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SUB-CONSULTANCY
AGREEMENT
Dated: ……………
SMEC INTERNATIONAL PTY LTD (the “Client”) ABN 32 065 440 619
AND
………………………..
(the “Consultant”)
Sub-Consultancy Agreement Page 1
This Sub-Consultancy Agreement is made this ………………
(“Effective Date”) by and between:
SMEC International Pty Limited a company incorporated
in Australia with company number (ACN) 065 440 619 of
Unit 2, Level 1, 243 Northbourne Avenue, Lyneham, ACT
2602 (“SMEC”) and …………………….., a company
incorporated in ………….., address of ………………….. (the
“Sub-Consultant”).
1. Nature of Engagement
1.1. SMEC engages the Sub-Consultant to provide the
services set out in Schedule 2 (the “Services”) in
accordance with this Agreement.
1.2. The conditions of this contract comprise five (5)
parts: Schedule 4, General Conditions, Schedule 1,
Schedule 2 and Schedule 3 (the “Agreement”).
Where there arises an inconsistency or ambiguity
between the provisions in those parts of this
Agreement, the order of precedence to resolve the
inconsistency or ambiguity is the order set out in
this Clause 1.2.
1.3. Where a copy or any extract of SMEC’s contract
(the “Main Contract”) with a client (“Client”) is
incorporated into this Agreement as Schedule 4:
a) the Sub-Consultant must generally perform its
obligations under this Agreement so as to
ensure that (to the extent relevant) SMEC
complies with its obligations under that Main
Contract; and
b) if it is expressly stated (in Schedule 4) that
certain Clauses from the Main Contract are to
be incorporated in, or replace Clauses in, this
Agreement then those Clauses form part of
this Agreement and must be strictly complied
with as though references to the Client refer
to SMEC (unless the context otherwise
requires) and references to SMEC refer to the
Sub-Consultant. The Sub-Consultant must
comply with any additional requirements
specified in Schedule 4.
1.4. The Sub-Consultant acknowledges and agrees that
it has reviewed Schedule 2 and that:
a) the SMEC Material is suitable, appropriate
and adequate to perform the Services, and
the Sub-Consultant’s deliverables to be
created pursuant to this Agreement will be
suitable, appropriate and adequate; and
b) it can meet each and every deliverable in
accordance with the Program set out in
Schedule 2.
1.5. The Sub-Consultant has represented and warrants
that:
a) it is a skilled and competent professional in
the particular fields relevant to the Services;
b) it will perform the Services to the standard of
skill, care and diligence expected of a skilled
and competent professional practising in the
particular field relevant to the Services;
c) it possesses all relevant authorisations,
permits and licences necessary in order to
achieve completion of the Services; and
d) it has made its own review, assessment,
investigation, interpretation and assumption
of all of the risks involved in performing the
Services and that the Service Fee is accurate
and sufficient and includes all necessary
allowances to accept the risks involved in
performing the Services in accordance with
the terms of this Agreement.
1.6. The Sub-Consultant acknowledges that SMEC has
entered into this Agreement in specific reliance on
the representations and warranties set out in
Clause 1.5.
1.7. The Sub-Consultant:
a) must not represent itself or allow itself to be
represented as an employee or agent of SMEC
or the Client;
b) does not by virtue of this Agreement become
an employee or agent of SMEC or the Client.
1.8. The Sub-Consultant agrees to provide and perform
the Services from the Commencement Date on the
terms set out in this Agreement. Any Services
which are performed, or which should have been
performed, by the Sub-Consultant before the
Commencement Date are governed by the terms
of this Agreement.
1.9. To the extent permissible by law, this Agreement
shall bind the Sub-Consultant’s executors,
administrators, successors and permitted assigns
jointly and severally.
2. Obligations of the Sub-Consultant
2.1. The Sub-Consultant must:
a) comply with all Legal Requirements in carrying
out the Services;
b) commence the Services on the
Commencement Date and complete the
Services on or before the Completion Date in
Schedule 1 in accordance with the Program;
c) implement a quality assurance system
compliant with the standard specified in
Schedule 1;
d) allow SMEC or the Client or their respective
representatives or agents access to assess the
quality assurance system;
e) do all things necessary and necessarily
incidental for the proper performance of the
Sub-Consultant’s obligations under and
pursuant to this Agreement;
f) designate an individual in Schedule 1 as its
representative for the administration of this
Agreement. The representative shall have
Sub-Consultancy Agreement Page 2
written authority to act on behalf of the Sub-
Consultant for all purposes in connection with
this Agreement. The Sub-Consultant may,
from time to time, replace its Representative,
but it must give SMEC prior written notice of
the replacement;
g) comply with all reasonable instructions and
directions from SMEC in relation to the
Services and this Agreement;
h) remove any person from the performance of
the Services who in the reasonable opinion of
SMEC’s Representative is guilty of misconduct
or is incompetent or negligent;
i) not comply with any instructions or directions
that are issued by the Client to the Sub-
Consultant. If the Sub-Consultant receives any
such instruction or direction, it must
immediately notify, in writing, SMEC’s
representative designated in Schedule 1;
j) fully co-operate with Other Contractors on site
or involved in the Project;
k) permit Other Contractors to carry out their
work;
l) co-ordinate and integrate its Services with the
activities of Other Contractors;
m) carry out the Services so as to avoid interfering
with, disrupting or delaying, the activities of
Other Contractors;
n) consult regularly with SMEC throughout the
performance of the Services under this
Agreement;
o) as soon as practicable after becoming aware of
any matter or circumstance that may
adversely affect or has adversely effected the:
i. scope;
ii. timing; or
iii. performance of the Services;
give written notice to SMEC detailing the
matter or circumstance, its anticipated effect
on the Services and what remedial or
corrective action will or is proposed to be
taken to mitigate the adverse matter or
circumstance;
p) not assign the benefit of this Agreement
without the written consent of SMEC;
q) not sub-contract the performance of any of
the Services unless otherwise agreed in writing
by SMEC. Where the Sub-Consultant has
obtained consent to sub-contract part of the
Services, the Sub-Consultant must enter into a
contract that is substantially in the form of this
Agreement. The Sub-Consultant
acknowledges and agrees that SMEC
consenting to any sub-contract pursuant to
this provision does not relieve the Sub-
Consultant from any obligation under this
Agreement;
r) attend such meetings and briefings as may be
necessary or desirable by SMEC or the Client;
and
s) notify SMEC, in writing, immediately of the
existence or likelihood of a Conflict of Interest
and co-operate with SMEC to resolve the
Conflict of Interest.
3. Obligations of SMEC
3.1. SMEC will:
a) act reasonably in providing a response to
matters referred to it for decision by the Sub-
Consultant (where required under this
Agreement);
b) pay the Sub-Consultant the Service Fee and
any agreed adjustments to the Service Fee in
accordance with this Agreement; and
c) designate an individual in Schedule 1 as its
representative for the administration of this
Agreement. The representative shall have
written authority to act on behalf of the SMEC
for all purposes in connection with this
Agreement. SMEC may, from time to time,
replace its Representative, but it must give the
Sub-Consultant prior written notice of the
replacement.
4. Ownership and Use of Information
4.1. Unless otherwise provided in Schedule 4,
copyright and any of Intellectual Property Rights
arising from the performance of the Services shall
vest in SMEC on creation.
4.2. The Sub-Consultant will do all things necessary to
perfect the vesting of Intellectual Property Rights
in accordance with the terms of Clause 4.1.
4.3. To the extent that Intellectual Property Rights are
not capable of vesting in accordance the terms of
Clause 4.1 because the Sub-Consultant does not
own the Intellectual Property Rights, the Sub-
Consultant will ensure that SMEC (and the Client
under the Main Contract) are irrevocably licensed
to use those Intellectual Property Rights.
4.4. The Sub-Consultant must ensure that neither the
Services nor the provision of the Services infringe
any Intellectual Property Rights of any person.
4.5. The Sub-Consultant must obtain a signed waiver of
moral rights (in the form required by SMEC) from
each servant or agent who is the author of any
copyright work that forms part of the Services. The
waiver must be presented to SMEC immediately
upon direction by SMEC’s Representative to do so.
4.6. Clause 4 will survive the termination or expiration
of this Agreement.
5. Confidentiality
5.1. Unless it is in accordance with this Agreement or
SMEC provides its written consent, the Sub-
Consultant must not and must not permit any of
Sub-Consultancy Agreement Page 3
its officers, employees, agents, contractors, or
related companies to:
a) use, exploit or disclose to any person any
information disclosed to it by SMEC under this
Agreement; or
b) reverse engineer, dissemble or decompile any
prototypes, software or other tangible objects
which embody the information disclosed to it
by SMEC under this Agreement.
5.2. Clause 5.1 does not apply to any information
which:
a) is generally available to the public (other than
as a result of the wrongful disclosure by the
Sub-Consultant); or
b) is required to be disclosed by any law.
5.3. Clauses 5.1 and 5.2 survive the termination or
expiration of this Agreement.
6. Payment
6.1. In consideration for the Sub-Consultant
performing the Services, SMEC must pay to the
Sub-Consultant the Service Fee set out in Schedule
3. Other than as is detailed in this Clause 6 or for a
Variation in accordance with Clause 7, the Service
Fee is not subject to adjustment for any cause
whatsoever including, but not limited to, changes
in the cost of labour, plant, equipment, materials,
taxation (other than VAT), excise, duty, fees or
charges.
6.2. The Sub-Consultant must submit all claims for
payment (“Payment Claim”) for performance of
the Services under this Agreement in accordance
with the Alternative applying in Schedule 1.
6.3. A Payment Claim must be in writing and must
include:
a) a tax invoice;
b) details of:
i. the Services performed by the Sub-
Consultant during the period to which
the claim relates;
ii. the value of the claim; and
iii. the amount already paid to the Sub
Consultant.
c) additional information or documentary
evidence that SMEC reasonably requests in
order to determine whether or not the
amount claimed is payable.
d) any documentation required by the Main
Contract (as detailed in Schedule 4); and
e) any other documentation required by law.
6.4. SMEC may within 10 Business Days of receiving
Payment Claim under Clause 6.2 give the Sub-
Consultant a payment schedule (“Payment
Schedule”) which states:
a) the amount already paid to the Sub-
Consultant;
b) the amount SMEC is entitled to retain, deduct,
withhold or set-off under this Agreement;
c) the amount (if any) which SMEC believes to be
then payable by the SMEC to the Sub-
Consultant on account of the Service Fee and
Reimbursable Expenses and which SMEC
proposes to pay to the Sub-Consultant; and
d) if the amount in paragraph c) is less than the
amount claimed in the invoice, the reason why
the amount in paragraph c) is less than the
amount claimed in the invoice.
6.5. Subject to Clauses 6.7 and 10.3:
a) where no Payment Schedule has been issued
by SMEC under Clause 6.4, SMEC must pay the
Sub-Consultant the amount specified in the
invoice within 30 days of receipt of a Payment
Claim under Clause 6.2; or
b) where a Payment Schedule has been issued by
SMEC under Clause 6.4, SMEC must pay the
Sub-Consultant the amount set out as payable
in the Payment Schedule within 30 days after
the issue of that Payment Claim.
6.6. The issue of a Payment Schedule or any payment
is on account only and is not evidence of the value
of the Services or an admission of liability or that
the Services comply with the terms of this
Agreement.
6.7. Without limiting SMEC rights under any other
provision in this Agreement or at law, SMEC may
withhold, deduct or set off from any money due
and payable to the Sub-Consultant under this
Agreement any sum which is due and payable by
the Sub-Consultant under this Agreement or the
amount of any claim to money which SMEC may
reasonably have against the Sub-Consultant
whether for damages or otherwise, whether under
contract or otherwise at law, relating to the
Services.
6.8. Notwithstanding anything else in this Agreement,
SMEC’s liability to pay any amount of fees,
expenses, VAT or other amount under this
Agreement will be subject to SMEC first having
received payment of the corresponding amount
from the Client. SMEC must use reasonable
endeavours to pursue payment from the Client. In
the event that SMEC, in pursuing payment,
compromises the relevant claim with the Client on
terms that involve a reduction of the relevant
amount to be paid by Client, SMEC’s liability to
make the corresponding payment to the Sub-
Consultant shall be reduced accordingly.
6.9. If SMEC is required by any applicable law to make
any deduction or withholding from any payment
(including for any taxes, levies, imposts, duties,
charges or fees), SMEC shall:
a) pay to the relevant taxation or other
authority the full amount of the requisite
deduction or withholding; and
b) furnish to the Sub-Consultant an official
receipt of the applicable taxation or other
Sub-Consultancy Agreement Page 4
authorities involved for all amounts deducted
or withheld as aforesaid.
7. Variations and Extensions of Time
7.1. SMEC may, by written notice to the Sub-
Consultant, direct the Sub-Consultant to vary the
Services in nature, scope or timing (including the
omission or reduction of any part of the Services)
and the Sub-Consultant will be bound to comply
with that direction.
7.2. If the Sub-Consultant is of the opinion that any
direction, other than a direction that expressly
states in writing that it is given in accordance with
Clause 7.1, is a direction to vary the Services, the
Sub-Consultant must, prior to the performance of
any services relating to the direction and in any
case within the period specified in Item 7 of
Schedule 1:
a) notify SMEC that it considers a direction to be
a direction to vary the Services (unless the
Sub-Consultant will not at any time claim an
extension of time or additional payment);
b) notify SMEC of the likely impact, if any, of that
direction on:
i. the time required from relevant
personnel of the Sub-Consultant to
perform the Services and the value of
that impact calculated by applying the
applicable hourly rates in Schedule 3
(‘Variation Rates’) or, if none, using
reasonable rates or fees by the increase
or decrease in each person’s time; and
/or
ii. the agreed Program.
7.3. No claim for additional fees will be payable unless
the provisions of Clause 7.1 or 7.2 have been met.
7.4. If the Sub-Consultant submits a notice in
accordance with Clause 7.2, SMEC will make a
determination as to whether the direction is a
variation. If SMEC determines that the direction is
a variation, or in the case of a direction that
expressly states in writing that it is given in
accordance with Clause 7.1:
a) SMEC will value the variation in accordance
with the Variation Rates or, if none, using
reasonable rates or fees and the Service Fee
will be adjusted by that amount; and
b) SMEC will determine an equitable adjustment
to the Program.
c) If the Sub-Consultant disagrees with SMEC’s
determination under this Clause, the Sub-
Consultant may refer the matter to dispute
resolution in accordance with Clause 12.
7.5. SMEC will not be liable to the Sub-Consultant for
any loss of profit or revenue should the Services
be reduced pursuant this Clause.
7.6. Notwithstanding that the Sub-Consultant is not
entitled to an extension of time, SMEC may in its
absolute discretion, to be exercised for the benefit
of SMEC, at any time extend the date for
completion.
7.7. Notwithstanding anything else in this Agreement,
the Sub-Consultant shall not be entitled to an
adjustment of the Service Fee or to the affected
items of the Program except to the extent that
SMEC has obtained a corresponding adjustment
under the Main Contract.
8. Non-compliant Services
8.1. If SMEC (acting reasonably) determines that the
Services (or part of the Services) do not comply in
all respects with the requirements of this
Agreement, SMEC may, at its option:
a) require the Sub-Consultant to promptly take
such steps as are necessary to ensure that the
Services comply with this Agreement at no
additional cost to SMEC; or
b) rectify, either itself or by others, the Services
which do not comply with this Agreement.
The Sub-Consultant agrees to reimburse
SMEC for reasonable costs and expenses
SMEC incurs in rectifying any non-compliant
Services (which cost and expense is deemed a
debt due by the Sub-Consultant to SMEC).
8.2. SMEC’s rights under Clause 8.1 do not in any way
change or affect the Sub-Consultant’s obligations
under this Agreement or affect SMEC’s rights
against the Sub-Consultant under this Agreement.
9. Liability
9.1. The Sub-Consultant indemnifies SMEC and its
officers, employees and agents against any and all
Loss arising out of or in connection with:
a) the negligent performance of the Services by
the Sub-Consultant, its sub-contractors and
their respective officers, employees and
agents;
b) the failure of the Sub-Consultant to perform
any of its obligations under this Agreement;
or
c) any infringement of Intellectual Property
Rights caused by the use by SMEC or the
Client of the Services or the Sub-Consultant’s
deliverables created pursuant to this
Agreement.
9.2. The Sub-Consultant’s liability to indemnify SMEC
under Clause 9.1 will be reduced proportionally to
the extent that a negligent act or omission of
SMEC or its employees or agents contributed to
the Loss.
10. Insurance
10.1. The Sub-Consultant will procure, prior to the
commencement of any work under this
Agreement, the following policies of insurance:
a) workers’ compensation insurance for liability
under statute and at common law in
Sub-Consultancy Agreement Page 5
accordance with statutory requirements. To
the extent permitted by law, the policy
should extend to provide indemnity to SMEC
in respect of any statutory liability to the Sub-
Consultant’s employees. The policy must be
maintained for the duration of this
Agreement;
b) public liability insurance for an amount not
less than that stated in Schedule 1. The policy
must be maintained for the duration of this
Agreement and should note the interests of
SMEC as Principal;
c) professional indemnity insurance for an
amount not less than that stated in Schedule
1, and maintained for the period stated in
Schedule 1; and
d) a comprehensive motor vehicle policy which
provides cover for loss or damage to any
motor vehicle used in the performance of the
Services and for loss or damage to property
and death or injury to any person arising out
of use of any motor vehicle used in the
performance of the Services for an amount
not less than stated in Schedule 1.
10.2. The Sub-Consultant will provide certificates of
currency for the insurances set out in Clause 10.1:
a) prior to the commencement of the Services;
and
b) any time during the continuance of this
Agreement when SMEC makes a request for a
particular insurance policy or for all of the
policies of insurance.
10.3. If the Sub-Consultant fails to effect or maintain any
of the insurances required by this Agreement,
SMEC may effect and maintain such insurances.
The cost incurred will be a debt owed by the Sub-
Consultant to SMEC. SMEC may set off the debt in
accordance with the terms of Clause 6.7 or
withhold payment until the Consultant has
complied with its insurance obligations as set out
in Clause 10 of this Agreement.
10.4. The Sub-Consultant’s compliance with this Clause
does not in any way limit the liabilities and
obligations of the Consultant under this
Agreement.
10.5. The provisions of Clause 10 survive the expiration
or termination of this Agreement.
11. Termination/Suspension
11.1. SMEC may terminate this Agreement:
a) by giving seven (7) days written notice to the
Sub-Consultant;
b) if the Sub-Consultant is in breach of a non-
material term of this Agreement and that
breach has not been remedied within 14 days
after receipt by the Sub-Consultant of a
written notice from SMEC identifying the
breach and requiring it to be remedied;
c) immediately if:
i. the Sub-Consultant becomes an
"externally administered body
corporate" or a person or entity is
appointed as a "controller" of any of the
Sub-Consultant's property (as those
terms are defined in section 9 of the
Corporations Act 2001); or
ii. SMEC has reason to believe that that
the Sub-Consultant is or is likely to
become unable to pay its debts as and
when they fall due;
iii. The Sub-Consultant breaches a material
term of this Agreement; or
iv. the Main Contract is terminated.
11.2. Upon termination:
a) the Sub-Consultant must deliver to SMEC all
information and documentation created by or
used by the Sub-Consultant in the
performance of the Services on or prior to the
termination of this Agreement;
b) subject to Clause 6.7 and the Sub-Consultant
complying with Clause 11.1(a), SMEC must
pay the Sub-Consultant:
i. the applicable portion of the Service
Fee for the Services properly performed
up to and including the date of
termination; and
ii. all disbursements incurred by the Sub-
Consultant prior to the date of the
termination which would have been
payable had this Agreement not been
terminated subject to the title for any
item which is the subject of the
disbursement being assigned to SMEC,
provided that the payment made
pursuant to this Clause, together with
amounts of the Service Fee already
paid, will not be greater than the
Service Fee.
c) subject to payment prescribed in Clause
11.1(b), SMEC will not be liable to pay the
Sub-Consultant any additional compensation
including, without limitation, any loss of
profits; and
11.3. Nothing in this Clause 11 limits SMEC’s right to
recover any costs, losses and damages suffered or
incurred by it arising out of or in connection with
any breach of contract by the Sub-Consultant or
the termination of the Agreement.
11.4. If, at any time, termination of this Agreement by
SMEC in accordance with Clause 11.1(b) or 11.1 (c)
is subsequently held by a court of law or arbitrator
to have been invalid, then any such notice of
termination shall be deemed to have been given in
accordance with Clause 11.1(a).
Effect of Termination
11.5. Termination of this Agreement by either party is
without prejudice to the rights and remedies
Sub-Consultancy Agreement Page 6
which either party may have against the other
party at the time of termination.
Suspension
11.6. SMEC may by written notice direct the Sub-
Consultant to suspend the progress of the whole
or part of the Services for such period as SMEC
determines.
11.7. The Sub-Consultant must take all reasonable steps
to mitigate costs that may arise from a suspension
of Services pursuant to Clause 11.6.
11.8. SMEC will pay any reasonable cost and expense
incurred by the Sub-Consultant by reason of the
suspension unless the suspension arose out of or
as a result of an act or omission of the Sub-
Consultant.
11.9. Subject to Clause 11.8, SMEC is not liable to pay
the Sub-Consultant any compensation including,
without limitation, any loss of profits.
11.10. SMEC may give the Sub-Consultant written
notice to re-commence the Services
(‘Recommencement Notice’) when required. The
Recommencement Notice will specify a reasonable
period in which the Sub-Consultant must
recommence the Services and the Sub-Consultant
must comply with that notice.
12. Dispute Resolution
12.1. If a dispute arises in connection with this
Agreement, then either party may give written
notice to the other party’s Representative
specifying the nature of the dispute (“Notice of
Dispute”). There must be sufficient particulars of
the dispute so that the recipient of the Notice of
Dispute is aware of:
a) what the dispute is;
b) the cause of the dispute; and
c) the means by which a dispute can be resolved
or corrected.
d) Within ten (10) Business Days after the Notice
of Dispute is given, the Representatives must
meet at least once to resolve the dispute.
e) If the dispute has not been resolved within 20
Business Days of service of the Notice of
Dispute either party may commence legal
proceedings or, if agreed in writing by the
parties, commence alternative dispute
resolution proceedings.
12.2. This Clause 12 survives the termination and
expiration of this Agreement.
13. Occupational Health & Safety
13.1. Without limiting Clause 2.1, the Sub-Consultant
must:
a) comply with any Act, Regulation, codes of
practice and other Legal Requirements
dealing with occupational health and safety;
b) comply with SMEC’s requirements in respect
of health and safety including all directions
given by SMEC or SMEC’s Representative in
respect of health and safety; and
c) take all appropriate steps to promote a high
level of awareness among its employees of
any occupational health and safety policy of:
i. SMEC;
ii. the Client; and
iii. the party identified in Item 17 of
Schedule 1.
13.2. The Sub-Consultant must comply with all
directions and the procedures and policies of the
party identified in Item 17 of Schedule 1 as
controlling the Site in respect of occupational
health, safety, security, protection of the
environment and employee relations relating to
the Site. The Sub-Consultant must ensure that all
persons employed or engaged by the Sub-
Consultant who require access to the Site,
undertake the safety and environmental induction
and or training provided by the party identified in
Schedule 1 prior to entering the Site, where such
induction or training forms part of the procedures
in respect of the Project or the Site. Any time
expended or any cost incurred to comply with the
provisions of this Clause 13 is included in the
Service Fee.
13.3. SMEC or SMEC’s Representative may direct the
Sub-Consultant to suspend the provision of the
Services if:
a) the Sub-Consultant has, or, in the reasonable
opinion of SMEC, is likely to breach this
Clause 13; or
b) SMEC (acting reasonably) forms the view that
the manner in which the Services are being
performed are likely to cause harm to the
health and safety of any person.
13.4. If SMEC exercises the right in Clause 13.3 it will be
deemed to be a suspension that arose out of or as
a result of an act or omission of the Sub-
Consultant.
14. Notices
14.1. A notice or other communication ("notice")
connected with this Agreement has no legal effect
unless it is in writing and is:
a) delivered by hand at the address for service
of the Representative;
b) sent by facsimile to the facsimile number of
the Representative; or
c) sent by e-mail to the e-mail address of the
Representative and is acknowledged by the
Representative either by e-mail, facsimile or
post.
14.2. A notice is deemed given and received:
a) if delivered by hand, upon delivery; or
b) if sent by facsimile before 4 pm on a Business
Day, on the day it is sent at the place of
Sub-Consultancy Agreement Page 7
receipt and otherwise on the next Business
Day at the place of receipt.
c) if the Representative sends an
acknowledgement that the e-mail was
received.
14.3. Despite Clause 14.2(b), a facsimile is not deemed
given or received unless at the conclusion of the
transmission the sender's facsimile machine issues
a transmission report which indicates that the
relevant number of pages comprised in the notice
have been sent.
14.4. A party may change its address for service or
facsimile number by giving notice of that change
to each other party.
14.5. The address for service of the parties is set out in
Schedule 1.
15. Business Practices
15.1. The Sub-Consultant must comply at all times with
SMEC’s Code of Conduct (Appendix 1 to this
Agreement) and SMEC’s Business Integrity Policy
(Appendix 2 to this Agreement) as amended or
replaced from time to time.
15.2. The Sub-Consultant must:
a) maintain accurate and transparent books and
records of all transactions relating to the
performance of the Services and ensure that
all transactions are recorded accurately and
in reasonable detail in a way that does not
conceal the true nature of the transaction;
b) obtain and retain invoices and receipts for all
expenditure it incurs in performing the
Services, whether or not the expenditure is
reimbursable by SMEC under this Agreement;
c) maintain accurate records of all activities it
undertakes in the performance of the
Services including records of any discussions
or dealings with Public Officials and with
clients or prospective clients of SMEC and
provide copies to SMEC upon request;
d) comply with, and ensure that its agents and
employees comply with, all Legal
Requirements of any applicable jurisdiction,
in particular those relating to fraud, bribery
and corruption, and with the requirements of
the OECD Convention on Combating Bribery
of Foreign Public Officials in International
Business Transactions;
e) not offer, give, pay or promise to give or pay,
directly or indirectly, anything of value to:
i. a Public Official or a representative of
any client or prospective client of SMEC
in connection with the Project; or
ii. to any person to influence improperly
the actions of that person or another
person,
and must notify SMEC immediately in writing
with full particulars in the event that the Sub-
Consultant receives a request from any Public
Official or other such person for any such
payments or gifts;
f) not, by act or omission, engage in any
misrepresentation of facts to any person, or
mislead or attempt to mislead any person, in
the performance of the Services or otherwise
in relation to SMEC’s business; and
g) when requested by SMEC, attend training and
procure that its employees and contractors
attend training provided or on behalf of SMEC
on SMEC’s business integrity policies and
procedures.
15.3. Without limiting clause 15.2, the Sub-Consultant
must promptly disclose to SMEC full details of all
gifts, hospitality and entertainment given or
offered, directly or indirectly, to any person by or
on behalf of the Sub-Consultant in connection with
the Services or SMEC’s business, clients or
potential clients.
15.4. The Sub-Consultant must ensure that all
statements it makes to SMEC or to any
Government authority or otherwise prepares
under or pursuant to this Agreement, including
but not limited to claims, invoices, reports,
timesheets and records of disbursements,
accurately reflect the actual activities and
transactions to which they relate.
15.5. The Sub-Consultant warrants that, at all times
during the Term, neither the Sub-Consultant nor
an officer, director, senior executive or person
holding, directly or indirectly, an ownership
interest of greater than 10% in the Sub-
Consultant:
a) is a Public Official or a Close Family Member
of a Public Official other than as clearly
notified to SMEC by way of written
communication acknowledged by SMEC not
less than 7 days prior to the signature of this
Agreement;
b) is listed on a Relevant List or subject to any
proceedings or an informal process which
could lead to listing on a Relevant List;
c) is the subject of an investigation (whether
formal or informal) by the World Bank or
another donor or lender of development
funding; or
d) is or has been within the previous five years
the subject of an investigation by any
Government authority or entity into any
allegation involving fraud, bribery or
corruption.
15.6. The Sub-Consultant must immediately notify SMEC
with full details if it becomes any of the things set
out in clause 15.5 or of any contravention of this
clause 15 by the Sub-Consultant.
15.7. The Sub-Consultant must indemnify, defend and
hold harmless SMEC from and against any Loss
arising out of, or related to, or connected with the
Sub-Consultant’s failure to comply with the
Sub-Consultancy Agreement Page 8
provisions of this clause 15, to the fullest extent
permitted by law.
16. Audits and investigations
16.1. SMEC may from time to time audit the Sub-
Consultant’s records to determine compliance
with the requirements of this Agreement and the
validity of any claim for payment.
16.2. If SMEC receives information regarding a possible
breach of clause 15 by the Sub-Consultant, SMEC
may carry out an investigation to determine
compliance with the requirements of clause 15.
16.3. The Sub-Consultant must fully cooperate with any
such audit or investigation including:
a) providing all necessary information and
access for SMEC and its representatives to
audit the books and records of the Sub-
Consultant with respect to:
i. ownership of the Sub-Consultant with
respect to representations made under
clause 15.5; and
ii. any of the Sub-Consultant’s activities
related to performance under and
compliance with this Agreement; and
b) attending and requiring its employees and
agents to attend interviews and cooperate
with and answer questions put to any of them
by SMEC’s representatives.
16.4. In the case of an investigation under clause 16.2,
SMEC may, by notice in writing to the Sub-
Consultant, suspend performance of the Services
pending the commencement and completion of
the investigation and may lift the suspension by
further notice in writing.
17. General
17.1. This Agreement is governed by the law in force in
the jurisdiction nominated in Schedule 1. Each
party submits to the non-exclusive jurisdiction of
the courts of that jurisdiction.
17.2. A right created by this Agreement cannot be
waived except in writing signed by the party
entitled to that right. Delay by a party in exercising
a right does not constitute a waiver of that right,
nor will a waiver (either wholly or in part) by a
party of a right operate as a subsequent waiver of
the same or of any other right of that party.
17.3. If any provision of the Agreement is held to be
unenforceable, invalid, void or illegal for any
reason, then that provision will to the extent
possible be deemed to have been severed and
omitted from the Agreement without affecting the
enforceability, validity or legality of the remaining
provisions (or parts of those provisions) which will
continue in full force and effect.
17.4. The Consultant shall ensure all its staff are aware
of the Client’s Child Protection Policy and will
ensure this policy is observed and addressed
throughout the assignment.
17.5. The Consultant shall ensure all its staff have
signed the Client’s Child Protection Code of
Conduct and ensure all replacement staff,
temporary staff, visiting support staff and others
likewise sign the Code.
18. Definitions
In this Agreement the following terms have the
following defined meanings:
“Agreement” means this contract between SMEC and
the Sub-Consultant including all schedules and
attachments.
“Business Day” means a day other than a Saturday,
Sunday or public holiday in the city where the Project is
located.
“Commencement Date” means the commencement
date set out in Schedule 1.
“Client” means SMEC’s client under a Main Contract
identified in Schedule 1.
“Close Family Member” means, in respect of an
individual, the individual’s spouse; the individual’s and
the spouse’s grandparents, parents, siblings, children,
nieces, nephews, aunts, uncles and first cousins; the
spouse of any of these people; and any other individuals
who share the same household with the individual.
“Conflict of Interest’ includes engaging in any activity, or
having any interest which conflicts or may conflict with
the ability of the Sub-Consultant to perform its
obligations under this Agreement in good faith and
objectively.
“Effective Date” means the date inserted on the front
page of this Agreement that signifies when the parties
entered into a binding contractual arrangement for the
provision of the Services.
“Government” means any federal, state, national or
local authority, or their agencies and instrumentalities,
having jurisdiction in the Territory.
“Intellectual Property Rights” means any intellectual or
industrial property rights, whether registered or
unregistered, including:
a) all patents, trade-marks, copyright, designs, trade
secrets, know-how and other rights in any design,
materials, processes, documents and methods of
working; and
b) all licences and other rights to use or to grant the
use of those items in a);
but excluding Moral Rights.
“Legal Requirements” means all:
a) Acts, Regulations, Ordinances, Laws, By-Laws,
Codes of Practice and Standards in effect in, or any
binding proclamation by, the local, regional or
national Government of, the place in which the
Project is being undertaken or any Services are to
be performed; and
b) Certificates, licences, consents, permits, approvals
and requirements of organisations having
jurisdiction in the place in which the Project is
Sub-Consultancy Agreement Page 9
being undertaken or the Services are being
performed.
“Loss” means loss, damage, injury, harm, claim,
demand, cost (including legal costs on a full indemnity
basis), expense, penalty, charge or liability of any kind
whatsoever.
“Main Contract” means a contract between SMEC and
the Client included in Schedule 4 (if applicable).
“Moral Rights’ means the rights so named in the Berne
Convention for the Protection of Literary and Artistic
Works (1886) and any applicable rights under any law of
the place in which the Project is being undertaken or of
the place in which any Services are to be performed.
“Other Contractor” means any contractor, supplier,
subcontractor, consultant, project manager or any other
person engaged to work on the Project or on Site.
“Program” means the program set out in Schedule 2.
“Project” means the project identified in Schedule 1.
“Public Official” means any of the following:
a) any official or employee of, person acting in an
official capacity for or on behalf of, or individual
performing work under a contract for or who is
otherwise in the service of, any:
i. Government or Government department,
agency or instrumentality;
ii. Government-owned or controlled
corporation or enterprise; or
iii. public international organisation including
any donor or lender of development funding;
b) any person holding or performing the duties of an
appointment, office or position under any law;
c) any individual who holds or performs the duties of
an appointment, office or position created by
custom or convention of a country or of part of a
country;
d) any candidate for a political party or for political
office;
e) any political party, official of a political party or
funding organisation for a political party.
“Relevant List” means a list of organisations maintained
by the World Bank in its “Listing of Ineligible Firms” or
“Listings of Firms, Letters of Reprimand” and any similar
list maintained by any other donor or lender of
development funding.
“Site” means the place identified in Schedule 1.
“Services” means the services described in Schedule 2
together with those activities the Sub-Consultant is
required to carry out under the Agreement.
“Service Fee” means the amount set out in Schedule 3.
“SMEC Material” means all material provided by SMEC
to the Sub-Consultant, including but not limited to
documents, information and data referred to or
identified as such in Schedule 2.
“VAT” means Value Added Tax or similar tax on goods or
services including, without limitation, sales, use, excise,
and similar taxes (as amended from time to time) as
may be applicable to the Services.
EXECUTED as an agreement
Signed for and on behalf of:
SMEC International Pty Limited:
..............................………………………………………………………..
Signature of authorised person
..............................………………………………………………………..
Name (Block Letters) Title
in the presence of:
........................................................................................
Witnesses Signature
..............................………………………………………………………..
Name (Block Letters) Title
Signed for and on behalf of:
………………………………..
..............................………………………………………………………..
Signature of authorised person
..............................………………………………………………………..
Name (Block Letters) Title
in the presence of:
............................................ ...........................................
Witnesses Signature
..............................………………………………………………………..
Name (Block Letters) Title
Sub-Consultancy Agreement Page 10
SCHEDULE 1 - AGREEMENT PARTICULARS
Item 1 SMEC’s Client (if relevant):
Item 2 Project Name:
Item 3 Commencement Date:
Item 4 Completion Date:
Item 5 SMEC’s Representative
Name:
Address:
Phone:
Fax:
Email:
Item 6 Sub-Consultant’s Representative
Name:
Address:
Phone:
Fax:
Email:
Item 7 Maximum time for notifying variation claims:
(If nothing stated, 7 days)
Item 8 Minimum Level of Professional Indemnity
Insurance:
(If nothing stated AUD10 million)
AUD300,000
Item 9 The period for which professional
indemnity insurance shall be
maintained:
(If nothing stated 6 years after the completion of
the Services)
3 months after completion of the services
Item 10 Minimum Level of Public Liability Insurance:
(If nothing stated AUD20 million)
AUD10 million
Item 11 Minimum Level of Motor Vehicle Liability
Insurance:
(If nothing stated AUD10 million)
Item 12 Variation Rates Refer to Schedule 3
Item 13 Quality Assurance System Standard
(If nothing stated AS/NZS ISO 9001)
Item 14 Payment alternative applying (see clause 6.2)
(If nothing stated Alternative 2)
As per schedule 3
Item 15 Jurisdiction whose laws govern this Agreement Australian state of New South Wales
Item 16 Location of the Site Port Moresby
Item 17 Party who has control of the Site Not applicable
Sub-Consultancy Agreement Page 11
SCHEDULE 2 - SCOPE AND PROGRAM OF THE SERVICES
Scope of Services
Background The Transport Sector Support Program (TSSP), funded by the Government of Australia (GoA), has provided
technical and financial support to the Transport Sector in Papua New Guinea to strengthen operational and
technical efficiencies, performance, and effectiveness.
The key agencies in the Transport Sector within the scope of TSSP are:
• Department of Transport (DoT);
• Department of Works (DoW);
• Accident Investigation Commission (AIC);
• Civil Aviation Safety Authority of PNG (CASA);
• National Maritime Safety Authority (NMSA); and
• PNG Air Services Limited (PNGASL).
Individual Agency Support Arrangements (ASAs) have been signed by the six agencies with GoA in recent years
and receive a range of direct supports from TSSP. Additional support is provided to the aviation and maritime
agencies through a Memorandum of Understanding (MoU) signed by GoA and GoPNG to strengthen the
transport sector in PNG.
A separate study has been tendered by TSSP to understand and assess the impact of GoA support at an agency
specific level for PNGASL, PNGAIC, CASA and DoW.
This study seeks to understand and account for sector change and transformation resulting from GoA support
to the sector. TSSP, for example, provides on-going advisory support to the sector in four key areas:
strengthening sector policy and planning; developing coherent sector legislation; integrating sector financing
and budgeting; and promoting a culture of sector monitoring and evaluation. TSSP is also strengthening the
sector in other ways including support for TSCMIC and for the Transport Sector Lawyers Network (TLSN) and
the Transport Sector Communications Network (TSCN).
Research Issue GoA and TSSP are interested to understand the contribution that GoA support is making to the strengthening
of the transport sector and to learn from the experiences of the sector over an extended time. The study seeks
to collect and document evidence about the nature and extent of change and transformation, or otherwise, in
the transport sector and what accounts for, or constrains, transformation of the sector.
It is intended that the study be conducted over an extended period from late-2017 to mid-2019 to observe,
record, and assess the impact of past and on-going GoA support.
Terms of Reference The terms of reference for the study are:
• Describe, assess and account for the nature and extent of change in the sector over time, by collecting
perspectives and evidence from senior management in agencies, TSSP advisers and specialists, MoU
supports, counterparts, and other key stakeholders.
• Collect and review the strategies and approaches used by GoA to improve systems and develop
capacity within the sector.
• Collect evidence and analyse and account for the effectiveness, or otherwise, of strategies and
approaches adopted to facilitate sector change.
Sub-Consultancy Agreement Page 12
• Conduct regular reviews of the sector to assess progress made towards strengthening and
transforming the sector in capacity, planning, legislation, funding and resource allocation, and
monitoring and evaluating performance.
• Report on, and account for, GoA initiatives to strengthen the sector that are working well and those
that are less successful.
• Identify factors which contribute to, or obstruct, change in the sector and how they operate.
• Describe and assess the implementation by agencies of safeguards policies such as the GoPNG Gender
Equity and Social Inclusion (GESI) and child and environmental protection, and identify factors
promoting, or limiting the implementation of such policies.
• Assess the impact of this investment on both men and women separately in the sector.
• Describe and assess challenges facing the sector and opportunities for the sector to drive change and
adapt effectively.
• Draw findings from the data collected to indicate improvements to efficiencies, effectiveness, and
sustainability of similar investments in the future in PNG.
• Provide progressive results and reports on a regular basis to inform TSSP and GoA of the progress and
outcomes of the study.
Deliverables
Program The Services are to be commenced on the Commencement Date in Schedule 1 and completed on or before the Completion
Date in Schedule 1 and in accordance with the attached technical proposal at schedule 7.
Sub-Consultancy Agreement Page 13
SCHEDULE 3 – PAYMENT TO THE SUB-CONSULTANT
1. MAXIMUM AMOUNT PAYABLE
1.1. The total maximum payable of this Contract is PGK………….. (exclusive of VAT but inclusive
of all other applicable taxes).
2. BASIS OF PAYMENT
2.1. The maximum amount payable outlined in Clause 1.1 of this Schedule 3 is comprised of
the following elements:
(a) Management Fee (see Clause 3); and
(b) Reimbursable Costs:
(i) Long Term Adviser Costs (see Clause 4);
(ii) Short Term Adviser Costs (see Clause 5);
(iii) Adviser Support Costs (see Clause 6);
(iv) Operational Cost (see Clause 7)
2.2. SMEC shall not be liable for any Cost or expenditure incurred by the Contractor in excess
of the amount specified in Clause 1.1.
2.3. The total amount payable is summarised in Table 1 below.
Table 1: Maximum Amount Payable
Item Total amount
payable (PGK)
Management Fee (Clauses 3 and Annex 1)
Long Term Adviser Costs (Clause 4 and Annex 2) Not Applicable
Short Term Adviser Costs (Clause 5 and Annex 3)
Adviser Support Costs – Short Term (Clause 6 and Annex 4)
Operational Cost (Clause 7 and Annex 5)
TOTAL AMOUNT PAYABLE
3. MANAGEMENT FEES
3.1. The maximum amount payable to the Sub-Consultant in Management Fee shall not
exceed the sum of PGK…………..
3.2. The Management Fee should include the Sub-Consultant profit and operating overhead
costs associated with providing the Services. SMEC will pay the Management Fee based on
Clause 3.3 below and in accordance with Annex 1 of Schedule 3. The Management Fee is
Sub-Consultancy Agreement Page 14
fixed and is payable against the satisfactory achievement of Milestones as detailed in
Clause 3.4 – 3.5 below.
3.3. The Management Fee comprises (but will not be limited to):
(a) All personnel costs (except for approved Long and Short Term Personnel costs as
per Annexe 2 and 3 to this Schedule 3, which shall be separately reimbursable in
accordance with Clause 4 and 5 of this Schedule 3);
(b) All necessary communication costs;
(c) All aspects of profit, including commercial margins/mark-up for all personnel;
(d) All overheads;
(e) Financial management costs;
(f) All management support costs for all personnel, including Short Term Personnel
(other than that approved as an activity to support Lead Advisers), all locally
engaged personnel and all Contractor administrative and high-level head office
management and administrative staff;
(g) Security costs for all personnel, including any contractor staff, all Short Term
Personnel and locally engaged personnel that may be appointed in-country;
(h) Insurance costs (including but not limited to, professional indemnity, worker’s
compensation, public liability, and any other insurances as required under the
Contract or deemed necessary by the Contractor) in accordance with Clause 10
(Insurance) of the Sub-Consultancy agreement;
(i) Taxation, as applicable;
(j) Costs of complying with the Contractor’s reporting and liaison obligations under the
Contract;
(k) Any costs associated with personnel recruitment, other procurement and
subcontracting any services;
(l) Costs for monitoring & assessment of the quality of activities by the Contractor;
(m) Costs, including domestic and international travel, accommodation, per diems, and
local transport costs where required for all Contractor Head Office personnel (other
than those listed as Long and Short Term Personnel costs at Clauses 4 and 5 of this
Schedule 3);
(n) All escalators for the Term of Contract;
(o) All other costs not specifically identified as Reimbursable Costs;
(p) Allowances for risks and contingencies; and
(q) Any other costs not listed under Professional Fees or Reimbursable.
Sub-Consultancy Agreement Page 15
3.4. SMEC shall pay the Management Fees as follows within thirty (30) days of its receipt of a
correctly rendered invoice:
(a) After SMEC’s acceptance of the satisfactory achievement of a Milestone, the
percentage of the Management Fees specified in the Milestone table at Annex 1 to
this Schedule 3 for achievement of the relevant Milestone (“Milestone Payment”).
3.5. In the event that SMEC learns that a Milestone for which SMEC has already made a
payment, has not been achieved to the specifications required by this contract, the
amount paid for that Milestone will become an overpayment and will be recoverable.
4. LONG TERM ADVISER COSTS
Not applicable
5. SHORT TERM ADVISER COSTS
5.1. SMEC shall reimburse the Sub-Consultant at actual cost up to a maximum of PGK………..
for Short Term Adviser Costs.
5.2. For each Short Term Personnel, SMEC shall pay the Contractor, monthly on a
reimbursable basis in arrears, an all-inclusive Daily Professional Fee detailed in Annex 3 to
this Schedule 3, the following item:
(a) The daily Remuneration Rate in accordance with the Job Level and Professional
Discipline Category specified in the position Terms of Reference and calculated in
accordance with the Adviser Remuneration Framework. The daily Remuneration
shall be:
(i) Inclusive of base salary;
(ii) Inclusive of all personnel-related taxes, levies and insurances incurred, with
the exception of GST;
(iii) Inclusive of superannuation levy, if any;
(iv) Inclusive of all escalators for the term of this Contract; BUT
(v) Exclusive of any profit, overheads, administration or management fee, or any
other mark-up/margins on the part of the Sub-Consultant.
6. ADVISER SUPPORT COSTS
6.1. SMEC shall reimburse the Sub-Consultant at actual cost up to a maximum of PGK……….. for
Support Cost for Short Term Advisers detailed in Annex 4 of this Schedule 3.
6.2. SMEC shall pay the Sub-Consultant, monthly on a reimbursable basis in arrears Adviser
Support Costs including the following items:
(a) Any reasonable costs related to security;
Sub-Consultancy Agreement Page 16
(b) Work related travel and accommodation costs at the rates determined by SMEC from
time to time;
(c) Reasonable costs for medical insurance;
(d) Fixed, non-acquittable per diems in accordance with the rates prescribed by SMEC for
the relevant location for the Short Term Advisers; and
(e) mobilisation/demobilisation costs for Short Term Advisers including all reasonable one-
off costs associated with mobilisation and demobilisation including any necessary
medical clearances and inoculations; uplift of effects; passport and visa costs; storage;
and the cost of one return international flight from home location for the Short Term
Advisers.
6.3. The cost of any airfares will be reimbursed at the cost of economy class for each flight sector
of four (4) hours or less and business class for each flight sector greater than four (4) hours
duration. Any travel undertaken at cheaper rates (eg discount fare) does not entitle the
Contractor to reimbursement of the cost of any higher class of travel. Travel must be via the
most direct and cost effective route. A ‘flight sector’ means from any one flight departure
point to any one flight landing point.
6.4. Adviser Support Costs will be reimbursed at cost on a monthly basis in arrears within thirty
(30) days of SMEC’s receipt of a correctly rendered invoice.
7. OPERATIONAL COSTS
7.1. SMEC shall reimburse the Sub-Consultant at actual cost (unless stated as lump sum in
Annex 5 to this Schedule) up to maximum of PGK………….. for Operational Costs.
7.2. For the purposes of this Contract, Operational Costs means goods and services such as
office rent, outfitting, office furniture, computers, ground transport hire (taxis and vehicle
hire when travelling for business within and outside Jakarta), domestic flights and
transfers, and associated accommodation and per diem for long-term personnel when
away from their permanent base for management purposes, office supplies/stationary,
recurrent office costs (phone, fax, printers, papers, photocopier and software),
communications (excluding head office and international), promotional events, seminars
and activities, personnel training/professional development costs, counterpart support
costs, any equipment and utilities and office rent required by the Sub-Consultant for the
day-to-day administration of the Activity.
7.3. The Sub-Consultant will be reimbursed at cost (unless stated as lump sum in Annex 5 to
this Schedule) on a monthly basis in arrears for items identified as reimbursable detailed
in Annex 5 of this Schedule 3, within thirty (30) days of SMEC’s receipt of a correctly
rendered invoice. Reimbursement is subject to:
(a) Details of the items purchased or expenses incurred contained in a monthly
payment invoice; and
(b) Original receipts and invoices maintained to substantiate any claim.
Sub-Consultancy Agreement Page 17
7.4. The actual cost will be exclusive of any procurement costs, all profits, all overheads,
administration or management fee, or any other commercial margins/mark-up on the part
of the Contractor, as these costs are assumed to be covered by the Management Fee
detailed in Clause 3 above.
7.5. The Sub-Consultant may vary the sums assigned against individual line items within a
Category in Annex 5 to this Schedule 3, subject to SMEC approval. Such changes will not
require a contract amendment.
8. CLAIM FOR PAYMENT
8.1. The Sub-Consultant’s tax invoices must be submitted when due pursuant to this Schedule
in a form identifiable with the Services.
8.2. All tax invoices must include a certification by a Company director of the Sub-Consultant,
or their delegate:
(a) That the invoices has been correctly calculated; and
(b) That the Services included in it have been performed in accordance with the
Contract;
8.3. All claims for payment must be made out to the SMEC Representative.
ANNEX 1 – MANAGEMENT FEE MILESTONE PAYMETS
Milestone Deliverables; to a standard acceptable by SMEC %of MF Cost (PGK) Approval by Due date
Mobilisation payment 20% TSSP M&E Manager Commencement
1 Inception and evaluation plan accepted 20% TSSP M&E Manager
2 TSSP M&E Manager
3 TSSP M&E Manager
4 TSSP M&E Manager
TOTAL
Sub-Consultancy Agreement Page 19
ANNEX 2 – LONG TERM ADVISER COSTS - Not Applicable
Sub-Consultancy Agreement Page 20
ANNEX 3 – SHORT TERM ADVISER COSTS
Position Name Job Level and Professional
Discipline Category1
Number of Days
Input Payable Up
To
Daily fee
(PGK)
Upper
Limits
Payable
(PGK)
TOTAL
1 Not Applicable for national positions
Sub-Consultancy Agreement Page 21
ANNEX 4 – ADVISOR SUPPORT COSTS
LONG TERM ADVISER – Not Applicable
SHORT TERM ADVISER – Based on financial proposal
ANNEX 5 – OPERATIONAL COSTS
Description Unit cost Quantity Upper limits
Payable (PGK)
TOTAL
Sub-Consultancy Agreement Page 23
SCHEDULE 4 –MAIN CONTRACT
Main Contract
The following are clauses extracted from the Main Contract and are relevant in accordance with Clause
1.3 of this Agreement.
Notes:
This Schedule relates to the “Head Contract” entered into between SMEC International and the
Commonwealth of Australia for the implementation of the PNG-Australia Transport Sector Support
Program (TSSP).
For the purpose of this sub-consultancy agreement, personnel employed by the sub-consultant or its
lower tier sub-consultants or subcontractors will be taken to be within the definition of Contractor
Personnel.)
In this Schedule:
“the Contractor” refers to SMEC International.
“the Contract” refers to the Head Contract (Contract 68980)
In respect to Clause 52.2 (Early Notification) below, the following Clauses referred to therein are not
applicable to the Contract: Clause 9 (Performance Standards), Clause 10 (Warranties), Clause 11
(Conflict of Interest), Clause 30 (Security), Clause 32 (Confidentiality), and Clause 33 (Privacy).
PARTS 1 - 6 STANDARD CONTRACT CONDITIONS
1. DEFINITIONS
1.1 In this Contract:
Personnel means the Contractor’s officers, employees, agents, advisers, Contractors and
subcontractors (including their respective personnel), and includes Specified Personnel and
Associates.
6. CONTRACTOR OBLIGATIONS
6.1 The Contractor must:
(c) ensure the adequacy and lawfulness of any workers’ compensation insurance for its
Personnel, both in Australia, and in any relevant Country it operates in;
12. INSURANCES
Sub-Consultancy Agreement Page 24
12.1 The Contractor must arrange and maintain for the Term of the Contract unless otherwise
specified:
(a) Public Liability insurance with a limit of at least AUD20 million for each and every claim
which covers Loss of, or damage to, or Loss of Use of any real or personal property
and/or any personal injury to, illness or death of any person arising from the
performance of the Contract;
(b) Motor vehicle third party property damage insurance;
(c) Workers' Compensation insurance in accordance with Clause 6.1 (c) which:
(i) fully insures the Contractor for any amount it becomes liable to pay under any
statute relating to workers' or accident compensation or for employer's liability
at common law;
(ii) is effected in the Partner Country as well as every state or territory in Australia
where its Personnel normally reside or in which their contract of employment
was made; and
(iii) where possible at law, extends to indemnify DFAT as principal for DFAT's
liability to persons engaged by the Contractor.
(d) adequate property insurance covering any Contract Material, Supplies and the
reinstatement of any Data while in the care, custody or control of the Contractor for its
full replacement value;
(e) adequate Professional Indemnity insurance to cover the Contractor's obligations under
this Contract. The Contractor must maintain the necessary insurance each year until the
expiration of three (3) years after the full Term of the Contract or earlier termination of
the Contract;
(f) adequate medical and dental insurance for its Personnel who are engaged to operate
outside their country of permanent residence; and
(g) adequate insurance for medical evacuation and evacuation resulting from an insured
event for all its Personnel.
12.2 Where there is no workers compensation legislation in force in the Partner Country, the
Contractor should arrange adequate personal accident and illness insurance (accidental
death and weekly benefits) for any of its Personnel not otherwise covered for the Term of
the Contract.
12.3 The Contractor must, within fourteen (14) Business Days after a request by DFAT, provide
for any insurance policy: a certificate of currency, a list of exclusions; and the amount of
excess payable.
12.4 Where any policy is to be cancelled, or the level of cover reduced, the Contractor must give
DFAT at least fourteen (14) Business Days prior notice of the cancellation.
12.5 Neither the arrangement and maintenance of insurance nor any failure to arrange and
maintain such insurance shall in any way limit, reduce or otherwise affect any of the
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obligations, responsibilities and liabilities of the Contractor under the other provisions of this
Contract or at law.
12.6 Failure by the Contractor to maintain all necessary insurances will entitle DFAT to terminate
this Contract immediately in accordance with Clause 53 (Termination for Breach).
12.7 In the event of an insurance claim any deductible or excess payable will be the responsibility
of the Contractor.
14. INDEMNITIES
14.1 The Contractor indemnifies DFAT (and its officers, employees, agents, and any relevant
Partner Country) against any Loss suffered or incurred (including personal injury, death
and legal costs and expenses on a solicitor/own client basis) and the cost of time and
resources arising from:
(a) a breach of the Contractor’s performance of this Contract;
(b) an infringement, or an alleged infringement, of the Intellectual Property Rights of any
person, which occurred by reason of the performance or use of the Services;
(c) an infringement or an alleged infringement of the provisions of the Privacy Act
1988(Cth), in connection with the Services;
(d) an investigation carried out by the Ombudsman which arises directly or indirectly, as a
result of, and/or due to conduct of the Contractor or its Personnel; and/or
(e) any act or omission involving fault on the Contractor’s or the Contractor Personnel’s
part in connection with this Contract.
14.2 The indemnity in this clause 14 is reduced to the extent that the Loss or liability is directly
cause by DFAT, its employees or contractors (except the Contractor) as substantiated by
the Contractor.
14.3 DFAT must take any reasonable action to mitigate any Loss arising out of clause 14.1.
15. BRANDING
15.1 The Contractor must:
(a) identify, and with prior DFAT approval, implement appropriate opportunities for
publicising the Project/Program (including signage at each Project/Program site that
acknowledges the funding of the Project/Program) in accordance with “DFAT Guidelines
for managing Contractors (or NGOs or multilateral agencies) on the use of logos and
other forms of acknowledgement” at all times;
(b) only use the Australian Government/DFAT crest logo with prior approval, (in-line
version or stacked version) in Australia or the Australian Aid identifier overseas to
denote association with Australia, the Australian Government or DFAT in any publicity
or other project related materials; and
(c) promptly remove Contractor signs at the completion of the Project/Program unless
otherwise instructed by DFAT.
16. PUBLICITY
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16.1 The Contractor may not make media or other announcements or releases relating to this
Contract without DFAT’s prior written approval except to the extent that the
announcement or release is required to be made by law.
17. AGENCY
17.1 The Contractor, and its Personnel are not, will not be deemed to be and must not
represent themselves as being, by virtue of this Contract, an employee, partner or agent
of DFAT.
17.2 The Contractor acknowledges that it has no authority to bind DFAT without DFAT’s
specific consent.
25. INVESTIGATION BY THE OMBUDSMAN
25.1 In carrying out the Services, the Contractor, and an employee or sub-contractor of the
Contractor, may be a “Commonwealth service provider’ under Section 3BA of the
Ombudsman Act 1976 (Cth).
25.2 The Contractor must use its best endeavours, and must ensure that employees and sub-
contractors of the Contractor use their best endeavours, in undertaking the Services, not
to engage in conduct that:
(a) would, if the Contractor or an employee or sub-contractor were an officer of DFAT,
amount to a breach of duty or to misconduct; or
(b) should be brought to the attention of the principal officer of DFAT as defined in the
Ombudsman Act 1976 (Cth).
25.3 If the Commonwealth Ombudsman commences an investigation of conduct of the
Contractor, as a Commonwealth service provider, the Contractor, at the cost of the
Contractor, must cooperate with the investigator including:
(a) providing all documentation required by the investigator;
(b) making Contractor Personnel available to assist the investigator; and
(c) allowing the investigator, at any reasonable time of the day, to enter a place occupied
by the Contractor and carry on the investigation at that place.
25.4 If the Ombudsman brings evidence to the notice of DFAT concerning the conduct of the
Contractor, or of an employee or sub-contractor of the Contractor, the Contractor must,
at the cost of the Contractor, take whatever remedial action is required by DFAT or by
the Ombudsman to rectify the situation.
26. COUNTER-TERRORISM
26.1 The Contractor must ensure that funds provided under this Contract (whether through a
subcontract or not) do not provide direct or indirect support or resources to:
(a) organisations and/or individuals associated with terrorism, and
(b) organisations and individuals for whom Australia has imposed sanctions under: the
Charter of the United Nations Act 1945 (Cth) and regulations made under that Act; the
Autonomous Sanctions Act 2011 (Cth) and regulations made under that Act or the World
Bank List or a Relevant List.
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27. FRAUD
27.1 The Contractor must not, and must ensure that Personnel do not, engage in any Fraud and
must prevent and detect Fraud, including Fraud by its Personnel.
27.2 Within one (1) month of the Start Date, the Contractor must conduct a Fraud risk
assessment and produce a Fraud control strategy in compliance with the Commonwealth
Fraud Control Guidelines available at www.ag.gov.au. The risk assessment and strategy must
contain appropriate fraud prevention, detection, investigation and reporting processes and
procedures.
27.3 The Contractor is responsible for preventing and detecting Fraud including Fraud within
those functions outsourced/performed by a subcontractor or under any other arrangement
established by the Contractor relating to the performance of this Contract.
27.4 The Contractor must ensure that Personnel are responsible and accountable to the
Contractor for preventing and reporting any Fraud as part of their routine responsibilities.
The Contractor must ensure that Personnel who are not employed by the Contractor report
Fraud to the Contractor within five (5) Business Days.
27.5 If the Contractor becomes aware of a Fraud, it must report the matter to DFAT in writing
within five (5) Business Days. The written report to DFAT must be signed by a Contractor
authorised person and must include the following (where known):
(a) the name of the Activity under which DFAT funding is being provided;
(b) name of any Personnel (including any subcontractors) involved;
(c) the allegation(s), including a chronological account of the facts giving rise to the
allegation(s);
(d) the names of the suspected offender(s) (where known);
(e) details of witnesses;
(f) copies of relevant documents;
(g) references to any relevant legislation;
(h) a nominated contact officer;
(i) any other relevant information (for example, political sensitivities, any other party or
agency that has been informed, involved or that can assist with investigations); and
(j) the current status of any inquiries commenced by the Contractor.
27.6 If a report has been made in accordance with Clause 27.5 above, the Contractor must
respond within five (5) Business Days to any further requests for information DFAT may make.
27.7 If the Contractor becomes aware of a Fraud, the Contractor must, in consultation with DFAT,
develop and implement a strategy to investigate the Fraud based on the principles set out in
the Australian Government Investigations Standards.
27.8 The Contractor must investigate any fraud at the Contractor’s cost and in accordance with
any directions or standards required by DFAT. Whether the Contractor conducts an
investigation or appoints an investigator to conduct an investigation, the person conducting
the investigation must possess the minimum qualifications specified in the Australian
Government Investigation Standards or an equivalent agreed to by DFAT.
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27.9 DFAT reserves the right to appoint its own investigator, conduct its own investigation or
report Fraud to the appropriate law enforcement agencies or any other person or entity DFAT
deems appropriate in Australia or in the Relevant Country for investigation. If DFAT exercises
its rights under this Clause 27.9, the Contractor must provide all reasonable assistance that
may be required at its sole expense.
27.10 After the investigation is finished, if a suspected offender has been identified or at the
direction of the Director of DFAT Fraud Control Section, the Contractor must promptly report
the Fraud to the local police and any other appropriate law enforcement agency in the country
where the incident has occurred, unless the Director of DFAT Fraud Control Section agrees
otherwise in writing.
27.11 If the investigation finds the Contractor or Personnel have engaged in Fraud, the Contractor,
in consultation with DFAT, must:
(a) if DFAT funds have been misappropriated, pay to DFAT the full value of the
misappropriated funds; and
(b) if DFAT-funded property has been misappropriated, either return the property to DFAT
or, if the property cannot be recovered or has been damaged, replace the property with
property of equal or greater value or quality, or repair the property, at no cost to DFAT.
27.12 If the investigation finds that a person other than the Contractor or Personnel has engaged
in Fraud, the Contractor must, at the Contractor’s cost, take all reasonable action to recover
any DFAT funds or DFAT-funded property acquired or distributed through the Fraud, including
taking recovery action in accordance with recovery procedures (including civil litigation)
available in the Relevant Country.
27.13 The Contractor must keep DFAT informed, in writing, on a monthly basis, of the progress of
its efforts to recover the DFAT funds or DFAT-funded property, including any recovery action.
27.14 If the Contractor considers that all reasonable action has been taken to recover the DFAT
funds or DFAT-funded property and recovery has not been achieved or recovery has only been
achieved in part, the Contractor may seek approval from DFAT that no further recovery action
be taken.
27.15 If an investigation finds that the Contractor or Personnel have engaged in Fraud, or if DFAT
discovers that a Fraud has not been reported to DFAT in accordance with Clause 27.5, DFAT
reserves the right to:
(a) terminate this Contract by giving the Contractor notice in writing specifying the date on
which the termination will take effect; and
(b) not enter into any further agreements with the Contractor until such time as DFAT is
satisfied that any recommended changes to the Contractor’s management and
procedures have been made in order to prevent any further Fraud from occurring and to
ensure timely reporting of fraud to DFAT.
27.16 Without limitation to DFAT’s rights pursuant to Clauses 53 (Termination for Breach) and
27.15, if the Contractor fails to comply with its obligations under this Clause 27 with respect to
a Fraud, DFAT may give the Contractor a written notice which specifies:
(a) the obligation(s) with which the Contractor has not complied;
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(b) the action that the Contractor must take to rectify the failure; and
(c) the date by which the Contractor must rectify the failure.
27.17 If the Contractor does not comply with a notice issued pursuant to Clause 27.16, DFAT
reserves the right to:
(a) terminate this Contract in accordance with Clause 53; and/or
(b) exercise its rights pursuant to Clause 27.8; and/or
(c) withhold payments (or parts of payments) due to the Contractor under this Contract until
the Contractor has complied with the notice.
27.18 This Clause 27 survives the termination or expiration of this Contract, including with respect
to any Fraud relating to the performance of this Contract, which is not detected until after this
Contract has been terminated or has expired.
28. ANTI - CORRUPTION
28.1 The Contractor warrants that neither it nor its Personnel will make or cause to be made,
receive or seek to receive any offer, gift or payment, or benefit of any kind, which could
be construed as an illegal or corrupt act, either directly or indirectly to any Party, in
relation to the execution of this Contract.
28.2 Any breach of this Clause 28 will entitle DFAT to issue a notice under Clause 53
(Termination for Breach) to terminate this Contract immediately.
29. COMPLIANCE WITH LAWS AND POLICIES
29.3 In performing any part of this Contract outside Australia, the Contractor and its Personnel
and Sub-Contractors must:
(a) not engage in any political activity in the relevant country during the provision of the
Goods and/or Services;
(b) observe all laws and respect all religions and customs of that country; and
(c) conduct themselves in a manner consistent with the Public Service Act 1999 (Cth)
(including the Australian Public Service Values and Employment Principles and Code of
Conduct).
36. PERFORMANCE ASSESSMENT
36.1 The Contractor acknowledges and agrees that DFAT may issue in relation to this Contract:
(a) a Contractor performance assessment;
(b) Adviser performance assessments;
(c) sub-contractor performance assessments; and
(d) sub-contractor key personnel performance assessments.
36.2 performance assessments will be substantially in accordance with the assessment sheet
in Schedule 11. Within 28 days of receiving a performance assessment from DFAT, the
Contractor must:
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(a) sign and return to DFAT the Contractor Performance Assessment together with any
response; and
(b) ensure that all other performance assessments together with any response the sub-
contractor or any personnel wishes to include are signed and returned to DFAT.
36.3 Contractor must undertake Adviser, sub-contractor and sub-contractor personnel
assessments as required by DFAT.
36.4 The Contractor must insert clauses in any sub-contracts relating to the Contract that
require the sub-contractor to agree that:
(a) DFAT or the Contractor may issue:
a sub-contractor performance assessment; or
sub-contractor key personnel performance assessments,
in relation to the sub-contract;
(b) the performance assessments will be substantially in accordance with the assessment
sheet in Schedule 12; and
(c) the sub-contractor will sign and return the sub-contractor performance assessment
together with any response within 28 days of receipt and will ensure that sub-
contractor personnel performance assessments together with any response any
personnel wishes to include are signed and returned within 28 days of receipt.
38. SUBCONTRACTING
38.1 The Contractor may not sub-contract the provision of the whole of the Goods and/or
Services and must not enter into a subcontract relating to the provision of the Goods
and/or Services with a person who is or an entity which is listed on a World Bank List or
a Relevant List.
38.2 The Contractor must obtain DFAT’s prior written approval to sub-contract with any third
party, except Specified Personnel, to the value of AUD100,000 or more. In granting its
approval, DFAT may impose any conditions it considers appropriate.
38.3 Where DFAT objects to the Contractor’s preferred sub-contractor or DFAT nominates a
particular sub-contractor in place of the Contractor’s preferred sub-contractor, the
Contractor must enter into an agreement with the sub-contractor as directed by DFAT on
the basis of remuneration approved by DFAT and provide DFAT with a copy of the
executed sub-contract.
38.4 If the Contractor subcontracts its performance of any part of this Contract, the Contractor
will remain liable for the acts, defaults and omissions of the subcontractor as if they were
the Contractor’s acts, defaults and omissions.
38.5 Any subcontract entered into by the Contractor for the performance of any part of this
Contract must contain clauses:
(a) that authorise the Commonwealth to publish details of the name of the subcontractor
and the nature of the Services that the subcontractor is subcontracted to perform;
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(b) under which the subcontractor assumes all the Contractor’s obligations (including all
obligations under Australian Law and development policies), and gives all the
warranties the Contractor gives, under this Contract to the extent they are relevant to
the Services the subcontractor is subcontracted to perform; and
(c) that give DFAT the right of substitution under Schedule 5 (Deed of Novation and
Substitution), to further novate the sub-contract to another contractor. The Contractor
entering into a subcontract for the provision of parts or elements of the performance
of the Services, or provision of the Goods, does not create any contractual relationship
between DFAT and the subcontractor.
41. ACCESS TO PREMISES AND RECORDS
41.1 The Contractor must:
(a) produce records, books and accounts for inspection by DFAT immediately upon request
(including where entering into a subcontract and executing a Deed of Novation and
Substitution) at the same time or within ten (10) Business Days of execution of the sub-
contract by the Contractor.
(b) permit each of DFAT, the Commonwealth Auditor-General and the Information Privacy
Commissioner or Privacy Commissioner as appropriate at reasonable times and on
reasonable notice, through their officers, agents or advisers authorised on their behalf,
to:
(i) access the Contractor’s premises;
examine, inspect, audit and copy any accounts and records relating to this Contract
or the Goods and/or Services;
provide all necessary facilities for this purpose; and
in the case of documents or records stored on a medium other than in writing, make
available to DFAT on request reasonable facilities necessary to enable a
legible reproduction to be created.
41.2 In the exercise of the rights under this Clause 41, DFAT must use reasonable endeavours
not to unreasonably interfere with the Contractor’s performance under the Contract in
any material respect.
42. AUDIT
42.1 DFAT has the inspection and audit rights described in Clause 41 (Access to Premises and
Records) and this Clause 42 and subject to these provisions, each Party is to bear its own
costs in relation to any audit.
42.2 DFAT or a representative of DFAT may conduct audits relevant to the performance and/or
compliance by the Contractor with any of its obligations under the Contract, including audits
of the Contractor’s relevant:
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(a) operational practices and procedures;
(b) project and financial management governance;
(c) oversight practices and procedures;
(d) invoices and reports;
(e) Material (including records, books and accounts) in the possession of the Contractor;
and/or
(f) other matters determined by DFAT to be relevant to the performance of the
Contractor’s obligations under the Contract.
42.3 Where DFAT has reasonable concerns regarding the Contractor's financial management
systems, DFAT must provide the Contractor with written notification of those concerns
outlining the action to be undertaken by the Contractor. These actions include:
(a) a request that the Contractor’s Company Director provide a Statutory Declaration
confirming that he/she has sighted the necessary supporting documentation and
confirms the veracity of the claim for payment;
(b) the Contractor providing DFAT with additional documentation to support the claim for
payment; and/or
(c) a direction that the Contractor engage an independent, suitable organisation to
undertake an audit of those financial management systems, including its invoicing
procedures and practices, with a copy of the audit report to be provided to DFAT.
42.4 The Contractor must respond to any notice received under Clause 42.3 above within
fourteen (14) Business days.
42.5 DFAT reserves the right, at any time to direct the Contractor engage an independent audit
firm and to provide DFAT with a copy of the audit report from the independent auditor.
42.6 If DFAT directs the Contractor to undertake an independent audit it must do so at the
Contractor’s cost, and the Contractor must comply with any directions given by DFAT
regarding terms of reference or required auditing standards.
42.7 Where a direction has been made under Clause 42.6 above, DFAT will not make any further
payments owed to the Contractor pending certification of the reliability of the Contractor’s
financial management systems and the veracity of the invoicing procedures and practices.
42.8 This Clause 42 applies for the term of this Contract and for a period of seven (7) years from
the date of its expiration or termination.
42.9 The requirement for access and participation in audits does not in any way reduce the
Contractor’s responsibility to perform its obligations in accordance with this Contract.
48. TAXES
48.5 Except as provided by this Clause 48, all taxes, duties and charges imposed or levied in
Australia or in the Partner Country in connection with:
(a) the performance of this Contract (including any sub-contracts entered into for the
performance of the Services and the obtaining of any approvals, consents or
authorisations); and
(b) the sale, purchase, lease, assignment, licence or transfer of any property under this
Contract.
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shall be borne by the Contractor or its sub-contractor(s) as the case requires.
52. EARLY NOTIFICATION
52.1 The Contractor must immediately notify DFAT if the Contractor (including Contractor
Personnel) or a sub-contractor is:
(a) listed on a World Bank List or on a Relevant List;
(b) subject to any proceedings or an informal process which could lead to listing on a World
Bank List or listing on a Relevant List;
(c) temporarily suspended from tendering for World Bank contracts by the World Bank,
pending the outcome of a sanctions process;
(d) temporarily suspended from tendering by a donor of development funding other than
the World Bank; and/or
(e) the subject of an investigation (whether formal or informal) by the World Bank or
another donor of development funding.
52.2 If the Contractor becomes aware of any issue that may affect its performance of the
Contract and in particular its compliance with any of the following clauses: Clause 9
(Performance Standards), Clause 10 (Warranties), Clause 11 (Conflict of Interest), Clause
12 (Insurances), Clause 26 (Counter-terrorism), Clause 27 (Fraud), Clause 28 (Anti-
Corruption), Clause 29 (Compliance with Laws and Policies), Clause 30 (Security), Clause
32 (Confidentiality), or Clause 33 (Privacy) and Clause 38 (Sub-contracting), (including the
use or disclosure of Sensitive, Personal or Confidential Information, or any Security
Incident that arises), it must inform DFAT immediately.
53. TERMINATION FOR BREACH
53.1 Failure by the Contractor to notify DFAT under Clause 52 (Early Notification) may result
in immediate termination for breach under this Clause 53.
53.2 In addition to the rights to terminate outlined in Clause 52 (Early Notification), DFAT may
terminate this Contract by notice to the Contractor in accordance with Clause 24
(Notices), if the Contractor or subcontractor, in any of the following circumstances:
(a) commits a material breach or breach which, in DFAT’s opinion, is not capable of remedy;
(b) commits a breach capable of being remedied by the Contractor but the Contractor fails
to remedy it within ten (10) Business days of receipt of a notice from DFAT specifying
the breach;
(c) commits a Persistent Breach under Clause 9 (Performance Standards);
(d) where the other Party is a company- if there is appointed or if steps are taken to appoint
a liquidator, receiver, manager, controller or an administrator over the whole or any
part of its affairs;
(e) where the other Party is an individual – if it enters into a scheme of arrangement with
its creditors, commits any act of bankruptcy or becomes bankrupt, or becomes
incapable of managing its own affairs;
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(f) where the other Party has entered into this Contract in the capacity of trustee of a trust
– if any event occurs or any action or step is (or is proposed to be) taken, which limits,
restricts, or prevents it being indemnified out of the assets of that trust in respect of its
obligations and liabilities under this Contract;
(g) ceases to hold any licence, qualification, approval, authority or consent required for the
Contractor to comply with its obligations under this Contract (except to the extent that
this is outside the Contractor’s reasonable control);
(h) made a statement or warranty in its Tender or failed to make a disclosure in its Tender
Declaration leading to this Contract and DFAT is satisfied on reasonable grounds that
the statement was materially inaccurate, incorrect or misleading or the failure to make
a disclosure would, in DFAT’s opinion not have led to the formation of a Contract;
(i) is convicted of any offence during the Term of this Contract;
(j) the Contractor, its Personnel or subcontractors are or become listed on a World Bank
or Relevant List or are subject to an informal process that may lead to them becoming
so listed; and/or
(k) does not take appropriate steps to manage and resolve an allegation of child
exploitation or abuse with respect to this Contract, including a failure to inform DFAT
immediately of any allegation of child abuse or exploitation in accordance with DFAT’s
Child Protection Policy.
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PART 7 - PROJECT SPECIFIC CONDITIONS
Schedule of Requirements:
(9.10 j) where sub-contracting conditions (refer to Clause 38 of Part 3 (Subcontracting) allow,
the Contractor must actively look at opportunities for Papua New Guinean sub-contractors.
(10.2 i) The Contractor must ensure that all safeguards and cross-cutting issues are effectively
implemented on all DFAT-funded Civil Works contracts or sub-contracts;
68. CONSTRUCTION SERVICES AND USE OF APPROPRIATE BUILDING MATERIALS
68.1 The Contractor must engage specialist construction sub-contractors to undertake all
Construction Work. However, the engagement of Construction sub-contractors shall not
relieve the Contractor from any liability for the performance of this Contract in accordance
with Clause 38 (Sub-contracting).
68.2 The Contractor must ensure that all construction design work is carried out:
(a) in accordance with and so as to comply with any design brief or functionality
requirements notified by DFAT;
(b) to a high standard of skill, care and diligence expected of a design professional; and
(c) to ensure that the design work is fit for its intended purpose.
68.3 The Contractor must ensure that all Construction Work is carried out:
(a) in accordance with DFAT approved plans and specifications;
(b) so that it is fit for its intended purpose;
(c) using good workmanship and, unless otherwise approved or specified, new materials;
(d) employing competent and appropriately qualified personnel; and
(e) in a manner which clearly seeks to achieve the aims of the Project.
68.4 When engaging a construction sub-contractor, the Contractor must undertake a competitive
tendering process that complies with the Commonwealth Procurement Rules (‘CPRs’) and
the Public Governance Performance and Accountability Act (‘PGPA Act’) and DFAT's policy
on applying Division 2 of the CPRs and the PGPA Rules.
68.5 If DFAT reasonably considers that the Contractor has not adhered to appropriate processes
or policies with respect to advertising for, or the evaluation of, tenders, DFAT may require
the Contractor to cancel the tender selection process. In such circumstances the Contractor
may be required to repeat the competitive tender process at no additional cost to DFAT.
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68.6 The Contractor warrants that it will exercise a duty of care and good faith to DFAT in
performing its obligations under this Contract including the preparation of all tender
documentation and the administration of any construction sub-contract, including ensuring
that such sub-contracts allow for the correction of any Construction Defects.
68.7 The Contractor must ensure, and provide certification in reports that any timber or other
building materials used in any way for the Project has been sustainably harvested, or sourced
from recycled building materials, and are not made of and do not contain any asbestos
68.8 In the event that Supplies or building materials provided or used in any way by the
Contractor for the Project/Program do not comply with the requirements of this Clause 68
the Contractor must remedy this defect at the Contractor’s own cost.
75. PROVISION OF SERVICES
75.2 The Contractor represents and warrants that:
(a) it and the Contractor Personnel have the necessary experience, skill, knowledge,
expertise and competence to perform the Services;
(b) the Services will be fit for purpose;
(c) the Services will be complete, accurate and free from material faults;
(d) any materials that the Contractor incorporated in the Services are free from defects
in design, performance and workmanship; and
75.3 all work performed under this Contract will be carried out and completed in a proper and
workmanlike manner and in the most cost-effective manner and using materials suitable for
the purpose.
75.4 Without limiting its other obligations and liabilities under this Contract, the Contractor must
remedy at its cost any failure to comply with its obligations to perform the Services in
accordance with this Contract as soon as practicable after becoming aware of the failure.
75.5 The Parties recognise that the performance of the Services may be affected by changes to
relevant policy in the Partner Country, and that some flexibility in the performance of the
Services shall be required.
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SCHEDULE 5 – SPECIAL CONDITIONS
1. The Sub-Consultant must comply with the following SMEC policies, procedures and plans:
• the SMEC security plan;
• the plans implemented by SMEC for compliance with DFAT policies
2. The Sub-Consultant must comply with relevant and applicable laws, regulations and
development policies, including DFAT’s Child protection policy ( http://dfat.gov.au/about-
us/publications/Pages/child-protection-policy.aspx ), both in Australia and in the Partner
Country, and also Family Planning and the Aid Program: Guiding Principles (May 2015),
accessible on DFAT’s website ( http://dfat.gov.au/about-us/publications/Pages/family-
planning-and-the-aid-program-guiding-principles.aspx ) as amended or updated from time
to time.
3. The Sub-Consultant must be insured to at least the minimum of their statutory obligations
and must carry all commercially prudent insurances for the activities to be undertaken as
part of the Services.
4. The Sub-Consultant must maintain up-to-date records of the names of all sub-contractors
engaged by the Sub-Consultant to perform part of the Services. If requested by SMEC the
Sub-Consultant must, within three (3) working days, provide to SMEC a copy of the records
of sub-contractors’ names, in the format specified by SMEC. The Sub-Consultant consents to
DFAT disclosing its name and the names of its sub-contractors to Commonwealth
governmental departments and agencies, Commonwealth Ministers and Parliamentary
Secretaries, and to the Commonwealth Parliament, including responding to requests for
information from Parliamentary committees or inquiries. This clause shall survive
termination or expiration of this Agreement.
5. Fraud
5.1 For the purpose of this clause, 'fraudulent activity' or 'fraud' means dishonestly obtaining a
benefit by deception or other means.
5.2 The Sub-Consultant and its sub-contractors must not engage in any fraudulent activity.
5.3 The Sub-Consultant is responsible for preventing and detecting fraud including fraud within
those functions outsourced / performed by a sub-contractor or under any other
arrangement established by the Sub-Consultant relating to the management or
administration of SMEC or DFAT provided funds. The Sub-Consultant is responsible for
ensuring that its staff and its subcontractors’ staff are responsible and accountable to the
Sub-Consultant for preventing and reporting any fraud or suspected fraud as part of their
routine responsibilities.
5.4 The Sub-Consultant must report in writing within 3 working days to SMEC any detected,
suspected, or attempted fraudulent activity involving SMEC or DFAT provided funds. The
report must provide where known:
(a) the name of any personnel or subcontractors involved;
(b) the allegation(s), including a chronological account of the facts giving rise to the
allegation(s);
(c) the names of the suspected offender(s) (where known);
(d) details of witnesses;
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(e) copies of relevant documents;
(f) references to any relevant legislation;
(g) a nominated contact officer;
(h) any other relevant information (eg, political sensitivities, any other party or agency
that has been informed, involved or that can assist with investigations); and
(i) the current status of any inquiries commenced by the Sub-Consultant.
5.5 The Sub-Consultant must at its cost cooperate, and ensure that its personnel cooperates, in
the implementation by DFAT or SMEC of any process or strategy to investigate the detected,
suspected or attempted fraud including providing all assistance requested by DFAT or SMEC.
5.6 Following the conclusion of an investigation, where the investigation finds the Sub-
Consultant, an employee of the Sub-Consultant or a subcontractor of the Sub-Consultant has
acted in a fraudulent manner, the Sub-Consultant shall:
(a) where money has been misappropriated, pay to SMEC or DFAT or the project the full
value of the funds that have been misappropriated; or
(b) where an item of property has been misappropriated, either return the item to
SMEC or DFAT or the project or if the item cannot be recovered or has been
damaged so that it is no longer usable, replace the item with one of equal quality.
5.7 Following the conclusion of an investigation, where the investigation finds that a party other
than the Sub-Consultant, an employee of the Sub-Consultant or a subcontractor of the Sub-
Consultant, has acted in a fraudulent manner, the Sub-Consultant shall at its cost make
every effort to recover any SMEC or DFAT funds or funded property acquired or distributed
through fraudulent activity, including without limitation, taking recovery action in
accordance with recovery procedures, including civil litigation, available in Indonesia. The
Sub-Consultant must consult with SMEC before commencing recovery action, including as to
the projected costs of the action and the prospect of SMEC seeking for DFAT to agree to
meet some or all of those costs.
5.8 The Sub-Consultant must keep SMEC informed, in writing, on a monthly basis, of the
progress of the recovery action.
5.9 If the Sub-Consultant considers that after all reasonable action has been taken to recover
the funds or funded property and full recovery has not been achieved or recovery has only
been achieved in part, the Sub-Consultant may seek approval from SMEC that no further
recovery action be taken. The Sub-Consultant must provide to SMEC all information, records
and documents required by SMEC or DFAT to enable the SMEC or DFAT delegate to make a
decision on whether to approve non-recovery of funds or funded property.
5.10 In the event that any investigation finds that the contractor, an employee of the Sub-
Consultant or a subcontractor of the Sub-Consultant has been involved in any fraudulent
activity, or in the event that SMEC discovers that a suspected, attempted or detected fraud
has not been reported to SMEC, SMEC reserves the right to terminate this Agreement, in
which event SMEC not be liable to the Sub-Consultant for any claim, demand, proceeding
suit or action by the Sub-Consultant.
5.11 Special Conditions 5.5 to 5.9 shall survive termination or expiry of this Agreement.
6. The Sub-Consultant must ensure that sub-contracts include equivalent provisions regarding
the Sub-Consultant’s relevant obligations under this Agreement including in particular clause
Sub-Consultancy Agreement Page 39
15, Special Conditions 1 to 5 and the provisions set out in clauses 15, 16, 17 and 27 of
Schedule 4.
7. The Sub-Consultant must provide to SMEC an executed Deed of Novation and Substitution in
the form annexed to this Agreement. The Sub-Consultant agrees that DFAT may issue a
notice of substitution under the Deed of Novation and Substitution to further novate the
sub-contract to another contractor.
8. The Sub-consultant may not sub-contract the whole of the Services. The sub-contracting of
parts or elements of the performance of the Services is subject to compliance with the
following requirements:
(a) the Sub-consultant must ensure the sub-contracts include equivalent provisions
regarding the Contractor’s relevant obligations under this Contract. In particular sub-
contractors must:
(i) be bound by appropriate obligations in relation to ongoing software licensing,
commuter maintenance requirements and handover arrangements to the Partner
Country.
9. Ethics
9.1 The Sub-consultant is aware of the provisions of the Joint Statement on Zero Tolerance to
Fraud in Australia’s Aid Program in Papua New Guinea. In support of these provisions the
Sub-consultant will observe the highest standard of ethics during the execution of the
Agreement, and
(a) will promptly bring to the Client’s attention any suspected or actual incidence of corrupt,
fraudulent, collusive or coercive practice in the awarding or execution of the Agreement;
(b) will carry out, at its own cost, a thorough investigation of any suspected or actual fraud
related to the awarding or execution of the Agreement; and
(c) will permit the Client, upon reasonable notice, to inspect its accounts and records and
other documents relating to the submission of proposals and Agreement performance,
and have them audited by the auditors appointed by the Client or the Agency.
9.2 The Sub-consultant is aware of the provisions of the Government of Papua New Guinea
Public Service Code of Conduct and will immediately report to the Recipient and the Client
any breach of the code on the part of the Recipient’s staff or others.
9.3 The Sub-consultant must immediately notify the Client if the Sub-consultant (including Sub-
consultant personnel) or a sub-contractor is:
(a) listed on a World Bank List or on a Relevant List;
(b) subject to any proceedings or an informal process which could lead to listing on a
(c) World Bank List or a Relevant List
(d) temporarily suspended from tendering by a donor of development funding other than
the World Bank; or
(e) the subject of an investigation (whether formal or informal) by the World Bank or
another donor of development funding.
For the purpose of this clause:
“World Bank List” means a list of organisations maintained by the World Bank in its “Listing if
Ineligible Firms” or “Listing of Firms, Letters of Reprimand” or “Debarred and Cross-Debarred
Sub-Consultancy Agreement Page 40
Firms and Individuals” or any similar list posted at:
http://web.worldbank.org/external/default/main?theSitePK=84266&contentMDK=6406984
4&menuPK=116730&pagePK=64148989&piPK=64148984 or any other address on the World
Bank website.
“Relevant List” means any similar list to the World Bank List maintained by any other donor
of development funding.
Sub-Consultancy Agreement Page 41
SCHEDULE 6 – DEED OF NOVATION AND SUBSTITUTION
This DEED OF NOVATION AND SUBSTITUTION made the day of 201_.
BETWEEN:
XXX of
AND:
[ ABN of ] (the “Subcontractor”) of the second
part;
AND:
SMEC International Pty Ltd, Suite 2, Level 1, 243 Northbourne Avenue Lyneham ACT 2602 (the
“Contractor”) of the third part.
WHEREAS:
A. DFAT is concerned to ensure that the Services under the Contract are properly delivered.
B. The Subcontractor is a subcontractor to the Contractor for the Services.
C. The Subcontractor and Contractor have agreed with DFAT to novate the Subcontract to XXX
in the event that DFAT exercises its right under Clause 38 (Subcontracting) and 37 (Specified
Personnel) of the Contract.
D. The Subcontractor agrees that DFAT may novate the Subcontract to another Contractor at its
sole and absolute discretion in the event that DFAT has exercised its right under Clause 38 and
Clause 37 of the Contract.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. DEFINITIONS
“Business Day” means a day on which trading banks are open for business in Canberra;
“Commencement Date” has the same meaning as in the Contract;
“Contract” means the Contract for the provision of Services between DFAT and the
Contractor dated on or about 20 November, 2014, as subsequently amended;
“Deed” means this Deed of Novation;
“Services” means the services to be provided by the Contractor to DFAT under the Contract;
“Party” means DFAT, the Subcontractor or the Contractor;
Sub-Consultancy Agreement Page 42
“Subcontract” means the contract between the Contractor and the Subcontractor for the
provision of the Subcontractor Services; and
“Subcontractor Services” means the services that the Subcontractor is obliged to provide to
the Contractor under the Subcontract.
2. APPLICATION OF DEED DEFINITIONS
2.1 The Contractor and the Subcontractor agree that:
(a) this Deed is entered into for the benefit of DFAT; and
(b) DFAT may exercise the rights granted to it under this Deed.
2.2 This Deed commences on the Commencement Date of the Subcontract.
3. NOVATION
3.1 DFAT may issue a notice of substitution to the Subcontractor if DFAT is entitled to exercise
its rights under Clause 38 (Subcontracting) and Clause 37 (Specified Personnel) of the
Contract.
3.2 The Parties agree that on and from the date of issue of a notice of substitution:
(a) DFAT is substituted for the Contractor under the Subcontract in respect of the
Subcontractor Services as if DFAT was originally the Party to the Subcontract instead
of the Contractor, and all references in the Subcontract to the Contractor are to be
read and construed as if they were references to DFAT;
(b) DFAT is to pay any amount due to the Subcontractor under the Subcontract to the
Subcontractor and the receipt of the Subcontractor shall be full and sufficient
discharge for any such payments;
(c) subject to paragraph (a), DFAT is bound by, and must fulfil, comply with and observe
all the provisions of the Subcontract and enjoys all the rights and benefits of the
Contractor under the Subcontract; and
(d) the performance by the Subcontractor of services under the Subcontract, is instead
of, and not in addition to, any performance by the Contractor of its obligations under
that Subcontract.
3.3 If DFAT exercises its rights of novation under this deed, DFAT may further novate the
Subcontract by substituting a new contractor in place of the Contractor on the terms of this
deed with appropriate alterations. In the event of such novation, the rights and obligations of
the Subcontractor with respect to the Contractor shall become the rights and obligations of
the Subcontractor with respect to the new contractor.
Sub-Consultancy Agreement Page 43
4. RELEASE
4.1 Except in relation to payment due from the Contractor to the Subcontractor under the
Subcontract but unpaid on the date of issuing of the notice of substitution referred to in Clause
3 of this Schedule, the Contractor releases and discharges DFAT from any and all claims,
actions, proceedings, obligations and liabilities (whether based in negligence or any other
form of legal liability) in respect of or in any way arising from the Subcontract prior to the date
of the notice of substitution in respect of the Subcontractor Services.
5. FURTHER ASSURANCES
5.1 Each Party must take such steps, execute all such documents, and do all such acts and things
as may be reasonably required by the other Party to give effect to any of the transactions
contemplated by this Deed.
6. DISCHARGE
6.1 Neither the Subcontractor nor the Contractor are discharged or released or excused from this
Deed by an arrangement made between the Contractor and the Subcontractor prior to the
issue of a notice of substitution with, by any change to the Subcontract, or by any forbearance
whether as to payment, time or otherwise.
6.2 The Contractor undertakes to notify DFAT of any alterations to the Subcontract or other
matter referred to in Clause 3 of this Schedule. A failure of the Contractor to notify DFAT under
this clause does not alter the Subcontractor’s obligations under this Deed.
6.3 This Deed by the Subcontractor for DFAT to assume the obligations of the Contractor is
discharged in relation to the Subcontract only on completion by the Subcontractor of all its
obligations under the Subcontract in respect of the Subcontractor Services, or, in the event of
the issue of a notice of substitution, on the due and proper performance of the Subcontract
by the Subcontractor.
6.4 The obligations of DFAT under this Deed in its application to the Subcontract must not exceed
the obligations of the Contractor under the Subcontract.
7. NOTICES
7.1 A notice required or permitted to be given by one Party to another under this Deed must be
in writing and is treated as being duly given and received:
(a) when delivered (if left at that Party’s address);
(b) on the third Business Day after posting (if sent by pre-paid mail); or
(c) on the Business Day of transmission (if given by facsimile and sent to the facsimile
receiver number of that Party and the facsimile machine provides an affirmation of a
successful transmission).
Sub-Consultancy Agreement Page 44
Address of Party
7.2 For the purposes of this clause, the address of a Party is the address set out below or
another address of which that Party may from time to time give notice to each other Party:
DFAT
To: Department of Foreign Affairs and Trade
Attention: Country Program Manager – PNG TSSP2
Address: RG Casey Building
John McEwan Crescent
Barton ACT 0221
AUSTRALIA
Facsimile:
Contractor
To: SMEC International Pty Limited
Attention: General Manager, Urban and Social Development Group
Address: Suite 2, Level 1, 243 Northbourne Avenue
Lyneham ACT 2602
Facsimile: +61 2 6234 1966
Subcontractor
To:
Attention:
Address:
Facsimile:
8. LAWS
8.1 This Deed is subject to and construed in accordance with the laws in force in the Australian
Capital Territory.
9. WARRANTY
9.1 The Subcontractor and the Contractor each warrant and represent to DFAT that at all times:
(a) the execution and delivery of this Deed has been properly authorised by all necessary
corporate action of the Subcontractor and the Contractor respectively;
Sub-Consultancy Agreement Page 45
(b) the Subcontractor and the Contractor respectively each has full corporate power and
lawful authority to execute and deliver this Deed and to consummate and perform or
caused to be performed its obligations under this Deed;
(c) this Deed constitutes a legal, valid and binding obligation of the Subcontractor and
the Contractor respectively, enforceable in accordance with its terms by appropriate
legal remedy; and
(d) to the best of each of the Subcontractor’s or the Contractor’s knowledge, there are
no actions, claims, proceedings or investigations pending or threatened against or by
the Subcontractor or the Contractor respectively that may have a material effect on
the ability of the Subcontractor or the Contractor respectively to perform its
obligations under this Deed.
10. GENERAL
Counterparts
10.1 This Deed may be executed up to three (3) counterparts and all of those counterparts taken
together constitute one and the same instrument.
Attorneys
10.2 Where this Deed is executed on behalf of a Party by an attorney, that attorney by executing
declares that the attorney has no notice of the revocation of the power of attorney under
the authority of which the attorney executes this Deed on behalf of that Party.
Further Assurance
10.3 Each Party must do, sign, execute and deliver and must procure that each of its employees
and agents does, signs, executes and delivers all deeds, documents, instruments and acts
reasonably required of it or them by notice from another Party effectively to carry out and
give full effect to this Deed and the rights and obligations of the Party under it.
Assignment
10.4 No Party may assign or transfer any of its rights or obligations under this Deed without the
prior consent in writing of the other Parties. DFAT may withhold its consent in its absolute
discretion.
EXECUTED as a Deed.
SIGNED, for and on behalf of the
COMMONWEALTH OF AUSTRALIA in
the presence of:
)
)
)
……………………………………..
Signature
Sub-Consultancy Agreement Page 46
……………………………………..
Signature of witness
……………………………………..
Name of witness
(Print)
SIGNED for and on behalf of
[Subcontractor] by:
)
)
)
……………………………………..
Director
Name of Director
(Print)
……………………………………..
Director/Secretary
Name of Director/Secretary
(Print)
SIGNED for and on behalf of
[Contractor] by:
)
)
)
……………………………………..
Director
Name of Director
(Print)
……………………………………..
Director/Secretary
Name of Director/Secretary
(Print)
Sub-Consultancy Agreement Page 47
SCHEDULE 7 – TECHNICAL PROPOSAL
Sub-Consultancy Agreement Page 48
APPENDIX 1 SMEC GROUP’S CODE OF CONDUCT
Sub-Consultancy Agreement Page 49
APPENDIX 2 SMEC GROUP’S BUSINESS INTEGRITY POLICY
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