Grants and Awards Programme Guidelines
Grants and Awards
Programme Guidelines
For Recipients
2015-16 to 2018-19
Opportunity through learning
Grants and Awards Programme 2015-16 to 2018-19 Guidelines
Contents
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Grants and Awards Programme 2015-16 to 2018-19 Guidelines
Grants and Awards Programme
Purpose
The Guidelines set out objectives and administrative requirements for the Grants and Awards
Programme for 2015-16 to 2018-19.
Programme Objectives
The objective of the Grants and Awards Programme is to improve outcomes for all Australian students through the provision of advice, information, research and services to the Department.
Programme Description
Through the provision of funding to organisations for specialised advice and services, the
Department of Education and Training, through its Grants and Awards Programme, seeks to improve the quality of its policies and programmes to better meet the needs of Australian students.
The Grants and Awards Programme currently comprises one sub-Programme; the Grants in Aid sub-
Programme. Further details of this sub-Programme are at Page 9.
Context
The Grants and Awards Programme contributes to the Australian Government’s goals for Australian schooling—that it promotes equity and excellence, and that all young Australians become successful learners, confident and creative individuals and active and informed citizens.
The Grants and Awards Programme also supports the objectives outlined in the National Education
Agreement:
all children are engaged in and benefiting from schooling
young people are meeting basic literacy and numeracy standards, and overall levels of literacy and numeracy achievement are improving
Australian students excel by international standards
schooling promotes the social inclusion and reduces the educational disadvantage of children, especially Indigenous children
young people make a successful transition from school to work and further study.
Alignment with Current Australian Government Policy
Projects funded under the Grants and Awards Programme must contribute to current Government policy agenda, including but not limited to the Students First approach.
The Students First approach seeks to put students first and improve their education outcomes and the performance of our schools. The Government wants students to have a high-quality education with access to the best teachers and an up-to-date and relevant curriculum, and for the people who know them best – their parents, teachers, principals and community – to be able to make informed decisions about their education.
Under the Students First approach, the Government has identified four priority areas:
Teacher quality
School autonomy
Engaging parents in education
Strengthening the curriculum.
Eligibility
Eligibility requirements for recipients are specific to each sub-programme of the Grants and Awards
Programme. For the Grants in Aid sub-Programme eligibility, refer to Page 9.
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Grants and Awards Programme 2015-16 to 2018-19 Guidelines
Legislative Authority
The legislative authority for the Grants and Awards Programme is in Schedule 1AA of the Financial
Framework (Supplementary Powers) Regulations 1997.
Funding
The Government provides administered funding through the Grants and Awards Programme under the Appropriations Act (No. 1.).
The Grants and Awards Programme has approved funding of $5.426 million over the four financial years 2015-16 to 2018-19, subject to annual appropriation.
The available funding for the Grants and Awards Programme is specified and projected over four years in the Portfolio Budget Statements. As such, future funding past the annual appropriation is not guaranteed. The funding model is not limited to awarding grants if the Department determines other models, for example, a procurement, can better deliver the outcomes required under the programme/sub-programme.
All funding under the Grants and Awards Programme will be governed by an Agreement/Contract where funding is weighted against the acceptance and satisfactory completion of deliverables.
Once funding is fully expended or committed, no further invitations to provide a funding proposal will be issued.
Agreement/Contracts
Successful recipients will be required to enter into an Agreement/Contract with the Government.
The Agreement/Contract will form the legal documentation between the Department and the recipient over the funding period. Once executed, the Agreement/Contract will constitute the entire
Agreement between the parties. There are no legally binding responsibilities for the Department until the Agreement/Contract is signed by the relevant Departmental delegate and duly executed by the person or persons authorised to bind the recipient.
Funding will only be provided in accordance with the terms of an executed Agreement/Contract and the recipient must comply with all requirements of the Agreement/ Contract.
The Agreement/Contract will also specify:
• reporting and financial management requirements
• insurance requirements (to cover recipient’s obligations in relation to the funding to be delivered)
• compliance with the Australian Privacy Principles as set out in Section 14 of the Privacy Act
1988
• requirements to maintain the confidentiality of any information deemed by the
Commonwealth to be confidential.
All funding Agreements/Contracts signed between the Department and the recipient under the
Grants and Awards Programme is subject to current Commonwealth, state and territory laws. This includes, but is not limited to the:
Public Governance, Performance and Accountability Act 2013
Commonwealth Grant Rules Guidelines
Privacy Act 1988
Freedom of Information Act 1982
Work Health and Safety Act 2011
Disability Discrimination Act 1992
Racial Discrimination Act 1975
Sex Discrimination Act 1984
Archives Act 1983
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Australian Information Commissioner Act 2010
Bankruptcy Act 1966
Criminal Code Act 1995
Types of Agreement/Contract
The terms and conditions of the Agreement/Contract may vary depending on the amount and nature of the funding and level of risk.
If an applicant is deemed successful, the Agreement/Contract will be developed in consultation with the relevant organisation/s. The Department will offer the Agreement/Contract to the recipient for review, negotiation and execution. The Agreement/Contract will set out the terms and conditions on which the funding will be provided to the recipient. To enable efficiency, the Commonwealth can negotiate Agreements/Contracts that are in effect for varying lengths of time.
The Agreement/Contract offered may differ from the draft Agreement/Contract provided as an example at the time of applying for the funding. An example of the Department’s standard
Agreement/Contract is at Attachment A.
Grant and Procurement Reporting
In accrodance with the Public Governance, Performance and Accountability Act 2013, all successful funding reciepients will have their agreement/contract details publically reported on the
Department’s website or AusTender.
All grants will be published on the Department’s website at www.education.gov.au/grants within
14 working days of both parties signing the agreement.
All procurements will be reported on the AusTender website at www.tenders.gov.au
within
42 working days of of both parties signing the contract.
Goods and Services Tax (GST)
Unless otherwise indicated by the Department, funding provided under the Grants and Awards
Programme is subject to GST.
Recipients who are required under tax law to be registered for GST must ensure they are registered in order to receive funding under this Programme.
Legal and Financial Advice
The Department does not provide financial or legal advice to recipients. Recipients should seek their own independent professional advice on all financial and legal matters, including compliance with any statutory obligations.
Value for Money
The Department will consider whether each funding proposal represents value for money; and will look at expected results within the amount of funding offered or the amount of funding requested and the contribution the recipient organisation will make.
Recipients must contribute to achieving value with public money by:
• having in place an effective risk management approach that will minimise risk and ensure that the funding is achieving the outcomes, objectives and performance indicators
• ongoing monitoring and management of the funding as appropriate. This may involve the effective use of organisational processes, procedures and systems to produce the required reporting information, or it may involve adjusting activities to ensure they are meeting the objectives and performance indicators
• contributing to Government priorities through collaborative delivery of funded projects, activities and goals/objectives in the Agreement/Contract
• participating in evaluations of funding outcomes upon request.
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Grants and Awards Programme 2015-16 to 2018-19 Guidelines
Monitoring, Performance Reporting and Improvement
The Department will monitor the performance of Government funding to ensure that it is meeting its objectives and outcomes. All Agreements made between recipients and the Department must include systematic, timely monitoring that demonstrates if results are being achieved and supports ongoing adaptation and innovation where necessary.
Successful recipients may be required to submit to the Department reports concerning the funding, in the format and by the due dates detailed in the Agreement/Contract. Recipients may be required to collect data to measure how the project contributes to the identified outcomes and deliverables.
Recipients must agree, if requested by the Department, to collect data and maintain records to assist with performance monitoring or evaluations.
The Department is committed to working with organisations to minimise the volume of reporting requirements whilst maintaining transparency and accountability requirements.
The Department is committed to a comprehensive and systematic approach to the effective management of potential opportunities and risk. Any funding will be managed according to its level of risk to the Commonwealth. As such, organisations may be subject to a risk management assessment, and depending on level of funding and risk, a Financial Viability check, before entering into any contractual arrangement and periodically thereafter during the funding term. Organisations will be required to supply financial and other information for this process if requested.
Notification
All applicants will be advised, in writing, of the success or otherwise of their application. The process by which applicants are notified may vary between sub-programmes.
For the Grants in Aid sub-Programme, refer to page 11.
Financial Reporting
The Grants and Awards Programme is managed to ensure the efficient and effective, ethical and economical use of public monies. Funding must only be used for the purposes for which it is provided. The Department may require recipients to provide financial statements/reports in accordance with the Agreement/Contract. Recipients may be required to submit:
• a final report on the funding outcomes, and
• independently audited financial statements and other financial information.
Full details of what recipients must submit to acquit the funding will be specified in the
Agreement/Contract.
Other Reporting Requirements
Recipients may be required to provide other reports, such as progress reports, funding and recipient activities. Requirements will be specified in the Agreement/Contract.
Evaluation
Evaluations help Government see whether it is getting the results expected and assist to invest in what works. To support a consistent and good practice evaluation approach, a number of principles will guide evaluation activity. These include:
• independence, impartiality and transparency
• competence and ethical behaviour
• designing evaluation to support utilisation and build on what is already known
• avoiding duplication and minimising respondent burden
• learning and adaptation through a cycle of critical review and improvement
• strengthening capacity, using participative approaches and joint ownership.
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Grants and Awards Programme 2015-16 to 2018-19 Guidelines
Conflicts of Interest
Recipients must indicate any potential perceived or actual conflict of interest arising in relation to proposed projects or spending activities. The Department may decide not to consider an application or select a recipient if there is the possibility of a perceived conflict of interest. Recipients should include a statement addressing this and demonstrate why a conflict of interest will not result from the granting of funding for the project, or how the conflict will be managed.
All parties involved in or associated with the Grants and Awards Programme have an obligation to disclose all potential perceived or actual conflicts of interest related to the spending or the project.
A conflict of interest arises where a person makes a decision or exercises a power in a way that may be, or may be perceived to be, influenced by either material personal interests (financial or nonfinancial), or material personal associations. Examples of when a conflict of interest arises include where:
• decision makers or agency staff involved in spending activities have a direct or indirect interest in the recipient, which may influence the selection of a particular project or activity
• members of expert or advisory panels or committees have a direct or indirect interest in informing a decision about expenditure or providing advice on funding to external organisations
• a recipient has a direct or indirect interest, which may influence the selection of their particular project or activity during the application process. Conflicts may also arise when undertaking the Project.
The Department has appropriate mechanisms in place for identifying and managing potential or actual conflicts of interest, such as, requiring assessment staff to sign conflict of interest declarations prior to undertaking the assessment of applications.
Privacy
In administering the Grants and Awards Programme, the Department and funding recipient will be bound by the provisions of the Privacy Act 1988 (the Privacy Act).
For further information, please go to our website: www.education.gov.au/privacy , or write to:
Privacy Contact Officer
Legal and Compliance Group
Department of Education and Training
GPO Box 9880
Canberra ACT 2601 privacy@education.gov.au
Privacy complaints may be made to the Office of the Australian Information Commissioner but will only be actioned where a complaint was made in the first instance to the Department.
Fraud
Any suspicion or evidence of fraud will be dealt with as per the Department’s standard fraud procedures and fully investigated as appropriate.
The Department’s fraud reporting procedures are at www.education.gov.au/how-report-fraud.
Risk Management
An internally managed and approved Risk Management Plan supports the Grants and Awards
Programme Guidelines. This plan incorporates all potential risks in the successful management of this Programme and associated Agreements/Contracts. It will be reviewed regularly throughout the life of this Programme.
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Grants and Awards Programme 2015-16 to 2018-19 Guidelines
Opportunity for Feedback
Unsuccessful recipients may request feedback, in writing, on their proposal within two (2) weeks of the decision.
The Department reserves the right to not offer individualised feedback for each application in a funding process and may offer general feedback. Any opportunity for individualised feedback will be set out in the advice to the recipient on the outcome.
Complaints Processes
Complaints about the conduct of funding processes in the first instance may be sent in writing to
Department of Education and Training
GPO Box 9880
Canberra ACT 2601
Complaints about any administrative action taken by the Department in relation to the Programme can be taken to the Commonwealth Ombudsman if a recipient is not satisfied by the complaints process conducted by the department. Contact details are as follows:
Commonwealth Ombudsman
GPO Box 442
CANBERRA ACT 2601
Further details are available via the Commonwealth Ombudsman website at www.ombudsman.gov.au
or by telephone on 1300 362 072.
The Ombudsman is an independent statutory officer who has extensive powers to investigate and report on official actions. No charge is made for the Ombudsman’s investigations. The Ombudsman will generally not investigate a matter that is being dealt with by a court or tribunal and may decline to investigate if he/she considers that a matter should be taken up with a court or tribunal, or for a variety of other reasons.
Freedom of Information
Under the Freedom of Information Act 1982 a person who wants to gain access to documents held by the Department may make a Freedom of Information (FOI) request.
Requests to access documents must be in writing. FOI requests should be sent to:
FOI Team Leader
Legal and Investigations Group
C50MA10
GPO Box 9880
CANBERRA ACT 2601
Requests may also be lodged via email to FOI@education.gov.au
There is no fee for making a request but the Freedom of Information Act 1982 provides that charges may be imposed for processing requests.
Requests must provide enough information about the documents sought to enable the Department to identify them.
The FOI Team can be contacted on 1300 363 079 to discuss any prospective request.
Detailed information about FOI can be found at the website for the Office of the Australian
Information Commissioner at www.oaic.gov.au/freedom-of-information
Amendments
The Government reserves the right to amend the Guidelines as necessary.
Updated Guidelines will be made publicly available on our website www.education.gov.au
.
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Grants and Awards Programme 2015-16 to 2018-19 Guidelines
Sub-Programme - Grants in Aid
Objective
The objective of the Grants in Aid sub-Programme is to improve educational outcomes for all
Australian students through the provision of advice, information, stakeholder views, research and services to inform Australian Government education policy.
Programme Description
The Grants in Aid sub-Programme was developed in recognition of the important role national education research bodies and nationally representative organisations play in providing well informed advice to government about key issues, and in representing stakeholder views.
The Grants in Aid sub-Programme provides funding to national organisations to provide advice, information and research to inform the development of education policies and activities in line with
Government priorities for education.
Areas of focus under the Grants in Aid sub-Programme include:
1.
research projects on education and schooling to inform Government education policy
2.
disseminate and promote information on Government research, policies, activities and programmes to stakeholders of those organisations
3.
gather the views of relevant community or industry sectors on education or schooling issues and represent those views to the Government
4.
develop websites and other communication activities on behalf of the Government, through the use of online communication services
5.
collaborate and cooperate with state and territory education authorities as well as other key stakeholder bodies to develop guidance or advice for national education initiatives that benefit the nation of Australia.
Funding will be associated with one (1) or more of the above activities as specified in the
Agreement/Contract.
Eligibility
Organisations eligible for funding must be a national education research body or nationally representative organisation and meet at least one (1) of the following criteria:
• demonstrated capability and/or expertise in providing research into education and schooling
• demonstrated capability and/or expertise in gathering and representing the views of relevant community or industry sectors on education and schooling.
Unless otherwise stated by the Department, recipients must also:
• be a legal entity with full legal capacity to enter into an Agreement/Contract with the
Commonwealth (an unincorporated association is not a legal entity and will not be
Contracted by the Department)
• not be bankrupt or subject to insolvency proceedings (as relevant to the entity type)
• have an ABN or ACN and be registered for GST purposes
• be financially viable, as assessed by the Department
• be compliant under the Workplace Gender Equality Act 2012.
Recipients that do not meet these requirements as determined by the Department, at its sole discretion, may be deemed ineligible for funding.
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Grants and Awards Programme 2015-16 to 2018-19 Guidelines
Application/ Selection Process
Grants in Aid funding can be awarded through a number of different processes, including for example: open competitive, select or limited tender; non-competitive closed application or tender process.
An open competitive, select or limited tender process may be used to invite funding proposals in instances where the Department is seeking research services that can be provided by a wider range of organisations than the nationally representative organisations alone.
If an open competitive, select or limited tender process is not used to invite funding proposals, the
Department will have made a determination that an Approach To Market (ATM) is not suitable. It is most likely that a non-competitive closed application or tender process would be used to source proposals from key nationally representative organisations, which possess specific expertise and capability related to their representational capacity that cannot be sourced from the market.
The Department retains the right to use a non-competitive or closed process. In this instance, organisations may be invited by the Department to provide funding proposals. Successful proposals must meet the needs and objectives of the Government, and reflect one or more of the areas of focus as outlined in these Guidelines on page 9. The needs and objectives of the Government will be outlined in all invitations to provide funding proposals.
In some cases, the Minister for Education and Training may identify the potential recipient organisation to provide a funding proposal.
Invitation to Submit a Proposal
The Department may invite proposals from potential recipient organisations when the need arises for expertise or advice to build the Australian Government’s policy agenda and objectives.
If an open competitive, select or limited tender process is used to invite funding proposals, the
Department will publish an ATM notice on the AusTender website at www.austender.gov.au
. In addition, the Department will announce that an open competitive or select tender process for
Grants in Aid funding is taking place on its website at www.education.gov.au
.
If a non-competitive closed application or tender process is used to invite funding proposals, the
Department will contact an organisation to invite a funding proposal.
The process for submitting funding proposals will be outlined in the invitation to provide a proposal.
In a non-competitive closed application or tender process proposals will in most instances, be emailed to the contact officer who invited the proposal.
Evaluation and Decision Making
If funding is available, the Department will evaluate the proposal and may meet with the selected organisation in person or via teleconference to discuss the proposal.
The criteria to be used in evaluating proposals include but are not limited to the following:
1.
the organisation’s expertise, capability, knowledge and experience of the education sector
2.
the merit of the proposal to meet the objectives of the Grants in Aid sub-Programme
3.
the organisation’s capacity to deliver on the project/activity required by the Government
4.
the proposal’s ability to meet the policy needs of Government at that time
5.
the proposal represents value for money and is an effective use of public money.
Based upon advice from the Department informed by an evaluation of the proposal, the Minister for
Education and Training selects which organisation/s is/are suitable and determines which of the suitable organisations receive Grants in Aid funding.
The terms of the Minister’s approval must be recorded in writing as soon as practicable after the approval is given and note whether the expenditure of public resources is efficient, effective, economical and ethical.
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In providing its advice to the Minister, the Department may take into account any previous or current non-compliance with any Commonwealth Agreements/Contracts.
Notification
All applicants will be advised, in writing, of the success or otherwise of their application. The notification will be provided as soon as possible after the decision is made.
Opportunity for Feedback
All requests for feedback should be directed to the officer who notified the unsuccessful organisation. This request must be provided in writing within two (2) weeks of the decision. Refer to page 8 for further information.
Agreement/Contracts
Successful organisations will be required to enter into an Agreement/Contract with the
Commonwealth.
The Agreement/Contract will form the legal Agreement between the Department and the organisation over the specified period. Once executed, the Agreement/Contract will constitute the entire Agreement between the parties. There is no binding agreement until the authorised persons from the Department and the organisation have both signed the Agreement/Contract.
Agreements/Contracts will be developed in consultation with organisations. The Department will offer the draft Agreement/Contract to the organisation for review, negotiation and execution. The
Agreement/Contract will set out the terms and conditions on which the funding will be provided. To enable better efficiency, the Commonwealth can negotiate Agreements/Contracts that are for varying lengths of time.
The Agreement/Contract offered would be similar to those attached, which have been provided as an example.
Legislative Authority
Legistlative authority for this sub-Programme falls under the Grants and Awards Programme. Refer to Page 4.
Funding
Funding for this sub-Programme falls under the Grants and Awards Programme. Refer to Page 5.
As no further invitations to provide a funding proposal will be issued once funding allocated to
Grants in Aid is fully expended or committed, it is reccommended that organsiations do not submit a proposal unless invited via the methods outlined on page 10.
Payment Procedures
All payments as set out in the Agreement/Contract between successful organisations and the
Department of Education and Training will be paid on the receipt of a correctly rendered invoice and the Department’s acceptance of a completed deliverable. The usual terms of payment are 30 business days.
Ownership and Use of Resources Developed with Commonwealth Funding
Ownership and use of the Intellectual Property (IP) developed through Commonwealth funding will be determined by the Agreement/Contract between the Department and the recipient.
Unless otherwise specified in the Agreement/Contract, upon its creation any IP is owned legally and beneficially by the Commonwealth of Australia and is immediately licensed to the funding recipient and to the public under the Creative Commons Licence, in so far the Creative Commons Licence is applicable.
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Funding recipients who create any IP will be required to maintain a Project IP Register that records all IP used to create the IP. This register must record:
• the date the IP was registered on the Project IP Register
• a description of the IP
• identify the IP owner and
• detail any agreement made by the parties in relation to disclosure or use of the IP.
Should it be agreed that the Intellectual property remains with the recipient, the recipient will grant the Commonwealth (or will procure for the Commonwealth) a permanent, irrevocable, royalty-free, world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce, adapt, modify, perform, distribute, communicate and exploit the Project Material for any Commonwealth purpose.
The recipient will also grant the Commonwealth (or will procure for the Commonwealth) a permanent, irrevocable, free, worldwide, non-exclusive licence (including a right of sub-licence) to use, reproduce, adapt, modify, perform, distribute, communicate and exploit the Intellectual
Property rights in the Existing Material, with the exception of commercial off-the-shelf software, for any Commonwealth purpose.
While the project may contribute to policy development, it also may not, and there is no obligation on the Department, the Minister or the Commonwealth to use the project material for any purpose.
Programme Contacts
For all enquiries, please contact the Department of Education and Training on 1300 566 046.
Programme First Contact
Grants in Aid Director
Second Contact
Branch Manager
Parent Engagement Team
Student Participation Branch
Improving Student Outcomes Group
Student Participation Branch
Improving Student Outcomes Group
Schools and Youth Cluster
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Attachment A - Example of a Contract
CONTRACT
IN RELATION TO ^ DETAILS ^
Commonwealth of Australia represented by the
Department of Education and Training
ABN 12 862 898 150
^Party 2 Name^
^Party 2 ^ ^Party 2 ABN/ACN/ARBN if applicable^
EXAMPLE
CONTENTS
1.
Interpretation
1.1.
Definitions
1.2.
Interpretation
1.3.
Construction of contract
1.4.
Term of Contract
2.
Provision of Services
2.1.
Your principal obligations
2.2.
Liaison with Project Officer
2.3.
Subcontractors
2.4.
Specified Personnel
2.5.
Your responsibility
3.
Fees, allowances and assistance
3.1.
Our principal obligations
3.2.
Overpayments
3.3.
Our rights to defer payment
3.4.
Superannuation
4.
Intellectual Property
4.1.
Use of Commonwealth Material
4.2.
Intellectual Property in Contract Material
4.3.
Moral Rights
5.
Disclosure of Information
5.1.
Interpretation
5.2.
Period of confidentiality
5.3.
^ Your other security obligations [optional] ^
6.
Privacy
6.1.
Interpretation
6.2.
Your obligations in relation to privacy
7.
Dealing with Copies ^and Access to Documents [optional]^
7.1.
Interpretation
7.2.
Actions at end of contract
7.3.
Access to documents
8.
Liability
8.1.
Proportionate liability regimes excluded
8.2.
Indemnity
EXAMPLE
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11
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4
4
7
8
8
9
9
8
8
10
10
9.
Dispute resolution
9.1.
Procedure for dispute resolution
9.2.
Costs
9.3.
Continued performance
9.4.
Exemption
10.
Termination or reduction in scope of Services
10.1.
Termination or reduction with costs
10.2.
Termination for breach
11.
Notices
11.1.
Format, addressing and delivery
11.2.
When received
12.
^Australian Industry Participation Plan (AlP Plan) [IF YOU DO NOT NEED THIS CLAUSE THEN
DELETE THE TEXT BUT KEEP THE CLAUSE NUMBER AND REPLACE THE HEADING WITH “Reserved”]
^ 18
12.1.
Interpretation
12.2.
Your compliance with AIP Plan
19
19
12.3.
Implementation Report 19
12.4.
Right to publicise AIP Plan executive summary andAIP Implementation Report information 20
13.
^Indigenous Procurement Policy [IF YOU DO NOT NEED THIS CLAUSE THEN DELETE THE TEXT
BUT KEEP THE CLAUSE NUMBER AND REPLACE THE HEADING WITH “Reserved”] ^ 20
13.1.
Interpretation 20
13.2.
13.3.
13.4.
Indigenous Procurement Policy
Interpretation
Indigenous Procurement Policy
21
Ошибка! Закладка не определена.
23
14.
General provisions 24
14.1.
Work health and safety
14.2.
Audit and access
14.3.
Insurance
14.4.
Extension of provisions to subcontractors and Personnel
14.5.
Conflict of interest
14.6.
Relationship of parties
14.7.
Waiver
14.8.
Variation
14.9.
Assignment and Novation
14.10.
14.11.
14.12.
Schedule 1.
Contract Details
Survival
Compliance with Laws and Our Policies
Applicable law
29
24
26
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28
17
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EXAMPLE
Page ii
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6.
7.
8.
9.
10.
11.
12.
1.
2.
3.
4.
5.
13.
14.
15.
16.
17.
18.
19.
Schedule 2.
Schedule 3.
Services
Required Contract Material
Completion Date and Time-frame
Invoicing and Payment
Project Officer
Subcontractors
Specified Personnel
Fees
Allowances and Costs
Facilities and Assistance
Commonwealth Material
Existing Material
Moral Right s
Privacy Conditions, Restrictions or Guidelines
Confidential Information
Our Address for Notices
Your Address for Notices
Insurance
Compliance with Laws and Policies
Australian Industry Participation Plan
Indigenous Participation Plan
34
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EXAMPLE
Page iii
CONTRACT
Date
This contract is made on ^ day (numeric) month (name) year (numeric) in full ^.
Parties
This contract is made between and binds the following parties:
Commonwealth of Australia (‘Commonwealth’, ‘Us’, ‘We’ or ‘Our’) represented by and acting through the Department of Education and Training ABN 12 862 898 150 (‘the
Department’)
^ Insert Supplier Name ^ ^ Insert Supplier ABN/ACN/ARBN if applicable ^
^ Insert Supplier Address ^ (‘You’, or ‘Your’)
NOTE: Care must be taken to ensure the Supplier is correctly identified. Please refer to the
Procurement Manual for further information on the use of an ABN, ACN and
ARBN, and the relevant searches that should be undertaken.
Context
This contract is made in the following context:
We require the provision of the Services.
You are fully informed about the Services and have submitted a proposal to provide the
Services.
The parties have agreed that You will provide the Services on the terms and conditions set out in this contract.
OPERATIVE PROVISIONS
Interpretation
Definitions
In this contract, unless the context indicates otherwise:
Business Day means in relation to the doing of any action in a place, any day other than a Saturday, Sunday or public holiday in that place;
EXAMPLE
Page 4 of ^ insert total number ^
CCBY Licence
Common wealth
Coat of
Arms
Commonwealth
Material
Completion Date
Contract Material means a Creative Commons Attribution 3.0 Australia
( http://creativecommons.org/licenses/by/3.0/au/ ) licence; means the Commonwealth Coat of Arms as set out at
It’s an Honour – Commonwealth Coat of Arms available at http://www.itsanhonour.gov.au/coatarms/index.cfm
; means any Material: provided by Us to You for the purposes of this contract; or derived at any time from the Material referred to in paragraph a;
means the date specified in item 0 of Schedule 1, or if no date is
specified, the day after You have done all that You are required to do under this contract to Our satisfaction; means any Material: created for the purposes of this contract; provided or required to be provided to Us as part of the Services; or derived at any time from the Material referred to in paragraphs a or b;
Date of this Contract
Department
Existing Material
Fee means the date written on page 1 of this contract, and if no date or more than one date is written there, then the date on which this contract is signed by the last party to do so; means the Department of Education and Training and includes any department, agency or authority of the
Commonwealth which is from time to time responsible for administering this contract; means any Material, except Commonwealth Material, which was in existence before the Date of this Contract or which is developed independently of this contract and which is incorporated in, supplied with or as part of, or required to be supplied with or as part of, the Contract
Material and includes, but is not limited to, Material specified in item 12 of Schedule 1;
means the fee payable under clause 0 and specified in item 0 of
Schedule 1 in relation to a specified part or the whole of the Services;
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Intellectual Property includes: all copyright (including rights in relation to phonograms and broadcasts); all rights in relation to inventions, plant varieties, trademarks
(including service marks), designs and circuit layouts; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields, but does not include:
Moral Rights; the non-proprietary rights of performers; or rights in relation to confidential information;
Interest
Material means simple interest calculated at the general interest charge rate determined under section 8AAD of the Taxation
Administration Act 1953 , on the day that payment is due, expressed as a decimal rate per day; means any thing in relation to which Intellectual Property rights arise;
Moral Rights means the following non-proprietary rights of authors of copyright
Material: the right of attribution of authorship; the right of integrity of authorship; and the right not to have authorship falsely attributed;
Our Confidential
Informatio n
Personal
Informatio n
Personnel means Our information that:
is described in item 0 of Schedule 1;
We identify, by notice in writing to You after the Date of this
Contract as confidential information for the purposes of this contract; or You know or ought to know by its nature is confidential; has the same meaning as it has in section 6 of the Privacy Act. means: in relation to You - any natural person who is an officer, employee, agent or professional advisor of You or Your subcontractors; and in relation to Us - any natural person, other than a person referred to in paragraph a, who is an officer, employee, agent
EXAMPLE
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or professional advisor of Us;
Privacy Act
Project Officer means the Privacy Act 1988 (Cth);
means the person specified (by name or position) in item 0 of
Schedule 1 or any substitute notified to You;
Services
Specified
Personnel
means the services described in item 0 of Schedule 1 and
includes the provision to Us of the Contract Material
specified in item 0 of Schedule 1;
means the Personnel specified in item 0 of Schedule 1 as required
to perform all or part of the work constituting the
Services; and
Your Confidential
Informatio n means Your information that:
is described in item 0 of Schedule 1; and
You identify, by notice in writing to Us after the Date of this
Contract as confidential information for the purposes of this contract.
Interpretation
In this contract, unless the contrary intention appears: words importing a gender include any other gender; words in the singular include the plural and vice versa; clause headings are for convenient reference only and have no effect in limiting or extending the language of provisions to which they refer; a reference to a person includes a partnership and a body whether corporate or otherwise; a reference to dollars is a reference to Australian dollars; a reference to any legislation or legislative provision includes any statutory modification, substitution, re-enactment, or successor of that legislation or legislative provision; if any word or phrase is given a defined meaning, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning; a reference to an item is a reference to an item in a schedule; a reference to a schedule (or an attachment) is a reference to a schedule (or an attachment) to this contract, including as amended or replaced from time to time by agreement in writing
EXAMPLE
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between the parties; and a reference to writing is a reference to any representation of words, figures or symbols, whether or not in a visible form.
This contract consists of: this document; any schedules; any annexure or other attachments; and any document incorporated by reference.
In the event of any conflict or inconsistency between any part of: the terms and conditions contained in the clauses of this contract; the schedules; the annexure or other attachments, if any; documents incorporated by reference, if any; then the material in any one of paragraphs (a) to (c) above has precedence over the material in a subsequent paragraph, to the extent of any conflict or inconsistency.
Construction of contract
This contract records the entire agreement between the parties in relation to its subject matter.
As far as possible all provisions of this contract will be construed so as not to be void or otherwise unenforceable.
If anything in this contract is void or otherwise unenforceable then it will be severed and the rest of the contract remains in force.
A provision of this contract will not be construed to the disadvantage of a party solely on the basis that it proposed that provision.
Term of Contract
This contract commences on the Date of this Contract and, unless terminated earlier, it expires on the Completion Date.
NOTE: This clause 1.4 will need to be amended if the contract is not to commence on the date on which it is actually made. Please contact the People, Communication and
Legal Group for an alternative clause.
Provision of Services
Your principal obligations
You must:
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comply with the time frame for the performance of the Services specified in item 0 of
Schedule 1;
submit invoices, and any required supporting documents, in the manner specified in item 0 of
Schedule 1; and act in accordance with this contract, diligently, effectively and to a high professional standard.
You must not act in a way that may bring the Services into disrepute.
You must keep adequate books and records, in accordance with Australian accounting standards, in sufficient detail to enable the amounts payable by Us under this contract to be determined.
Liaison with Project Officer
You must: liaise with the Project Officer as reasonably required; and comply with directions of the Project Officer that are consistent with this contract.
Subcontractors
You must not subcontract the performance of any part of the Services without Our prior written approval.
We may impose any conditions We consider appropriate when giving Our approval under
We have approved the subcontracting of the performance of the parts of the Services to the
persons, and subject to the conditions (if any), specified in item 0 of Schedule 1.
Despite any approval given by Us, You are responsible for ensuring the suitability of a subcontractor for the work proposed to be carried out and for ensuring that the work meets the requirements of this contract.
You must make available to Us (if requested), details of all subcontractors engaged in the performance of the Services.
You acknowledge, and must inform all subcontractors that, We may publicly disclose the names of any subcontractors engaged in the performance of the Services.
We may revoke Our approval of a subcontractor on any reasonable ground by giving written notice to You. On receipt of the notice You must, at Your own cost, promptly cease using that subcontractor and arrange their replacement with Personnel or another subcontractor acceptable to Us.
If we withdraw Our approval of a subcontractor, You remain liable under this contract for past acts or omissions of Your subcontractors as if they were current subcontractors.
You must not enter into a subcontract for the performance of any part of the Services with a subcontractor who is a Relevant Employer, unless that subcontractor has provided You with a current Letter of Compliance.
You must ensure that any subcontract You enter into for the performance of any part of the
Services includes the obligations in item 19.3 of Schedule 1 and imposes those obligations on the subcontractor.
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If You receive a Letter of Compliance, or notification of non-compliance with the WGE Act,
from a subcontractor approved under clause 0 of this contract, then You must
immediately provide a copy of that Letter of Compliance or notification to Us in accordance with clause 11 of this contract.
For the purposes of clauses 0 and 0 , ‘Relevant Employer’, ‘Letter of Compliance’ and ‘WGE
Act’ have the same meaning as in item 19.3 of Schedule 1.
Specified Personnel
You must ensure that the Specified Personnel will perform work in relation to the Services in accordance with this contract.
If Specified Personnel are unable to perform the work as required under clause 0, You must
notify Us immediately.
You must, at Our request acting in Our absolute discretion, remove Personnel (including
Specified Personnel) from work in relation to the Services.
If clause 0 or clause 0 applies, You must provide replacement Personnel acceptable to Us at
no additional cost and at the earliest opportunity.
If You are unable to provide acceptable replacement personnel, We may terminate this
Your responsibility
You are fully responsible for the performance of the Services and for ensuring compliance with the requirements of this contract, and will not be relieved of that responsibility because of any: involvement by Us in the performance of the Services; subcontracting of the Services; acceptance by Us of Specified Personnel; or payment made to You on account of the Services.
Fees, allowances and assistance
Our principal obligations
We will:
pay You the Fee specified in item 0 of Schedule 1;
pay You the allowances and meet the costs specified in item 0 of Schedule 1;
make all payments as and when specified in item 0 of Schedule 1; and
provide facilities and assistance as specified in item 0 of Schedule 1.
Overpayments
If, at any time, an overpayment occurs for any reason (including where an invoice is found to have been incorrectly rendered after payment) then this amount must be repaid to Us within 20 Business Days of a written notice from Us, or dealt with as directed in writing by Us.
EXAMPLE
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An overpayment may be recovered from You, including by offsetting that overpayment against any amount subsequently due to You under this contract or any other arrangement between the parties.
If an overpayment is not repaid to Us, Interest is payable on the amount after the expiry of the 20 Business Days notice referred to in clause 3.2.1, until the amount is paid in full.
An amount owed to Us under clause 3.2.1 and any Interest owed under clause 3.2.3 is recoverable by Us as a debt due to Us by You without further proof of the debt by
Us.
An adjustment note must be provided to Us if required by the GST Act including where You repay some or all of the Fee or allowances to Us.
Our rights to defer payment
We may (in addition and without prejudice to any other right We may have) defer payment or reduce the amount of any payment if and for so long as You have not completed, to Our satisfaction, that part of the Services to which the payment relates.
If We exercise Our rights under clause 0, You must continue to perform any obligations
under this contract, unless We agree otherwise in writing.
Superannuation
This contract is entered into on the understanding that We are not required to make any superannuation contributions in connection with this contract, unless stated to the
contrary in item 0 of Schedule 1.
Intellectual Property
Use of Commonwealth Material
NOTE: If the Supplier will be required to use the Commonwealth Coat of Arms and
Department logo, seek advice from the departments Design Team about the necessary permissions before the contract is sent to the Supplier. If permission is granted, contact the People, Communication & Legal Group for an alternative clause.
We will provide Commonwealth Material to You as specified in item 0 of Schedule 1.
We grant (or will procure) a royalty-free, non-exclusive licence for You to use, reproduce and adapt the Commonwealth Material for the purposes of this contract.
You must use the Commonwealth Material strictly in accordance with any conditions or
restrictions set out in item 0 of Schedule 1, and any direction from Us.
You must not use the Commonwealth Coat of Arms for the purposes of this contract.
Intellectual Property in Contract Material
Intellectual Property in all Contract Material vests or will vest in Us.
Clause 0 does not affect the ownership of Intellectual Property in:
any Commonwealth Material incorporated into Contract Material; or any Existing Material.
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You grant (or will procure for) Us a permanent, irrevocable, royalty-free, world-wide, nonexclusive licence (including a right of sub-licence) to use, reproduce, adapt, modify, perform, distribute, communicate and exploit any Existing Material, in conjunction with the Contract Material, for any purpose.
You agree that the licence granted in clause 0 includes a right for Us to licence the Existing
Material in conjunction with the Contract Material to the public under a CCBY
Licence [see http://creativecommons.org/licenses/by/3.0/au/deed.en
]. In accordance with the timeframe specified in item 3 of Schedule 1 for provision of the Contract Material, You must provide Us with all author or licensor attribution details in order for Us to comply with the CCBY Licence conditions.
NOTE: If the Supplier agrees to grant the Department the licence under clause 4.2.3, the
Department has the broad right to licence/release the relevant Contract Material under a CCBY Licence [Please see the Australian Government’s Statement of
Intellectual Property Principles ] . When deciding whether or not the Department should licence/release the relevant Contract Material to the public on a perpetual basis under the CCBY Licence, you will need to undertake a process of due diligence on a case-by case basis in accordance with the Statement of
Intellectual Property Principles and the Intellectual Property (IP) Management
Policy .
You must, on Our request, create, sign, execute or otherwise deal with any document
necessary or desirable to give effect to this clause 0.
You warrant that:
You are entitled; or
You will be entitled at the relevant time, to deal with the Intellectual Property in the Contract Material in the manner provided for in
Moral Rights
Permitted Acts means any of the following classes or types of acts or omissions: using, reproducing, adapting or exploiting all or any part of the Contract Material, with or without attribution or authorship; supplementing the Contract Material with any other
Material; using the Contract Material in a different context to that originally envisaged; and
the acts or omissions, specifically set out in item 0 of
Schedule 1; but does not include false attribution of authorship.
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Where You are a natural person and the author of the Contract Material, You consent to the performance of the Permitted Acts by Us or any person claiming under or through
Us (whether occurring before or after the consent is given).
Where clause 0 does not apply, You must obtain from each author of any Contract Material a
written consent which extends directly or indirectly to the performance of the
Permitted Acts by Us or any person claiming under or through Us (whether occurring before or after the consent is given) and, on request, to provide the executed original of any such consent to Us.
This clause 0 does not apply to any Commonwealth Material incorporated in the Contract
Material.
Disclosure of Information
Interpretation
You must not, without Our prior written approval, disclose any of Our Confidential Information to a third party; and
We must not, without Your prior written approval, disclose any of Your Confidential
Information to a third party.
In giving written approval to disclosure, a party may impose such conditions as it thinks fit, and the other party agrees to comply with those conditions.
We may at any time require You to arrange for any person engaged in, or in relation to, the performance or management of this contract (including Personnel and subcontractors) to give a written undertaking in a form acceptable to Us relating to the use and non-disclosure of Our Confidential Information.
If You receive a request under clause 0 You must promptly arrange for all undertakings to be
given.
You agree to secure all Our Confidential Information against loss and unauthorised access, use, modification or disclosure.
The obligations on the parties under this clause 0 will not be breached if information:
is disclosed by Us to the responsible Minister; is disclosed by Us, in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia; is shared by Us within the Department, or with another Commonwealth agency, where this serves the Commonwealth’s legitimate interests; is authorised or required by law to be disclosed; or is in the public domain otherwise than due to a breach of this clause 5.
Nothing in this clause 5 limits Your obligations under clause 0 [Privacy], clause 0 [Access to
Documents] or clause 0 [Audit and Access].
Period of confidentiality
The obligations under this clause 5 continue:
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in relation to an item of information described in item 0 of Schedule 1 - for the period set out
in that item; in relation to any information identified in writing after the Date of this Contract as confidential information for the purposes of this contract - for the period agreed by the parties in writing; and in relation to Our information that You know or ought to know by its nature is confidential - until the information is released into the public domain otherwise than by a breach of this contract.
^ Your other security obligations [optional] ^
Note: Additional clauses will be required if the Supplier may (a) be required to access any classified or sensitive information; (b) be working at the Department’s premises; or (c) require access to the Department’s information and communications technology systems, including through remote facilities. Please refer to the
Procurement Manual and the Contract Management Manual for further information and contact the People, Communication & Legal Group for the additional clauses you may need to insert here. If you do not require this clause then delete clause 5.3 and this note entirely.
Privacy
Interpretation
Australian Privacy
Princi ple has the same meaning as it has in section 6 of the
Privacy Act.
Your obligations in relation to privacy
You agree, in providing the Services: not to do any act or engage in any practice which, if done or engaged in by Us, would be a breach of an Australian Privacy Principle; and to comply with any conditions, restrictions or guidelines referred to in, or relating to the
matters set out in item 0 of Schedule 1, to the extent that they are consistent with
the Australian Privacy Principles.
You agree to notify Us immediately if You become aware of a breach or possible breach of
any of Your obligations under this clause 0.
Dealing with Copies ^and Access to Documents [optional]^
Interpretation
NOTE: This clause gives the Department broad rights in relation to the handling of 'Copies'
– You should also become familiar with the Department’s Recordkeeping Policy and the Department’s Recordkeeping Guidelines (available on the intranet) which deal with the creation and storage of copies.
EXAMPLE
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Copy means any document, device, article or medium in which
Commonwealth Material, Contract Material, or Our Confidential Information is embodied.
Actions at end of contract
You will, on expiration or termination of this contract, deal with all Copies as directed by Us, subject to any requirement of law binding on You.
Access to documents
This clause 0 applies if this contract is a 'Commonwealth contract' as defined in the
Freedom of Information Act 1982 (Cth) and ‘document’ has the meaning given by that Act.
You agree that: a. Where We have received a request for access to a document created by, or in the possession of, You or any of Your subcontractors that relates to the performance of this contract (and not to the entry into the contract), We may at any time by written notice require You to provide the document to Us and You must, at no additional cost to Us, promptly comply with the notice; and b. You must assist Us in respect of Our obligations under the Freedom of Information Act
1982 (Cth); and c. You must include in any subcontract relating to the performance of this contract provisions that will enable You to comply with Your obligations under this
Liability
Proportionate liability regimes excluded
To the extent permitted by law, the operation of any legislative proportionate liability regime is excluded in relation to any claim against You under or in connection with this contract.
Indemnity
You indemnify Us from and against any: cost or liability incurred by Us; loss or damage to Our property; or loss or expense incurred by Us in dealing with any claim against Us including legal costs and expenses on a solicitor/own client basis and the cost of time spent, resources used or disbursements paid by Us, arising from either: a breach by You of this contract; or an act or omission involving fault on the part of You or Your Personnel in connection with this contract.
Your liability to indemnify Us under clause 0 will be reduced proportionately to the extent that
any act or omission involving fault on the part of Us or Our Personnel contributed
EXAMPLE
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to the relevant cost, liability, loss, damage or expense.
Our right to be indemnified under this clause 0 is in addition to, and not exclusive of, any
other right, power or remedy provided by law, but We are not entitled to be compensated in excess of the amount of the relevant cost, liability, loss, damage or expense.
In this clause 8.2 “fault” means any negligent or unlawful act or omission or wilful misconduct.
Dispute resolution
Procedure for dispute resolution
A dispute arising under this contract will be dealt with as follows: the party claiming that there is a dispute will give the other party a notice setting out the nature of the dispute; within 5 Business Days (or such other period as agreed by the parties in writing) each party will nominate a representative not having any prior involvement in the dispute; the representatives will try to settle the dispute by direct negotiation between them; failing settlement within a further 10 Business Days, or such other period as agreed by the parties in writing (or failure of one or both parties to nominate a representative
within the period set out in clause 0.b), the parties may agree to refer the dispute
to an independent third person with power: to intervene and direct some form of resolution, in which case the parties will be bound by that resolution; or to mediate and recommend some form of non-binding resolution;
the parties will co-operate fully with any process instigated under clause 0 in order to achieve
a speedy resolution; and if the parties have been unable to agree to refer the dispute to an independent third person, or they have agreed and a resolution is not reached within a further 20 Business
Days (or such other period as the parties may agree in writing), either party may commence legal proceedings.
Costs
Continued performance
Despite the existence of a dispute, You must (unless required in writing by Us not to do so) continue to perform the Services.
Exemption
Clause 9.1 does not apply to:
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where an agency or authority of the Commonwealth of Australia, a State or Territory is investigating a breach or suspected breach of the law by You; or legal proceedings by either party seeking urgent interlocutory relief.
Termination or reduction in scope of Services
Termination or reduction with costs
We may by notice, at any time and in Our absolute discretion, terminate this contract or reduce the scope of the Services immediately.
You must, on receipt of a notice of termination or reduction: stop or reduce work as specified in the notice; take all available steps to minimise loss resulting from that termination or reduction; and continue work on any part of the Services not affected by the notice.
In the event of termination under clause 0, We will be liable only:
to make any payment relating to Services completed before the effective date of termination; to reimburse any expenses You unavoidably incur relating entirely to Services not covered
under clause 00 and directly attributable to the termination;
to pay any allowance and meet any costs unavoidably incurred under item 0 of Schedule 1
before the effective date of termination; and
to provide the facilities and assistance necessarily required under item 0 of Schedule 1
before the effective date of termination.
We will not be liable to pay amounts under clause 0 and 0 which would, added to any fees
already paid to You under this contract, together exceed the Fee set out in item 0
of Schedule 1.
In the event of a reduction in the scope of the Services under clause 0, Our liability to pay
fees or allowances, meet costs or provide facilities and assistance under clause 0
will, unless there is agreement in writing to the contrary, reduce in accordance with the reduction in the Services.
You will not be entitled to compensation for loss of prospective profits.
Termination for breach
If a party is in breach of any of its obligations under this contract, then the other party - if it considers that the breach is: not capable of remedy
– may, by notice, terminate this contract immediately; or capable of remedy – may, by notice require that the breach be remedied within 10 Business
Days of receiving the notice and, if the breach is not remedied within that time, may terminate this contract immediately by giving a second notice.
We may also by notice terminate this contract immediately (but without prejudice to any prior right of action or remedy which either party has or may have) if:
We are satisfied that, prior to entering into this contract, You engaged in misleading or deceptive conduct or omitted to provide information to Us in connection with the
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performance or awarding of this contract;
You are unable to pay all Your debts when they become due, or are presumed to be insolvent, or if You are: a corporation - come under any form of external administration, or receive a notice, or proceedings are commenced, to dissolve You or cancel Your incorporation or registration, or to place You under any form of external administration; an individual - become bankrupt or enter into an arrangement under Part IX or Part X of the
Bankruptcy Act 1966 ; or
You cease to carry on a business relevant to the performance of the Services.
Notices
Format, addressing and delivery
A notice under this contract is only effective if it is in writing, and dealt with as follows: if given by You to Us
- addressed to the Project Officer at the address specified in item 0 of
Schedule 1 or as otherwise notified by Us; or if given by Us to You - given by the Project Officer (or any superior officer to the Project
Officer) and addressed (and marked for attention) as specified in item 0 of
Schedule 1 or as otherwise notified by You.
A notice is to be: signed by the person giving the notice and delivered by hand; or signed by the person giving the notice and sent by pre-paid post; or transmitted electronically by the person giving the notice by electronic mail or facsimile transmission.
When received
A notice is taken to have been received: if delivered by hand - upon delivery to the relevant address; if sent by pre-paid post - 5 Business Days after the date of posting to the relevant address; or if transmitted electronically – at the time that would be the time of receipt under the Electronic
Transactions Act 1999 if a notice was being given under a law of the
Commonwealth.
A notice received after 5.00 pm, or on a day that is not a Business Day in the place of receipt, is deemed to be received on the next Business Day in that place.
^Australian Industry Participation Plan (AlP Plan) [IF YOU DO NOT NEED THIS CLAUSE
THEN DELETE THE TEXT BUT KEEP THE CLAUSE NUMBER AND REPLACE
THE HEADING WITH “Reserved”] ^
NOTE: The following clauses must be retained in this contract where these conditions are met: this contract is being used between the Department and a successful tenderer after an approach to market;
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that approach to market has a tender valued at $20 million or more; and the Department was advised by Department of Industry and Science that an AIP Plan is required in accordance with the AIP Plan User Guide for Procuring Agencies.
Drafters should confirm that the AIP Plan and Implementation Report are not included as
Confidential Information of the Supplier under this contract.
The Supplier's AIP Plan should be attached to the contract (as a new Schedule as follows):
0 AUSTRALIAN INDUSTRY PARTICIPATION PLAN
The AIP Plan and letter of approval of the AIP Plan issued by the Department of Industry and
Science is to be inserted here.
Interpretation
means the plan in Schedule 2 to this contract; Australian Industry
Participation
Plan or AIP
Plan
Australian Industry
Participation
Plan User
Guide for
Tenderers or
AIP Plan User
Guide for
Tenderers
Implementation Report
Implementation Report
Requirements means the Australian Industry Participation Plans in
Commonwealth Government
Procurement User Guide for Tenderers published by the Department of
Industry and Science as at the Date of this Contract, a copy of which can be obtained from http://www.innovation.gov.au/industry/
AustralianIndustryParticipation/Pages/
CGPAIPplans.aspx means a report provided to Us in accordance with
means the requirements for an Implementation
Report set out in the AIP Plan User
Guide for Tenderers.
Your compliance with AIP Plan
You must comply with the AIP Plan.
If any conflict arises between any part of the AIP Plan and any other part of this contract, the other part of this contract prevails.
The AIP Plan must not be construed as limiting Your responsibility to provide the Services in accordance with and otherwise comply with the requirements of this contract.
Implementation Report
You must provide Us with an Implementation Report that meets the Implementation Report
Requirements within ^ insert time frame ^.
EXAMPLE
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NOTE: Suppliers should be required to provide a single Implementation Report on their
Implementation of the AIP Plan under this contract. The appropriate time for providing the Implementation Report will depend on the term of this contract and the nature of the services being provided under this contract, taking into account the areas that are to be addressed in the Implementation Report. As a general statement, for longer term contracts, within 60 days of the first anniversary of the
Date of this Contract would be appropriate. For shorter term contracts (e.g. less than 12 months), 30 days prior to the Completion Date would be appropriate.
Where We consider that the Implementation Report does not meet the Implementation
Report Requirements, We may by written notice to You reject the Implementation
Report. Where We reject the Implementation Report, We will provide You with reasons for the rejection.
Where We have rejected the Implementation Report pursuant to clause 0, You must provide
Us with the Implementation Report, amended to address the reasons advised by
Us and that otherwise meets the Implementation Report Requirements, within 10
Business Days of the date of the notice issued under clause 0.
Right to publicise AIP Plan executive summary andAIP Implementation Report information
You consent that We or any other non-corporate Commonwealth entity may: publish the executive summary of Your AIP Plan at www.industry.gov.au/aip ; provide a copy of the Implementation Report to the Department of Industry; publish or report on Your performance in relation to the AIP Plan including the level of
Australian industry goods and services purchased on the project and level of compliance with the AIP Plan.
If requested by Us, You agree to assist the Commonwealth with the collection of information from the project to help monitor and report on the performance of its AIP policy.
^Indigenous Procurement Policy [IF YOU DO NOT NEED THIS CLAUSE THEN DELETE
THE TEXT BUT KEEP THE CLAUSE NUMBER AND REPLACE THE HEADING
WITH “Reserved”]
^
NOTE: From 1 July 2015 the Indigenous Procurement Policy imposes specific obligations depending upon whether or not the procurement is a High Value Contract (as defined in the Indigenous Procurement Policy). This contract contains two options
– Not a High Value Contract (Option A) or a High Value Contract (Option
B). Please select which option is to be used and delete the inapplicable clauses in their entirety. Where rule 2.6 of the CPRs applies, the Indigenous
Procurement Policy clauses are not required and clause 0 must be deleted in its
entirety and the words ‘NOT APPLICABLE’ must be inserted. Rule 2.6 of CPRs applies to procurements determined by the Secrerary as being necessary for the maintenance or restoration of international peace and security, to protect human health, for the protection of essential security interests, or to protect national treasures of artistic, historic or archaeological value.
Interpretation
EXAMPLE
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Indigenous enterprise
NOTE: Include the definitions below if the procurement is a High Value Contract (ie, Option B
(clause 0)) or there is a possibility the procurement will result in a High Value
Contract (ie, you included clauses 0 to 0 below), otherwise delete the defintions
below in their entirety.
High Value Contract means an organisation that is 50 per cent or more
Indigenous owned that is operating a business
Indigenous Participation
Plan means a contract where: the Goods and/or Services will be delivered in
Australia; the value of the Goods and/or Services is $7.5 million (GST inclusive) or more; and more than half the value of the contract is being spent in one or more of the following industry sectors: building, construction and maintenance services; transportation, storage and mail services; education and training services; industrial cleaning services; farming and fishing and forestry and wildlife contracting services; editorial and design and graphic and fine art services; travel and food and lodging and entertainment services; or politics and civic affairs services. means the plan detailing how You will meet the
Mandatory Minimum Requirements in the Indigenous Procurement Policy at
Mandatory Minimum
Requirements means the requirements set out in section 4.4 of the
Indigenous Procurement Policy.
OPTION A – Not a High Value Contract. If selecting this option, please delete Option B
clauses (clause 0) in their entirety
Indigenous Procurement Policy
It is Commonwealth policy to stimulate Indigenous entrepreneurship and business
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development, providing Indigenous Australians with more opportunities to participate in the economy (for further information, see Indigenous Procurement
Policy, available at http://www.dpmc.gov.au/indigenous-affairs ).
You must use reasonable endeavours to increase Your: purchasing from Indigenous enterprises; and employment of Indigenous Australians, in the delivery of the Services.
Purchases from Indigenous enterprises may be in the form of engagement of an Indigenous enterprise as a subcontractor, and use of Indigenous suppliers in Your supply chain.
NOTE: You may wish to include an obligation to report on this obligation in your contract.
The following clause is optional in this regard.
You must provide such written reports and evidence of Your compliance with this clause 0
every ^ insert quarter / 6 months /year ^ during the term of this contract.
NOTE: You may wish to include the following clauses if there is some possibility that the contract will become a High Value Contract during its term. This will depend upon both the value and the industry sectors that are relevant to the contract (see the
Indigenous Procurement Policy for further information).
If during the term the value of this contract exceeds $7.5 million, then this contract will become a High Value Contract for the purposes of the Indigenous Procurement
Policy, in which case You must: within ^ insert ^ days after the $7.5 million value is reached, develop an Indigenous
Participation Plan that addresses: how You intend on meeting the Mandatory Minimum Requirements for the Indigenous
Procurement Policy;
Your current rate of Indigenous employment and supplier use;
Your commitment to Indigenous participation; and if any part of the contract is being or will be delivered in a Remote Area, how You will ensure that its provision of Services will deliver significant Indigenous employment or supplier use outcomes in that Remote Area; and submit the draft Indigenous Participation Plan to Us for Our review and approval.
Upon approval of the draft Indigenous Participation Plan under clause 0, You must:
comply with the Indigenous Participation Plan (which will by contract variation become an attachment to this contract); and report against Your compliance with the Indigenous Participation Plan quarterly during the term of this contract; and comply with any directions issued by the Project Officer in relation to Your implementation of the Indigenous Participation Plan.
OPTION B – A High Value Contract. If selecting this option, please delete all Option A
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clauses (clause 0) in their entirety.
Indigenous Procurement Policy
It is Commonwealth policy to stimulate Indigenous entrepreneurship and business development, providing Indigenous Australians with more opportunities to participate in the economy (for further information, see Indigenous Procurement
Policy, available at http://www.dpmc.gov.au/indigenous-affairs ).
You must use reasonable endeavours to increase Your: purchasing from Indigenous enterprises; and employment of Indigenous Australians, in the delivery of the Services.
Purchases from Indigenous enterprises may be in the form of engagement of an Indigenous enterprise as a subcontractor, and use of Indigenous suppliers in Your supply chain.
Without limiting clause 0, You must comply with the Indigenous Participation Plan.
NOTE: The Supplier
’s Indigenous Participation Plan must be attached to this contract at 0
You must provide a written report on Your compliance with the Indigenous Participation Plan to the Project Officer: at least once every quarter during the term of this contract; and within 5 Business Days after the end of the term of this contract (End of Term Report).
The End of Term Report must identify whether You: met the Mandatory Minimum Requirements; and complied with the Indigenous Participation Plan.
If You did not comply with the Indigenous Participation Plan You must provide an explanation for Your non-compliance.
If the Project Officer considers, in its absolute discretion at any time during the term of this contract, that it has concerns in relation to Your: compliance with the Indigenous Participation Plan; or overall ability to meet the mandatory minimum requirements as set out in the Indigenous
Participation Plan, the Project Officer may request You to provide additional detail in relation to Your implementation of and overall ability to comply with the Indigenous Participation
Plan. You must comply with all reasonable directions issued by the Project
Officer in relation to Your implementation of the Indigenous Participation Plan.
Without limiting Our other rights under this contract or at law, any material failure by You to: implement the Indigenous Participation Plan; or
comply with a direction issued by the Project Officer under clause 0,
will be a breach of this contract, and We may terminate this contract in accordance with
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Notwithstanding any other clause of this contract, You acknowledge and agree that the
reports You submit under clause 0:
will be recorded in a central database that is able to be accessed by Commonwealth entities and may be made publicly available; will not be considered to be Your Confidential Information; and may be used by Commonwealth entities for any purpose, including for evaluation of an offer to provide goods and / or services to a Commonwealth entity.
General provisions
Work health and safety
NOTE: The following cl auses are designed to address the Department’s obligations under the Work Health and Safety Act 2011 (Cth).
While the below clauses are designed to address the Department’s general obligations to workers under the WHS Act, additional clauses may be necessary for services that have been assessed as medium to high risk (such as construction services, handling of hazardous substances, installation of equipment, manufacture of specialist equipment etc.) In these instances, specific clauses will need to be included in order to address the particular risks associated with this type of work.
For these types of procurements, we recommend you seek legal advice from the
People, Communication & Legal Group.
In carrying out this contract You must ensure that the Services are performed in a safe manner, including by: complying with, and ensuring Your Workers comply with, all WHS legislation and Approved
Codes of Practice relating to work health and safety; when performing the Services on Your premises, complying with, and ensuring Your Workers comply with, all Your applicable instructions, directions, policies and procedures relating to work health and safety; when performing the Services at Our Premises, You must: inform Yourself, and ensure Your Workers inform themselves, of Our work health and safety policies and procedures that We provide to You and are relevant to the Services; and comply with, and ensure Your Workers comply with, the above health and safety policies and procedures; not placing Us in breach of Our obligations under the WHS legislation and ensuring that Your
Workers do not place Us in breach of Our obligations under WHS legislation; where the health and safety of any person may be affected by the performance of the
Services, consulting, cooperating and coordinating with Us and any other relevant duty holders and Workers in relation to health and safety issues;
NOTE: Depending on the nature of the Services to be performed, you may wish to consider outlining an issue resolution process for the resolution of health and
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safety issues that arise during the term of the contract.
If you elect not to specify this process then the default position will be that the provisions of
Division 5 of the WHS Act and the WHS Regulations will apply to determine how any WHS issue is resolved with another duty-holder (such as a contractor).
For legal advice on this issue please contact the People, Communication & Legal Group. notifying Us, as soon as practicable, of: any concern You have regarding work health and safety in relation to Services performed by
Workers; any Notifiable Incident arising and provide Us with a copy of any written notice given to the
Regulator, the results of any investigation into the cause and any recommendation You have for prevention in the future; breach or suspected breach of the WHS legislation in relation to the Services performed under this contract; cessation of work on the Services, or direction to cease work on the Services from any person having a right or power under the WHS legislation to do so, due to unsafe work; entry by an Inspector to any place where the Services are being performed or a Provisional
Improvement Notice, Non-Disturbance Notice, Section 155 Notice, Section 171
Direction or Prohibition Notice is issued or WHS Undertaking provided to the
Regulator; proceedings against, decision by the Regulator in relation to, or request from the Regulator to You or Your Workers under the WHS Act; ensuring that any subcontract entered into in relation to the Services imposes obligations on subcontractors equivalent to the obligations You have under this clause.
In the event of any inconsistency between: any of the policies and procedures referred to in this clause; or
WHS legislation,
You will comply with the policies, procedures and/or legislation that comply with the WHS legislation and notify Us of any such inconsistency.
To the extent permitted by law, We are not liable to You for any loss in connection with work health and safety in relation to Workers performing Services.
For the purposes of this clause, the terms:
‘Approved Code of Practice’ means a practical guide to achieving the standards of health, safety and welfare that is approved pursuant to section 274 of the WHS Act;
‘Inspector’, ‘Non-Disturbance Notice’, ‘Notifiable Incident’, ‘Provisional Improvement Notice’,
‘Prohibition Notice’, ‘WHS Undertaking’ and ‘Worker’ have the meaning given in the WHS Act;
‘Regulator’ has the meaning given to it under WHS Act;
‘Section 155 Notice’ means a notice issued under section 155 of the WHS Act;
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‘Section 171 Direction’ means a direction issued under section 171 of the WHS Act;
‘ WHS Act’ means Work Health and Safety Act 2011 (Cth) ; and
‘WHS legislation’ means the WHS Act, any regulations made under that Act and any
‘corresponding WHS law’ within the meaning of section 4 of the WHS Act and
Regulation 6A of the Work Health and Safety Regulations 2011.
Note: Please be aware that including these contractual requirements alone will not ensure the Department’s compliance with the WHS Act. Where the Department is deemed to have a primary duty of care for Workers performing the Services, you will need to ensure that this duty is managed throughout the term of this contract.
For practical guidance on this issue, please contact the Department’s WHS
Advisory Team within the People Branch of the People, Communication & Legal
Group.
Audit and access
You must at all reasonable times give any employee of Us on production of photo identification, or any person authorised in writing by Us: reasonable access to:
Your employees and equipment; premises occupied by You;
Material; and reasonable assistance to: inspect the performance of the Services; locate and inspect Material; make copies of Material and remove those copies, relevant to the Services.
The rights referred to in clause 0 are subject to:
the provision of reasonable prior notice to You; and
Your reasonable security procedures.
If a matter is being investigated which, in Our opinion or in the opinion of any person authorised in writing by Us, may involve an actual or apprehended breach of the
The requirement for access specified in clause 0does not in any way reduce Your
responsibility to perform Your obligations under this contract.
A breach of Your obligations under this clause 0 is, for the purposes of clause 0 [Termination
for breach], a breach which is not capable of remedy.
NOTE: There are additional rights of access under the Ombudsman Act 1976, the Privacy
Act, and the Auditor-General Act 1997.
Insurance
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You must:
effect and maintain the insurance specified in item 0 of Schedule 1; and
on request, provide proof of insurance acceptable to Us.
This clause 0 continues in operation for so long as any obligations remain in connection with
this contract.
Extension of provisions to subcontractors and Personnel
Requirement means an obligation, condition, restriction or prohibition binding on You under this contract.
You must ensure that:
Your subcontractors and Personnel comply with all relevant Requirements; and any contract entered into in connection with this contract imposes all relevant Requirements on the other party.
You must exercise any rights You may have against any of Your subcontractors, Personnel or third parties in connection with a Requirement in accordance with any direction by Us.
Conflict of interest
Conflict means any matter, circumstance, interest, or activity affecting You, Your Personnel or subcontractors which may or may appear to impair Your ability to provide the Services to
Us diligently and independently.
You warrant that, to the best of Your knowledge after making diligent inquiry, at the Date of this Contract no Conflict exists or is likely to arise in the performance of the
Services.
If, during the period of this contract a Conflict arises, or appears likely to arise, You must: notify Us immediately; make full disclosure of all relevant information relating to the Conflict; and take any steps We reasonably require to resolve or otherwise deal with the Conflict.
If You fail to notify Us under this clause 0, or are unable or unwilling to resolve or deal with
the Conflict as required, We may terminate this contract under clause 0.
Relationship of parties
You are not by virtue of this contract an officer, employee, partner or agent of Ours, nor do
You have any power or authority to bind or represent Us.
You must not:
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misrepresent Your relationship with Us; or engage in any misleading or deceptive conduct in relation to the Services.
For the avoidance of doubt, except to the extent that You are restricted or prevented from disclosing Our Confidential Information or Personal Information, no right or obligation in this contract is to be read or understood as restricting or preventing
Your rights to: comment on; advocate support for; or oppose change to; any matter established by law, policy or practice of the Commonwealth.
Waiver
A failure or delay by a party to exercise any right or remedy it holds under this contract or at law does not operate as a waiver of that right.
A single or partial exercise by a party of any right or remedy it holds under this contract or at law does not prevent the party from exercising the right again or to the extent it has not fully exercised the right.
Variation
A variation of this contract is binding only if agreed in writing and signed by the parties.
Assignment and Novation
You cannot assign Your obligations, and must not assign Your rights, under this contract without Our prior written approval.
You must not negotiate with any other person to enter into an arrangement that will require novation of Your rights or obligations under this contract without first consulting
Us.
Survival
Unless the contrary intention appears, the expiry or earlier termination of this contract will not affect the continued operation of any provision relating to: licensing of Intellectual Property; confidentiality; security; privacy; dealing with copies; books and records; audit and access; an indemnity; or any other provision which expressly or by implication from its nature is intended to
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continue.
Compliance with Laws and Our Policies
You must, in carrying out Your obligations under this contract, comply with: any relevant statutes, regulations, by-laws and requirements of any Commonwealth, State,
Territory or local authority; and
any of Our policies notified by Us to You in writing,
including those listed in item 0 of Schedule 1.
Applicable law
This contract is to be construed in accordance with, and any matter related to it is to be governed by, the law of the Australian Capital Territory.
The parties submit to the non-exclusive jurisdiction of the courts of the Australian Capital
Territory.
Contract Details
Services
NOTE: You MUST complete this item by setting out the full detail of the services being procured.
Details of the Contract Material to be produced should be specified in Item 2 and the timeframe for the provision of the Services should be specified in item 3.
^[INSERT]^
Required Contract Material
NOTE: Please specify: the nature and extent of the Contract Material that must be produced and delivered (e.g. a report, interim reports, plans, models, specifications etc.); the form in which the Material is to be produced (e.g. documents, USB drives or other media); any equipment necessary to access the Material; and the manner and timing of delivery of intermediate and final stages if this is not specified elsewhere.
It is important to include all Material here because it may be difficult for the Department to acquire ownership or Intellectual Property rights in Material unless: it is listed here; or it is clearly created for the purposes of the contract.
^[INSERT]^
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Completion Date and Time-frame
Completion Date:
The Completion Date for this Contract is ^[INSERT]^
Time-frame:
All author or licensor attribution (see 4.2.4) details must be provided by: ^[INSERT]^ [ If the Supplier does not agree to a CCBY Licence, delete this line ].
NOTE: Set out the time-frame for the provision of the Services (including the delivery of Contract
Material) specifying all relevant dates (e.g. commencement, progress or interim stages and completion). If delivery of the Contract Material is required in stages include a timetable setting out each stage (specifying what Contract Material must be delivered at what time in each stage). In some cases it may be appropriate to specify dates in a relative way i.e., by reference to acceptance of previous milestones.
The Services must be provided in accordance with the following table:
Description Date
^ insert ^ ^ insert ^
Invoicing and Payment
Invoices:
Invoices must include the following information: the words “tax invoice” stated prominently;
Your name and ABN;
Our name and address; the date of issue of the tax invoice; the title of this contract and the contract number or purchase order number (if any) or date of execution; details of fees, allowances and costs including the items (ie. deliverables or milestones) to which they relate; the total amount payable (including GST); and the GST amount shown separately.
All claims for allowances or costs must be supported by receipts or other documentation
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which clearly substantiate Your entitlement to those allowances or costs.
An invoice is not correctly rendered where: it includes amounts that are not properly payable under this contract or are incorrectly calculated; or
it relates to a payment in relation to which We have exercised Our rights under clause 0 of the
contract.
All invoices must be addressed to the Project Officer.
Payment:
Subject to delivery, and acceptance by Us, of the Services or part of the Services to which the payment relates, the date for payment is 30 calendar days after delivery of a correctly rendered invoice to Us. If this period ends on a day that is not a Business Day, the due date for payment is the next Business Day.
Payment will be effected by electronic funds transfer (EFT) to Your following bank account ^ insert details ^.
We adhere to the Australian Government Supplier Pay On-Time or Pay Interest Policy (the “Policy”).
NOTE: Under this Policy, non-corporate Commonwealth entities are to agree to payment terms that provide payment no later than 30 days after the date of receipt by the non-corporate Commonwealth entity from the supplier for contracts valued up to and including A$1 million (GST inclusive). Where payment is not made within the maximum payment terms, the non-corporate Commonwealth entity is to pay interest to the supplier where the amount accrued is more than A$10 (GST inclusive). Interest is payable at the general interest charge rate available on the
ATO’s website, calculated in respect of each day from the day after payment was due up to and including the day that payment of the contract amount is made.
Interest is not payable unless the amount of interest is more than A$10.
Please refer to the Policy at http://www.finance.gov.au/publications/RMGS/pay-on-timepolicy.html or contact the People, Communication & Legal Group for further information.
Project Officer
The Project Officer is the person for the time-being holding, occupying or performing the duties of ^insert position^, currently ^insert name^, available on telephone number ^insert number^ or via the address and facsimile number set out in item
16 of Schedule 1.
Subcontractors
^ [OPTION 1: IF SUBCONTRACTORS ARE APPROVED] ^:
NOTE: Where the parties have agreed that the performance of part(s) of the Services will be subcontracted, this item should specify:
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the name of the subcontractor(s); the part(s) of the Services being subcontracted; and any conditions that will apply in addition to those that already appear in the contract.
It may be useful to set this information out on a table using the example below
You may subcontract the performance of parts of the Services as follows:
Name Subcontracted services
Additional conditions
^ insert ^ ^ insert ^
^ [OPTION 2: IF NO SUBCONTRACTORS ARE APPROVED] ^:
‘Not Applicable’.
Specified Personnel
^ [OPTION 1: IF SPECIFIED PERSONNEL ARE REQUIRED] ^:
^ insert ^
Name Skills required Details of Work
^ [OPTION 2: IF NO SPECIFIED PERSONNEL ARE REQUIRED] ^:
‘Not Applicable’.
Fees
The total Fee payable for the Services is $ [^state total payable amount] inclusive of
GST payable by the following instalments [^ delete all words after ‘GST’ and the table below if no instalments] :
Amount
$ [^amount]
$ [^amount]
Payable
[^provide date or link to delivery of milestone
[^provide date or link to delivery of milestone]
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The Fees include GST of $ [^state sum^] .
NOTE: If the contract is with a natural person and is for labour, the Department may be liable to make PAYG deductions or superannuation contributions on behalf of the
Supplier. This liability must be determined and costed in this item. If you are not sure whether GST, PAYG deductions or superannuation contributions are applicable to the contract, contact the People, Communication & Legal Group.
Allowances and Costs
NOTE: State here details of other financial obligations, e.g. travelling allowances, printing or production costs. The obligations should be clearly stated to prevent claims for excessive expenses. You should set out in detail how travelling allowance is calculated and when it is payable. Generally travelling allowance should be calculated on the same basis as for Departmenal staff (non-SES) under the
Department’s travel policy. If no allowances are payable insert ‘not applicable’.
Also, please see the GST pages on the intranet for further information on how actual costs should be reimbursed by the Department.
If you add additional clause 5.3 in relation to protective security requirements, note that the Supplier may apply to the Department to pay the Supplier for the any cost implications in complying with the protective security requirements. If the
Department agrees to pay those costs then item 9 would need to be varied to include those costs.
^[INSERT]^
Facilities and Assistance
[^Option 1 - if assistance is to be provided insert in this item] ^
Subject to item 19 of Schedule 1, we will provide the following facilities free of charge to You for the performance of the Services: accommodation at Our premises for up to [^state number] of Your personnel; normal office services and facilities as reasonably required by Your personnel; all magnetic media and consumables, storage facilities and messenger services reasonably required by Your personnel; and
[^detail any other assistance to be provided to the Supplier^]
[ ^Option 2 - if no assistance is to be provided insert in this item] ^
Not applicable.
Commonwealth Material
[^Option 1 - if conditions apply insert in this item:
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The following conditions apply to the use of Commonwealth Material by You:
Description of
Commonwealth
Material
Conditions or Restrictions on Use
[^Restrictions may arise as a result of third party rights to Intellectual
Property, or because of confidentiality, privacy, archival or other restrictions.^ ]
You must return the following Commonwealth Material to Us or deliver it to a person nominated by us, at the end of this contract:
[^insert description of Commonwealth Material. If no Commonwealth Material is specified here the Supplier may retain or destroy that material^]
OR Option 2 – if no conditions apply insert in this item:
Not applicable.
Existing Material
NOTE: The Supplier must grant or procure the grant to the Department of a licence to use
the Existing Material in the terms set out in clause 0. As a result, any pre-existing
Material for which Intellectual Property is not to vest in the Department should be specified here. This would arise typically in relation to Material the Supplier owns, although it may also arise in relation to Material owned by a third party.
Although the definition of ‘Existing Material’ is drafted broadly to ensure everything is captured even if you are unable to list all Existing Material in item
12, the risk of dispute over this aspect will be minimised if item 12 contains a list and the list is kept up to date. If there is no Existing Material insert ‘N/A’.
Moral Rights
NOTE: This Item should be completed having regard to the Intellectual Property (IP)
Management Policy.
Permitted Acts
NOTE: List any additional, specific acts or omissions which are to be ‘Permitted Acts’ for the purposes of clause 4.3. Doing this here may help to remove legal doubt over the application of the standard ‘Permitted Acts’ which are described generically in clause 4.3.1. You may specify acts or omissions separately in relation to
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separate items of Contract Material. Take care in specifying details if the contract involves (a) work done by architects and designers; (b) indigenous Intellectual
Property; (c) matters with a distinct religious, spiritual, moral or ethical context; (d) work to which attaches a high degree of artistic sensitivity; (e) work that may need to be heavily adapted or edited; (f) work that may be significantly altered or destroyed (i.e. building work); or (g) work that has significant potential to be exploited for commercial or other purposes either by the Department directly or by direct or indirect licensees or future non-Commonwealth owners.
In these cases it may be desirable to obtain legal advice on details to be included in this item, or possible variations to clause 4.3 addressing the Moral Rights issue.
Think carefully about the types of specific acts and omissions that might be relevant to the particular Contract Material. For example, in the case of a film it may be desirable to allow a right to edit the film to make movie trailers, to cutdown ‘inflight’ versions and include advertising breaks to suit broadcast television requirements. In some cases it may be necessary to be specific, as this may be the only way to be absolutely sure that an anticipated action will not breach the author’s Moral Rights.
The text below is an example only and is to be adjusted accordingly. Please seek advice from the People, Communication & Legal Group if you require assistance drafting the wording.
use of the Contract Material for advertising, merchandising or promotional purposes of any kind; incorporating the Contract Material into a website or as part of a multi-media training programme; synchronising the proposed sound recording as part of the soundtrack of a film; or removal and/or relocation of the proposed sculpture to an alternative location, including disassembly as necessary for that purpose.
Privacy Conditions, Restrictions or Guidelines
NOTE: If the Services involve the collection, use or disclosure of personal information choose option 1 below and do not amend the suggested words without clearance from the People, Communication & Legal Group.
If the Services do not involve the collection, use or disclosure of personal information you should choose Option 2. If in doubt, contact the People, Communication & Legal
Group.
Option 1:
In this item 14:
Personal Information
Privacy Act; has the same meaning as it has in section 6 of the
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Information Commissioner has the same meaning as it has in section 3A of the
Australian Information Commissioner Act 2010.
Records of the Privacy Act. has the same meaning as it has in section 6
In relation to Personal Information received, created or held by You for the purposes of this Contract,
You agree: not to transfer Personal Information outside Australia, or to allow parties outside Australia to have access to it, without the prior written approval of the Project Officer; to co-operate with reasonable demands or inquiries made by the Information Commissioner or the
Project Officer in relation to the management of Personal Information; to ensure that any person who You allow to access Personal Information is made aware of, and undertakes in writing, to observe the Australian Privacy Principles as if they were Us; to comply with policy guidelines laid down by Us or issued by the Information Commissioner from time to time relating to the handling of Personal Information; if requested by Us, at the end of this contract, to return all Records containing Personal Information to the Project Officer, or de-identify, delete or destroy those Records in the presence of a person authorised by the Project Officer or as otherwise instructed by the Project
Officer; to Your name being published in reports by the Information Commissioner; and
^ insert any other requirements, if applicable ^.
You must immediately notify the Project Officer if You become aware:
of a breach of Your obligations under clause 0;
that a disclosure of Personal Information may be required by law; or of an approach to You by the Information Commissioner or by a person claiming that their privacy has been interfered with.
Note: more information about the Privacy Act and the Australian Privacy Principles is available at http://www.oaic.gov.au/ ^
OR Option 2: if the Services do not involve the collection, use or disclosure of personal information, insert in this item:
No additional obligations.
Confidential Information
NOTE: You must complete these items.
Your Confidential Information:
(a) Information contained in contract:
EXAMPLE
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Item
^ insert relevant items ^
Period of Confidentiality
(b) Information obtained or generated in performing contract:
Item Period of Confidentiality
^ insert relevant items ^
[NOTE: The Australian Industry Participation Plan and Implementation Report must not be included as Your Confidential Information under this contract].
Our Confidential Information:
(a) Information contained in contract:
Item Period of Confidentiality
^ insert relevant items ^
(b) Information obtained or generated in performing contract:
Item Period of Confidentiality
^ insert relevant items ^
Our Address for Notices
Physical address
Postal address
Facsimile
Your Address for Notices
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Physical address
Postal address
Facsimile
Insurance
Required insurance:
You must maintain: workers’ compensation as required by law; public liability insurance to a value of $10 million (ten million dollars) or more per claim; and
[^ list any other insurance policies which the Supplier must maintain ^].
Compliance with Laws and Policies
19.1
You acknowledge that:
Compliance with Laws when dealing with Your employees, You must comply with the Fair Work Act 2009 and related
legislation, and obligations under relevant work health and safety laws
Chapter 7 of the Criminal Code provides for offences which attract substantial penalties, including theft of Commonwealth property and other property offences, obtaining property or financial advantage by deception, offences involving fraudulent conduct, bribery, forgery and falsification of documents; giving false or misleading information is a serious offence under the Criminal Code; the publication or communication of any fact or document by a person which has come to their knowledge or into their possession or custody by virtue of the performance of this
Contract (other than a person to whom You are authorised to publish or disclose that fact or document) may be an offence under section 70 of the Crimes Act 1914, punishment for which may be a maximum of two years imprisonment; in respect of data, including personal information, held in connection with this contract, any unauthorised and intentional access, destruction, alteration, addition or impediment to access or usefulness of the data stored in any computer in the course of performing this contract is an offence under Part 10.7 of the Criminal Code which may attract a substantial penalty, including imprisonment;
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You are aware of the provisions of section 79 of the Crimes Act 1914 relating to official secrets;
You may be subject to the provisions of the Competition and Consumer Act 2010 and the Archives Act
1983; and
[^list any other laws which you wish to draw to the attention of the Supplier.
19.2
You must:
Compliance with policies when using Our premises or facilities (including information systems), comply with Our directions and procedures relating to environmental management, work health, safety and security
(which you acknowledge may change during the term of this contract); ensure that any person who will have access to official secrets within the meaning of section
79 of the Crimes Act 1914 sign an acknowledgment that he or she is aware of the provisions of that section; comply with Our Code of Conduct in Contracting;
[^list any other policies which you wish to draw to the attention of the Supplier. ^] You should refer to the Department of Finance Procurement Connected Policies available at http://www.finance.gov.au/procurement/procurement-policy-andguidance/buying/policy-framework/procurement-policies/principles.html
A copy of Our Code of Conduct in Contracting is available at: http://docs.education.gov.au/system/files/doc/other/education-code-of-conduct-incontracting-26-august-2014.pdf
19.3 Workplace Gender Equality Act 2012 (Cth)
In this item 19.3:
Letter of Compliance refers to a letter issued by the Workplace Gender Equality Agency which indicates compliance by a Relevant Employer with the Workplace Gender Equality Act
2012 (Cth) (the WGE Act);
Relevant Employer has the same meaning as it has in the WGE Act;
19.3.1 This item 19.3 applies only to the extent that You are a Relevant Employer.
19.3.2 You must comply with Your obligations, if any, under the WGE Act.
19.3.3 If You become non-compliant with the WGE Act during the term of this contract,
You must notify Us in accordance with clause 11.
19.3.4 If the term of this contract exceeds 18 months, You must provide a current Letter of Compliance within 18 months from the Date of this Contract and following this, annually, to Us.
19.3.5 Compliance with the WGE Act does not relieve You from Your responsibility to comply with Your other obligations under this contract.
19.4 Building Code and Occupational Health and Safety Accreditation Scheme
[^You will need additional clauses here if the contract involves building work. ^]
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19.5 Working with Children Requirements
[^You will need additional clauses if the contract involves working with children.
19.6 Statement of Values and Code of Conduct
[^Additional clauses will be required if the Supplier is a service provider who is providing services to the Australian Public (whether in general or to a particular group) on behalf of the
Government. ^]
Fraud Control Plan 19.7
[^ Additional clauses will be required where (a) there is a high risk of fraud associated with the service being procured, and/or (b) the Supplier is a service provider who is providing services to the Australian Public (whether in general or to a particular group) on behalf of the Government.^]
19.8 Web Accessibility
[^ Additional clauses will be required if your procurement involves the provision of any form of online services, products, functionality and/or content (including documents intended for online distribution).^]
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Australian Industry Participation Plan
[INSERT THE AUSTRALIAN INDUSTRY PARTICIPATION PLAN HERE. IF A PLAN IS NOT REQUIRED, THEN
DELETE THIS SCHEDULE IN ITS ENTIRETY]
EXAMPLE
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Indigenous Participation Plan
[INSERT THE INDIGENOUS PARTICIPATION PLAN HERE. IF A PLAN IS NOT REQUIRED, THEN DELETE
THIS SCHEDULE IN ITS ENTIRETY]
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Signatures
SIGNED for and on behalf of the
Commonwealth of
Australia as represented by the Department of
Education and Training by:
^ Name of signatory ^
)
)
)
In the presence of:
^ Name of witness ^
Signature
Signature of witness
NOTE: Choose the appropriate signature block for the Supplier from the alternatives below and delete the others.
Where Supplier is an individual use the following:
SIGNED by:
^ Party 2 Name ^
Signature
In the presence of:
^ Name of witness ^
Signature of witness
EXAMPLE
Page 43 of ^ insert total number ^
Where Supplier is a company use the following:
SIGNED for and on behalf of (^ insert company name ) (^ insert company ACN or ABN ) in accordance with the requirements of section
127 of the Corporations
Act 2001 by:
Name of Director
In the presence of:
Name of witness
And by
Name of Director/Secretary
In the presence of:
Name of witness
Signature
Signature of witness
Signature
Signature of witness
EXAMPLE
Page 44 of ^ insert total number ^
Where Supplier is a partnership use the following:
SIGNED by:
Name of partner
Signature who by signing warrants that they have authority to bind
(^ insert name of each copartner(s) of partnership )
In the presence of:
Name of witness
Where Supplier is an incorporated association use the following:
Signature of witness
SIGNED for and on behalf of (^ insert
Association name ) (^ insert
ABN ) by:
Name of Committee member Signature
In the presence of:
Name of witness
Signature of witness
NOTE The date of signing should not be included in the execution clauses. Commencement is determined by the date stated at the front of this contract, read in conjunction with clause 1.4.1.
EXAMPLE
Page 45 of ^ insert total number ^
