request to subcontract
2.9(a) / Response to request to subcontract
2.9(a)(v) / Request for evidence of [registration/licensing/training]
2.9(a)(vi) / Request for Subconsultant Deed of Covenant
2.11(c) / Notice of change in Statutory Requirement
2.11(d) / Instruction in response to change in Statutory Requirement
2.12(b) / Request for Consultant Deed of Covenant
2.13(v) / Notice regarding the Environment
3.2(c) / Request for additional information
3.4 / Request for alternative courses of action
3.4 / Response to request on alternative course of action
4.2 / Replacement of Contract Administrator
4.4(a) / Appointment of Contract Administrator's Representative
4.4(c) / Revocation of appointment of Contract Administrator's Representative
4.5(b) / Request to replace Key Person
4.5(b) / Response torequest to replace Key Person
4.6 / Removal of Person
5.1(c) / Request to produce evidence of currency
5.1(d)(i) / Notice of expiry, cancellation or rescission of insurance policy
5.1(d)(i) / Response to notice of expiry, cancellation or rescission of insurance policy
5.1(d)(ii) / Notice of replacement insurer
5.1(e)(iv) / Request to [cancel an insurance policy/allow an insurance policy to lapse]
5.1(e)(iv) / Response to request to [cancel an insurance policy/allow an insurance policy to lapse]
5.1(e)(v) / Notice of event in relation to insurance policy
5.4(a) / Notice of potential claim under insurance policy
5.4(b) / Notice of significant developments concerning claim
5.4(e) / Notice of reduction of professional indemnity insurance indemnity
6.3(a)(ii) / Rejection of Design Documentation
6.10(c) / Request to update DCAP
6.10(c) / Response to request to update DCAP
6.11(c) / Notice of [ambiguities/discrepancies/inconsistencies] in documents which make up the Contract
6.11(c) / Notice of [ambiguities/discrepancies/inconsistencies] between the Contract and the Design Documentation or other Project Documents
6.11(d) / Response to notice regarding [ambiguities/discrepancies/inconsistencies]
6.12(a) / Request for access to premises and Project Documents
6.16(b) / Notice of occupational health and safety matters
7.2 / Non-complying Services
7.4(a)(ii) / Project Plans
7.4(a)(ii) / Rejection of [draft/resubmitted] Project Plans
8.4(a)(i) / Instruction to suspend
8.4(a)(i) / Instruction to recommence
8.6(a) / Initial claim for an extension of time
8.6(b) / Claim for a further extension of time
8.8/8.9 / Determination of extension of time claim
8.10 / Unilateral extension of time
8.11 / Instruction to accelerate
9.1 / Variation Price Request
9.1 / Response to Variation Price Request
9.2 / Variation Order
10.2(f)(ii) / Request for documentation or information
10.3(c)(vi) / Identification of particular information not provided pursuant to clause 10.2(f)
10.12 / Statutory Declaration in relation to payment of workers and subconsultants
10.14(a)(ii) / Revocation of appointment of Contract Administrator as the Commonwealth's agent under Security of Payment Legislation
10.14(e) / Request for consent to divulge information in relation to a Security of Payment Legislation adjudication application
10.14(e) / Response to request for consent to divulge information in relation to a Security of Payment Legislation adjudication application
13.1(a) / Notice of Variation
13.1(b) / Claim for Variation
13.2 and 13.3(a) / Initial Notice of Claim
13.2 and 13.3(b) / Notice of Claim
13.4 / Notice of continuing events
15.5(c) / Notice of breach of Privacy Principles
15.10(a) / Request to [furnish information/issue document or other material]
15.10(a) / Response to request to [furnish information/issue document or other material]
15.11(b)(ii) / Request for approval to disclose Classified Information
15.11(b)(ii) / [Approval/Rejection] of disclosure of Classified Information
16.3 / Report regarding effect on compliance with National Code and Guidelines
To: [Insert name of Contract Administrator]
[Insert name/description of Contract](Contract)
NOTICE OF MATTERS IMPACTING ON THE SERVICES OR THE WORKS
Clause 2.5
In accordance with clause 2.5 of the Contract, the Consultant notifies the Contract Administrator 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 Works;
[OR]
[Option 2]affects or may affect the Commonwealth's Program or the Consultant's approved program under clause 8.2 of the Contract;
[OR]
[Option 3]involves an error, omission or defect in a continuing or completed aspect of the Works or the Services;
as follows:
[Consultant must provideparticulars of the change, error, omission or defect andits likely impact].
In order to minimise the impact of this matter upon the scope, timing and cost of the Services and the Works, the Consultant recommends the following:
[Insert Consultant's recommendation].
[Signature]
Consultant
[Insert date]
[Instructions to Consultant:
Delete the Options which are inapplicable]
To: [Insert name of Contract Administrator]
[Insert name/description of Contract](Contract)
NOTICE OF CONFLICT OF INTEREST
Clause 2.8(c)(i)
In accordance with clause 2.8(c)(i) of the Contract, the Consultant notifies the Contract Administrator that a [conflict of interest/potential conflict of interest] has arisen in respect of the following:
[Insert details of particular matter and parties involved/potentially involved in the conflict].
[Signature]
Consultant
[Insert date]
To: [Insert name of Contract Administrator]
[Insert name/description of Contract](Contract)
REQUEST TO SUBCONTRACT
Clause 2.9(a)
In accordance with clause 2.9(a) of the Contract, the Consultant requests the Contract Administrator's approval to subcontract the following parts of the Services to the following subconsultant(s) who [is/are] not named in the Contract Particulars or an Agreed Subconsultant.
Proposed subconsultant:
[Insert details including evidence that the subconsultant is registered or licensed to carry out the Services if a Statutory Requirement in the State or Territory in which the Services are being carried out requires such licence or registration].
Services to be subcontracted:
[Insert details].
The Consultant acknowledges that it will:
(a)be fully responsible for the Services despite subcontracting the carrying out of these parts of the Services, as set out in clause 2.9(a)(ii);
(b)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)ensure that each subcontract contains provisions which bind the subconsultants to participate in any novation required by the Commonwealth under clause 11.5(a) and as required by clause 16.6(b).
[Signature]
Consultant
[Insert date]
To: [Insert name and ABN of Consultant]
[Insert name/description of Contract](Contract)
RESPONSE TO REQUEST TO SUBCONTRACT
Clause 2.9(a)
The Contract Administrator refers to the Consultant's notice of request to subcontract dated [insert date].
In accordance with clause 2.9(a) of the Contract, the Contract Administrator
[Option 1]rejects the Consultant's request.
[OR]
[Option 2]approves the Consultant's request.
[Signature]
Contract Administrator
[Insert date]
[Instructions to Contract Administrator:
Delete the Option which is inapplicable.]
To: [Insert name and ABN of Consultant]
[Insert name/description of Contract] (Contract)
REQUEST FOR evidence of [registration/licensing/training]
Clause 2.9(a)(v)
In accordance with clause 2.9(a)(v) of the Contract, the Contract Administrator requests the Consultantto produce evidence that the following subconsultant is [registered/licensed/trained],in accordance with the relevant Statutory Requirements:
[Insert name of subconsultant and type of work being undertaken, if known].
[Signature]
Contract Administrator
[Insert date]
To: [Insert name and ABN of Consultant]
[Insert name/description of Contract] (Contract)
REQUEST FORSUBCONSULTANTDEED OF COVENANT
Clause 2.9(a)(vi)
In accordance with clause 2.9 (e) of the Contract, the Contract Administrator requests the Consultant to execute, procure the relevant subconsultant to execute and deliver to the Contract Administrator a Subconsultant Deed of Covenant duly completed with all relevant particulars in respect of the following subconsultant/s:
[Insert details of relevant subconsultant/s].
The Subconsultant Deed of Covenant must be provided
[Option 1]as a condition precedent to seeking the prior written approval of the Contract Administrator to subcontract any work under clause2.9(a).
[OR]
[Option 2]within [insert] days, and in any event, before commencement of work by the relevant subconsultant.
[Signature]
Contract Administrator
[Insert date]
[Instructions to Contract Administrator:
Delete the Option which is inapplicable].
To: [Insert name and ABN of Consultant] [OR][the Commonwealth]
[Insert name/description of Contract](Contract)
NOTICE OF CHANGE IN STATUTORY REQUIREMENT
Clause 2.11(c)
In accordance with clause 2.11(c) of the Contract, 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]
Consultant
[OR]
[Signature of authorised officer]
For and on behalf of the Commonwealth
[Insert date]
[Instructions to the Commonwealth/Consultant:
Delete the Option which is inapplicable.]
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 Contract Administrator refers to the [Consultant's/Commonwealth's] notice dated [insert date] 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 Contract, 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]
Contract Administrator
[Insert date]
[Instructions to Contract Administrator:
Under clause 2.11(e) the Contract Administrator is to determine the amount by which the Fee is to be adjusted in order to take into account the 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 Contract Administrator's instructions. Accordingly, the Contract Administrator should take into account the cost implications of any instructions given.]
To: [Insert name and ABN of Consultant]
[Insert name/description of Contract] (Contract)
REQUEST FOR CONSULTANT DEED OF COVENANT
Clause 2.12(b)
In accordance with clause 2.12(b) of the Contract, the Contract Administrator requests the Consultant to execute, procure the relevant subconsultant to execute and deliver to the Contract Administrator a Consultant Deed of Covenant duly completed with all relevant particulars in respect of the following subconsultant/s:
[Insert details of relevant subconsultant/s].
The Consultant Deed of Covenant must be provided
[Option 1]as a condition precedent to seeking the prior written approval of the Contract Administrator to subcontract any work under clause 2.12(b).
[OR]
[Option 2]within [insert] days, and in any event, before commencement of work by the relevant subconsultant.
[Signature]
Contract Administrator
[Insert date]
[Instructions to Contract Administrator:
Delete the Option which is inapplicable.]
To: [Insert name and ABN of Contract Administrator]
[Insert name/description of Contract](Contract)
NOTICE REGARDING THE ENVIRONMENT
Clause 2.13(v)
In accordance with clause 2.13(v) of the Contract, the Consultant notifies the Contract Administrator of
[Option 1] a non-compliance with the requirements of clause 2.13 of the Contract, being [insert details of non-compliance].
[OR]
[Option 2]a breach of a Statutory Requirement for the protection of the Environment, being [insert details of breach].
[OR]
[Option 3]an Environmental Incident, being [insert details of incident].
[OR]
[Option 4]receipt by the Consultant of a [notice/order/communication] received from [insert name of authority] for the protection of the Environment stating [insert details of notice/order/communication].
[Signature]
Consultant
[Insert date]
[Instructions to Consultant:
Delete the Options which are inapplicable.]
To: [Insert name of Contract Administrator]
[Insert name/description of Contract](Contract)
REQUEST FOR ADDITIONAL INFORMATION
Clause 3.2(c)
In accordance with clause 3.2(c) of the Contract, the Consultant notifies the Contract Administrator that the following additional [information/documents/particulars] are required by the Consultant for the following reasons:
[Insert information/documents particulars required and reasons why they are required].
[Signature]
Consultant
[Insert date]
[Instruction to Contract Administrator:
If the Contract Administrator 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.]
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 Contract, the Consultant requests the Commonwealth to consider, in relation to [insert matter to which proposed consideration of alternative course of action relates], the selection of the following alternative courses of action:
[Insert details of proposed alternative courses of action].
The following information required to enable the decision to be made is attached:
[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.]
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 Consultant's notice regarding its request for alternative course of action dated[insert date].
In accordance with clause 3.4 of the Contract, the Commonwealth has decided as follows:
[Insert details of Commonwealth's decision].