Special Conditions of Contract
and
Annexure
(To be read in conjunction with Australian Standard General Conditions of Contract for Consultants AS4122-2010)
1 July 2018 version
Project nameProject number
Date
Prepared by
Contract Services
Department of Housing and Public Works
(01.07.18: changes to incorporate Corporations Act 2001 (Cth) amendments)
© State of Queensland
Queensland GovernmentContents
CONTENTS
Page
CONDITIONS OF CONTRACT
1.GENERAL
2.INTERPRETATION
SPECIAL CONDITIONS OF CONTRACT
1.DEFINITION AND INTERPRETATION
2.CONSULTANTS TO PERFORM SERVICES
3.CLIENT TO PAY
4.STANDARD OF CARE
5.SCOPE
6.CLIENT’S REPRESENTATIVE AND CONSULTANT’S REPRESENTATIVE
7.INFORMATION
8.DIRECTIONS
9.VARIATIONS
10.PAYMENT
10APROJECT BANK ACCOUNTS
11.GST
12.TIME
13.LAWS AND APPROVALS
14.CONSULTATION AND MEETINGS
15.REVIEW AND ACCEPTANCE
16.ADVERSE EVENT
17.COOPERATION WITH OTHERS
18.KEY PERSONNEL
19.CONFLICT OF INTEREST
20.SUBCONTRACTING AND ASSIGNMENT
21.COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS
22.MORAL RIGHTS
23.CONFIDENTIALITY
24.SUPSENSION BY THE CLIENT
25.SUSPENSION BY THE CONSULTANT
26.TERMINATION WITHOUT CAUSE
27.TERMINATION DUE TO DEFAULT BY EITHER PARTY
28.INDEMNITY
29.LIMITATION OF LIABILITY
30.INSURANCE
31.INSOLVENCY
32.DISPUTE RESOLUTION
33.SERVICE OF NOTICES
34.SURVIVAL OF TERMINATION
35.GOVERNING LAW
36.STANDARD FORM NATURE OF CONTRACT
37.INFORMATION PRIVACY ACT
38.EXECUTION
ANNEXURE PART A
ANNEXURE PART B
ANNEXURE PART C
ANNEXURE PART D
ANNEXURE PART E
01.07.2018(1)Special Conditions of Contract to AS4122 - 2010 & Annexure
Queensland GovernmentSpecial Conditions of Contract to AS4122-2010 & Annexure
CONDITIONS OF CONTRACT
1.GENERAL
The Conditions of Contract shall be the Australian Standard General Conditions of Contract for Consultants (AS 4122 - 2010) incorporating all amendments published as at the date of acceptance of offer as amended by the Special Conditions of Contract.
2.INTERPRETATION
In the event of conflict or inconsistency between the provisions of the Australian Standard General Conditions of Contract for Consultants (AS 4122 - 2010) incorporating all amendments published as at the date of acceptance of offer and the Special Conditions of Contract, the Special Conditions of Contract shall take precedence.
References to an "Annexure" in AS 4122 - 2010 shall be read as reference to the corresponding Annexure attached to the Special Conditions of Contract.
References to "attached to the Special Conditions of Contract" shall be read as reference to attachments to these Special Conditions of Contract.
01.07.2018(1)Special Conditions of Contract to AS4122 - 2010 & Annexure
Queensland GovernmentSpecial Conditions of Contract to AS4122-2010 & Annexure
SPECIAL CONDITIONS OF CONTRACT
1.DEFINITION AND INTERPRETATION
1.1Definitions
Add the following before the definition of ‘Business Day’:
“
BIF Act means the Building Industry Fairness (Security of Payment) Act 2017 (Qld) and the regulations made under or in respect of that Act;”
Delete the definition of ‘Business Day’ and replace with the following:
“
Business Day has the meaning given in the BIF Act;”
1.2Interpretation
No amendment
1.3Contra Proferentem
No amendment
1.4Joint and Several
No amendment
1.5Headings
No amendment
Add new clauses:
“
1.6Collusive Arrangements
The Consultant warrants and represents to the Client that:
(a)it had no knowledge of the offered fees of any other offeror, nor did it communicate with any other offeror in relation to its offered fees, or a price above or below which an offeror may offer (excluding any pricing advised by the Client), nor had it entered into any contract, arrangement or understanding with another offeror to the effect that the Consultant or another offeror would offer a non-competitive price, for the work under this Contract, at the time of submission of its offer;
(b)except as disclosed in its offer, it has not entered into any contract, arrangement or understanding to pay or allow any money directly or indirectly to a trade, industry or other association (above the published standard fee) relating in any way to its offer or this Contract, nor paid or allowed any such money, nor will it pay or allow any such money;
(c)except by prior agreement with the Client, it has not paid or allowed any money or entered into any contract, arrangement or understanding to pay or allow any money directly or indirectly to or on behalf of any other offeror for the services under this Contract, nor received any money or allowance from or on behalf of any other offeror relating in any way to its offer or this Contract, nor will it pay or allow or receive any money as aforesaid.
In the event of the Consultant paying or allowing any money in breach of this clause 1.6, the Client may deduct from payments to the Consultant an equivalent sum as an amount due from the Consultant to the Client, in addition to any other claim, demand, action or proceeding the Client may have against the Consultant (whether for damages or otherwise).
Without limitation, if the Consultant commits a breach of this clause 1.6, the Client may at its discretion terminate this Contract and claim damages for breach of contract.
1.7Negation of Employment and Agency
The Consultant:
(a)must not represent itself or allow itself to be represented as being an employee or agent of the Client;
(b)does not by virtue of this Contract be or become an employee or agent of the Client.”
2.CONSULTANTS TO PERFORM SERVICES
No amendment
3.CLIENT TO PAY
No amendment
4.STANDARD OF CARE
No amendment
5.SCOPE
No amendment
6.CLIENT’S REPRESENTATIVE AND CONSULTANT’S REPRESENTATIVE
No amendment
7.INFORMATION
Amend the current paragraph so that it is numbered clause 7.1.
Add new clauses:
“
7.2The Right to Information Act 2009(Qld) (‘RTI Act’) provides members of the public with a legally enforceable right to access documents held by Queensland Government agencies.
7.3The RTI Act requires that documents be disclosed upon request, unless the documents are exempt or on balance, disclosure is contrary to public interest.
7.4Information relating to this Contract is potentially subject to disclosure to third parties.
7.5In the assessment of any disclosure required by the Client pursuant to the RTI Act, the Consultant accepts that any information provided by a Consultant, including information marked as confidential, will be assessed for disclosure in accordance with the terms of the RTI Act.
7.6Without limiting the Client’s rights or obligations in connection with disclosure of information, the Client may publish on the Queensland Government Marketplace website or by any other means, information including:
(a)the name and address of the Client and the Consultant;
(b)a description of the Services to be provided pursuant to this Contract;
(c)the date of award of this Contract (including the relevant stages of the Contract, if any);
(d)this Contract value (including the value for each stage, if any, and advice as to whether any non-price criteria were used when evaluating the Consultant’s offer);
(e)the procurement method used to engage the Consultant; and
(f)if this Contract is of a value of $10 million or more, invitation details, summary information in respect of this Contract between the Client and the Consultant and/or reasons for non-disclosure of procurement results (if applicable).”
8.DIRECTIONS
No amendment
9.VARIATIONS
Amend clause 9.1 by adding to the end of the first sentence the words “which may include the omission or reduction of any part of the Services”.
Add new clause:
“
9.5The Client may have any part of the Services omitted or reduced pursuant to this clause 9carried out by another party.”
10.PAYMENT
No amendment
Amend clause 10.4 by adding the following paragraph to the end after subclause 10.4(c):
"The Consultant must provide sufficient detail to enable the Client to assess that the amount claimed is due and payable including the provision of any additional information reasonably requested by the Client.”
Amend clause 10.5 by adding to the end of the sentence comprising subclause 10.5(b):
"which may include the correction of any errors made by the Client,in payments made by the Client, in respect of previous payment claims.”
Amend clause 10.6 by inserting the following sentence as the first sentence of the clause:
"The Client is only required to pay for Services carried out to the date of the claim for payment and in accordance with this Contract.”
Insert a new clause 10A as follows:
“
10APROJECT BANK ACCOUNTS
10A.1Application of clause
Clauses 10A.3 to 10A.11 apply if a project bank account is required for this Contract by operation of the BIF Act.
Terms defined by the BIF Act as relevant to the operation of Chapter 2 of the BIF Act and used (without separate definition) in this clause 10A, shall have the meaning given to them by the BIF Act.
If the Client is a State authority, Annexure Part A states whether the Client has decided that a project bank account is to be established for the Contract, provided the other matters that determine when a project bank account is required under the BIF Act are satisfied.
10A.2Definitions
In this clause 10A:
‘PBA Details’ means the following details of a project bank account:
(a)the name of the project bank account;
(a)the name, Bank/State/Branch (BSB) number and account number of the general trust account;
(b)the name, Bank/State/Branch (BSB) number and account number of the retention account;
(c)the name, Bank/State/Branch (BSB) number and account number of the disputed funds account;
(d) the name of the financial institution where the project bank account is kept.
‘Subcontract’ means 'first tier subcontract' as defined in Chapter 1 of the BIF Act;
‘Subcontractor’ means ‘subcontractor beneficiary’ as defined in Chapter 2 of the BIF Act;
‘Subcontractor Payment Summary’ means the information to be provided in the form attached to these Special Conditions of Contract.
10A.3Establishment of project bank account
The Consultant must:
(a)establish a project bank account within 20 Business Days after the Consultant enters into the first Subcontract in relation to this Contract; and
(b)notify the Client of the PBA Details within 10 Business Days of opening the trust accounts forming the project bank account.
10A.4Authorisation to view project bank account
The Consultant must provide electronic viewing access to the project bank account to the Client’s authorised nominees, being those persons notified to the Consultant by the Client in writing, including such additional or replacement persons as may be notified by the Client in writing from time to time, to view, electronically (without the Client requiring any particular software or electronic platform other than internet access), deposits, withdrawals, payment instruction information and account payment reports of each trust account for the project bank account for this Contract.
The Consultant must make such arrangements and provide the Client and its authorised nominees with such information as will enable those persons to securely log in to view the project bank account trust accounts via internet access and to print statements or reports relating to those accounts.
10A.5Subcontractor Payment Summary
In addition to the other requirements set out in this Contract, the Consultant must submit with a payment claim that is delivered under clause 10 a completed Subcontractor Payment Summary in the form set out in Annexure Part E.The Consultant agrees that:
(a)the submission of a Subcontractor Payment Summary does not affect the assessment required to be made under clause 10; and
(b)no receipt of nor any review, comment, approval, expression of satisfaction or dissatisfaction by or on behalf of the Client concerning a Subcontractor Payment Summary, nor any failure by the Client to do any of those things will:
(i)result in the Client assuming any responsibility or liability for the adequacy of, or any errors or omission in, the Subcontractor Payment Summary;
(ii)constitute an admission that the Client or any of their agents or employees have checked the Subcontractor Payment Summary for errors or omissions; and
(c)where a Subcontractor’s name and the name of the Subcontractor’s bank account for receipt of payment via the project bank account are different, the Consultant will provide to theClient, within 5 Business Days of becoming aware of the difference, confirmation in writing from the Subcontractor that the bank account details the Consultant will use for the relevant payment instructions are correct; and
(d)each Subcontractor Payment Summary shall include details of all Subcontractor payment claims that have been received at the time of issue of the Subcontractor Payment Summary and include details of all payment instructions that have been issued.
10A.6Payment Instruction
The Consultant must prepare a payment instruction to be given to the financial institution where the project bank account is kept for the purpose of withdrawals from a trust account and transfers between trust accounts forming the project bank account.
The Consultant must, as soon as practicable and no later than 3 Business Daysafter giving the financial institution the payment instruction, ensure a copy of the information contained in the payment instruction, to the extent required by the BIF Act, is given to the Client and the relevant Subcontractors.
10A.7Retention Balance Report
If, at the time of the Consultant submitting its final payment claim pursuant to this Contract, there is a retention amount remaining in the retention account, the Consultant must provide the Client with a written report with the final payment claim which, in respect of the remainder in the retention account sets out:
(a)the amounts to be released; and
(b)to whom each retention amount is to be paid; and
(c)where the Consultant continues to retain a retention amount from a Subcontractor, the name of the relevant Subcontractorand reason for the continued retention; and
(d)the expected date for payment out of the retention account of the respective retention amounts,
so that the aggregate of the amounts identified pursuant to paragraphs (a) to (d) above equal the amount of the retention amount remaining in the retention account.
10A.8Disputed Funds Balance Report
If, at the time of the Consultant submitting its final payment claim pursuant to this Contract there is an amount remaining in the disputed funds account, the Consultant must provide the Client with a written report with the final payment claim which, in respect of the amount in the disputed funds account states:
(a)the amount of the funds in the disputed funds account and to which Subcontractor each amount refers; and
(b)whether a dispute resolution process has commenced in relation to the funds.
10A.9Subcontractor Payment Schedules
This clause 10A.9 only applies once chapter 3 of the BIF Act commences.
In this clause 10A.9, the following definitions apply:
(a)‘payment claim’ has the meaning given in Chapter 3 of the BIF Act; and
(b)‘payment schedule’ has the meaning given in Chapter 3 of the BIF Act.
The Consultant must include a requirement in its Subcontracts that the time to respond to a Subcontractor’s payment claim with a payment schedule is 15 Business Days from receipt by the Consultant of the Subcontractor’s payment claim under the Subcontract.However, the Consultant is not required to give the Subcontractor a payment schedule if the Consultant pays the amount claimed in the payment claim in full before the end of the 15 business day period.
10A.10 Dissolving the Project Bank Account
A Consultant must not dissolve the project bank account, by closing the trust accounts, except in accordance with the BIF Act and not without providing to the Clientwritten notice of its intent to dissolve the accounts of the project bank account at least 5 business days before the accounts are closed.
The Consultantmust provide written notice to the Clientwith a printed copy of the final balance of each account of the project bank account at the time the project bank account is dissolved.
10A.11 Delegation of powers of the Contractor
If the Consultantdelegates to another person any powers of the Consultantin relation to a project bank account in accordance with s.42 of the BIF Act, the Consultantmust provide a copy of the completed approved form to both the Clientand Subcontractors.
10A.12General Obligations
The Consultant must ensure that it does not do anything or fail to do anything that would cause the Client to be in breach of the BIF Act.
11.GST
No amendment
12.TIME
Amend clause 12.1 by inserting the following sentence as the first sentence of the clause:
“The Consultant must proceed with the Services with due expedition and without delay.”
13.LAWS AND APPROVALS
No amendment
14.CONSULTATION AND MEETINGS
No amendment
15.REVIEW AND ACCEPTANCE
No amendment
16.ADVERSE EVENT
Amend clause 16 by adding the following sentence to the end of the clause:
“A party affected by a matter which may adversely affect or has adversely affected the performance of the Services must act reasonably to mitigate the effects of such adverse event including mitigating any costs or expenses it incurs by reason of an adverse event.”
17.COOPERATION WITH OTHERS
Amend the current paragraph so that it is numbered 17.1.
Add new clauses:
“
17.2The Consultant must when on the premises occupied by the Client and when using the Client’s facilities, comply with all directions, procedures and policies relating to occupational health, safety and security requirements which are in effect at those premises and facilities and have been notified to the Consultant.
17.3 The Client must:
(a)provide the Consultant with such access to premises or sites of the Client as are reasonably necessary for the Consultant to carry out the Services ;
(b)ensure that the Consultant, when on the Client’s premises or sites, and when using the Client’s facilities, has been notified of all requirements relating to occupational health and safety, applicable codes of conduct and security which are in effect at those premises, sites and facilities;
(c)when on the Consultant’s premises, comply with all directions, procedures and policies relating to occupational health, safety and security requirements which are in effect at those premises and facilities.”
18.KEY PERSONNEL
Amend the current paragraph so that it is numbered clause 18.1.
Add the words “at no additional cost to the Client” to the end of the final sentence in clause 18.1.
Add new clause:
“
18.2The Client may require the Consultant to have removed from performing work on or in connection with the Services any person performing work on or in connection with the Services who, in the reasonable opinion of the Client, has acted contrary to law or a policy or procedure of the Client that the Consultant was required by the Contract to comply with.The Consultant must promptly remove any such person and arrange a replacement of that person with a person acceptable to the Client at no additional cost to Client.”