The Procurement Guide 2013
F4 General Conditions of Contract for the Engagement of Consultants by Tender
[INSERT LOGO]
PART 4
GENERAL CONDITIONS OF CONTRACT
For the Engagement of Consultants by Tender
AS 4122 – 2000 General Conditions of Contract for Engagement of Consultants
This Guide suggests the use of Australian Standard 4122–2000 General Conditions of Contract for Engagement of Consultants and associated Annexures A and B (collectively “AS 4122-2000”).
Printed copies of AS 4122-2000 are available from SAI Global by calling 1300 654 646 or online at SAI Global also supplies AS 4122-2000 in Word format under licence through Copyright Services on 02 8206 6355. Special arrangements on copyright licences are available to purchasers of this Guide.
NOTES FOR COMPLETION OF THIS CONTRACT DOCUMENT
[To use these General Conditions of Contract:
(a)purchaseor licence the required number of Australian Standards AS 4122-2000 (one for each copy of the contract) and familiarise yourself with the terms and conditions of the document;
(b)complete Annexure A of your copy of the Standard by inserting relevant details in areas provided for;
(c)in Annexure B of your copy, Clause 1 state the clauses you wish to delete from AS 4122-2000;
(d)in Annexure B of your copy, Clause 2 state the clauses you wish to amend in AS 4122-2000 and detail the amendments;
(e)in Annexure B of your copy, Clause 3 state the clauses you wish to add to AS 4122-2000.
Some examples of amendments and additions have been included in Annexure B for reference, but Council will need to assess these on a contract by contract basis.
Where these General Conditions of Contract are to be used for building and construction related works, Council officers will need to be aware of the content of:
(a)the Building and Construction Industry Payments Act 2004which implies terms in construction contracts, provides for the adjudication of payment disputes under construction contracts and otherwise regulates construction contracts; and
(b)the Queensland Building Services Act 1991 which regulates the form and content of building contracts including the giving of directions, limits on retention amounts and securities, suspension of works and progress payments.]
Please note that councils are required to purchase or licence the required number of copies of AS4122-2000 and must use the forms within the purchased Standard for the Engagement of Consultants.
EXAMPLE ONLY
Annexure to the Australian Standard 4122-2000, GENERAL CONdITIONS OF CONTRACT FOR ENGAGEMENT OF CONSULTANTS
Part A
Item
The Brief is comprised in the following documents:(Clause 1) / The Specification comprising Part 2 of the Request for Tender.
[Specify other documents (if any) comprising the Brief]
(a) The Client or Principal is :
(Clause 1)
(b)The Client’s or Principal’s address is: / [Insert Council name]
ACN [Insert]ABN [Insert]
[Insert Council address]
(a) The Consultant is :
(Clause 1)
(b)The Consultant’s address is: / [Insert Consultant name]
ACN:[Insert] ABN: [Insert]
[Insert Consultant address]
The law applicable is that of the State or Territory of :
(Clause 1) / Queensland
The Contract documents are:
(Clause 2) / 1 These General Conditions of Contract.
2 The Brief being the documents stated in Item 1.
3 The Special Conditons of Contract comprising Part 5 of the Request for Tender.
[4 Specify other documents forming part of the Contract (if any)]
6 (a) If required by Clause 3(b), the Consultantshall submit a Programfor carrying out the Services:
(Clause 3(b))
(b) If yes, the Programshall be in the following form:
(Clause 3(b))
(c) If yes, the Programshall be submitted at
the following time:
(Clause 3(b)) / (a)Yes
[(b) Insert particulars of the form of the Program including dates for the achievement of key milestones]
(c) The Consultant must submit the Program to the Principal with the Tender Response of the Consultant.
Key personnel:
(Clause 3(g)) / NameWork to be carried out
......
......
......
......
......
......
Fees and charges to satisfy LegislativeRequirementspayable by the Consultant:
(Clause 4(f)) / [Identify fees and charges]
The Client’srepresentative is:
(Clause 6.1) / [Insert name of Council’s project manager for this project]
The Consultant’srepresentative is:
(Clause 6.2)
Intellectual Property Rights—Alternative
applying:
(Clause 8.1) / Alternative 2
If Alternative 2 applies, the additional fee
payable to the Consultantto vest the
Intellectual Property Rightin or relating to the
Contract Materialin the Client:
(Clause 8.1) / Nil
Additional Purposes for which Contract
Materialmay be used:
(Clause 8.2) / Any purpose in the sole discretion of the Client
The Consultant’sliability is limited as follows:
(Clause 9.1) / AU$10,000,000.00
(a) Amount of professional indemnity insurance shall not be less than:
(Clause 10.1)
(b) The period for which professional indemnity insurance shall be maintained is:
(Clause 10.1) / (a)AU$10,000,000.00
(b)Seven years after the date of completion of the Services
The amount of public liability insurance shall
not be less than:
(Clause 10.2) / AU$10,000,000.00
Claims for payment shall be made:
(Clause 13.1) / Upon achievement, to the satisfaction of the Client’s representative, of key project milestones as follows: [Identify key project milestones]
(a) The Consultant’sfee shall be
determined as follows:
(Clause 13.2)
(b) The expenses and disbursements to be reimbursed to the Consultantshall be:
(Clause 13.2)
*Delete as appropriate. / *Lump Sum Fee: $......
Where the fee is payable on a lump sum basis it is not adjustable except as provided for in the Contract.
*Fee in Stages:
The stages for the delivery of the Services and the *fee / *percentage of the fee applicable to each stage:
Stage*Fee / *Percentage of fee
......
......
......
......
......
*Time charge:
Level of TaskRate per hour
......
......
......
......
......
*Set out in Schedule 1
As follows:......
......
......
The times and place for payment shall be:
(Clause 13.3) / [Insert Council’s payment terms:]
[For building and construction contracts use:]
[Payment must be made:
(a)in accordance with the requirements of the Building and Construction Industry Payments Act 2004, as amended from time to time; and
(b)to the Consultant at the Consultant’s address by way of electronic funds transfer or as may be determined from time to time by the Client]
The rate of interest on overdue payments is:
(Clause 13.4) / Seven % per annum
The deemed frustration date if Servicesare
not completed:
(Clause 14.1) / [Insert the date for the achievement of the final key project milestone]
Arbitration and Expert Determination
(Clause 15)
(a) Person to nominate an arbitrator or
Expert
(Clause 15.3)
(b) Rules for arbitration:
(Clause 15.3)
(c) Rules for expert determination
(Clause 15.4) / (a)Chairperson for the time being of the Queensland Chapter of the Institute of Arbitrators & Mediators Australia
(b)Rules 5–18 of the Rules of The Institute of Arbitrators & Mediators Australia for the Conduct of Commercial Arbitrations
(c)The Guidelines for Expert Determination of the Australian Commercial Disputes Centre
EXAMPLE ONLY
Annexure to the Australian Standard 4122-2000, GENERAL CONdITIONS OF CONTRACT FOR ENGAGEMENT OF CONSULTANTS
Part B
DELETIONS, AMENDMENTS AND ADDITIONS
- The following Clauses or parts of Clauses have been deleted from the General Conditions in AS 4122-2000:
[Specify any Clauses that you wish to delete from the General Conditions in AS 4122-2000]
- The following Clauses have been amended and differ from the corresponding Clauses in AS 4122-2000:
Some examples of amendments have been included below for reference.
1. / INTERPRETATION / Clause 1 —insert —
“‘Moral Rights’ means the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship falsely attributed, more particularly as conferred by the Copyright Act 1968, and rights of a similar nature anywhere in the world whether existing before the date of the Contract or which may come into existence on or after the date of the Contract;
‘Request for Tender’ means the Request for Tender of which these General Conditions of Contract form part;”.
3. / RESPONSIBILITIES AND OBLIGATIONS OF THE CONSULTANT / Clause 3(f) —
omit, insert —
“(f)employ staff with appropriate qualifications and experience to carry out the Services to the satisfaction of the Client.”.
Clause 3(o) —
omit, insert —
“(o)all work undertaken as part of the Contract, both in its preparation and execution, shall be regarded as confidential and shall not be disclosed to any third party without the prior written approval of the Client.”.
8. / COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS / Clause 8 —
insert —
“8.4Moral Rights
Where the Consultant is an individual, the Consultant consents to any acts or omissions of the Client in the exercise of rights or assignments granted under this Clause 8 that might otherwise constitute an infringement of the Moral Rights of the Consultant.
8.5Authorship
Without limiting Clause 8.4, the Consultant consents, in relation to the Contract Material:
(a)to being attributed as author of works comprised in the Contract Material in a form and manner acceptable to the Client; and
(b)to the specific acts or omissions set out in the Contract.
8.6Individual Consent
Prior to an individual commencing work in respect of the Contract Material on behalf of the Consultant, the Consultant must obtain from that individual, in writing, and provide to the Client, upon request:
(a)all consents, permissions and assignments to enable the Client to exercise in full, without cost to the Client and without impediment, the rights granted under this Clause 8; and
(b)without limiting paragraph (a), a consent to any act or omission (including the specific acts or omissions set out in the Contract) which would otherwise infringe the Moral Rights of that individual. If requested by the Client, such consent must be in a form specified by the Client.
8.7Survival of Termination
This Clause 8 shall survive termination of the Contract.”.
10. / INSURANCE / Clause 10.1 —
insert —
“The Consultant must ensure that all subconsultants are insured to the same level as the Consultant.”.
Clause 10.2—
insert —
“The Consultant must effect and maintain comprehensive motor vehicle insurance in respect of all motor vehicles which are used by the Consultant in connection with performance of the Services.”.
Clause 10 —
insert —
“10.4 Evidence of Insurances
The Client’s representative may give written notice to the Consultant requiring the Consultant to produce evidence of the insurances specified in this Clause 10 from time to time. If the Consultant fails to comply with the obligations of the Consultant specified in this Clause 10, the Client may perform the outstanding obligations of the Consultant and recover all costs and expenses incurred by the Client in that regard as a debt due and owing from the Consultant to the Client.”.
13. / PAYMENT / Clause 13 —
insert —
“13.5 Goods and Services Tax
For the purposes of this Clause:
(a)“GST” means the goods and services tax under the GST Act;(b)“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 and includes other GST related legislation;
(c)words and phrases defined in the GST Act have the same meaning in this Clause 13.5 unless the context indicates otherwise.
The Consultant’s fees, expenses and disbursements include the Client’s liability for GST on the supply of the Services. The Client is not obliged to pay any additional amount to the Consultant on account of GST on the supply of the Services.
The Consultant must ensure that each claim for payment submitted under the Contract is in a format that identifies any GST paid, and which permits the Client to claim an input tax credit unless the supply of the Services is not a taxable supply.”.
- The following Clauses have been added to those of AS 4122-2000:
Some examples of additions have been included below for reference.
1.EXECUTION OF COMPLETED CONTRACT
1.1After formation of the Contract, the Client may deliver a completed Contract to the Consultant. Within 14 days after the date of delivery of the completed Contract to the Consultant, the Consultant must execute and return the completed Contract to the Client for execution by the Client. The Client may extend the period for execution of the completed Contract by giving written notice to the Consultant.
2.RECORDS
2.1The Consultant must keep accurate records of the performance of the Services.
2.2On completion of the Services or on termination or frustration of the Contract, the Consultant must promptly return to the Client all documents, samples, patterns, moulds and other information provided to the Consultant by the Client to facilitate the carrying out of the Services.
3.DUTY
3.1The Consultant must pay all duty imposed under the Duties Act 2001 on the Contract.
4.LEGAL COSTS
4.1Except as expressly stated otherwise in the Contract, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under the Contract.
5.RIGHTS CUMULATIVE
5.1Except as expressly stated otherwise in the Contract, the rights of a party under the Contract are cumulative and are in addition to any other rights of the party.
6.ABORIGINAL CULTURAL HERITAGE
6.1If the performance of the Services under the Contract involves interference with or harm to Aboriginal cultural heritage (as that expression is defined in the Aboriginal Cultural Heritage Act 2003) the Consultant must comply with the requirements of the Aboriginal Cultural Heritage Act 2003 at the expense of the Consultant.
6.2The Consultant must indemnify the Client against any failure by the Consultant to comply with the requirements of the Aboriginal Cultural Heritage Act 2003 of or incidental to the performance of the Services by the Consultant under the Contract.
7.ENTIRE AGREEMENT
7.1The Contract constitutes the entire agreement between the parties and supersedes all communications, negotiations, arrangements and agreements either oral or written between the parties with respect to the subject matter referred to in the Contract.
8.SPECIFIC CULTURAL AND ENVIRONMENTAL ISSUES OF THE CLIENT
8.1[Insert any relevant Council cultural and environmental issues such as significant flora and fauna, fireants etc.)]
9.DIGITAL SPATIAL DATA
9.1[Insert any specific Council requirements in relation to digital spatial data]
10.RIGHT TO INFORMATION AND DISCLOSURE
10.1The RTI Act provides members of the public with a legally enforceable right to access documents held by Queensland Government agencies (including Local Governments).
10.2The RTI Act requires that documents be disclosed upon request, unless the documents are exempt, or on balance, disclosure is contrary to the public interest.
10.3Information provided by the Consultant is potentially subject to disclosure to third parties pursuant to the RTI Act.
10.4If disclosure under the RTI Act, or general disclosure of information provided by the Consultant, would be of substantial concern to the Consultant, because it would disclose trade secrets, information of commercial value, the purpose or results of research, or other information of a confidential nature, including Personal Information, this should be indicated by the Consultant. The Principal cannot guarantee that any information provided by the Consultant will be protected from disclosure under the RTI Act.
10.5In this clause:
(a)Personal Information has the meaning given in the Information Privacy Act 2009; and
(b)RTI Act means the Right to Information Act 2009.
11.INFORMATION PRIVACY
11.1Where the Consultant or its subconsultants have access to or are responsible for holding Personal Information, the Consultant must:
(a)comply with parts 1 and 3 of chapter 2 of the Information Privacy Act 2009 as if the Consultant were the Principal; and
(b)ensure that the Personal Information is protected against loss, unauthorised access, use, modification or disclosure, and against other misuse; and
(c)not use the Personal Information other than for the purpose of the Contract, unless required or authorised by law; and
(d)not disclose the Personal Information without the written agreement of the Principal, unless required or authorised by law; and
(e)not transfer the Personal Information outside Australia without the consent of the Principal; and
(f)ensure that its personnel do not access, use or disclose the Personal Information other than in the performance of their duties; and
(g)immediately notify the Principal if it becomes aware that a disclosure of Personal Information is, or may be, required or authorised by law; and
(h)fully cooperate with the Principal, to enable the Principal to respond to applications for access to, or amendment of, a document containing an individual’s Personal Information and to privacy complaints; and
(i)comply with such other privacy and security requirements as the Principal reasonably advises the Consultant from time to time.
11.2Where the Principal is not reasonably satisfied, on the basis of information provided to it by the Consultant, that proper practices are in place to ensure that the privacy and disclosure of information requirements for Personal Information are being observed and maintained, the Principal may at any time require the Consultant to make its subconsultants aware of its obligations, in accordance with this clause12 including, when requested by the Principal, requiring any subconsultant to promptly sign a privacy undertaking in a form approved by the Principal.
11.3In this clause “Personal Information” has the meaning given in the Information Privacy Act 2009.
Version Date: / 12/08/2013Revision Number: / 2013.01