PANEL AGREEMENT
FOR
DEFENCE ENVIRONMENT AND
HERITAGE PANEL
2009 - 2013
[IF RESERVE, INSERT "RESERVE"]
INDEX
SECTION 1-INTRODUCTION
SECTION 2-PANEL AGREEMENT
SECTION 3- PANEL DCAP
SECTION 4-ENGAGEMENT PROCESS
SECTION 5-TERMS OF ENGAGEMENT
SECTION 6-SERVICES
Panel Agreement for Defence Environment and Heritage PanelRevised: 14 August 2008
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SECTION 1
INTRODUCTION
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INTRODUCTION
1.The Defence Support Group ("DSG") within the Department of Defence has established this Environment and Heritage Panel ("Panel") for the provision of ongoing environment and heritage services in support of Department of Defence and Defence Materiel Organisation ("Defence") locations in twelve regions across Australia. The primary purpose of this Panel is to enable Defence and contractors to Defence to build a strong, collaborative relationship with consultants who are prepared to invest time and resources to identifying, understanding and servicing Defence environment and heritage requirements. It is intended that the Panel will facilitate this strong collaborative relationship, through the communicative processes it engenders to the mutual benefit of Defence and the consultants appointed to the Panel("Panel Consultants").The provision of software and equipment is excluded from the scope of services to be provided under the Panel.
2.The Panel comprises consultants with the demonstrated capability, skills, qualifications, depth of resources and experience to provide ongoing services (including specialist services) to Defence projects and locations on an "as needs" basis with respect to one or more of the following nine categories of service:
(a)Environmental Management Systems;
(b)Energy Management and Efficiency and GreenBuilding Policy and Assessment;
(c)Water Assessment and Management and Waste Minimisation;
(d)Biodiversity Conservation, Landscape Assessment and Management;
(e)Environmental Impact Assessment and Management;
(f)Pollution Prevention and Contaminated Sites Assessments and Management;
(g)Historic Heritage Assessment and Management;
(h)Indigenous Heritage Assessment and Management; and
(i)Natural Heritage Assessment and Management.
3.The Consultant has been appointed to provide the services described in Section 6 of this document ("Services").
4.This document sets out the basis of the relationship between Defence and the Consultant appointed to thePanel. The document is divided into the following sections:
(a)Section 1 - this introduction;
(b)Section 2 - the terms of the Panel Agreement ("Conditions of Panel Agreement");
(c)Section 3 - the detailed consultant's activities proposal ("Panel DCAP");
(d)Section 4 - the process for engagement of Panel Consultants for projects;
(e)Section 5 - the terms for engaging a Consultant for projects ("Terms of Engagement"); and
(f)Section 6 - the Services that may be required from the Consultant.
5.There is a distinction between the terms governing the standing offer made by the Consultant to Defence and the terms governing each contract for which the Consultant is engaged:
(a)the Conditions of Panel Agreement provide the broad contractual framework for the supervision and administration of the Panel and define the general legal relationship between the contracting parties; and
(b)the Terms of Engagement provide the more detailed provisions governing the specific legal relationship between the contracting parties for each engagement.
6.There is also a distinction between the Panel DCAP applicable to the Panel Agreement between the Consultant and Defence and the detailed consultant's activities proposal applicable to each contract for which the Consultant is engaged ("Services DCAP"):
(a)the Panel DCAP for the Panel Agreement demonstrates:
(i)the Consultant's understanding of what Defence will require the Consultant to do; and
(ii)all aspects of the Consultant's approach which could distinguish that approach from that of other consultants,
both:
(iii)as a member of the Panel; and
(iv)in performing the Services; and
(b)the Services DCAP for each contract demonstrates:
(i)the Consultant's understanding of what Defence will require the Consultant to do; and
(ii)all aspects of the Consultant's approach which could distinguish that approach from that of other consultants,
in performing the specific Services the subject of that contract.
7.As and when Defence may require services to be performed by the Consultant, it will invoke the engagement process set out in Section 4 of this document.
8.Defence does not guarantee any volume of work for the Consultant and Defence reserves the right to contract for services outside the Panel. However, Defence recognises the benefits that will accrue to both it and the Consultant through Panel Consultants participating in the performance of the Services.
9.Further, clauses 2.9 and 2.10 of the Conditions of Panel Agreement provide for the direct engagement of the Consultant by:
(a)contractors to Defence; or
(b)Other Commonwealth Agencies (as defined in the Conditions of Panel Agreement),
in respect of the Services. In that event, the Consultant will be required to enter into a standing offer arrangement or other contract with the relevant contractor to Defence or Other Commonwealth Agency on the same terms and conditions (including the Schedule of Rates (as defined in the Conditions of Panel Agreement)) that it has agreed with Defence at any time during the Term (subject only to such amendments as may be required to take account of the fact that it will be a contractor to Defence or Other Commonwealth Agency, and not Defence, who will be directly engaging the Consultant). Neither Defence, any contractor to Defence nor any Other Commonwealth Agency guarantees any volume of work for the Consultant under these arrangements, and each of Defence, contractors to Defence and Other Commonwealth Agencies reserve the right to contract for services outside the Panel.
10.Without limiting or affecting Defence's absolute discretion to determinewhether and how Services may be procured under the Panel, the Consultant acknowledges and accepts that whether the Consultant continues to receive requests for proposals and engagements will substantially depend upon its performance under the Panel Agreement and each contract for which it is engaged under clause 2.4 of the Conditions of Panel Agreement. For this reason, there are significant provisions relating to performance measures and reporting processes. Components of the performance frameworkincludes:
(a)Performance Indicators. The performance indicators provide an insight into Defence expectations of Panel Consultants and a basis from which to measure whether that expected level of service is delivered (taking into account matters beyond a Consultant's control). A Consultant' s ability to perform, or to adjust the level of its performance to meet expectations, will significantly influence future work placements;
(b)Reporting. As part of the communication process, reporting byPanel Consultants to the Panel Manager (as defined in the Conditions of Panel Agreement) on the tasks which they undertake, and to the Defence Representative on specific task issues, provides visibility of the Consultant’s progress as a member of the Panel; and
(c)Feedback. The Defence Representative (as defined in the Conditions of Panel Agreement) and the Panel Manager have a role in developing and maintaining the relationship with Panel Consultants. Among the mechanisms which can be employed, feedback on performance is an integral part of the management and development of the Panel.
11.The Consultant will be required to provide reports to Defence on a quarterly basis during each contract for which the Consultant is engaged under clause 2.4 of the Conditions of Panel Agreement(or, if the engagement is for less than 3 months, at the conclusion of the engagement) and the Defence Representative which engaged the member of the Panel will measure the Consultant against specific performance criteria. Where issues on performance arise during the course of a contract, the Consultant’s Representative (as defined in the Conditions of Panel Agreement) will be required to work together with the Panel Manager to address the concerns.
12.Defence will provide a report to the Consultant on a bi-annual basis that describes certain matters relevant to the sourcing of Services to the Consultant under the Panel.
13.Following receipt of Defence's report, the Consultant will be required to providereportsto and meet with the Panel Manager on a bi-annual basis.
14.These reports and meetings may be used (amongst other matters) to monitor the sourcing of Services to the Consultant under the Panel.
15.In addition to the Panel Consultants, Defence may (in its absolute discretion) appoint one or more organisations as reserve panellists in respect of the Services. Defence may engage reserve panellists at any time and for any purpose, including (without limitation), where any Panel Consultant is unable (for any reason) to perform the Services required by Defence or if a Panel Consultantfails to perform its obligations under the Panel Agreement.
16.In addition to the Panel Consultants and any reserve panellists, Defence may (in its absolute discretion) also establish under a separate procurement process a "pre-qualified" list of organisations who are not Panel Consultants nor reserve panellists. Defence anticipates that the organisations appointed to this list will be small to medium enterprises. Defence may invite such organisations to submit proposals for specific work under the Panel Agreementwhich would otherwise have been the subject of an engagement to provide Services. Defence encourages the Panel Consultants to (where necessary) engage such organisations as subconsultants to meet regional requirements for Services under the Panel Agreement.
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SECTION 2
PANEL AGREEMENT
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Table of Contents
1...... GLOSSARY OF TERMS
2...... NATURE OF PANEL AGREEMENT
2.1Formation of Panel
2.2Engagement Process
2.3Withdrawal from Panel
2.4Formation of Contract for Performance of Services
2.5No Guarantee of Work
2.6Defence may elect not to seek proposals from the Consultant
2.7Defence may elect to move the Consultant from the active Panel to the reserve panel and replace the Consultant with a reserve panel member
2.8The Consultant must notify Defence of material changes
2.9Engagement of the Consultant by contractors to Defence
2.10Engagement of the Consultant by Other Commonwealth Agencies
2.11Reserve Panel Members
2.12Term
2.13Continued performance of the Services
3...... PERSONNEL
3.1Panel Manager
3.2Consultant’s Representative and Consultant's Panel Database Manager
3.3Team of Key People and Team of People
3.4Evolution of Team of Key People and Team of People
4...... INDEMNITY AND INSURANCE
4.1Indemnity
4.2Insurance
5...... SCHEDULE OF RATES
5.1Role of Schedule of Rates
5.2Rise and Fall
6...... PERFORMANCE FRAMEWORK AND CONTINUOUS IMPROVEMENT INITIATIVES
6.1Performance
6.2Methodology
6.3Quarterly Performance Reports
6.4Defence's Bi-Annual Report
6.5Consultant's Bi-Annual Report and Bi-Annual Meeting
6.6Continuous Improvement
7...... CONFLICT OF INTEREST
8...... CONSULTANT’S SUBMISSION
9...... GENERAL
9.1Governing Law
9.2Occupational Health and Safety
9.3Authority to Act
9.4Access to Consultant's Premises
9.5Access to Contract Material
10.....COMPLIANCE WITH GOVERNMENT POLICY AND STATUTORY REQUIREMENTS
10.1Generally
10.2Equal Opportunity for Women
10.3Safe Base Alert State System
10.4IT Equipment
10.5Protection of Personal Information
10.6Moral Rights
10.7Freedom of Information
10.8Long Service Leave
10.9Publicity
11.....CONFIDENTIALITY, CLASSIFIED INFORMATION AND SECURITY REQUIREMENTS
11.1Confidentiality
11.2Commercial-in-Confidence Information
11.3Classified Information......
11.4Compliance with security requirements, generally
11.5Security Clearances
11.6Termination by Defence for breach of confidentiality or security......
12.....NATIONAL CODE OF PRACTICE FOR THE CONSTRUCTION INDUSTRY
12.1General
12.2Responsibility not Affected
12.3Notice of Effect on Compliance with National Code and Guidelines
12.4Records
12.5Access to Construction Sites and Other Places
12.6Subcontracts
12.7Management
12.8Project Agreements
APPENDIX 1A
APPENDIX 1B
APPENDIX 2
APPENDIX 3
APPENDIX4
APPENDIX5
APPENDIX6
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Panel Agreement for Defence Environment and Heritage PanelRevised: 14 August 2008
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FORMAL AGREEMENT
This Panel Agreement is made onday of
PartiesCommonwealth of Australia as represented by and acting through the Department of Defence and the Defence Materiel Organisation ("Defence")
[Insert details of Consultant] ("Consultant")
Defence and the Consultant promise to carry out and complete their respective obligations in accordance with the attached Conditions of Panel Agreement.
SIGNED as an agreement.
Signed for and on behalf of Defence in the presence of:Signature of Witness /
Signature of Authorised Signatory
Name of Witness in full /
Name of Authorised Signatory in full
Executed by the Consultant 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
[FORMAL AGREEMENT TO BE FINALISED FOLLOWING AWARD OF CONTRACT TO SUCCESSFUL TENDERER, AS AGREED BY DEFENCE]
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Panel Agreement for Defence Environment and Heritage PanelRevised: 14 August 2008
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CONDITIONS OFPANEL AGREEMENT
1.GLOSSARY OF TERMS
Unless the context otherwise indicates, wherever used in this document, each word or phrase in the headings in this clause1 has the meaning given to it under the relevant heading.
Base Date
The date upon which the Term commences, being9 February 2009.
Bi-Annual Meeting
Means ameeting between the Panel Manager and the Consultant's Representative under clause 6.5.
Change of Control
In relation to the Consultant, where a person who did not (directly or indirectly) effectively Control the Consultant at the Base Date, either alone or together with others, acquires Control of the Consultant.
Claim
Means any claim or action which the Consultant may make or bring against Defence:
(a)under, arising out of, or in any way in connection with, the Panel Agreement, including any direction of the Panel Manager;
(b)arising out of, or in any way in connection with, the Services or either party’s conduct before the Panel Agreement; 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
Has the meaning in the Guidelines.
Commonwealth Requirements
Policies, guidelines, instructions (including departmental procurement policy instructions) and other Commonwealth or Defencerequirements.
Consultant's Bi-Annual Report
Means areport provided by the Consultant under clause 6.5.
Consultant’s Panel Database Manager
The person who the Consultant nominates to act as its representative for the purposes of the Panel Database, who at the beginning of the Term is [insert name from Tender Schedule H, as agreed by Defence].
Consultant’s Representative
The person who the Consultant nominates to act as its representative for communications connected with this Panel Agreement, who at the beginning of the Term is [insert name from Tender Schedule H, as agreed by Defence].
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;
(b)the ability to dispose or exercise control over the disposal of more than 50% of the shares or other form of equity;
(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.
Defence's Bi-Annual Report
Means areport provided by Defence under clause 6.4.
Establishment
Any Defence establishment where the Consultant is to carry out the Services.
Further Term
Has the meaning in clause 2.12(b).
Guidelines
Australian GovernmentImplementation Guidelines for the National Code of Practice for the Construction Industry, to be found at
IM
Infrastructure Management website, to be found at
Indicative Schedule of Rates
The indicative schedule of rates set out in Appendix 1B to this Section 2.
Initial Term
Has the meaning in clause 2.12(a).
Intellectual Property
Includes all copyright and neighbouring rights, all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered designs and circuit layouts, all other rights resulting from intellectual activity in the industrial scientific or artistic fields.
IT Equipment
Any software, hardware or telecommunications equipment:
(a)produced; or
(b)provided, or required to be provided, to Defence,
under, for the purposes of or in connection with this Panel Agreement or the Services by, for or on behalf of the Consultant.
Moral Rights
Has the meaning given by the Copyright Act 1968 (Cth).
Moral Rights Consent
A moral rights consent in a form approved by the Panel Manager.
National Code
The National Code of Practice for the Construction Industry, to be found at
Office of the AustralianBuilding and Construction Commissioner
Has the meaning in the Building and Construction Industry Improvement Act 2005 (Cth).
Other Commonwealth Agency
Means:
(a)an Agency of the Commonwealth as defined by and subject to the Financial Management and Accountability Act 1997 (Cth); or
(b)a Commonwealth authority or Commonwealth company within the meaning of the Commonwealth Authorities and Companies Act 1999 (Cth),
other than Defence or a contractor to Defence.
Panel
The Defence Environment and Heritage Panel.
Panel Consultants
The consultants who make up the Panel.
Panel Database
The database established by Defence for the management of the Panel.
Panel DCAP
The detailed consultant's activities proposal set out in Section 3 of this document, as amended from time to time in accordance withSection3 of this document.
Panel Manager
The person who Defence nominates to act as the panel manager under this Panel Agreement, who at the beginning of the Term isthe Director, Environmental Program Integration.
Quarterly Performance Report
Means areport provided by the Consultant under clause 6.3.
Related Entity
Has the meaning in the Guidelines.
Schedule of Rates
The schedule of rates:
(a)during the Initial Term, set out in Appendix 1A to this Section 2;
(b)during each Further Term (if any):
(i)subject to subparagraph (ii), the Indicative Schedule of Rates set out in Appendix 1B to this Section 2, as adjusted under clause 5.1(d); or
(ii)if clause 5.1(e)(i) applies, set out in Appendix 1A to this Section 2, as adjusted under clause 5.2.
Schedule of Collateral Documents
The schedule of proforma contracts and other documents applicable to the Panel Agreementposted on the IM(or any alternative location notified by Defence), as amended from time to time by Defence.
Services
The professional services which the Consultant may be engaged to perform, which will be of the same or similar type to those set out in Section 6 of this document.
Statutory Requirements
Means:
(a)any law applicable to the carrying out of the Services, including Acts, ordinances, regulations, by-laws and other subordinate legislation;