Defence Infrastructure Panel Environment Heritage and Estate Engineering

Defence Infrastructure Panel Environment, Heritage and Estate Engineering 2020 - 2025 Induction Training Capital Facilities and Infrastructure Branch September 2020

DIP - EHEE Induction Training Welcome and Introductions • Lisa Drummond – Panel Manager Director, Quality and Compliance, Directorate of Program Assurance • Defence Panel Management Team • Graham Read - Partner, Clayton Utz • Harrison Nurse - Senior Associate, Clayton Utz

DIP - EHEE Induction Training Objective • Provide a high level overview of the Commonwealth's expectations of Panel Consultants • Provide an overview of the Panel performance obligations • Provide a high level overview of the Panel and engagement level obligations

DIP - EHEE Induction Training DEQMS • Defence Estate Quality Management System – http: //www. defence. gov. au/estatemanagement/ • Panel Consultants are to comply with the content • Various Panel documentation will be available on DEQMS, including: – Pro forma engagement documentation; and – Pro forma documents and notices • There is a specific technical section of DEQMS that will relate to your service discipline

DIP - EHEE Induction Training Panel Manager Role • • The Consultant's Panel Manager will act as the primary point of contact between: – the Commonwealth and the Consultant for the purposes of the Panel Agreement; and – the Commonwealth and the Consultant's Engagement level personnel The Consultant's Panel Manager role must provide relevant feedback and messages received at the Panel level to the Engagement level The Consultant's Panel Manager must be appropriately qualified, have appropriate authority and should be fully informed of the Consultant's obligations under the Panel The Consultant's Panel Manager must act appropriately to resolve any Engagement level issues that may arise (Clause 3. 2 of Panel Conditions)

DIP - EHEE Induction Training Panel Manager Role • In addition, the Consultant’s Panel Manager is responsible for a range of other activities: – ensuring that the Consultant complies with its quality obligations; – participating in and carrying out all activities required by the Commonwealth in assessing the Consultant's performance; and – working with, and being responsive to, the Commonwealth's Panel Manager to resolve issues affecting the relationship between the Commonwealth and the Consultant (Clause 3. 2 of Panel Conditions)

DIP - EHEE Induction Training Panel Manager Obligations • Consultant's Panel Manager – Only replace with prior written approval from the Commonwealth (the Commonwealth may request a CV or interview to assess any proposed replacements) – Various responsibilities under the Panel Conditions including: • Keeping Commonwealth informed of various matters (including updates to contact details); • Ensuring compliance with obligations under Panel Agreement and Contracts; • Participation in performance reviews; • Communicating the Commonwealth's requirements throughout its organisation; and • Working with Commonwealth's Panel Manager to resolve issues (Clause 3. 2 of Panel Conditions)

DIP - EHEE Induction Training Panel Performance Framework • • Performance management discussions between the Commonwealth's Panel Manager and the Consultant's Panel Manager will be held at no less than 12 monthly intervals Before any performance management discussion, the Consultant's Panel Manager must provide the Commonwealth with such information required by the Commonwealth's Panel Manager The Commonwealth will ask Project Officers to provide feedback on the services that they received from the Consultant In the event of any significant issue (at a Panel-wide level or at an individual Engagement level), the Consultant's Panel Manager is required to notify the Commonwealth's Panel Manager immediately (Clause 9 of Panel Conditions)

DIP - EHEE Induction Training Panel Performance Annual Process • • • The Commonwealth will issue a performance proforma seeking the following: – Statistical details of the RFP’s that you have bid against; and – A self assessment against your performance for those successful engagements This self assessment will then be provided to the Commonwealth Contract Manager who will complete the same assessment The completed proforma will then be provided back to you for your consideration A Panel level meeting will occur at this stage if: – There is a difference between the two assessments; or – There are issues in the assessment that raise concern; or – If the Panellist seeks to have a discussion at the Panel level Panellists should not leave it to the annual performance process to raise an issue or to seek panel/engagement level advice. The panel management team are available for these issues when needed

DIP - EHEE Induction Training Panel Other • Security Clearances • Defence Common Access Cards • Lessons Learnt

DIP - EHEE Induction Training Quality Obligations • • • Panel Consultants are required to implement and maintain the quality assurance process, system or framework that were identified at time of Tender Complying with the relevant quality assurance process, system or framework does not relieve the Consultant from compliance with any other Panel obligations If the Consultant receives a notice of non-complying services under an Engagement, it must: – update its quality assurance system to prevent a reoccurrence of that non-complying service in that or similar Engagements; and – take any other steps necessary to avoid a reoccurrence of the noncomplying Services in that or similar Engagements, and must upon request provide evidence of its compliance to the Commonwealth's Panel Manager (Clause 8 of Panel Conditions)

DIP - EHEE Induction Training Panel Agreement • Each Consultant has a standing offer with Defence - Panel Agreement • Term is 5 years, subject to Defence's right to extend (up to 8 years) • Can be used by Other Commonwealth Agencies and Nominated Contractors • No guarantee of any volume of work • Defence can contract outside the Panel • Defence may add Consultants to the Panel • Consultants may withdraw from the Panel by notice in writing

DIP - EHEE Induction Training Panel Agreement - Structure Introduction Panel Conditions • Appendix 1: Panel Particulars • Appendix 2: Schedule of Rates Engagement Process Terms of Engagement • Indicative Contract Particulars Scope of Services

DIP - EHEE Induction Training Panel Conditions • Establishes the framework for the supervision and administration of the Panel • Sets out the basis of the relationship between Defence and the Consultant • Continuing obligations throughout the Term

DIP - EHEE Induction Training Panel Conditions - Nominated Contractors • Two potential processes: – Commonwealth may request the Consultant to be directly engaged by other contractors engaged by the Commonwealth ("Nominated Contractors"); or – Nominated Contractors may request a Consultant agree to tender for an Engagement • The Consultant must, as soon as practicable, provide written notice to the Commonwealth's Panel Manager if it is approached by a Nominated Contractor and after entering into a contract with a Nominated Contractor (Clause 2. 8 of Panel Conditions)

DIP - EHEE Induction Training Panel Conditions - Nominated Contractors • Where the Consultant agrees to being directly engaged by the Nominated Contractor, it is intended that any resultant contract will be based on the Proforma Services Subcontract: – The Schedule of Rates will apply; and – Proforma Services Subcontract does not apply to Contamination Remediation Works or Unexploded Ordnance Remediation • Terms of the Proforma Services Subcontract (available on DEQMS) are substantially the same as the Panel Conditions and Terms of Engagement to ensure consistency in terms for Engagements (Clause 2. 8 of Panel Conditions)

DIP - EHEE Induction Training Panel Conditions - Insurance • Maintain insurances in the Panel Particulars for the Term • If insurances cease to be available on the specified terms – immediately notify and take steps to effect and maintain alternative arrangements to mitigate risks • Provide copies of certificates of currency on request • Employers Liability Insurance - provision of Services in WA and International only • These insurances may be: – accepted and used for an Engagement; or – added to or replaced by, specific insurances requested in the Request for Proposal (Clause 4. 2 of Panel Conditions)

DIP - EHEE Induction Training Panel Conditions - Commonwealth Requirements General obligation to comply with Commonwealth Requirements throughout Term: • Workplace Gender Equality / Privacy • Defence's Security Alert System • Defence Industry Security Program • Entry Conditions • Fraud Control • Freedom of Information • Long Service Leave • For Contamination Remediation Works and Unexploded Ordnance Remediation only - BC 2016 and the WHS Accreditation Scheme (Clause 12, 13, 14 and 19 of Panel Conditions)

DIP - EHEE Induction Training Panel Conditions - Confidential Information • Do not copy, reproduce or disclose etc (or allow others to do so) other than for performing obligations under Panel Agreement or the Services • Secure and protect from unauthorised use, access or similar • Notify of Confidential Information Incidents and take steps to end, mitigate, avoid etc adverse effects • Requests for Proposal may include additional Confidentiality obligations that may provide additional obligations on the Consultant (and subconsultants) • The Consultant must ensure recipients comply with requirements (Clause 15 of Panel Conditions)

DIP - EHEE Induction Training Panel Conditions - Material Change or Defence Strategic Interest Issue • • Notify immediately, at the Panel and Engagement level, if the Consultant becomes aware of Material Change or Defence Strategic Interest Issue Include details of steps taken to end, avoid, mitigate risk of adverse effects Meet with Commonwealth or provide further information, documents or evidence as required Commonwealth may: – impose such conditions as it sees fit – suspend or discontinue to seek proposals from the Consultant – terminate the Panel Agreement (Clause 16 of Panel Conditions)

DIP - EHEE Induction Training Panel Conditions - Publicity • The Consultant must: – not furnish any information/document in connection with the Panel or Services for publication in the media or social media without the prior written approval of the Commonwealth's Panel Manager; and – refer any relevant enquiries from the media to the Commonwealth's Panel Manager • Failure to do so may be considered "unsatisfactory performance" under the Panel Agreement (Clause 19. 5 of Panel Conditions)

DIP - EHEE Induction Training Panel Conditions - Other Obligations • Conflicts of Interest – Avoid conflicts throughout Term – Notify of any conflict or risk of conflict – Take steps as required to remove or minimise conflicts or risks of conflict • Provide access to Panel Documents, facilities, personnel etc (for 10 years from the end of Term) (Clauses 6 and 17 of Panel Conditions)

DIP - EHEE Induction Training Schedule of Rates • Set out in Appendix 2 to Panel Conditions • Used for: – Schedule of rates engagements – Valuing Variations – When a Consultant is engaged as a subconsultant to another Panel Consultant • Rise and Fall – Consultant may advise of an adjustment to its rates and prices calculated in accordance with the relevant formula – Must advise within 30 days of anniversary date • Consultant's obligation to do this within required time • The Commonwealth will not chase you (Clause 5 and Appendix 2 of Panel Conditions)

DIP - EHEE Induction Training Schedule of Rates • All disbursements included in Schedule of Rates except: – Travel costs (to be reimbursed in accordance with non-SES rates with no administrative on-costs) – Car hire and taxi fares (reimbursed at cost only) – Other disbursements specified in an Official Order • • Must get prior written consent before incurring these costs Items which are not reimbursable costs: – – – Telephone calls Document printing Email and internet charges Royalties, licence fees and any other amounts connected with any IP rights Taxes (except GST) Superannuation, long service leave and other employment-related levies, charges and amounts – Administration costs or bookings fees (Clause 5 and Appendix 2 of Panel Conditions)

DIP - EHEE Induction Training Schedule of Rates • Lump Sum Engagements: – No entitlement to reimbursement of any disbursements (including travel costs, car hire etc) unless otherwise explicitly stated by the Commonwealth in the Official Order • No entitlement to reimbursement of any additional costs/ disbursements connected with: – A change in the location of the Consultant's business – A change in the location of the Consultant's personnel (Clause 5 and Appendix 2 of Panel Conditions)

DIP - EHEE Induction Training Terms of Engagement • More detailed terms governing the specific legal relationship between the parties for each Engagement • Apply when a Consultant is engaged from the Panel • Form part of the "Contract" for each engagement • Tailored through Contract Particulars and any Special Conditions • For most Service Categories, only the Terms of Engagement set out at Section 4 A of the Panel Agreement will apply to Engagements • For Contamination Remediation Works and Unexploded Ordnance Remediation Service Categories only – the Terms of Engagement at Section 4 B of the Panel Agreement will apply

DIP - EHEE Induction Training Section 4 A Terms of Engagement – Key provisions Role of the Consultant Role of the Cth Personnel Documentation Quality Time Variations Payment Termination/ Dispute Resolution Information Security Financial Viability Notices Indigenous Procurement Policy

DIP - EHEE Induction Training Differences for Section 4 B Terms of Engagement • • • For Contamination Remediation Works and Unexploded Ordnance Remediation Service Categories only – the General Remediation Contract (GRC) set out at Section 4 B of the Panel Agreement will apply to Engagements The GRC is a Works-based contract rather than a Services contract This means that it has different promises relating to: – Time (completion by date for completion vs timely manner/best endeavours); – Cost (contract price vs fee); and – Quality (fitness for purpose vs professional standard) • The GRC has provisions that are more Site and construction-specific, including in relation to: – additional insurances that must effected and maintained by the Contractor; – security that must be provided by the Contractor; – Site access to be given to, and assessments to be undertaken by, the Contractor; and – additional Project Plans that must be prepared by the Contractor

DIP - EHEE Induction Training Section 4 A - What are the Services? • Services means: – the services outlined in, or reasonably to be inferred from, the Brief; and – all other services, of a type generally consistent with the services referred to in paragraph (a), which may be required by the Commonwealth in connection with an Engagement • The proforma scope of services is set out on the DEQMS website (Clause 1. 1 of the Terms of Engagement)

DIP - EHEE Induction Training What are the Services? Brief / Scope of Services • The Scope of Services: – Represents minimum and general requirements only for the relevant Services and does not limit the Consultant's obligations under any Engagement – Is intended to provide a basis for tailoring to the requirements of individual Engagements – May be amended by the Commonwealth from time to time in order to reflect changes in Statutory Requirements (Clause 4, Engagement Process, Section 3 of Panel Agreement)

DIP - EHEE Induction Training Section 4 A - Core Promises • The Consultant makes promises in relation to quality in the carrying out of the Services: – Exercise the standard of skill, care and diligence in the performance of the Services that would be expected of an expert professional provider of the Services – Ensure that the Consultant Material complies with the requirements of the Contract – Use best endeavours to ensure that the Consultant Material will be fit for its intended purpose – Implement the quality assurance system specified in the Project DCAP – Warrants that the Project DCAP complies with the requirements of the Contract (Clauses 2. 2, 5. 8 and 6. 1(a) of the Terms of Engagement)

DIP - EHEE Induction Training Section 4 A - Exercise of good faith • The Consultant must exercise the utmost good faith in the best interests of the Commonwealth and keep the Commonwealth fully and regularly informed as to all matters affecting or relating to the scope or cost of the Services and the Project or otherwise (Clause 2. 2(f) of the Terms of Engagement)

DIP - EHEE Induction Training Section 4 A - Subcontracting • The Consultant must not, without the prior written approval of the Commonwealth's Representative, which will not be unreasonably withheld, subcontract any Services, except to a subconsultant named in the Contract Particulars • The Consultant will be vicariously liable to the Commonwealth for all acts, omissions and defaults of its subconsultants (and those of the employees and agents of its subconsultants) relating to, or in any way connected with, the Services (Clauses 2. 9(a)(i) and (iii) of the Terms of Engagement. See clause 2. 9 generally)

DIP - EHEE Induction Training Section 4 A - Personnel • Key people and proposed subconsultants are set out in the Consultant's Project DCAP in response to the RFP • The Consultant must employ those people specified in the Project DCAP, including the Consultant's Representative, in the jobs specified in the Project DCAP • The Consultant may only replace key people in specified circumstances • The Consultant must put in place sufficient succession planning and training, to the satisfaction of the Commonwealth, to ensure that the Consultant is able to replace key persons without any disruption to the Services or the Project (Clauses 4. 5 and 4. 6 of the Terms of Engagement)

DIP - EHEE Induction Training Section 4 A – Non-Complying Services • If the Commonwealth's Representative discovers or believes that any Services have not been performed in accordance with the Contract, the Commonwealth's Representative may give the Consultant an instruction specifying the non-complying Services and doing one or more of the following: a) requiring the Consultant to: i. re-perform the non-complying Services and specifying the time within which this must occur; or ii. to take all such steps as are reasonably necessary to: A. mitigate the effect on the Commonwealth of the failure to carry out the Services in accordance with the Contract; and B. put the Commonwealth (as closely as possible) in the position in which it would have been if the Consultant had carried out the Services in accordance with the Contract… (Clause 6. 2(a) of the Terms of Engagement)

DIP - EHEE Induction Training Section 4 A - Time obligations • Performance of Services – The Consultant must perform the Services in a timely manner • Milestones – The Consultant must use its best endeavours to achieve completion of each Milestone within the time set out in the approved program (Clause 7. 1 of the Terms of Engagement)

DIP - EHEE Induction Training Engagement Process – EOI • Optional Expression of Interest process: – Market Assessment – Panel Consultants confirm intention to submit proposal • If proposing to seek a Consultant over a number of Scopes of Services, proposals will be requested only from Consultants who can provide all the Services

DIP - EHEE Induction Training Standard Engagement Process • • • (Optional) Expression of Interest letter Step 1: Commonwealth issues a Request for Proposal Step 2: Panel Consultants provide conforming proposal Step 3: Negotiations (if required) Step 4: Official Order issued to successful Panel Consultant Step 5: Unsuccessful Panel Consultants notified and debriefs offered (Clause 1 of Section 3 of the Panel Agreement)

DIP - EHEE Induction Training Short Form Engagement Process • Step 1: Commonwealth issues a request for the Consultant to commence performance of the Services • Step 2: Consultant provides written notice (confirming and commencing performance, or declining) • Step 3: Commonwealth issues a request for proposal • Step 4: Consultant provides proposal • Step 5: Negotiations (as required) • Step 6: Official Order issued to successful Panel Consultant (Clause 2 of Section 3 of the Panel Agreement)

DIP - EHEE Induction Training Remediation Short Form Engagement Process • Step 1: Commonwealth issues a request for the Consultant to commence performance of the Services (which cannot include "Building Work") • Step 2: Consultant provides written notice (confirming and commencing performance, or declining) • Step 3: Commonwealth issues a request for proposal • Step 4: Consultant provides proposal • Step 5: Negotiations (as required) • Step 6: Official Order issued to successful Panel Consultant (Clause 3 of Section 3 of the Panel Agreement)

DIP - EHEE Induction Training Engagement Documentation • Two Forms (for each of General and Remediation) – Request for Proposal - Simple • Available on DEQMS • May be updated as required by Defence from time to time

DIP - EHEE Induction Training Engagement Documentation - RFP • RFP Form – Completed by Defence – Sets out requirements for RFP – Includes: • Project Details • Submission Requirements • Evaluation Criteria • Conformance Requirements • RFP process terms (addenda, information documents, industry briefing, preferred panel consultants, acceptance, alternative proposals etc)

DIP - EHEE Induction Training Engagement Documentation - RFP • RFP Form; • Draft Official Order; • Annexure A - Brief (comprising Part 1 - The Project, Part 2 Scope of Services, and Part 3 - Project Specific Special Conditions); • Annexure B - Project DCAP; • Annexure C - Fee Schedule; • Annexure D - Contract Particulars; and • Annexure E - Alternative Proposals. Difference for the Simple RFP – Annexure A seeks for less Brief content

DIP - EHEE Induction Training Engagement Documentation – Section 4 B Terms • The structure of the RFPs for Section 4 B of the Terms of Engagement are substantially the same, save for: – Part 2 of Annexure A – Brief is titled Technical Specifications; – Part 3 of Annexure A – Brief is titled Additional Project Specific Special Conditions; and – Addition of Annexure F – Building Code 2016

DIP - EHEE Induction Training Contract Award for an Engagement If the Commonwealth elects to engage the Consultant for the performance of Services and issues an Official Order to the Consultant, then the Consultant and the Commonwealth will be deemed to have entered into a contract for the performance of the relevant Services on the Award Date stated in the Contract Particulars (Clause 2. 4 of Panel Conditions)

DIP - EHEE Induction Training Formation of Contract • Commonwealth and successful Consultant will be deemed to have entered into a Contract for the Services, comprising: – Official Order – Contract Particulars (attached to the Official Order) – Fee Schedule* (specified in the Contract Particulars) – Terms of Engagement – Brief / Technical Specification** (specified in the Contract Particulars) – Project DCAP (specified in the Contract Particulars – Panel Agreement – Any other documents listed in the Contract Particulars (Clause 2. 4 of the Panel Conditions) *Only for Section 4 A Terms of Engagement highlighted above in green **Only for Section 4 B (GRC) Terms of Engagement under Contamination Remediation Works or Unexploded Ordnance Remediation Services Categories highlighted above in blue

DIP - EHEE Induction Training Questions?