FOI 25.26 0450 Documents Disclosure Log Part3.pdf

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In accordance with the Evaluation Plan, the Evaluation Team further undertook the
following verification activities:
a)  Referee checks: the  Evaluation Team  agreed  that  referee checks were  not
required as  both  Tenderers  have performed  recent  work  for  the NDIA  to  a
compliant standard with low risk.
Clarification questions: the Evaluation Team did not seek clarifications from the
tenderers.
In accordance with the Probity Protocol, the Tenderers were not permitted to make
material changes to their Submissions.
b)  Security checks – Successful Tenderer to provide a register of all attendees
and sub-contractors prior as per the agency contract, which shall be vetted and
approved by the NDIA security team.
4.7  Stage 4 - Value for Money Process
As provided in the Evaluation Plan, Stage 4 considered:
a)  the technical evaluation outcomes under Stage 2, including the evaluation
outcomes for Evaluation Criterion 4 (Disability Commitment) and
b)  the pricing evaluation outcomes under Stage 3
The Evaluation Team also considered other matters (as identified in Sections 4.5
and 4.6) which are unweighted to develop a risk profile for each Tenderer. A detailed
risk profile is at Appendix B.
Table 6 provides a high-level summary of the Submissions, pricing and ratings.
ndis.gov.au
Evaluation Report – PROC-5000
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Table 6: Comparison of individual evaluation ratings
s47E(d) - certain operations of agencies
ndis.gov.au
Evaluation Report – PROC-3350
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Appendix B – Assessment of Risk
The Evaluation Team identified the following risks associated with the Submissions:
s47G - business information
• s47E(d) - certain operations of agencies
• The submission was evaluated as representing a minimal level of risk to the
Agency overall.
s47G - business information

• s47E(d) - certain operations of agencies
•
• The submission was evaluated as representing an acceptable level of risk to
the Agency overall.
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24 February 2025 – Contract Commencement
Contract
commencement:
24 September 2025 – Practical Completion (PC) and
commencement of Defect Liability Period (DLP)
Expiry:
24 September 2026 (end of DLP)
Initial term:
7 Months
Extensions:
1 x 6 months (time-only)
Approval will be sought from the Financial Delegate
before any extension options are exercised
Contract Manager’s
Lawrence s22(1)(a)(ii) - irrele
details:
Assistant Director
Property Capital Works
s22(1)(a)(ii) - irre

lawrence.
@ndis.gov.au
2. Procurement process and evaluation summary
2.1. Sam Porter, DCEO Enabling Services / Chief Operating Officer approved the Proposal
to undertake a Procurement on Friday 6 December 2024. (EC24-003850)
2.2. On Monday 9 December 2024, an Approach To Market (ATM) was sent to three
potential suppliers on the Whole of Australian Government (WoAG) Property Services
Coordinated Procurement (PSCP) Panel (SON3460620) from the Additional
Transactional Services category specific to Capital Works Project Management
Services.
2.3. At the closing time of 12:00 noon (Canberra Time), Monday 20 January 2025, two (2)
Submissions were received, both were considered fully compliant with the ATM
Request Documentation and were evaluated. Details are included in the Evaluation
Report.
2.4. The Submissions were assessed from 21 January to 24 January in accordance with
the Evaluation Plan with the Evaluation Team identifying:
s47E(d) - certain operations of agencies
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PDR: EC25-000490
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s47E(d) - certain operations of agencies
a)
2.5. The Evaluation Report which provides the detailed value for money assessment, risk
rating and the recommended outcomes for this procurement process is at
Attachment A.
3. Risk rating
3.1. The overall risk rating for entering into an agreement with s47G - business information
is low. The full risk assessment, together with the proposed mitigations,
is included in the Evaluation Report at Attachment A.
4. Value for Money
4.1. As detailed in the Evaluation Report, this procurement is considered an effective and
efficient use of NDIA resources as:
a)
potential suppliers were approached through the WoAG PSCP Panel initiating a
competitive and non-discriminatory procurement process, consistent with the
policies of the Commonwealth and Agency.
b)
the approach proposed by the recommended supplier meets all of the ATM
requirements, with no qualifications or caveats placed on the services/proposal,
with low risks identified,
c)
the pricing offered by the recommended supplier was comparable with the cost
from previous projects undertaken with a similar scope of work. In addition, there
were no qualifications or caveats placed on the pricing, and no risks were
identified.
d)
it will use public resources in an efficient, effective, economical, and ethical
manner consistent with the policies of the Commonwealth and Agency, the
proposed approach encourages appropriate engagement with risk,
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PDR: EC25-000490
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Attachment A – Evaluation Report
File name: Attachment A - PROC-5000 - Evaluation Report - PMCA Services – s22(1)(a)(ii) - irrelevant material
Parramatta, and Chatswood
(included in PDMS document package)
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PDR: EC25-000490
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Attachment 1 – Additional Terms
1.
Purpose
1.1
This document includes the Additional Terms, which supplement the Work Order that has been
issued under clause 21 of the Whole of Australian Government Property Services Deed (Deed).
1.2
In accordance with clause 21.2(e) of the Deed, these Additional Terms do not:
1.2.1
increase the obligations of the Department of Finance or NDIA (as the Entity); or
1.2.2
decrease the obligations of the Service Provider.
1.3
Certain words in these Additional Terms have a special meaning outlined in clause 2, or in the
definitions sections of the Deed and Agreement.
2.
Glossary
2.1
In these Additional Terms:
2.1.1
Accepted has the same meaning as in the Deed.
2.1.2
Agreement means the existing lease or agreement for the Entity Site between the
Landlord and the Entity listed in the ‘Additional Transactional Services’ Item in the Work
Order or any Proposed Agreement;
2.1.3
Additional Services means the Capital Works Project Management Services
described in the Work Order which are being provided as ‘Additional Transactional
Services’ in accordance with the Deed as set out in 0 of these Additional Terms, which
includes the Service Provider:
(a)
acting as the ‘project manager’ in relation to the Capital Works to be performed
by Subcontractors in relation to the Entity Site;
(b)
managing the Entity’s stakeholder relationships to ensure delivery of the Capital
Works to budget, timeline and project scope requirements;
(c)
manage the conduct of the Capital Works in a manner which maximises
achievement of:
(i)
ecologically sustainable development principles, including:
(A)
increased energy conservation and efficiency;
(B)
sustainable use of renewable energy resources;
(C)
increased use of materials and products with recycled content;
(D)
reduction in harmful waste products produced during construction;
and
(ii)
whole of life objectives, including balancing:
(A)
the total of the direct/indirect, recurring/non-recurring, fixed/variable
financial costs to the Entity arising out of, or in any way in
connection with, the Additional Services over the whole life of the
Additional Services including the costs of designing and constructing
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prior to Completion and operating and maintaining the Additional
Services after Practical Completion;
(B)
the useful life of the Capital Works; and
(C)
the value for money achieved by the Entity from the design,
construction, operation and maintenance of the Capital Works; and
(d)
engaging and managing designers, engineers, builders and other subcontractors
as Subcontractors of the Service Provider, in compliance with the subcontracting
provisions in the Deed in order to prepare the necessary design for the Capital
Works and deliver the construction of the Capital Works in a manner set out in 0
for the Entity Site to meet the timeframes specified in the Additional Services
Program, as required;
2.1.4
Additional Services Fee means the fee specified in the ‘Additional Services Fee” item
in the Work Order;
2.1.5
Additional Services Program means the program, as amended from time to time,
prepared by on or on behalf of the Service Provider and updated in accordance with
clause 5 setting out the times for the performance of the Additional Services;
2.1.6
Approved Security means an unconditional undertaking in the form of a bank
guarantee, with an expiry date no earlier than 24 months after the Date for Practical
Completion, both on terms and given by a financial institution that is approved by the
Entity, acting reasonably;
2.1.7
Capital Works means capital works to be performed by the Subcontractors, as part of
the Additional Services, in respect of the Entity Site the scope of which will be
determined in accordance with clause 6.2;
2.1.8
Certificate of Practical Completion means a certificate issued by the Entity or its
Representative to the Service Provider in the form of the certificate at Annex B stating
that the Entity has Accepted that the Capital Works component of the Additional
Services have reached Practical Completion;
2.1.9
Date for Practical Completion means the date specified in the ‘Date for Practical
Completion’ Item in the Work Order, and as extended from time to time under these
Additional Terms;
2.1.10
Date of Practical Completion means the date on which the Capital Works have
reached Practical Completion;
2.1.11
Defect means any defects, faults, omissions, or shrinkage in the Capital Works;
2.1.12
Defect Rectification Plan has the meaning in clause 11.2.2.
2.1.13
Defects Liability Period means the period which commences on the Date of Practical
Completion and which continues for the period specified in the ‘Defects Liability Period’
Item in the Work Order;
2.1.14
Deliverable means any material or element of an Additional Service to be provided by
the Service Provider under the Deed, this Work Order and otherwise specifically listed
at 0 under the heading ‘Deliverables forming part of the Additional Services’;
2.1.15
Design Guidelines means the Entity’s design guidelines set out in Error! Reference
source not found.;
2.1.16
Entity Site is described in the ‘Additional Transactional Services’ Item in the Work
Order;
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2.1.17
Head Contractor means the contractor engaged by the Service Provider under clause
8.1 to carry out the Capital Works in accordance with these Additional Terms;
2.1.18
ICT Policy means the Entity’s ICT Statement of Requirements and Patterns for NDIA
Offices dated February 2024 provided by the Entity to the Service Provider within the
NDIA Design Guidelines at Attachment 2d.
2.1.19
Landlord means the party listed as the landlord or owner in the ‘Additional
Transactional Services’ Item in the Work Order;
2.1.20
Material Change means any actual, potential or perceived material change to the
circumstances of the Service Provider, including any change arising out of or in
connection with:
(e)
a ‘change in Control’ (as that term is described in clause 72 of the Deed);
(f)
an Insolvency Event; or
(g)
the Service Provider’s financial viability, availability, capacity or ability to perform
the Additional Services and otherwise meet its obligations under this Work Order.
2.1.21
Milestone Dates means the dates set out or referred to in the ‘Milestone Dates’ Item in
the Work Order, or as varied under clause 15;
2.1.22
Minor Defect means any Defect that:
(h)
is of a minor or superficial nature;
(i)
may be conveniently completed after Practical Completion without unreasonably
delaying, restricting or otherwise interfering with the operation of the Entity; and
(j)
will not affect the safe, convenient and efficient use of the Entity Site for its
intended purposes;
2.1.23
NDIS Act means the National Disability Insurance Scheme Act 2013 (Cth).
2.1.24
Practical Completion means the point in time when the Capital Works:
(k)
are complete except for Minor Defects;
(l)
all documents, including Deliverables and other information required for the
occupation and use of the Entity Site, and operation and maintenance manuals
provided for equipment installed as part of the Capital Works, have been
submitted to the Entity;
2.1.25
Project Control Group means the group established under clause 6.1.1;
2.1.26
Project Management Costs has the meaning given to it at clause 4.1.1;
2.1.27
Proposed Agreement means any heads of agreement or a proposed lease for the
Entity Site between the Landlord and the Entity if listed in the Additional Transactional
Services’ Item in the Work Order;
2.1.28
Protective Security Policy Framework means the Australian Government Protective
Security Policy Framework available at:
https://www.protectivesecurity.gov.au/about/structure-protective-security-policy-
framework, as amended from time to time.
2.1.29
Service Provider Material means all Deed Material brought, or required to be brought,
into existence by the Service Provider as part of, or for the purpose of, carrying out the
Additional Services including documents, equipment, reports, technical information,
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plans, charts, drawings, specifications, calculations, tables, schedules, data (stored by
any means), photographs and finishes boards;
2.1.30
Subcontractor has the same meaning as in the Deed and includes the Head
Contractor;
2.1.31
Subcontractor Costs has the meaning given to it at clause 4.1.2;
2.1.32
Subcontracted Services has the meaning given in clause 8.3.1 of these Additional
Terms;
2.1.33
Works Documents means the detailed drawings, fitout plans and specifications for the
Capital Works that are proposed to be undertaken by or on behalf of the Entity prepared
by on or on behalf of the Service Provider in accordance with clause 6.2; and
2.1.34
Work Health and Safety Guidelines means the Entity’s Work Health and Safety Policy
dated January 2022, provided by the Entity to the Service Provider at the date of this
Work Order.
2.1.35
Work Order means this Schedule 12 Work Order including its attachments and
annexures.
3.
Performance of Additional Services
3.1
Service Provider Warranties
3.1.1
In addition to the warranties provided under the Deed, the Service Provider warrants
and agrees that it will:
(a)
perform the Additional Services to a high standard and so as to ensure that the
Entity does not breach its obligations under the Agreement that are notified to the
Service Provider;
(b)
exercise the standard of skill, care and diligence in the performance of the
Additional Services that would be expected of a professional and qualified
provider of the Additional Services;
(c)
ensure that each of its Subcontractors engaged for the purposes of carrying out
this Work Order will exercise the standard of skill, care and diligence that would
be expected of a professional and qualified provider of the Additional Services
being performed by that Subcontractor;
(d)
ensure that the Service Provider Material complies with the requirements of the
Deed;
(e)
ensure that the Service Provider Material complies with specifications and is
designed in a manner that is capable of meeting the advised budget for the works
as notified to the Service Provider in writing, and in any event does not exceed
the Additional Services Fee; and
(m)
ensure that the Additional Services are provided economically and so as not to
exceed the capped Additional Services Fee listed in the Work Order, except
where any amount in excess of the capped amount has been approved in writing
by the Entity.
3.2
Additional Service Provider Obligations
The Service Provider must:
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3.2.1
liaise with the Landlord, Entity and other parties as required to perform the Additional
Services;
3.2.2
manage and remain responsible for those Subcontractors appointed in relation to the
performance of the Additional Services; and
3.2.3
follow any reasonable directions given by the Entity.
4.
Additional Services Fee
4.1
For the avoidance of doubt, and in accordance with the Deed, the Additional Services Fee listed
in the Work Order is made up of the Additional Transactional Services Fee – being the fees that
are payable in respect of Additional Transactional Services (being services described at clause
70 of Schedule 1) and which are calculated in accordance with Schedule 2 of the Deed and in
respect of this Work Order include:
4.1.1
the Capital Works Project Management Services listed in the Work Order (charged at
the applicable fixed percentage margin listed in Schedule 2 of the Deed that applies to
the value of the works project under this Work Order) (Project Management Costs);
and
4.1.2
the costs of Subcontractors engaged by the Service Provider under Subcontracting
arrangements as envisaged under clause 70.4 of Schedule 1 of the Deed in the manner
provided for at clause 8 and the cost of which are passed through with the relevant
margin of the Service Provider applied (Subcontractor Costs).
5.
Additional Services Program
5.1
The Service Provider has prepared a draft Additional Services Program for the performance of
the Additional Services which has been approved by the Entity.
5.2
Subject to approval by the Entity, within 14 days of the Start date for the Additional Service, the
Service Provider must finalise and issue to the Entity a final Additional Services Program.
5.3
The Service Provider must ensure that the Additional Services Program provided under this
clause 5 and any amended or updated version of it:
5.3.1
is in the form of a Gantt chart showing critical dates (including the Milestone Dates and)
and the critical path for the carrying out of the Capital Works;
5.3.2
contains a Date for Practical Completion no later than the date for practical completion
set out in the draft Additional Services Program approved by the Entity; and
5.3.3
has otherwise been prepared consistent with and in consideration of the draft Additional
Services Program approved by the Entity:
5.4
The Service Provider must supply the Additional Services in accordance with the final Additional
Services Program.
5.5
The Service Provider must:
5.5.1
update the final Additional Services Program periodically to take account of changes to
the Additional Services Program or delays that may have occurred; and
5.5.2
give the Entity copies of all programs for approval, in a format compatible with the
Entity’s software.
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6.
Governance arrangements
6.1
Meeting requirements
In addition to any meetings set out in the Deed, the Service Provider must participate in any other
meetings reasonably required by the Entity that relate to the Additional Services at no additional
cost to the Entity, including:
6.1.1
an initial project meeting prior to the commencement of the Additional Services
Program;
6.1.2
an initial project meeting prior to commencement of the Capital Works;
6.1.3
any regular Project Control Group meetings hosted by the Service Provider; and
6.1.4
weekly Entity Site meetings.
6.2
Project Control Group
6.2.1
The Service Provider will promptly establish a Project Control Group for the purposes of
monitoring the progress of the Capital Works under this Work Order, which will consist
of the following persons:
(a)
a representative of the Entity;
(b)
a representative of the Service Provider;
(c)
a representative of the Head Contractor; and
(d)
where required by the Entity or the Service Provider, a representative of any
Subcontractor or any key consultant or other consultant or adviser appointed by
the parties.
6.2.2
The Project Control Group will meet at least once every week, unless another
frequency is directed by the Entity, and any other time reasonably directed by the
Entity.
6.2.3
The Service Provider must have, at all Project Control Group meetings, representatives
who have the knowledge and authority to respond to queries raised by the Entity and to
propose solutions to their queries.
6.2.4
Before every Project Control Group meeting, and at any other times reasonably
directed by the Entity, from the start date for the Additional Services to the End date for
Additional Services, the Service Provider shall provide a prior a report outlining what is
to be discussed at each Project Control Group meeting relating to the Additional
Services under this Work Order including:
(a)
the progress of the Capital Works;
(b)
details of the up coming amounts anticipated to be issued as a Correctly
Rendered Tax Invoice by and paid to the Service Provider, including the total
amounts invoiced by the Service Provider against the Additional Services Fee;
(c)
details of any extension of time granted in accordance with this Work Order;
(d)
any workplace, health and safety issues, including details about any hazards,
risks or incidents; and
(e)
such other information as may be reasonably required by the Entity.
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7.
Design
7.1
Preparation of design documents
7.1.1
The Service Provider is responsible for managing and ensuring the preparation of the
design of the Capital Works by the relevant Milestone Date consistent with and
including any information required under the Design Guidelines or as required by the
Entity from time to time.
7.1.2
The Service Provider must, by the relevant Milestone Date, ensure the Entity is
provided any design documentation (including Work Documents) prepared by any
Subcontractor in relation to the design of the Capital Works along with any information
requested by the Entity which is needed for the Entity to review and consider the
prepared design documentation.
7.1.3
The Service Provider must assist the Entity to review any design documentation,
including any documentation provided by:
(a)
the Landlord in accordance with an Agreement to ensure the design
documentation (including Work Documents) are consistent with the requirements
placed on the design and construction of the Capital Works under the
Agreement; or
(b)
any Subcontractor as part of the Additional Services to ensure the design
documentation (including Work Documents) reflect the Design Guidelines and
otherwise the Entity’s requirements from time to time.
7.1.4
The final design of the Capital Works Approved by the Entity will be the Work
Documents. The Service Provider must ensure the Capital Works are constructed in
compliance with these Works Documents.
7.2
Design Deliverables
7.2.1
For the purposes of the Additional Services:
(a)
any review of design documentation; and
(b)
preparation of designs and work product in connection with the Work Documents
as further described at 0,
will be considered ‘Deliverable(s)’ for the purposes of the Deed.
7.2.2
The Service Provider must ensure that in undertaking any form of design review, it
carries out a general review and reasonable check to ensure that the documentation
(including Work Documents) or Deliverable is consistent and in accordance with:
(a)
the requirements in the Agreement (if any) that are notified to the Service
Provider;
(b)
the Design Guidelines and the Entity’s requirements from time to time;
(c)
the Additional Services Program;
(d)
the outcomes of any governance activities performed in accordance with the
Additional Services;
(e)
any safety in design requirements and directions from the Entity; and
(f)
all relevant Laws, including WHS Laws.
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7.3
Service Provider’s Responsibility
7.3.1
The Entity providing commentary on or approving any documentation (including Work
Documents) or Deliverable prepared by the Service Provider during design reviews
does not relieve the Service Provider from the performance of its obligations under this
clause 7.
7.3.2
The Service Provider:
(a)
retains full design risk and responsibility in the design of the Capital Works
irrespective if the design is prepared by the Service Provider or its
Subcontractors; and
(b)
warrants and agrees that it will:
(i)
procure a design services agreement with the relevant Subcontractors
under which the Subcontractors agrees to exercise the standard of skill,
care and diligence in the performance of any design work that would be
expected of a professional provider of that design service;
(ii)
require the relevant Subcontractors, in connection with the design of the
Capital Works, to exercise the standard of skill, care and diligence that
would be expected of a professional and qualified provider of design
services, including the design of the integration of the Capital Works with
the Entity Site;
(iii)
ensure that any design documentation for the Capital Works complies with
the requirements of this Work Order; and
(iv)
cause to be rectified any deficiency or error in the design work for the
Capital Works that is not caused or materially contributed to by the Entity.
7.4
Warranties for design produced
The Service Provider must, if requested by the Entity:
7.4.1
execute;
7.4.2
procure the relevant Subcontractor to execute; and
7.4.3
deliver to the Entity or its nominee,
a collateral warranty deed on terms substantially the same as those set out in Annex A required
by the Entity, within the time required by the Entity in connection with the Subcontractor’s
preparation of design documentation and the Deliverables for the Work Documents.
8.
Procurement of Subcontractors
8.1
Appointment of Head Contractor
The Service Provider must appoint a Head Contractor to conduct the Capital Works in
accordance with the requirements of this Work Order.
8.2
Engagement of Subcontractors
The Service Provider must engage, and must ensure the Head Contractor engages,
Subcontractors:
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8.2.1
in accordance with the requirement for the engagement of Subcontractors under the
Deed;
8.2.2
otherwise in accordance with the remaining provisions of this term 8; and
8.2.3
on terms consistent with the requirements of this Work Order.
8.3
Tender of Additional Services
If Subcontractors are required for the performance of the Additional Services (including the
Capital Works), the Service Provider must or must cause the Head Contractor to:
8.3.1
provide to the Entity details of those parts of the Additional Services that are to be
undertaken by Subcontractors (Subcontracted Services);
8.3.2
obtain competitive tenders or quotes in respect of each item of the Subcontracted
Services; and
8.3.3
ensure that the tender process for each Subcontractor is conducted in a manner that
accords with the principles of the Commonwealth Procurement Rules including the
rules in relation to “value for money”, “encouraging competition”, “efficient, effective,
economical and ethical procurement”, “accountability and transparency” and the need
to achieve value for money and in accordance with all statutory requirements and
Commonwealth procurement policies that are applicable to such a procurement.
8.4
Conduct during tenders
8.4.1
The Service Provider must, or must ensure the Head Contractor must, in relation to
each subcontract tendered in accordance with clause 8.3:
(a)
not engage in any form of collusive practices while tendering a subcontract;
(b)
declare any conflict of interest of the Subcontractor as soon as the Service
Provider or the Head Contractor becomes aware of the conflict; and
(n)
ensure that prospective Subcontractors declare any conflict of interests relating
to the performance of the Subcontracted Services and comply with all Laws; and
(o)
not permit the Service Provider or its related entities to tender for a subcontract
unless the Entity has given prior written approval.
8.4.2
The Entity acknowledges that the Service Provider’s preferred Subcontractors may not
have submitted the lowest quotes and the decision must also factor in the response
which represents the best value for money and addresses other requirements, including
the risk of meeting its obligations under the Agreement.

9.
Conduct of the Capital Works
9.1
Service Provider performance of Capital Works
The Service Provider must:
9.1.1
obtain all approvals for the construction of the Capital Works by the relevant Milestone
Date;
9.1.2
carry out, or cause to be carried out, the Capital Works in a good and workmanlike
manner;
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9.1.3
ensure, or cause the Head Contractor to ensure that each component of the Capital
Works is carried out in a timely manner and accordance with the Milestone Dates; and
9.1.4
effect, or cause to be effected, Practical Completion on or before the Date for Practical
Completion.
9.2
Compliance with Entity documents
In providing the Additional Services (including in conducting the Capital Works), the Service
Provider agrees to comply, and ensure any Subcontractor complies, with the documents as
provided by the Entity, including but not limited to:
9.2.1
the Design Guidelines;
9.2.2
the Protective Security Policy Framework;
9.2.3
the ICT Policy;
9.2.4
the Work Health and Safety Guidelines; and
10.
Deliverables and Documentation
10.1.1
Without limiting any other clause in these Additional Terms, the items listed at 0 under
the heading “Deliverables forming part of the Additional Services” are Deliverables for
the purposes of the Deed:
10.1.2
The Service Provider must develop and deliver to the Entity for approval each
Deliverable within the timeframe specified for that Deliverable.
10.2
Entity Review
10.2.1
Each Deliverable will be subject to Acceptance by the Entity, the Entity is not required
to Accept a Deliverable unless it is satisfied that the Deliverable:
(a)
conforms with the requirements for that Deliverable specified in this Work Order
or the Agreement (or that any departures from those requirements are
reasonable in the circumstances as determined by the Entity);
(b)
is clear, logical, easy to follow, complies with specifications outlined in these
Additional Terms and is fit for the intended purpose that a reasonable service
provider would be able to ascertain for such Deliverables;
(c)
is in English and legible; and
(d)
is consistent with and adequately reflects the requirements of the Work Order.
10.2.2
The Service Provider must, within the time set out in the Additional Services Program or
otherwise specified by the Entity, submit any documentation or Deliverable required
under these Additional Terms (including at 0) to the Entity or its nominee for review and
approval.
10.2.3
If the Entity does not Accept a Deliverable, it will notify the Service Provider outlining
why the Deliverable is not Accepted, and give the Service Provider an opportunity to
rectify and resubmit the Deliverable for Acceptance within 10 Business Days, or such
other period as is agreed by the parties. This clause 10 will apply to any resubmitted
Deliverable.
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10.2.4
The responsibility of the Service Provider under the Deed will not be relieved or
reduced, nor will the Entity be responsible to the Service Provider by reason of the
review or approval of:
(a)
any methodology, work plan or other approach to the performance of the
Additional Services (including the Capital Works); or
(b)
the Deliverables.
10.3
Service Provider Deliverable Obligations
10.3.1
In addition to those obligations relating to Deliverables set out in the Deed, the Service
Provider:
(a)
acknowledges and agrees that it is wholly responsible for ensuring that
Deliverables under clauses 7 and this clause 10 meet the requirements of:
(i)
the Additional Services Program;
(ii)
the Design Guidelines;
(iii)
relevant Laws, including WHS Laws;
(iv)
any safety in design requirements and directions from the Entity; and
(v)
the outcomes of any governance activities performed in accordance with
the Additional Services; and
(b)
agrees to rectify any deficiency, error or other inadequacy in the Deliverable at no
additional cost to the Entity.
11.
Completion
11.1
Practical Completion
The Service Provider must:
11.1.1
provide the Entity and the Entity’s Representative with 10 Business Days’ Notice in
writing of the date on which it anticipates Practical Completion will be achieved;
11.1.2
following receipt of the Notice under subclause 11.1.1, the Service Provider must
inspect the Capital Works and determine:
(a)
if Practical Completion has been achieved; or
(b)
all items relating to the Capital Works which require rectification prior to Practical
Completion being obtained;
11.1.3
must ensure any items identified under clause 11.1.2(b) are rectified by the Head
Contractor and Practical Completion is achieved; and
11.1.4
notify the Entity and the Entity’s Representative when the Service Provider is satisfied
that Practical Completion has been achieved.
11.2
Practical Completion Certificate
11.2.1
Following Notice from the Service Provider under clause 11.1.4, and once the Entity
has Accepted that Practical Completion has occurred, the Entity will issue a Certificate
of Practical Completion for the Capital Works including a list of any Minor Defects, in
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the form set out in Attachment A of Annex B, identified during the inspection under
clause 11.1.2.
11.2.2
Within 10 Business Days of receipt of the Certificate of Practical Completion, the
Service Provider must provide to the Entity and the Entity’s Representative a
rectification plan which sets out:
(a)
the process in which the Service Provider will rectify the Defects notified in the
Certificate of Practical Completion; and
(b)
timeframes for rectification of the Defects, which must be as soon as reasonably
practicable having regard to the nature of a Defect and otherwise within the
Defects Liability Period,
(Defects Rectification Plan).
11.2.3
The Entity may by Notice:
(a)
accept the Defect Rectification Plan provided by the Service Provider; or
(b)
reject the Defect Rectification Plan and provide reasons for its rejection.
11.2.4
If the Entity rejects the Defect Rectification Plan under clause 11.2.3(b), within 5
Business Days of receiving the Entity’s notice of rejection, the Service Provider must
amend and provide the Entity, for consideration under clause 11.2.3, an updated Defect
Rectification Plan addressing the Entity’s reasons for rejection.
11.2.5
The Service Provider must rectify the Defects in accordance to the Defect Rectification
Plan accepted by the Entity under clause 11.2.3 and otherwise in accordance with
clause 12.
11.3
Delay to Practical Completion
11.3.1
The Service Provider must ensure that any contract entered into for the engagement of
the Head Contractor requires the Head Contractor to pay liquidated damages as a debt
due and owing at the rate stated in the ‘Liquidated Damages’ Item in the Work Order for
every day Practical Completion is delayed after the Date for Practical Completion.
11.3.2
If Practical Completion is not achieved by the Date for Practical Completion as required
by clause 9.1.4, the Service Provider must pass on the entirety of the liquidated
damages received under the contract arrangements with the Head Contractor to the
Entity.
12.
Defects Liability Period
12.1
If, prior to the expiration of the Defects Liability Period, the Entity discovers or believes there is a
Defect, the Entity may give the Service Provider an instruction specifying the Defect and doing
one or more of the following:
12.1.1
requiring the Service Provider to correct, or cause to be corrected, the Defect, or any
part of it, and specifying the time within which this must occur;
12.1.2
advising the Service Provider that the Entity will accept the Capital Works, or any part of
them, despite the Defect.
12.2
Correction of Defect or Variation
Subject to clause 12.1.2, the Service Provider must correct or cause to be corrected all Defects
notified to the Service Provider by the Entity during the Defects Liability Period:
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12.2.1
within the time specified by the Entity under clause 12.1.1; and
12.2.2
if after Practical Completion, at times and in a manner which causes as little
inconvenience to the Entity as is reasonably possible.
13.
Remedies
13.1
Without limiting clause 12, if the Entity or its nominee discovers or believes that any Additional
Services have not been performed in accordance with these Additional Terms, the Work Order,
Deed, or the Agreement, the Entity or its nominee may give the Service Provider an instruction
specifying the non-complying Additional Services and requiring the Service Provider to do one or
more of the following:
13.1.1
require the Service Provider to:
(a)
re-perform, the non-complying Additional Services and specify the time for re-
performance or cause the Head Contractor to re-perform; and
(b)
to take all such steps as are reasonably necessary to:
(i)
mitigate the effect on the Entity of the failure to carry out the Additional
Services in accordance with the Additional Terms, the Work Order, Deed,
or the Agreement; and
(ii)
put the Entity (as closely as possible) in the position in which it would have
been if the Service Provider, or the Head Contractor, had carried out the
Additional Services in accordance with the Additional Terms, the Work
Order, Deed, or the Agreement;
13.1.2
advise the Service Provider that the Entity will accept the non-complying Additional
Services despite the non-compliance.
13.2
If a direction is given under clause 13.1.1(a), the Service Provider must, or must cause the Head
Contractor, to re-perform the non-complying Additional Services:
13.2.1
within the time specified in the Entity’s or its nominee’s instruction;
13.2.2
so as to minimise any delay and disruption to the Additional Services; and
13.2.3
so as to minimise the delay and disruption to the performance of the Agreement.
14.
Delays
The Service Provider must:
14.1.1
Upon becoming aware that it or the Head Contractor will likely be delayed or unable to
meet an obligation under this Work Order or any Deliverable, promptly notify the Entity
and the Entity’s Representative and, in that Notice, provide details of the:
(a)
nature of the delay or failure and the impact that it is likely to have on the Service
Provider’s performance of this Work Order, the completion of the Capital Works
by the Date for Practical Completion, or on any Deliverable;
(b)
cause of the anticipated delay or failure; and
(c)
Service Provider’s proposal for managing the delay or failure and mitigating its
likely impact on the Service Provider’s performance of this Work Order, the
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completion of the Capital Works by the Date for Practical Completion, or on any
Deliverable;
14.1.2
proactively ensure that the Entity is kept informed of matters referred to in clause
14.1.1, using the communication channels and reporting processes set out in this Work
Order;
14.1.3
mitigate, or cause to be mitigated, the impact that the delay or failure may have on the
Service Provider’s performance of this Work Order or the completion of the Capital
Works by the Date for Practical Completion; and
14.1.4
comply with any directions given by the Entity or the exercise of any of the Entity’s
rights or remedies under or in relation to this Work Order, in dealing with such matters.
15.
Extension of time
15.1
If the Service Provider or the Head Contractor is delayed in the provision of the Additional
Services under this Work Order, the completion of the Capital Works by the Date for Practical
Completion, or any Deliverable and the event giving rise to the delay:
15.1.1
is beyond the Service Provider’s and the Head Contractor’s reasonable control;
15.1.2
could not have reasonably been contemplated or allowed for by the Service Provider or
the Head Contractor; and
15.1.3
is not provided for elsewhere in this Work Order,
and provided that the Service Provider:
15.1.4
demonstrates to the Entity’s satisfaction that work under this Work Order cannot be
performed in such a way as is reasonable, having regard to any relevant
circumstances, so as to avoid or remove the delay;
15.1.5
has made (and continues to make) all reasonable endeavours to minimise the delay
and mitigate both parties’ losses; and
15.1.6
has complied with the requirements of clause 14,
the Service Provider may request an extension of time for the provision of the Work Order, the
Date for Practical Completion of the Capital Works, or any Deliverable (as applicable) of no
longer than the period during which the Service Provider or the Head Contractor was delayed or
prevented from providing the relevant Additional Services under this Work Order, Practical
Completion of the Capital Works, or any Deliverable (as applicable).
15.2
If:
15.2.1
more than one event or circumstance causes concurrent delays to the provision of the
Additional Services under this Work Order, Practical Completion of the Capital Works
by the Date for Practical Completion, or any Deliverable; and
15.2.2
at least one of those events or circumstances (but not all of them) was caused by the
Service Provider or any Subcontractor (including the Head Contractor),
then, to the extent that the delays are concurrent, the Service Provider is not entitled to
an extension of time for the provision of the Additional Services under this Work Order,
the Date for Practical Completion of the Capital Works, or any Deliverable.
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15.3
To support any request for an extension of time, the Service Provider must provide substantiating
documentation to the satisfaction of the Entity, including details of any other events or
circumstances that contributed to the delay.
16.
Insurance
16.1
Subcontractors to hold insurance
16.1.1
The Service Provider must effect and maintain, and must ensure that all Subcontractors
(including the Head Contractor) effect and maintain Works Insurance in the same
manner and on the same terms as shown in:
(a)
the ‘Insurance Requirements’ Item of the Work Order; and
(b)
clause 41.1 of the Deed.
16.1.2
When requested by the Entity, the Service Provider must deliver or cause to be
delivered to the Entity certificates of currency which evidence the existence of the
policies of insurance referred to in clauses 16.1.
16.1.3
The insurance which the Service Provider or any Subcontractors (including the Head
Contractor) are required to cause to be effected and maintained or otherwise have the
benefit of under clause 16.1 must be maintained until the date that is 7 years after the
‘End date for the Additional Services’ as specified in the Work Order or as varied from
time to time.
17.
Security
17.1
Form
The Service Provider must provide Security to the Entity:
17.1.1
in the form of Approved Security; and
17.1.2
in the amount specified in the ‘Security’ Item of the Work Order.
17.2
Entity may call on Security
17.2.1
The Entity may have recourse to the Security at any time:
(a)
if the Service Provider does not comply with any of its obligations under this Work
Order;
(b)
to satisfy any debt due and payable from the Service Provider to the Entity under
this Work Order;
(c)
to satisfy any bona fide claim the Entity may have against the Service Provider;
or
(d)
where the Entity has become entitled to exercise a right under the Work Order in
respect of the Security.
17.2.2
This clause 17.2 survives termination of this Work Order.
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17.3
Top up
The Entity may at any time, and from time to time, require the Service Provider by Notice in
writing to provide additional Security if the Security then held is less than the amount specified in
the ‘Security’ Item of the Work Order. The additional Security will be equal to the difference
between the amount specified in the ‘Security’ Item of the Work Order and the amount of Security
then held by the Entity. The Service Provider must provide the additional Security no later than
10 Business Days after the Entity gives the Service Provider a Notice under this clause 17.3.
17.4
Release
The Entity must:
17.4.1
within 10 Business Days of the issue of Certificate of Practical Completion, release 50%
of the Security required under clause 17.1;
17.4.2
release the balance of the Security under 17.1 following the latest of:
(a)
the expiry of the Defects Liability Period provided that all identified Defects
notified under the Defect Rectification Plan or otherwise notified during the
Defects Liability Period have been rectified; and
(b)
the Service Provider has complied with all its obligations under this Work Order.
17.5
Interest
The Entity:
17.5.1
is not obliged to pay the Service Provider interest on:
(a)
the Approved Security; or
(b)
the proceeds of the Approved Security if it is converted into cash; and
17.5.2
does not hold the proceeds or money referred to in clause 17.5.1 on trust for the
Service Provider.
18.
Termination and reduction
18.1
Termination and reduction for convenience
18.1.1
Without limiting clause 68.5 of the Deed, if the Agreement is terminated for any reason
or the Proposed Agreement does not proceed, the Entity may terminate the Work Order
before the end date specified in the Work Order, by Notice to the Service Provider.
18.1.2
The Entity may at any time, by Notice to the Service Provider, suspend delivery of or
reduce the scope of the Additional Services, or terminate the Work Order.
18.1.3
Upon receipt of a Notice of termination, suspension or reduction the Service Provider
must:
(a)
stop, suspend, or reduce work as specified in the Notice;
(b)
take all available steps to minimise the loss resulting from the termination,
suspension or reduction in scope; and
(c)
continue work on any part of the Additional Services not affected by the Notice.
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18.1.4
If the Entity terminates this agreement under this clause Error! Reference source not
found., the Entity will only be liable for:
(a)
payment for Additional Services rendered before the effective date of termination;
and
(b)
subject to clause 18.1.5, any reasonable costs in respect of unavoidable
expenses incurred by the Service Provider that are directly attributable to the
termination, provided that the expenses are substantiated to the Entity’s
reasonable satisfaction.
18.1.5
The Entity is not liable to pay compensation under clause 18.1.4(a) in an amount which
would, in addition to any amounts paid or due, or becoming due, to the Service Provider
under the Work Order, exceed the total fees that would otherwise have been payable
under the Work Order.
18.1.6
For the avoidance of doubt, in the event of any termination or reduction by the Entity
under this clause Error! Reference source not found., the Service Provider is not
entitled to compensation for loss of prospective profits.
18.1.7
If the scope of the Additional Services is reduced, the Entity’s liability to pay the fees
and any expenses abates in accordance with the reduction in the Additional Services.
18.2
Material Changes can lead to termination
In addition to the termination rights that apply to Work Orders under clause 68 of the Deed, the
Entity may immediately terminate this Work Order if:
18.2.1
the Service Provider has, in the Entity’s opinion, suffered a Material Change which
would prevent the Service Provider from performing its obligations under this Work
Order; or
18.2.2
a Key Supplier suffers a Material Change.
19.
NDIA Logo
The Service Provider may not use, and will ensure any Subcontractors (including the Head
Contractor) does not use the Entity’s logos, the Entity’s acronym, or any other Entity owned
trademark, without the Entity’s prior written consent.
20.
Confidentiality
20.1
Entity Materials
20.1.1
For the purposes of this clause ‘Entity Materials’ means any material brought into
existence as part, or for the purpose of, the Additional Services, and includes but is not
limited to documents, equipment, information, or data stored by any means.
20.1.2
Notwithstanding anything to the contrary in clause 38 of the Deed or these Additional
Terms, any Entity Materials provided to the Service Provider that are marked
‘confidential’ must remain confidential unless otherwise permitted by the Entity in
writing.
20.2
Confidentiality Deed
The Service Provider must, if requested by the Entity:
20.2.1
execute;
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20.2.2
procure the relevant Subcontractor to execute; and
20.2.3
deliver to the Entity,
a deed of confidentiality on terms substantially the same as those set out in Schedule 8 of the
Deed and as otherwise required by the Entity, within the time required by the Entity in connection
with the Service Provider’s or its Subcontractor’s preparation of design documentation and the
Deliverables for the Design Document.
20.3
Senate Order 13
20.3.1
For the purposes of this clause ‘Senate Order 13’ means order 13, a procedural order
and resolution of the Senate of continuing effect, as published on the Parliament of
Australia’s website available at:
https://www.aph.gov.au/Parliamentary Business/Chamber documents/Senate chambe
r documents/standingorders/d00, as amended from time to time.
20.3.2
Notwithstanding anything to the contrary in this clause 20, the Deed or any other
provision of these Additional Terms:
(a)
the Entity may disclose any information provided to it by the Service Provider
(including confidential information) to:
(i)
a Commonwealth Minister or Parliamentary Secretary;
(ii)
in response to a request by a House or Committee of the Parliament of the
Commonwealth of Australia; or
(iii)
to any persons for the purposes of accountability or reporting in connection
with the Entity or any Commonwealth Minister’s obligations under Senate
Order 13.
(b)
the Service Provider acknowledges and consents to the Entity disclosing any
information in accordance with clause 20.3.1.
21.
Modern Slavery
21.1
The Service Provider must take reasonable steps to identify, assess and address risks of Modern
Slavery practices arising in connection with this Work Order, including in the operations and
supply chains used in the carrying out of the Additional Services.
21.2
The Service Provider must ensure the Service Provider’s key personnel and other personnel
responsible for managing the operations and supply chains used in the performance of the
Additional Services have undertaken suitable training to be able to identify and report Modern
Slavery.
21.3
If at any time the Service Provider becomes aware of Modern Slavery practices arising in
connection with this Work Order, including in the operations and supply chains used in the
carrying out of the Additional Services, the Service Provider must:
21.3.1
promptly notify the Entity and the Entity’s Representative of the Modern Slavery
practices and provide any relevant information requested by the Entity;
21.3.2
as soon as reasonably practicable take all reasonable action to address or remove
these practices, including where relevant by addressing any practices of other entities
in its supply chains; and
21.3.3
regularly update the Entity of the steps taken by it in accordance with subparagraph
21.3.2.
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21.4
For the purposes of this clause, ‘Modern Slavery’ has the same meaning as it has in the Modern
Slavery Act 2018 (Cth).
22.
Operation and Effect of the NDIS Act
22.1
For the purposes of this clause 22; ‘Protected Agency Information’ has the meaning given in
section 9 of the NDIS Act.
22.2
The Service Provider must not, and must ensure that the Service Provider’s personnel do not, do
any act or engage in any practice in relation to Protected Agency Information that is a breach of,
or an offence under, the NDIS Act. The Service Provider acknowledges that any unauthorised
use or disclosure of Protected Agency Information, and any offer to supply Protected Agency
Information, is a criminal offence under the NDIS Act.
22.3
The Service Provider must not, and must ensure that the Service Provider’s personnel do not,
obtain, record, disclose, supply, use, or otherwise deal with Protected Agency Information in any
way, except:
22.3.1
for the purposes of performing obligations under this Work Order; and
22.3.2
where permitted by the NDIS Act.
22.4
The Service Provider must comply, and must ensure that the Service Provider’s personnel
comply, with the Entity’s record management policy and operational guidelines with respect to
any Protected Agency Information that comes into their possession or control in connection with
this Work Order.
22.5
The Service Provider must implement, and must ensure that the Service Provider’s personnel
implement, all reasonable measures to ensure the requirements of this clause 22 are met.
22.6
The Service Provider must notify, and must ensure that the Service Provider’s personnel notify,
the Entity and the Entity’s Representative if either the Service Provider or the Service Provider’s
Personnel become aware that a disclosure of Protected Agency Information may be required by
law. The Service Provider must only disclose, and must ensure that the Service Provider’s
personnel only disclose, such information where permitted by the NDIS Act, including section
67G of the NDIS Act.
22.7
The Service Provider must take, and must ensure that the Service Provider’s personnel take, all
reasonable measures to ensure that:
22.7.1
only authorised Service Provider Personnel have access to Protected Agency
Information; and
22.7.2
Protected Agency Information is protected against misuse, interference, loss,
unauthorised access, modification, and disclosure.
22.8
The Service Provider must immediately notify in writing, and must ensure that the Service
Provider’s personnel immediately notify in writing, the Entity and the Entity’s Representative of
any loss or unauthorised use, modification or disclosure of Protected Agency Information, as
soon as the Service Provider or the Service Provider’s Personnel become aware of a breach of
any obligation concerning such information.
22.9
The Service Provider must notify in writing, and must ensure that the Service Provider’s
personnel notify in writing, the Entity and the Entity’s Representative of any investigation into a
breach of, or an offence under, the NDIS Act in relation to Protected Agency Information.
22.10
Upon written Notice from the Entity, the Service Provider must destroy or permanently de-identify,
and must ensure that the Service Provider’s personnel destroy or permanently de-identify, any
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Protected Agency Information as soon as practicable after it is no longer required for the purpose
for which it was originally collected.
22.11
The Service Provider indemnifies the Entity in respect of any cost, loss, or damage suffered or
incurred by the Entity arising out of or in connection with:
22.11.1  a breach of the obligations of the Service Provider under this clause 22; and
22.11.2  any breach of the NDIS Act in relation to Protected Agency Information,
except to the extent that the cost, loss, or damage is directly caused by a negligent or unlawful
act or omission of the Entity or any of its officers or employees.
22.12
The Service Provider must ensure that the Service Provider’s personnel are fully aware of, and
abide by, the NDIS Act and this clause 22 in the provision of the Services.
22.13
This clause 22 survives expiry or termination of this Work Order.
23.
Disability Inclusion
23.1
For the purposes of this clause:
23.1.1
‘Relevant Disability Laws’ means all laws, regulations, rules, charters, and standard
related to the involvement or engagement of persons with disabilities in an employment
context including the following, as originally made or enacted and as amended from
time to time:
(a)
Disability Discrimination Act 1992 (Cth);
(b)
NDIS Act and related legislation;
(c)
Disability Services and Inclusion Act 2023 and related legislation;
(d)
equal employment opportunity legislation including the Workplace Gender
Equality Act 2012 (Cth);
(e)
Workplace Health and Safety Act 2011 (Cth);
(f)
Fair Work Act 2009 (Cth);
(g)
other applicable State and Territory legislation including the Human Rights Act
2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006
(Vic); and
23.1.2
Public Service Act 1999 (Cth) and related legislation.
23.2
The Service Provider must ensure that the Additional Services comply, where applicable, with the
Relevant Disability Laws.
23.3
The Service Provider acknowledges, and must ensure that the Service Provider’s personnel
acknowledge, that:
23.3.1
the Entity is committed to ensuring that the principles in the United Nations Convention
on the Rights of Persons with Disabilities are implemented and that the Entity is acting
in compliance with the obligations in the Relevant Disability Laws; and
23.3.2
one of the key principles of the NDIS is that people with disabilities should be supported
in all their dealings and communications with the Entity so that their capacity to exercise
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choice and control is maximised in a way that is appropriate to their circumstances and
cultural needs (see sections 4(9) and 17A(2) of the NDIS Act).
23.4
To assist the Entity to comply with its obligations under Relevant Disability Laws, the Service
Provider must do, and must ensure that the Service Provider’s personnel do, the following in
connection with this Work Order:
23.4.1
to the extent they apply to the Entity, comply with all Relevant Disability Laws;
23.4.2
provide all Deliverables under this Work Order in a format that is compliant with the
Web Content Accessibility Guidelines available at: https://www.w3.org/WAI/intro/wcag,
as amended from time to time; and
23.4.3
use its best endeavours to:
(a)
create a welcoming workplace and foster an inclusive culture, where people with
a disability feel valued and encouraged to participate, and
(b)
attract, appoint, retain and develop employees with a disability.
24.
Child Safety and Working with Vulnerable Persons
24.1
Working with Vulnerable Persons
24.1.1
This clause applies to any part of the provision of the Additional Services that involves
working, or contact, with Vulnerable Persons.
24.1.2
The Service Provider must ensure that this clause 22 also applies to its Subcontractors
(including the Head Contractor).
24.1.3
For the purposes of this clause:
(a)
‘Child’ means an individual under the age of 18 and ‘Children’ has a similar
meaning.
(b)
‘Criminal or Court Record’ means any record of any Other Offence.
(c)
‘Other Offence’ means, in relation to any of the Service Provider’s Personnel, a
conviction, finding of guilt, on the-spot fine for, or court order relating to:
(i)
an apprehended violence or protection order (howsoever described) made
against any of the Service Provider’s personnel;
(ii)
one or more traffic offences involving speeding more than 30 kilometres
over the speed limit, injury to a person or damage to property;
(iii)
a crime or offence involving the consumption, dealing in, possession or
handling of alcohol, a prohibited drug, a prohibited narcotic or any other
prohibited substance;
(iv)
a crime or offence involving violence against or the injury to, but not the
death of, a person;
(v)
a crime or offence involving dishonesty that is not covered by the definition
of ‘Serious Offence’; or
(vi)
an attempt to commit a crime or offence described above.
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(d)
‘Police Check’ means a formal inquiry made to the relevant police authority in an
Australian State or Territory that is designed to obtain details of any of the
Service Provider’s relevant personnel’s criminal convictions or findings of guilt in
all places (within and outside Australia) in which the Service Provider knows the
relevant personnel have resided.
(e)
‘Serious Offence’ means:
(i)
a crime or offence involving the death of a person;
(ii)
a sex-related offence or crime, including sexual assault (whether against
an adult or Child), Child pornography, or an indecent act involving a Child;
(iii)
fraud, money laundering, insider dealing or any other financial offence or
crime, including those under legislation relating to companies, banking,
insurance or other financial services; or
(iv)
an attempt to commit a crime or offence described above.
(f)
‘Serious Record’ means a conviction or any finding of guilt regarding a Serious
Offence.
(g)
‘Vulnerable Person’ means:
(i)
a Child, or
(ii)
an individual aged 18 years and above who is or may be unable to take
care of themselves or is unable to protect themselves against harm or
exploitation for any reason, including age, physical or mental illness,
trauma or disability, pregnancy, the influence, or past or existing use, of
alcohol, drugs or substances or any other reason.
24.1.4
The Service Provider must:
(a)
before engaging, deploying, or redeploying any personnel in relation to any part
of the provision of the Additional Services that involves working or contact with a
Vulnerable Person; and
(b)
every 1 year after the Service Provider’s personnel are deployed or redeployed in
relation to any part of the provision of the Additional Services that involves
working or contact with a Vulnerable Person,
do the following:
(c)
obtain a Police Check for the relevant Service Provider’s personnel, unless
otherwise agreed by the Entity;
(d)
confirm that no applicable Commonwealth, State or Territory Law prohibits the
Service Provider’s personnel from being engaged in a capacity where they may
have contact with Vulnerable Persons;
(e)
comply with all other applicable Laws of the place in which that part of the
Additional Services is being conducted in relation to engaging or deploying the
Service Provider’s personnel in a capacity where they may have contact with
Vulnerable Persons, including mandatory reporting and working with Vulnerable
Persons checks however described;
(f)
if requested, provide the Entity at the Service Provider’s cost, an annual
statement of compliance with this, in such form as may be specified by the Entity;
and
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(g)
comply with any other conditions required by the Entity.
24.1.5
If a Police Check indicates that any of the Service Provider’s personnel have a Serious
Record, the Service Provider must not deploy or redeploy those personnel in relation to
any part of the provision of the Additional Services that involves working or contact with
a Vulnerable Person.
24.1.6
The Service Provider must:
(a)
if a Police Check indicates that any of the Service Provider’s personnel have a
Criminal or Court Record, not engage, deploy, or redeploy those personnel in
respect of any part of the provision of the Additional Services that involves
working with Vulnerable Persons unless the Service Provider has conducted and
documented a risk assessment for the relevant personnel in accordance with this
clause 22;
(b)
within 24 hours of becoming aware of any of the Service Provider’s personnel
being charged or convicted of any Other Offence, or charged with any Serious
Offence, comply with this clause 22 and conduct and document a risk
assessment in accordance with clause 24 to determine whether to allow the
relevant personnel to continue performing any part of the provision of the
Additional Services that involves working with Vulnerable Persons;
(c)
on becoming aware of any of the Service Provider’s personnel being convicted of
a Serious Offence, comply with this clause 22 and immediately cease to deploy
the relevant personnel in relation to any part of the provision of the Additional
Services that involves working or contact with a Vulnerable Person; and
(d)
notify the Entity and the Entity’s Representative of the above matters.
24.2
Risk Assessment
24.2.1
In undertaking the risk assessment under this clause 24 in respect of the Service
Provider’s personnel, the Service Provider must consider the following factors:
(a)
whether the Criminal or Court Record is directly relevant to the role that they will
or are likely to perform in relation to the provision of the Additional Services;
(b)
the length of time that has passed since the charge or conviction and their record
since that time;
(c)
the nature of the offence pertaining to the charge or conviction and the
circumstances in which it occurred;
(d)
whether the charge or conviction involved Vulnerable Persons;
(e)
the nature of the provision of the Additional Services which they are employed or
engaged to perform and the circumstances in which they will or are likely to have
contact with Vulnerable Persons;
(f)
the particular role they are proposed to undertake or are currently undertaking in
relation to the provision of the Additional Services and whether the fact they have
a Criminal or Court Record is reasonably likely to impair their ability to perform or
continue to perform the inherent requirements of that role;
(g)
their suitability based on their merit, experience, and references to perform the
role they are proposed to undertake, or are currently undertaking, in relation to
the provision of the Additional Services; and
(h)
any other factors the Entity requires the Service Provider to consider in
conducting a risk assessment under this clause 24.
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