Department of Defence - Design Services Subcontract (DSSC-1 2003) - for use with MCC-1 2003
PROJECT NUMBER: [INSERT PROJECT NUMBER]
PROJECT NAME: [INSERT PROJECT NAME]
DESIGN SERVICES SUBCONTRACT
(DSSC-1 2003)
(FOR USE WITH MCC-1 2003)
[LAST AMENDED:20 FEBRUARY 2013 - PLEASE REMOVE PRIOR TO EXECUTION]
Legal\30921648.31
Department of Defence - Design Services Subcontract (DSSC-1 2003) - for use with MCC-1 2003
Table of Contents
FORMAL AGREEMENT
CONDITIONS OF SUBCONTRACT
1.Glossary of terms, interpretation AND MISCELLANEOUS
1.1Glossary of Terms
1.2Interpretation
1.3Miscellaneous
2.Role of the consultant
2.1Engagement
2.2Standard of Care
2.3Authority to Act
2.4Knowledge of the Contractor's Requirements
2.5Notice of Matters Impacting on the Services or the MCC Works
2.6Coordination with Other Contractors
2.7Access to Consultant's Premises
2.8Conflict of Interest
2.9Subcontracting
2.10Statutory Requirements
2.11Change in Statutory Requirements or Variance with Subcontract
2.12Consultant Deed of Covenant and Novation
2.13The Environment
3.Role of the CONTRACTOR
3.1Information and Services
3.2Additional Information
3.3Access
3.4Making of Decisions
4.Personnel
4.1Contractor's Representative
4.2Replacement of Contractor's Representative
4.3Parties' Conduct
4.4Key People
4.5Removal of Persons
4.6Project Review
5.Insurance
5.1Consultant Insurance Obligations
5.2Insurance by Contractor
5.3Failure to Insure
5.4Period of Insurance
5.5Notice of Potential Claim
5.6Cross Liability
6.DESIGN AND Documentation
6.1Contractor's Documents
6.2Consultant's Design
6.3Contractor's Representative may Review Design Documentation
6.4No Obligation to Review
6.5Copies of Design Documentation
6.6Licence over Design Documentation
6.7Intellectual Property Warranties
6.8Intellectual Property Rights
6.9Contractor Material
6.10Resolution of Ambiguities
6.11Access to Premises and Project Documents
6.12Measurements and Dimensions
6.13Design Certification
6.14Samples
6.15Work Health and Safety Management
7.Quality
7.1Quality Assurance
7.2Non-Complying Services
7.3Reperformance of the Non-complying Services
7.4Project Plans
8.Time
8.1Progress
8.2Programming
8.3Consultant Not Relieved
8.4Suspension
8.5Delays Entitling Claim
8.6Claim
8.7Conditions Precedent to Extension
8.8Extension of Time
8.9Reduction in Extension of Time
8.10Unilateral Extensions
8.11Acceleration
9.Variation
9.1Variation Price Request
9.2Variation Order
9.3Cost of Variation
9.4Rates and Prices
9.5Omissions
10.Payment
10.1Payment Obligation
10.2Payment Claims
10.3Conditions Precedent
10.4Payment Statements
10.5Payment
10.6Payment on Account
10.7Completion Payment Claim and Notice
10.8Release after Completion Payment Claim and Notice
10.9Interest
10.10Correction of Payment Statements
10.11Right of SetOff
10.12Payment of Workers
10.13GST
10.14Security of Payment Legislation
10.15Accounting Records
10.16Cost Allocation Advice
10.17Facilities and Infrastructure Accounting
10.18DEMS and GFIS
11.Termination
11.1Preservation of Rights
11.2Consultant Default
11.3Contents of Notice of Default
11.4Termination for Insolvency or Breach
11.5Contractor's Entitlements after Termination
11.6Consultant's Entitlements after Termination
11.7Termination for Convenience
11.8Costs
11.9Termination of Managing Contractor Contract
11.10Consequences Following Managing Contractor Contract Termination
11.11Copies of Project Documents
12.Dispute resolution
12.1Notice of Dispute
12.2Expert Determination
12.3The Expert
12.4Not Arbitration
12.5Procedure for Determination
12.6Disclosure of Interest
12.7Costs
12.8Conclusion of Expert Determination
12.9Agreement with Expert
12.10Determination of Expert
12.11Executive Negotiation
12.12Arbitration Agreement
12.13Arbitration
12.14MCC Dispute Procedures
12.15MCC Disputes
12.16Procedure for MCC Disputes
12.17Further Procedures
12.18Proportional Liability
12.19Continuation of Services
13.Notices
13.1Notice of Variation
13.2Notices of Other Claims
13.3Prescribed Notices
13.4Continuing Events
13.5Time Bar
13.6Other Provisions Unaffected
13.7Address for Service
13.8Receipt of Notices
14.WOL
14.1General Obligations
14.2Consultation
14.3WOL Proposals
14.4Reporting
14.5Commissioning and Handover
14.6Post Occupancy Evaluation
14.7Rights and Obligations Not Affected
15.General
15.1Workplace Gender Equality
15.2Indigenous Opportunities
15.3Safe Base Alert State System
15.4IT Equipment
15.5Protection of Personal Information
15.6Moral Rights
15.7Freedom of Information
15.8Long Service Leave
15.9Assignment
15.10Publicity
15.11Classified Information
15.12Manual of Fire Protection Engineering and Building Code of Australia Certification
16.BUILDING CODE 2013
[INSERT IF THE CONSULTANT WILL BE ENGAGING IN "BUILDING WORK" AS DEFINED IN THE BUILDING CODE 2013 IN FORCE PURSUANT TO THE FAIR WORK (BUILDING INDUSTRY) Act 2012 (CTH)]
16.1General
16.2Responsibility not Affected
16.3Notice of Effect on Compliance with Building Code 2013
16.4Records
16.5Access and Documents
16.6Project Agreements
17.COMMERCIAL-IN-CONFIDENCE INFORMATION
17.1General
17.2Commercial-in-Confidence Information
18.FAIR WORK PRINCIPLES
18.1General
18.2Responsibility not Affected
SUBCONTRACT PARTICULARS
ANNEXURE 1 – COMPLETION
Legal\30921648.311
Department of Defence - Design Services Subcontract (DSSC-1 2003) - for use with MCC-1 2003
FORMAL AGREEMENT
This Subcontract is made on day of
PartiesThe contractor set out in the Subcontract Particulars(Contractor)
The consultant set out in the Subcontract Particulars(Consultant)
A.The Commonwealth of Australia (Commonwealth) and the Contractor entered the Managing Contractor Contract (as described in the Subcontract Particulars) for the design and construction of the MCC Works (as described in the Subcontract Particulars).
B.The Contractor wishes to subcontract certain obligations under the Managing Contractor Contract in relation to design to the Consultantunder this Subcontract.
C.The Contractorand the Consultant promise to carry out and complete their respective obligations in accordance with:
(a)the attached Conditions ofSubcontract; and
(b)the other documents referred to in clause 1.1 of the Conditions of Subcontract as constituting theSubcontract.
SIGNED as an agreement.
Executedby the Contractor by or in the presence of:Signature of Director
______/
Signature of Secretary/other Director
Name of Director in full /
Name of Secretary/other Director in full
Executed by the Consultantby or in the presence of:
Signature of Director /
Signature of Secretary/other Director
Name of Director in full /
Name of Secretary/other Director in full
CONDITIONS OF SUBCONTRACT
1.Glossary of terms, interpretation AND MISCELLANEOUS
1.1Glossary of Terms
Unless the context otherwise indicates, whenever used in thisSubcontract, 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 in the MFPE as having the capacity to certify compliance with the requirements of the MFPE and the Building Code of Australia for Commonwealth projects similar to theMCC Works.
Act of Prevention
Any one of:
(a)a breach of the Subcontractby theContractor;
(b)any other act or omission of theCommonwealth, the Contractor,the MCC Contract Administrator, theContractor's Representativeor an Other Contractorengaged by theContractor; or
(c)a Variation the subject of a direction by the Contractor's Representative.
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 theSite, the MCC Worksor the Services or under any other applicable Statutory Requirement, which must be obtained or satisfied to:
(a)carry out the Services; or
(b)service, occupy and use the completed MCC Works, to the extent that the Services are relevant to such satisfaction.
ASEE
Assistant Secretary Environment and Engineering.
Award Date
The date on which the Formal Agreement, to which these Conditionsof Subcontractare attached, has been completed and signed by the Contractorand the Consultant.
Brief
The documents referred to in the Subcontract Particulars.
Building Code 2013 [INSERT IF THE CONSULTANT WILL BE ENGAGING IN "BUILDING WORK" AS DEFINED IN THE BUILDING CODE 2013 IN FORCE PURSUANT TO THE FAIR WORK (BUILDING INDUSTRY) Act 2012 (CTH)]
Building Code 2013 in force pursuant to the Fair Work (Building Industry) Act 2012.
Building Code of Australia
The Building Code of Australia that applies in the State or Territory where the MCC 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.
Change of Control
In relation to theConsultant, where a person who did not (directly or indirectly) effectively Control the Consultant at the Award Date, either alone or together with others, acquires Control of the Consultant.
Claim
Includes any claim for an increase in the Fee, for payment of money (including damages) or for an extension of time:
(a)under, arising out of, or in any way in connection with, theSubcontract, including any direction of theContractor's Representative;
(b)arising out of, or in any way in connection with, the MCC Works,the Services or either party's conduct before theSubcontract; or
(c)otherwise at law or in equity including:
(i)by statute;
(ii)in tort for negligence or otherwise, including negligent misrepresentation; or
(iii)for restitution.
Code Monitoring Group[INSERT IF THE CONSULTANT WILL BE ENGAGING IN "BUILDING WORK" AS DEFINED IN THE BUILDING CODE 2013 IN FORCE PURSUANT TO THE FAIR WORK (BUILDING INDUSTRY) Act 2012 (CTH)]
Has the meaning in the Building Code 2013 and the Building Code 2013 - Supporting Guidelines for Commonwealth Funding Entities.
Commissioning and Handover Plan
The commissioning and handover plan prepared by the Consultant and finalised under clause7.4, which must set out in adequate detail the procedures the Consultant will implement to manage the Services from a commissioning and handover perspective to ensure:
(a)the timely, efficient and comprehensive commissioning of the MCC Works (including the inspection and testing process); and
(b)the smooth handover of the MCC Works to the Commonwealth,
in accordance with the Subcontract, the Contractor's Commissioning and Handover Plan and the Commissioning, Handover and Takeover Guidelines.
Commissioning, Handover and Takeover Guidelines
The guidelines set out in the Schedule of Collateral Documents.
Commonwealth
Commonwealth of Australia.
Commonwealth Procurement Rules
The Commonwealth Procurement Rules issued under Regulation 7 of the Financial Management and Accountability Regulations 1997 (Cth).
Completion
The point in time when, in respect of a Milestone:
(a)the Design Documentationhas been completed in accordance with theSubcontract;
(b)the Serviceshave been completed in accordance with theSubcontract; and
(c)the Consultant has done everything which the Subcontractrequires it to do as a condition precedent to Completion, including those things described in Annexure 1 and in the Subcontract Particulars.
Consultant
The person named in the Subcontract Particulars.
Consultant Deed of Covenant
A consultant deed of covenant in the form set out in the Schedule of Collateral Documents.
Consultant Design Certificate
The certificate set out in the Schedule of Collateral Documents.
Consultant's Representative
The person named in the Subcontract Particulars or any other person from time to time appointed as Consultant's Representative in accordance with clause4.4.
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.
Contractor
The person named in the Subcontract Particulars.
Contractor Material
All material provided to the Consultant by the Contractor, including documents provided in accordance with clause6 and any other documents, equipment, machinery and data (stored by any means).
Contractor's Commissioning and Handover Plan
The commissioning and handover plan described in the Subcontract Particulars, amended as approved under the Managing Contractor Contract.
Contractor's Environmental Management Plan
The environmental management plan described in the Subcontract Particulars, amended as approved under the Managing Contractor Contract.
Contractor's Program
Any program, as amended from time to time, prepared by or on behalf of the Contractor setting out the times for the completion of the whole or any part of the Services and the MCC Works.
Contractor's Representative
The person nominated in the Subcontract Particulars or any other person nominated by the Contractor from time to time under clause 4.2 to replace that person.
Contractor's Site Management Plan
The site management plan described in the Subcontract Particulars, amended as approved under the Managing Contractor Contract.
Contractor's Work Health and Safety Plan
The work health and safety plan described in the Subcontract Particulars, amended and reviewed in accordance with the Managing Contractor Contract.
Control
Includes:
(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.
Date for Completion
The date or period of time (if any) specified in the Subcontract Particulars for Completion of a Milestone,as adjusted under theSubcontract.
Defence
Department of Defence.
Defence Environmental Management System
The environmental management system applicable to the Site (if any) available from the Commonwealth's regional environmental officer.
Defence Environmental Plan
The environmental plan applicable to the Site (if any) available from the Commonwealth's regional environmental officer.
Defence Environmental Requirements
The Defence Environmental Management System and Defence Environmental Plan which relate to the Site, the MCC Works 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 Requirements
Includesall policies, plans, manuals, guidelines, instructions (including departmental procurement policy instructions) and other Commonwealth or Department of Defence requirements which are, or may become, applicable to the Site, the MCC Worksor theServices. To the extent that any of the requirements would require or suggest the insertion of provisions into this Subcontract, then:
(a)those provisions will be incorporated by reference into this Subcontract; and
(b)any ambiguity, discrepancy or inconsistency arising out of the incorporation by reference will be resolved by theMCC Contract Administrator.
Delivery Phase
Has the meaning given to it in the Managing Contractor Contract.
Delivery Phase Fee
The amount specified in the Subcontract Particulars as adjusted, subject to clause 13.5 (if applicable), under the Subcontract.
Delivery Phase Services
The professional services for the Delivery Phasedescribed in, or reasonably to be inferred from, the Brief.
Design Documentation
All materialbrought, or required to be brought, into existence by the Consultantas part of, or for the purpose of, carrying out the Services including documents, drawings, specifications, reports, models, samples and calculations, equipment, technical information, plans, charts, tables, schedules, data (stored by any means), photographs and finishes boards.
direction
Any agreement, approval, authorisation, certificate, consent, decision, demand, determination, direction, explanation, failure to consent,instruction, notice, notification,order, permission, rejection, request or requirement.
Employees Liability Insurance
A policy of insurance covering the liability of the Consultant towards its employees at common law, for injuries arising out of or in the course of their employment, whether as an extension underWorkers Compensation Insurance or otherwise.
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 paragraphs(a), (b) or (c).
Environmental Clearance Certificate
The Environmental Clearance Certificate issued by the Commonwealth relating to the MCC Works 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 prepared by the Consultant and finalised under clause 7.4which 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)without limiting paragraph (b), the Energy Policy for Commonwealth Agencies, Commonwealth Procurement Rules and Defence Green Procurement Policy;
(d)the ESD Principles; and
(e)the Environmental Objectives,
and in accordance with the Subcontract and the Contractor's Environmental Management Plan.
Environmental Objectives
The Environmental Objectives are to:
(a)encourage best practice environmental management through planning, commitment and continuous improvement;
(b)prevent and minimise adverse impacts on the Environment;
(c)identify the potential for, and respond to, Environmental Incidents, accidents and emergency situations and take corrective action;
(d)identify and control possible environmental hazards associated with the MCC Works and the Services;
(e)establish procedures to ensure that no hazardous substance is stored on Commonwealth land without approval;
(f)recognise and protect any special environmental characteristics of the Site (including cultural heritage significance);
(g)define roles and responsibilities for personnel;
(h)ensure environmental training and awareness programmes are provided to employees;
(i)define how the management of the Environment during the Services is reported and performance evaluated;
(j)describe all monitoring procedures required to identify impacts on the Environment as a result of the MCC Works and the Services;
(k)implement complaint reporting procedures and maintain records of complaints and response to complaints; and
(l)establish and maintain programs and procedures for periodic Environmental Management Plan audits to be carried out.
Environmental Requirements
Includes:
(a)the Environmental Clearance Certificate;
(b)the Defence Environmental Requirements; and
(c)any other matter or requirement specified in the Subcontract Particulars.
ESD
Ecologically sustainable development.
ESD Principles
Means:
(a)efficient and effective use of natural resources in a way that maintains the ecological processes on which life depends;
(b)increased energy conservation and efficiency;
(c)sustainable use of renewable energy resources;
(d)reduction or elimination of toxic and harmful substances in facilities and their surrounding environments;
(e)improvements to interior and exterior environments leading to increased productivity and better health;
(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; and
(m)the additional specific matters (if any) relating to ESDspecified in the Subcontract Particulars.