Special Conditions for Design Services Contract

Department of Defence - Special Conditions for Design Services Contract

SPECIAL CONDITIONS FOR DESIGN SERVICES CONTRACT

(FOR USE WITH DSC-1 2003 ONLY)

[LAST AMENDED: 4 JULY 2014 - PLEASE REMOVE PRIOR TO TENDER ISSUE OR EXECUTION]

[DEFENCE AND THE TENDER/CONTRACT ADMINISTRATOR ARE TO REVIEW THIS LIST OF POTENTIAL SPECIAL CONDITIONS AND ADVISE WHICH ONES ARE REQUIRED FOR THE CONTRACT. DEFENCE AND THE TENDER/CONTRACT ADMINISTRATOR ARE ALSO REQUIRED TO IDENTIFY ANY AMENDMENTS TO THESE SPECIAL CONDITIONS OR ANY ADDITIONAL SPECIAL CONDITIONS WHICH MAY BE REQUIRED AND ADVISE THESE TO THE DCFPC AND THE PROJECT'S LEGAL SERVICES PROVIDER (IF ANY)]

Table of Contents

1.USE OF HAZARDOUS SUBSTANCES

2.DRAWINGS

3.SERVICES NOT INCLUDED

4.SITE RESTRICTIONS

5.SERVICES TO BE CARRIED OUT IN INITIAL PLANNING PHASE, PLANNING PHASE AND DELIVERY PHASE - LUMP SUM INITIAL PLANNING PHASE FEE, PLANNING PHASE FEE AND INDICATIVE DELIVERY PHASE FEE [THREE-PHASES ONLY - IF MORE OR FEWER OR DIFFERENT PHASES ARE REQUIRED, SEEK ADVICE FROM DCFPC]

5.1Glossary

5.2Initial Planning Phase, Planning Phase and Delivery Phase

5.3Transition in and between phases (if any)

5.4Resources for Delivery Phase

5.5Adjustment of Fees

6.SERVICES TO BE CARRIED OUT IN INITIAL PLANNING PHASE, PLANNING PHASE AND DELIVERY PHASE - LUMP SUM INITIAL PLANNING PHASE FEE, PLANNING PHASE FEE AND DELIVERY PHASE FEE [THREE-PHASES ONLY - IF MORE OR FEWER OR DIFFERENT PHASES ARE REQUIRED, SEEK ADVICE FROM DCFPC]

6.1Glossary

6.2Initial Planning Phase, Planning Phase and Delivery Phase

6.3Transition in and between phases (if any)

7.NOTICES OR DOCUMENTS BY ELECTRONIC DOCUMENT MANAGEMENT SYSTEMS

7.1Amendments to clause 13.7

7.2Amendments to clause 13.8

8.REQUESTS FOR INFORMATION

9.RISE AND FALL IN TABLE OF VARIATION RATES AND PRICES

10.METHOD OF WORKPLAN FOR AIRFIELD ACTIVITIES

11.OPERATING AIRFIELD

12.CONSTRUCTION CONTRACTS ACT (WESTERN AUSTRALIA)

13.CIVIL LIABILITY ACT (WESTERN AUSTRALIA)

14.interpretation of the brief

L\310661121.21

Department of Defence - Special Conditions for Design Services Contract

1.USE OF HAZARDOUS SUBSTANCES

[SELECT APPLICABLE ALTERNATIVE CLAUSE AND DELETE OTHER ALTERNATIVES]

[ALTERNATIVE 1]

(a)The Commonwealth aims to ensure that its employees and others who may use or be affected by its facilities are not exposed to hazardous substances without appropriate control measures being in place.

(b)The Consultant must:

(i)ensure, in designing the Works, that the design does not require the Works to contain any hazardous substances as defined in theNational Occupation Health and Safety Commission's(NOHSC) Guidance Notes (NOHSC 1008-2004: "Approved Criteria for Classifying Hazardous Substances") or which would breach the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989(Cth); and

(ii)on request of the Contract Administrator, be able to show compliance with subparagraph (i).

[ALTERNATIVE 2]

(a)The Commonwealth considers [INSERT DESCRIPTION OF MATERIAL] (Material) in all forms, to be a hazardous substance. The Consultant must ensure, in designing the Works, that, where possible, the Consultant does not include such Material for use in construction of the Works. The Consultant must ensure that where any Material is included in the Consultant's design to be incorporated into the Works that:

(i)full details of any hazardous Material are provided to the Contract Administrator in the format of a material safetydata sheet; and

(ii)all documentation concerning the Material, including that related to operation, maintenance, assembly, shipping and handling, is clearly endorsed to identify the presence and nature of the hazard.

(b)The Consultant undertakes to advise the Commonwealth, at any time during the Services, within [INSERT] days of becoming aware of a non-hazardous substance which could be substituted for the Material without significant detriment to the performance of the Works.

(c)The Consultant must ensure that all goods for incorporation in the Works conform to all Statutory Requirements and other laws relating to any hazardous substances included therein which apply in the country of manufacture, on the high seas and within the Commonwealth of Australia. In no circumstances must the goods emit fumes, liquids, solids, electromagnetic radiation, heat or noise which could be detrimental to persons, the environment or the operation of other equipment, except where this is consistent with the end-use and nature of the goods.

[ALTERNATIVE 3]

(a)The Commonwealth considers the substances so defined or listed in the National Occupation Health and Safety Commission's(NOHSC)Guidance Notes (NOHSC 10005-1999: "List of Designated Hazardous Substances") in all forms, to be hazardous substances. Such substances must not be used included in the Consultant's design for the Works without the prior written consent of the Contract Administrator.

(b)Where such consent is given the Consultant must ensure in respect of the design that:

(i)full details of any hazardous substances as identified in accordance with paragraph (a), and included in the Works, are provided to the Contract Administrator in the format of a material safetydata sheet; and

(ii)all documentation, including that related to operation, maintenance, assembly, shipping and handling, is clearly endorsed to identify the presence and nature of the hazard.

(c)The Consultant undertakes to advise the Commonwealth, at any time during the Services, within [INSERT] days of becoming aware of a non-hazardous substance which could be substituted for the hazardous substance without significant detriment to the performance of the Works.

(d)The Consultant must ensure that all goods for incorporation in the Works conform to all Statutory Requirements and other laws relating to any hazardous substances included therein which apply in the country of manufacture, on the high seas and within the Commonwealth of Australia. In no circumstances must the goods emit fumes, liquids, solids, electro magnetic radiation, heat or noise which could be detrimental to persons, the environment or the operation of other equipment, except where this is consistent with the end-use and nature of the goods.

2.DRAWINGS

Without limiting its other obligations under the Contract, all drawings which the Consultant is required to provide under the Contract must be prepared by competent draftspersons in accordance with:

(a)the standard prescribed in the Contract (or, to the extent it is not so prescribed, a standard consistent with the best industry standard for drawings of a nature similar to those required for the Works);

(b)all Statutory Requirements;

(c)the directions of the Contract Administrator; and

(d)to the extent that they are not inconsistent with the requirements of the Contract, the requirements of all relevant standards of Standards Australia.

3.SERVICES NOT INCLUDED

The following design work to be carried out in relation to the Works is not included in the Contract and will be carried out during the currency of the Contract by the Commonwealth or by other persons (including Other Contractors):

[INSERT DESCRIPTION OF DESIGN WORK NOT WITHIN SCOPE OF DESIGN SERVICES.]

4.SITE RESTRICTIONS

The Site based Services must be executed subject to the following restrictions:

[INSERT DESCRIPTION OF RESTRICTIONS.]

5.SERVICES TO BE CARRIED OUT IN INITIAL PLANNING PHASE, PLANNING PHASE AND DELIVERY PHASE - LUMP SUM INITIAL PLANNING PHASE FEE, PLANNING PHASE FEE AND INDICATIVE DELIVERY PHASE FEE[THREE-PHASES ONLY - IF MORE OR FEWEROR DIFFERENT PHASES ARE REQUIRED, SEEK ADVICE FROM DCFPC]

[Note that the following Item1must replace Item1of Tender Schedule H -Fee in the Tender Documents as follows:]

1. FEE

(a)Lump Sum

Initial Planning Phase Fee / $ [INSERT] (GST exclusive)
Planning Phase Fee / $ [INSERT] (GST exclusive)
Indicative Delivery Phase Fee / $ [INSERT] (GST exclusive)
FEE / $[INSERT] (GST exclusive)

The Tenderer's attention is drawn to clause 32 of the Tender Conditions and clause 2.9 of the Conditions of Contract in Part 5. The Tenderer should note that each of the Initial Planning Phase Fee, Planning Phase Fee and Indicative Delivery Phase Fee should include an adequate allowance for the Agreed Subconsultant Services (if any) to be carried out by the Agreed Subconsultants set out in the Tender Particulars.

The Tenderer should also note that each of the Initial Planning Phase Fee, Planning Phase Fee and Indicative Delivery Phase Fee includes all insurances and other overhead costs and disbursements (including all transport costs, travel costs, accommodation expenses and meal allowances) in relation to the Services.

(b)Breakdown of Lump Sum Initial Planning Phase Fee, Planning Phase Fee and Indicative Delivery Phase Fee

The Tenderer is requested to provide a detailed breakdown of the way in which each lump sum Initial Planning Phase Fee, Planning Phase Fee and Indicative Delivery Phase Fee has been calculated, as follows:

[INSERT TABLE SHOWING BREAKDOWN OF PHASES, ELEMENTS, MILESTONES, PARTS, DISCIPLINES, AGREED SUBCONSULTANT SERVICES (IF ANY) AND DISBURSEMENTS.]

This breakdown is for tender evaluation purposes and will not limit or affect the scope of the Services or the Contract in Part 5.

[IF NO BREAKDOWN IS REQUIRED, INSERT "Not Applicable".]

(c)Initial Delivery Phase Fee Proposal

In itsInitialDelivery Phase Fee Proposal, the Tenderer should set out the detailed basis (in addition to the rates and prices in the Table of Variation Rates and Prices referred to below) on which it would propose any adjustment to the Indicative Delivery Phase Fee. The Tenderer should not provide the explanation that the Indicative Delivery Phase Fee will be adjusted solely by reference to the value of the Works in the Delivery Phase.

Further, the Tenderer should submit all assumptions with respect to the Indicative Delivery Phase Fee (including the scope and duration of the Delivery Phase) and how the Indicative Delivery Phase Fee might be impacted by changes in those assumptions.

The Tenderer is expected to fully and clearly describe the basis on which it would propose any adjustment to the Indicative Delivery Phase Fee.

The Tenderer should note that the Commonwealth reserves the right to negotiate the Initial Delivery Phase Fee Proposal submitted by the Tenderer with a view to amending the proposed Initial Delivery Phase Fee Proposal before the Award Date.

Indicative Delivery Phase Fee (GST excl) / Detailed proposed basis for adjustment (assumptions, how impacted by change in those assumptions)
[INSERT] / [INSERT]

(d)Proposed progress payments for the Initial Planning Phase Fee, the Planning Phase Fee and the Delivery Phase Fee

[IF PAYMENT CLAIMS AND PAYMENTS ARE TO BE BASED ON COMPLETION OF MILESTONES, INSERT THE FOLLOWING:]

The Tenderer is requested to provide a breakdown of proposed progress payments for each of the Initial Planning Phase Fee, Planning Phase Fee and Indicative Delivery Phase Feebased on the Milestones set out in the Conditions of Contract in Part 5 and as follows:

Initial Planning Phase Fee

MILESTONE / AMOUNT
[INSERT MILESTONES FROM CONTRACT PARTICULARS] / $[INSERT]
[INSERT MILESTONES FROM CONTRACT PARTICULARS] / $[INSERT]
[TENDERER TO INSERT PROPOSED ADDITIONAL MILESTONES, IF ANY] / $[INSERT]
INITIAL PLANNING PHASE FEE / $[INSERT] (GST exclusive)

Planning Phase Fee

Indicative Delivery Phase Fee

MILESTONE / AMOUNT
[INSERT MILESTONES FROM CONTRACT PARTICULARS] / $[INSERT]
[INSERT MILESTONES FROM CONTRACT PARTICULARS] / $[INSERT]
[TENDERER TO INSERT PROPOSED ADDITIONAL MILESTONES, IF ANY] / $[INSERT]
INDICATIVE DELIVERY PHASE FEE / $[INSERT] (GST exclusive)

The Tenderer should note that any proposed additional Milestones should be significant milestones which represent the completion of a discrete activity and (without limitation) should not be based on monthly instalments against existing Milestones.

The Tenderer should note that the Commonwealth reserves the right to negotiate the proposed progress payments for each of the Initial Planning Phase Fee, Planning Phase Fee and Indicative Delivery Phase Fee and any proposed additional Milestone submitted by the Tenderer with a view to amending the proposed progress payments for each of the Initial Planning Phase Fee, Planning Phase Fee and Indicative Delivery Phase Fee and any proposed additional Milestones before entering into any Contract with the successful Tenderer.

[IF PAYMENT CLAIMS AND PAYMENTS ARE TO BE BASED ON A SPECIFIED DAY OF THE MONTH, INSERT THE FOLLOWING:]

The Tenderer is requested to provide an anticipated monthly cash flow. This cash flow is for tender evaluation purposes and will not limit or affect the scope of the Services or the Contract in Part 5.

[NOTE THAT SPECIAL CONDITIONS WILL BE REQUIRED TO ADDRESS ANY "TENDER OPTIONS" TO BE PRICED (E.G. ADDITIONAL ELEMENTS OF THE SERVICES NOT INCLUDED IN SERVICES AT THE TIME OF TENDER BUT WHICH MAY BE REQUIRED TO BE PRICED NOW FOR FURTHER CONSIDERATION BY DEFENCE OR WHEN KEY DECISIONS REQUIRE A NUMBER OF OPTIONS TO BE DESIGNED AND THEN ONE OR TWO OPTIONS SELECTED).]

[SPECIAL CONDITIONS WILL ALSO BE REQUIRED TO ADDRESS ANY "PROVISIONAL SUM SERVICES".]

(e)Table of Variation Rates and Prices

The Tenderer's attention is drawn to the definition of "Table of Variation Rates and Prices" in clause 1.1 of the Conditions of Contract in Part 5.

The Tenderer should submit a Table of Variation Rates and Prices for:

(i)each of the key people which the Tenderer nominates in item 2 and item 3 of Tender Schedule A - Workload and Proposed Resources; and

(ii)all other job positions or levels of jobs (other than the key people referred to in subparagraph(i)) which the Consultant considers may be involved with the carrying out of the Services.

ITEM / RATE OR PRICE
[TENDERER TO INSERT] / $[INSERT]
[TENDERER TO INSERT] / $[INSERT]
[TENDERER TO INSERT] / $[INSERT]
[TENDERER TO INSERT] / $[INSERT]

[Note that the following Contract Particular must replace the relevant row in Tender Schedule H- Miscellaneous Contract Particulars in the Tender Documents as follows:]

Fee:
(Clauses 1.1, 2.9(b)(ii), 2.9(b)(ii)C1), 10.15(b), 13.2(b)) / Initial Planning Phase Fee: $......
Planning Phase Fee:$......
Indicative Delivery Phase Fee:$......

5.1Glossary

For the purposes of this Contract:

(a)Date for Planning Phase Completion means [INSERT DATE] or such later date notified in writing by the Contract Administrator to the Consultant.

(b)Delivery Phase means, subject to various departmental, government and parliamentary approvals for the Works being obtained in the Initial Planning Phase and the Planning Phase, the phase described in [INSERT] of the Brief.

(c)Delivery Phase Fee means the Indicative Delivery Phase Fee, as adjusted under clause 55 or otherwise under the Contract.

(d)Delivery Phase Services means the services described or reasonably to be inferred from the Contract as Delivery Phase Services, including those services described in [INSERT] of the Brief.

(e)Indicative Delivery Phase Feemeans the amount in the Contract Particulars under "Indicative Delivery Phase Fee".

(f)Indicative Delivery Phase Fee Proposal means[INSERT REFERENCE TO RELEVANT SECTION OF CONSULTANT'S TENDER REGARDING ASSUMPTIONS AS TO DELIVERY PHASE - LIKELY TO BE IN TENDER SCHEDULE H - AS ACCEPTED BY DEFENCE. ALTERNATIVELY, THIS COULD BE ATTACHED TO THE SPECIAL CONDITIONS AND APPROPRIATELY CROSS-REFERENCED HERE.].

(g)Initial Planning Phase means the phase described in [INSERT] of the Brief.

(h)Initial Planning Phase Fee means the amount in the Contract Particulars under "Initial Planning Phase Fee", as adjusted under the Contract.

(i)Initial Planning Phase Services means the services described or reasonably to be inferred from the Contract as Initial Planning Phase Services, including those services described in [INSERT] of the Brief.

(j)Planning Phase" means the phase described in [INSERT] of the Brief.

(k)Planning Phase Fee means the amount in the Contract Particulars under "Planning Phase Fee", as adjusted under the Contract.

(l)Planning Phase Services means the services described or reasonably to be inferred from the Contract as Planning Phase Services, including those services described in [INSERT] of the Brief.

In clause1.1 of the Conditions of Contract, the definition of "Fee" is deleted and replaced as follows:

"Fee

The sum of theInitial Planning Phase Fee, the Planning Phase Fee and the Delivery Phase Fee (as the case may be)."

In the Contract Particulars, the definition of "Fee" in clause1.1 is deleted and replaced as follows:

Fee:
(Clauses 1.1, 2.9(b)(ii), 2.9(b)(ii)C1), 10.15(b), 13.2(b)) / Initial Planning Phase Fee: $......
Planning Phase Fee:$......
Indicative Delivery Phase Fee:$......

5.2Initial Planning Phase, Planning Phase and Delivery Phase

(a)The Consultant acknowledges and agrees that the Commonwealth hasdivided the Services into three distinct phases, being the Initial Planning Phase, the Planning Phase and the Delivery Phase.

(b)The Consultant acknowledges and agrees that the purpose of this division is to:

(i)enable the Commonwealth to ascertain (in its sole and absolute discretion) whether it will maximise value for money for the Commonwealth by having the Consultant proceed with the Planning Phase Services or the Delivery Phase Services (as the case may be);

(ii)allow for various departmental, government and parliamentary approvals required for the Works; and

(iii)give the Commonwealth an opportunity to establish whether it is satisfied (in its sole and absolute discretion) with the performance of the Consultant before proceeding from one phase to another phase.

(c)The Consultant acknowledges and agrees that as a result of the matters described in paragraph(b):

(i)there may not be a Planning Phase or a Delivery Phase (as the case may be);

(ii)even if there is a Planning Phase or a Delivery Phase(as the case may be), the Consultant may not be engaged to carry out the Planning Phase Services or the Delivery Phase Services (as the case may be); and

(iii)there may be periods of inactivity of various durations in and between:

A.the Initial Planning Phase and the Planning Phase (if any); and

B.the Planning Phase (if any) and the Delivery Phase (if any),

whether as a result of a delay in any direction under clause5.3(a) or (b) or otherwise. Such periods of inactivity will not amount to a suspension under clause8.4 of the Conditions of Contract and the Consultant will not be entitled to make any Claim in respect of such periods of inactivity.