STANDING OFFER AGREEMENT
FOR
DEFENCE INFRASTRUCTURE PANEL
[NAME OF PANEL/SUB-PANEL]
[INSERT "(RESERVE)" IF APPOINTED AS RESERVE]
1
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INDEX
SECTION 1-INTRODUCTION1
SECTION 2-PANEL AGREEMENT 5
SECTION 3-ENGAGEMENT PROCESS 24
SECTION 4-TERMS OF ENGAGEMENT 50
SECTION 5-SERVICES 52
SECTION 6-DCAP54
Panel Agreement for Defence Infrastructure Panel1
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SECTION 1
INTRODUCTION
Panel Agreement for Defence Infrastructure Panel1
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INTRODUCTION
1.The Corporate Services and Infrastructure Group within the Department of Defence ("Commonwealth") has established this panel on behalf of the Commonwealth. The purpose of the panel is to provide the Commonwealth with the Services set out in Section 5.
2.This document sets out the basis of the relationship between the Commonwealth and each Consultant who is part of this panel. The document is divided into the following sections:
(a)Section 1 - this introduction;
(b)Section 2 - the panel agreement;
(c)Section 3 - the process for engagement of consultants for projects;
(d)Section 4 - the terms of engagement;
(e)Section 5 - the services that may be required from the Consultant; and
(f)Section 6 - the detailed consultant's activities proposal ("DCAP").
3.There is a distinction between the terms governing the standing offer made by the Consultant to the Commonwealth and the terms governing each contract for which the Consultant is engaged:
(a)the Panel Agreement provides the broad contractual framework for the supervision and administration of the panel arrangement and defines the general legal relationship between the contracting parties; whereas
(b)the Terms of Engagement provide the more detailed provisions governing the specific legal relationship between the contracting parties for each engagement.
4.There is also a distinction between the DCAP applicable to the standing offer made by the Consultant to the Commonwealth and the DCAP applicable to each contract for which the Consultant is engaged:
(a)the Panel DCAP for the Panel Agreement demonstrates:
(i)the Consultant's understanding of what the Commonwealth 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 the Commonwealth 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.
5.As and when the Commonwealth requires Services to be performed by the Consultant, it will invoke the engagement process set out in Section 3. This may be by way of competitive bid or sole source arrangements.
6.The Commonwealth does not guarantee any volume of work for the Consultant and the Commonwealth reserves the right to contract for services outside the panel arrangement. However, the Commonwealth recognises the benefits that will accrue to both it and the Consultant through members of the panel participating in the performance of the Services.
7.Further, as set out in clause 2.7 of the Panel Agreement, the Commonwealth may from time to time require the Consultant to be engaged directly by the Commonwealth contractors rather than by the Commonwealth. In that event, the Consultant will be required to enter into a standing offer arrangement or other contract with the relevant the Commonwealth contractor on the same terms as it has agreed with the Commonwealth (subject only to such amendments as may be required to take account of the fact that it will be a Commonwealth contractor, and not the Commonwealth, who will be the party engaging the Consultant).
8.The primary purpose of this panel arrangement is to enable the Commonwealth to build a strong collaborative relationship with consultants who are prepared to invest time and allocate resources (in particular, human resources) to identifying, understanding and servicing the Commonwealth requirements. It is intended that this panel arrangement and the communication processes which it engenders will facilitate this strong collaborative relationship to the mutual benefit of both the Commonwealth and the Consultant.
9.Whether the Consultant continues to receive requests for proposals and engagements will substantially depend upon its performance. For this reason, there are significant provisions relating to performance measures and reporting processes.
10.As part of the Panel Agreement, Consultants will agree to conform to the requirements of the Performance Management System. The system will encompass:
(a)360 degree engagement performance reviews; and
(b)regular overall performance update reviews.
11.The Performance Management System will revolve around engagement performance reviews at the conclusion of each engagement and (dependant on engagement duration) at scheduled milestones. The Commonwealth's Representative which engaged the Consultant will measure its performance against the KPIs. The Consultant will also undertake a performance review of the Commonwealth's involvement in the engagement to facilitate a 360º performance review. All reviews will be coordinated, collated and assessed by the Performance Manager to ensure that they are completed in line with the requirements of the Performance Management System. Where issues regarding performance arise from reviews, during the course of an engagement, the Performance Manager, the Panel Manager and the Consultants Point of Contact (POC) will work together to address the concerns. If the issue cannot be resolved at this level it will be elevated as required in accordance with the dispute resolution mechanism in the Performance Management System.
12.The Consultant will be required to provide the engagement performance reviews to the Performance Manager as per the engagement's performance schedules, as set out in the letter of acceptance. These reports will be collated for each engagement, to form the basis of the performance update reviews. Although the update reviews will be based on engagement feedback data, they will also form the basis of discussions between the Performance Manager and the Consultant to highlight areas of improvement and areas of performance. The Performance Manager will also utilise the data to (among other matters) monitor the overall balance of work within the panel, the level of competition and the kind of task each panel member is being engaged to perform.
13.In addition to those Consultants appointed to the Panel Agreement, the Commonwealth may (at its absolute discretion) appoint one or more organisations as reserve suppliers of Services. The Commonwealth may engage reserve suppliers at any time and for any purpose, including (without limitation) where the Consultants under the Panel Agreement are unable (for any reason) to perform the services required by the Commonwealth or if a Consultant fails to perform its obligations under the Panel Agreement.
14.The Commonwealth may also establish under a separate procurement process a "pre-qualified" list of organisations who are not members of this panel arrangement. The Commonwealth anticipates that organisations appointed to the pre-qualified list will be small to medium enterprises (SMEs). The Commonwealth may invite such organisations to submit proposals for specific work which would otherwise have been the subject of Services under the Panel Agreement. The Commonwealth also encourages the Consultants to (where necessary) engage such organisations as sub-consultants to meet regional requirements for Services under the Panel Agreement.
Panel Agreement for Defence Infrastructure Panel1
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SECTION 2
PANEL AGREEMENT
Panel Agreement for Defence Infrastructure Panel1
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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......
2.6Unsatisfactory Performance......
2.7Matters Affecting the Consultant......
2.8Engagement of Consultant by Commonwealth Contractors......
2.9Reserve Panel Members......
3...... PERSONNEL......
3.1Panel Manager......
3.2Consultant’s Representative......
3.3Team of Key People......
3.4Evolution of Key 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 MANAGEMENT SYSTEM AND CONTINUOUS IMPROVEMENT INITIATIVES
6.1Performance......
6.2Methodology......
6.3System Requirements......
6.4Engagement Performance Reviews......
6.5Reporting......
6.6Performance Update Review......
6.7Continuous Improvement......
7...... CONFLICT OF INTEREST......
8...... CONSULTANT’S SUBMISSION......
9...... GENERAL......
9.1Governing Law......
9.2Occupational Health and Safety......
9.3Authority to Act......
9.4Commercial-in-Confidence Information......
9.5Joint and Several Liability......
10.....COMPLIANCE WITH GOVERNMENT POLICY......
10.1Generally......
10.2Use of Australian and New Zealand Materials......
10.3Equal Opportunity for Women......
10.4Safe Base Alert State System......
10.5National Code of Practice for the Construction Industry......
11.....SECURITY REQUIREMENTS......
APPENDIX 1......
1...... Hourly rates......
2...... Reimbursable costs......
3...... Rate discounts and payment incentives......
APPENDIX 2......
APPENDIX 3......
APPENDIX4......
APPENDIX5......
APPENDIX 6......
Panel Agreement for Defence Infrastructure Panel1
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FORMAL AGREEMENT
This Panel Agreement is made onday of
BETWEENTHE COMMONWEALTH OF AUSTRALIA(“Commonwealth”)
AND("Consultant")
The Commonwealth and the Consultant promise to carry out and complete their respective obligations in accordance with the attached Conditions.
SIGNED as an agreement.
SIGNED for and on behalf of the Commonwealth in the presence of:Signature
Signature of Witness / Name
Name of Witness in Full
Signed for and on behalf of the Consultantin the presence of:
Signature of Secretary/other Director /
Signature of Director
Name of Secretary/other Director /
Name of Director
Panel Agreement for Defence Infrastructure Panel1
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CONDITIONS OF PANEL 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, being 1 December 2004.
Commonwealth Requirements
Policies, guidelines, instructions (including departmental procurement policy instructions) and other Commonwealth or Departmental requirements.
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 #.
Industry Guidelines
The Industry Guidelines for the Industrial Relations and Occupational Health and Safety Components of the National Code of Practice for the Construction Industry, to be found at
KPIs
The key performance indicators set out in the Performance Management System.
National Code
The National Code of Practice for the Construction Industry, to be found at
Panel
The ### Panel.
Panel Consultants
The consultants who make up the Panel.
Panel DCAP
The detailed consultant's activities proposal set out in Section 6 of this document.
Panel Manager
The person who the Commonwealth nominates to act as the panel manager under this Panel Agreement, who at the beginning of the Term is Assistant Director Construction Contracts.
Performance Management System
The system referred to in clause 6 and outlined in Appendix 5, which will (from the date notified in writing by the Panel Manager to the Consultant) be set out in detail in the Defence Infrastructure Manual (located at (or any other alternative location notified by the Commonwealth)), as amended from time to time.
Performance Manager
The person who the Commonwealth nominates to act as the "performance manager" under this Panel Agreement, who at the beginning of the Term is Assistant Director Construction Contracts.
Professional Indemnity Insurance
A policy of insurance to cover claims for breach of professional duty (whether owed in contract or otherwise) by the Consultant carrying out the Services.
Public Liability Insurance
A policy of public liability insurance covering the respective rights, interests and liabilities of the Commonwealth and the Consultant:
(a)to third parties; and
(b)to each other for loss of or damage to property and the death of or injury to any person (other than liability which the law requires to be covered under a workers compensation insurance policy),
arising directly from the Consultant's negligent act or breach of contract in the performance of the Services.
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 Section5 of this document.
Team of Key People
The team of key people who the Consultant has nominated for the performance of Services for the Commonwealth as set out in Appendix 4.
Term
The period of time during which the Consultant may be engaged to perform Services, which commences on the Base Date and ends on the thirdanniversary of the Base Date (subject to the Commonwealth’s right, in its absolute discretion, to extend the Term for any number and duration of periods by written notice to the Consultant 30 days before the expiry of the current Term (provided that the extended Term cannot be extended beyond the sixthanniversary of the Base Date)).
Workers Compensation Insurance
A policy of insurance to insure against liability for death or injury to persons employed by the Consultant, including liability for statute and at common law.
2.NATURE OF PANEL AGREEMENT
2.1Formation of Panel
The Commonwealth has established the Panel of consultants, of which the Consultant is one, to perform Services as requested from time to time by the Commonwealth.
The Commonwealth reserves the right however to:
(a)add other consultants to the Panel; and
(b)have other consultants (not on the Panel) perform services.
2.2Engagement Process
(a)If at any time during the Term the Commonwealth requires the performance of Services, it may engage the Consultant through the process in Section 3 of this document.
(b)If the Consultant includes more than one person, where the Commonwealth issues a request under the process in Section 3 of this document to the Consultant in accordance with paragraph (a), the Consultant must:
(i)within 48 hours of receiving the request, notify the Commonwealth (for the Commonwealth's approval) which person or persons it proposes will submit a proposal in response to the Commonwealth's request; and
(ii)if the Commonwealth provides approval in writing in accordance with subparagraph (i), the Consultant must then ensure that the person or persons approved provides the response to the Commonwealth's request.
(c)If the Consultant's proposal is approved by the Commonwealth in accordance with paragraph (b)(ii), and the Consultant's response is successful, then that person or those persons will be:
(i)the contracting party with the Commonwealth; and
(ii)without limiting clause 9.5, jointly and severally liable,
in respect of the particular Services.
2.3Withdrawal from Panel
The Consultant may at any time withdraw from the Panel for the purposes of clause 2.2, in which event the Commonwealth will not involve the Consultant in any future engagement processes. This withdrawal will not relieve the Consultant from, or otherwise affect, the Consultant’s other obligations and responsibilities under the Panel Agreement or in respect of any Services which it has performed or been engaged to perform under the Panel Agreement.
2.4Formation of Contract for Performance of Services
If the Commonwealth elects to engage the Consultant for the performance of Services and issues a letter of acceptance in Section 3 of this document, then upon receipt of the letter of acceptance by the Consultant, the Consultant and the Commonwealth will be deemed to have entered into a contract for the performance of the relevant Services. The terms and conditions of the contract will be made up of the documents listed in the letter of acceptance and will comprise:
(a)the Terms of Engagement in Section 4;
(b)the Commonwealth request for proposal;
(c)the proposal submitted by the Consultant (including its Services DCAP);
(d)any negotiated amendments;
(e)the Commonwealth letter of acceptance of the Consultant’s final proposal; and
(f)the Panel Agreement.
2.5No Guarantee of Work
The Commonwealth does not guarantee a volume of work to the Consultant under the Panel Agreement. The level of work which the Consultant attracts will be likely to depend upon (among other matters):
(a)its general performance as assessed in accordance with the Performance Management System under clause6;
(b)subject to paragraph(a), how pro-active it is in building up relationships and displaying an understanding of the Commonwealth support and service needs; and
(c)its demonstrated expertise and experience in the type of services required by the Commonwealth.
2.6Unsatisfactory Performance
(a)The Consultant acknowledges that, if its performance is assessed as unsatisfactory in any respect in accordance with the Performance Management System under clause 6, the Commonwealth may elect (in its absolute discretion) whether or not to continue to seek proposals from the Consultant through the process in Section 3.
(b)If the Commonwealth elects, under paragraph (a), not to continue to seek proposals from the Consultant:
(i)the Commonwealth will give the Consultant written notice of this together with reasons; and
(ii)the Commonwealth may, in the notice under subparagraph (i), state the matters which the Consultant must address (to the satisfaction of the Commonwealth) before the Commonwealth will reconsider whether or not to continue to seek proposals from the Consultant.
(c)The Consultant acknowledges that, if its performance is assessed as unsatisfactory in any respect on two or more separate engagements in accordance with the Performance Management System under clause 6, the Commonwealth may elect (in its absolute discretion) to replace the Consultant on the Panel with a reserve panel member.
(d)If the Commonwealth elects, under paragraph (c), to replace the Consultant with a reserve panel member:
(i)the Commonwealth will give the Consultant written notice of this together with reasons; and
(ii)the Consultant will remain on the reserve panel until another Panel Consultant is replaced on the Panel, in which case a reserve panel member will need to be appointed to the Panel.
2.7Matters Affecting the Consultant
(a)Without limiting clauses 3.3 and 3.4, the Consultant must notify the Commonwealth of any material changes to its size, structure or financial standing or of any other fact, matter or thing which would adversely impact upon its ability to perform its obligations under the Panel Agreement.
(b)If the Commonwealth considers (in its absolute discretion) the effect of any notification received in accordance with paragraph (a) will adversely affect the Consultant's ability to perform its obligations under the Panel Agreement, it may elect (in its absolute discretion) whether or not to continue to seek proposals from the Consultant through the process in Section 3.