DEPARTMENT OF JUSTICE & REGULATION

Legal Panel Administration

EXEMPTION POLICY

Purpose

  1. The Legal Services Panel contract is a State Purchase Contractwhich mandates departments and those statutory agencies that opt into the panel arrangements, to use the law firms on the panel. The panel contract does not bind departments or statutory agencies to acquire legal services from panel firms and they may at any time acquire services from non-panel firms.
  1. The purpose to the Exemption Policy is to set the criteria and process for approval to engage a non-panel firm or a firm not appointed to a particular sub-panel or area of law in which the services are required.
  1. The policy seeks to balance the need for client agencies to have their legal needs addressed and the integrity of the panel arrangements.

Process

  1. Subject to paragraphs 16 and 21, exemption applications must be in writing and addressed to the Agency Contract Manager within the department/statutory agency. The application must address the relevant criterion (criteria) relied on for the exemption.
  1. The Agency Secretary/CEO or their nominee is the decision maker for the exemption applications. A nominee must be at the Deputy Secretary or equivalent level in the organisation or the Chief Procurement Officer.
  1. The Agency Contract Manager is to review the application and make appropriate recommendationsto the Secretary/CEO or their nominee for a decision on the exemption application.
  1. If an exemption application is approved, the Agency Contract Manager must keep a record of the engagement, including all costs associated with the engagement.

Criteria

  1. The criteria for making an exemption applicationare one or more of:

a)the panel firms are all faced with a conflict of interest and unable to provide the required services;

b)the panel firms are all unable to provide the required legal services;

c)the panel firms do not have the necessary expertise to provide the services;

d)the area of law is such that it was not contemplated within the arrangements and no panel firm has been appointed to provide such services;

e)engagement of a regional law firm; or

f)the Agency Contract Manager is satisfied that the legal services required are more effectively and efficiently provided by a firm not on the panel taking into account the circumstances of the legal issue and matter.

  1. Meeting any one (or more) of the criteria is sufficient to qualify for an exemption to engage a non-panel firm or a panel firm not appointed to that sub-panel.
  1. This exemption policy applies to the engagement of a law firm -
  1. on the panel that is being engaged for legal services in another area or sub-panel that the firm is not appointed to provide; or
  2. not appointed to the Legal Services Panel.
  1. In making a case under paragraph 8(c), the requesting department/statutory agency must consider that the panel firms underwent an evaluation of the expertise as part of the Tender process and must be satisfied that all the panel firms appointed to the sub-panel do not have the expertise.
  1. The unavailability of a key person is not of itself sufficient to satisfy the criteria, but may be taken into account under paragraph 8(f). Agency Contract Managers will need to be satisfied that the necessary expertise is not available across the panel firms under the relevant panel type.

Conditions

  1. Applications for exemption should be made on a case by case basis, not on an ongoing basis.
  1. The panel contract (terms and conditions) and legal services order where applicable, is to be used for any engagement of a non-panel firm.
  1. The non-panel firm must comply with the obligations under the panel contract with regards to pro bono activities. The pro bono rate of 15% is the default amount of the obligation. The pro bono obligation will apply where the total amount of legal fees to the non-panel firm exceeds $100,000 for a financial year. The pro bono obligation must be met by the non-panel firm by 31 December after that financial year.
  1. Engagements under the exemption must not exceed $100,000 per annum for those departments and agencies with a total annual legal fees of less than $1m per annum, and $300,000 per annum for those with total legal fees of more than $1m per annum, based on the last financial year.
  1. Where the legal fees will (or is likely to) exceed these thresholds, the application for exemption must be made to the Executive Contract Manager through the Contract Manager.

Requirements

  1. Engagement of legal services from a non-panel firm under the exemption policy must reflect core procurement principles. Value for money determined on a whole of procurement basis remains the primary criterion in the selection of non-panel firms. Normal procurement planning, tendering and contract management apply. This includes the VGPB policies, procurement rules and thresholds.
  1. Engagements under the exemption policy must comply with procurement requirements within the relevant department or agency.

Exceptions

  1. Engagements of regional firms for less than $25,000 are permitted where the services are delivered outside the metropolitan area and a regional provider offers the same or better value for money as panel firms. Engagement of regional law firms for less than $25,000 does not require approval by the department/agency Secretary/CEO or their nominee.
  1. A request for an exemption that will be ongoing[1] must be referred to the Contract Manager, Legal Panel Administration, Department of Justice & Regulation. The decision maker is the Executive Contract Manager.
  1. Requests for exemptions that exceed the limits imposed by paragraph 16must be made to the Contract Manager, Legal Panel Administration, Department of Justice & Regulation. The decision maker is the Executive Contract Manager.

CD/12/441572

Version June 2015

[1] ‘ongoing’ includes where the exemption request covers a parcel of work, or the engagement of a non-panel firm on a number of similar types of work for a period of time or open ended.