Consultancy services for construction

Document - Over $30,000 – Conditions of agreement

• Sections 6 (subsection - Variations claimed by the Consultant), 7.4 and 12.3: amended to substitute ‘consultant’ for ‘contractor’.

Document - Over $30,000 – Conditions of agreement

• Section 12.2: amended the name of the organisation to nominate an expert if the parties are unable to agree, from ‘Australian Commercial Disputes Centre’ to ‘Australian Disputes Centre’ and added a contact number.
• Combined Subcontractor’s Statement and Supporting Statement amended to correctly reference clause 19 of the Building and Construction Industry Security of Payment Regulation 2008.

Document - Over $30,000 – Conditions of agreement

• Section 3.3.6: amended payment terms to 15 business days to provide compliance with the SOP Act.

Document - Standard Form above $50,000

General

• The threshold for consultancy services engagement has now been updated from $30,000 to $50,000

Document

The following documents have been updated to reflect the introduction of new changes:

• Cover Sheet and Master Table of Contents
• Conditions of Tendering
• Tender Schedules
• General Conditions of Agreement and Agreement Information
• The Services

General Conditions of Tendering

Clause amendments and additions have been made for:

• Clause 4 Modern Slavery - Optional new clause added to reflect the Modern Slavery Act
• Clause 4 Aboriginal Participation - Optional new clause to include requirements from

The NSW Government Aboriginal Procurement Policy (APP)

• Clause 14 QMS- Clause aligned with requirements for prequalification schemes SCM1191 & SCM10611
• Clause 15 WHS - Optional new clause aligned with requirements for prequalification schemes SCM1191 and SCM10611
• Clause 20 Novation - Optional new clause has been added

Tender Schedules

• WHS - Optional new schedule to reflect prequalification schemes SCM1191 & SCM10611 requirements
• Modern Slavery - Optional new Schedule of Compliance

Aboriginal Participation - Optional new Schedule to reflect requirements of the NSW Government Aboriginal Procurement Policy (APP)

• QMS – Schedule updated with reference to ISO standards
• Intellectual Property – Item added to give a tenderer the opportunity to nominate what existing material to be retained for IP rights

General Conditions of Agreement

General

• Preface has been added
• Clause 1 Definitions - The following definitions and meanings have been added
• Principal’s Authorised Person
• Consultant’s Authorised Person
• Senior Executive
• Issue
• Clause 3 Consultant obligations - added
• Clause 3.28 Media Releases and Enquiries obligations have been added
• Clause 5 - Payment
• Definition of payment has been updated to reflect SOPA changes and requirements
• Clarified the issue of tax invoices
• Clause 8 - Indemnity People and Property:
• Clause 8.4 Limitation of liability – Clause now aligned with the proposed Whole of Government position. Liability cannot be limited for damages arising from:
• The death of, or injury to, a person
• infringement of third-party intellectual property rights
• an unlawful or wrongful act or omission
• a wilful, reckless, or negligent act or omission
• Clause 12 – Dispute Resolution
• Disputes Resolution Clause has been renamed ‘Issue Resolution’
• The clause reflects the Issue Resolution process in GC21
• Resolution timeframes have been clearly defined
• The clause requires either party to give notice the other party of an ‘Issue’
• Conferral by a Senior Executive from both parties is now required
• Senior Executive cannot be an Authorised Person
• If Senior Executive conferral fails, then either party can go to Expert Determination
• Clause 14 QMS – added to reflect quality standards
• Clause 15 WHS – added
• Clause 16 Aboriginal Participation – added
• Clause 18 Dealing with Modern Slavery - added
• Clause 19 Novation – added to reflect the requirements of Novation Agreement and Novation Consultant

Agreement Information

• Definition for Consultant’s Authorised Person has been added
• Guidance on Public Liability Insurance, Professional Indemnity insurance has been updated
• Information on Item 12 Intellectual Property has been updated to cross reference to the ‘Tender Schedule – Agreement Information’ where a tenderer has the opportunity to nominate what existing material is subject to IP rights

Annexures

• Latest Security Of Payment Act NSW (SOPA) Subcontractor Statements added
• Optional Novation Deed added
• Optional Modern Slavery schedule added

Document - Standard Form below $50,000

General

• Threshold for construction consultancy services engagements has now been updated from $30,000 to$50,000

The Standard Form has been updated to reflect the introduction of new changes on:

• Cover Sheet
• Conditions of Tendering
• Tender Schedules
• General Conditions of Agreement
• Description of the Services
• Annexures
  • Supporting Statement and Subcontractor’s Statement
  • Relevant Information
• Letter of Award

Conditions of Tendering

• Contact Person as the Authorised Person nominated under the Agreement Information has been added
• Clarification on Tenderer’s agreement and acceptance to various NSW Government policies and guidelines has been added
• Tenderer’s authorisation to the Principal to gather, assess and communicate to NSW Government agencies or local government authorities’ information about financial position and the tenderer’s performance in respect of any Agreement awarded has been added

Tender Schedules

• Upper Limit Time Based Fee has been added, including its maximum amount
• Facsimile number to submit Tenderer Response has been eliminated

General Conditions of Agreement

Item 1 Definitions

The following definitions have been included and meanings added:

• Principal’s Authorised Person
• Consultant’s Authorised Person
• Completion
• Agreement Documents
• Agreement Price
• Variation

Item 2 General

• Item 3 – Consultant’s responsibility for damaging existing services and public utilities has now been added. Where an existing service is damaged by the Consultant for any reason whatsoever, the Consultant must bear all costs and any delays for repairing the service (where it is to be continued) or disconnecting it (where it is to be abandoned).

• Item 4 - Parties may now change the terms and conditions of this Agreement by written agreement

Item 3 Insurance

• Consultant’s Professional Indemnity insurance minimum limit has been revised from $250,000 to $5,000,000
• Public Liability insurance in the joint names of the Consultant and the Principal has been revised from $5,000,000 to $10,000,000

Item 5 Variations

The following meanings to variations have now been included:

• The Consultant can only change the services with an instruction or written acceptance from the Principal
• The Consultant can submit a proposal for a Variation within 10 Business Days after receiving a request from the Principal
• The Principal must notify the Consultant in writing whether or not the proposal is accepted within 10 Business Days from receiving the Variation proposal

Item 8 Disputes

The following meanings to disputes have now been added:

• Notification of a dispute in writing must be provided to the other Party within 20 Business Days after the act or omission
• The notification must include the legal and factual basis of the dispute
• If the dispute is not resolved within 42 Business Days, the Parties can engage an independent Expert to resolve the dispute
• If the Parties cannot agree on an Expert within a further 20 Business Days, then either Party can commence legal proceedings

Item 9 Termination by the Principal

The Consultant will be now be paid the value of services completed plus 2% of the Fee that would have been payable for the Services that will not be provided due to the termination

Agreement Information

The following additions have been introduced:

• Definition for Consultant’s Authorised Person has been added
• Time for Completion
• Agreement Price at Date of Agreement

Annexures

The following annexures have been included:

• Supporting Statement and Subcontractor’s Statement
• Relevant Information