Form of Agreement for Consultancy
Services
1982
Contract Name: Fleet & Equipment AMP Support ACT
Contract Number: 3836
Between Fire and Emergency New Zealand and the
Consultant
INFORMATION
The Consultant Morrison Low Ltd
Address
Morrison Low Ltd, Level 2, 11 Chews
Lane, Wellington 6011
OFFICIAL
THE
UNDER
RELEASED
Fire and Emergency New Zealand
Form of Agreement for Engagement of Consultant
Consultancy Services Contract Number: 3836 Fleet & Equipment
AMP Support
For the Delivery of Consultancy Services to Fire and Emergency New Zealand by the
1982
Consultant
This contract is made on the
08 day of
January 2024
ACT
Parties
1. Fire and Emergency New Zealand (the
Client); and
2. Morrison Low Ltd of Level 2, 11 Chews Lane, Wellington 6011 (the
Consultant)
Background
The Client requires periodic specialist support to check the internally produced Fleet and
Equipment AMPs. This wil ensure that:
• The Fleet and Equipment AMPs are consistent with industry good practice, based on
the existing information / datasets available, gaps and key themes are clearly
INFORMATION
identified, and tells the story. (
Client’s Project).
The Client and the Consultant have agreed that the Consultant wil , on the terms and
conditions set out in this Agreement, undertake and provide the Services in respect of the
Client’s Project.
THE PARTIES AGREE as fol ow:
1. The Client engages the Consultant to provide the S
OFFICIAL ervices and agrees to pay the
Consultant as described in Appendix B and to undertake its other obligations set out
in this Agreement. THE
2. The Consultant agrees to perform the Services on the terms of this Agreement.
3. The following documents shall form this Agreement in order of precedence. Where
any conflict or inconsistency exists between any of the documents listed below, the
document that appears first in the order of precedence shall prevail over the
provision of any other document or documents appearing lower in the list.
UNDER
a. Form of Agreement for Engagement of Consultant
b. Special Conditions – Part A (Specific Conditions)
c. Special Conditions – Part B (Other Conditions)
d. Engineering New Zealand/ACENZ General Conditions of Contract for
Consultancy Services (Fourth Edition, December 2017) (copy not included)
e. Annexure 1: Post-Tender Correspondence and Clarifications (if any)
f. Annexure 2: Notices to Tenderers
g. Appendix A: Scope, Purpose, Programme and Completion Date for the
RELEASED Services
h. Annexure 3: Scope and Purpose
i. Appendix B: Fees, Expenses and Payment
j. Appendix C: Client’s Representative
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k. Appendix D: Consultant’s Representative and Consultant’s Key Personnel
l. Appendix E: Subconsultants and Subconsultants’ Key Personnel
m. Appendix F: Other Consultants, Other Consultants’ Insurances, Personnel,
Equipment, Facilities and Information supplied by the Client
n. Appendix G: Client’s Risk Identification and Notification
o. Appendix H: Client’s Request for Proposals
p. Appendix I: Consultant’s Proposal
1982
ACT
INFORMATION
OFFICIAL
THE
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RELEASED
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EXECUTED AS AN AGREEMENT
SIGNED for an on behalf of
Fire and
9(2)(a)
Emergency New Zealand by its duly
authorised representative
1982
Sarah Sinclair
Name of authorised signatory
18 January 2024
ACT
Date of signing
SIGNED
9(2)(a)
for an on behalf of
Morrison Low
Ltd by its duly authorised representative
Signature of authorised signatory
9(2)(a)
Name of authorised signatory
INFORMATION
08/01/2024
Date of signing
OFFICIAL
THE
UNDER
RELEASED
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SPECIAL CONDITIONS – PART A (SPECIFIC
CONDITIONS)
References from clauses in the Engineering New Zealand/ACENZ General Conditions
of Contract for Consultancy Services (Fourth Edition, December 2017) (“General
Conditions of Contract for Consultancy Services (Fourth Edition, December 2017)”).
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6.2
Limitation of Liability* The maximum amount payable shall be five times the fee with a minimum limit of
$500,000 and a maximum limit of $2,000,000;
ACT
6.4
Duration of Liability*
The duration of liability shall be six (6) years.
6.5
Insurance*
The amount of public liability insurance required shall be $2,000,000.
INFORMATION
Additional insurances required are:
Type: n/a
Amount: [
]
OFFICIAL
12.8 Notices
Client’s Address: THE
Physical Address: Spark Central, Level 7, 42-52 Willis Street, Wellington Central 6011
Postal Address: PO Box 2133, Wellington 6140
Email address: [email address]
UNDER
cc: [email address]
Consultant’s Address: Physical Address: Level 2, 11 Chews Lane, Wellington 6011
Postal Address: Level 2, 11 Chews Lane, Wellington 6011
RELEASED
Email address: 9(2)(a)@morrisonlow.com
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SPECIAL CONDITIONS – PART B (OTHER SPECIAL
CONDITIONS)
Clause numbers below refer to clauses in the said General Conditions of Contract for
Consultancy Services (Fourth Edition, December 2017), as may be amended by this Part
B (Other Special Conditions).
The General Conditions of Contract for Consultancy Services (Fourth Edition, December
2017) are amended as follows:
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Section 1: Definitions and Interpretation
The following definitions are inserted into clause 1.1
ACT
-
Prior Services
Prior Services means any of the Services that have been provided by the Consultant
to the Client under any arrangement between the Parties which was made in
contemplation of this Agreement.
Section 2: Obligations of the Consultant
Clause 2.1 (The Services)
Add the following bullet points to the end of clause 2.1:
• “Provide sufficient employees (including Key Personnel) with the necessar
INFORMATION y
qualifications, licenses, skil s and experience to perform the Services to the
standard required by this Agreement; and
• Co-operate with the Client and use all reasonable endeavours to co-operate with
any Other Consultants (as applicable); and
• At the Consultant’s cost, correct any errors, omissions or both in any
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documentation prepared as part of the Services by the Consultant where the error
or omission is the result of the Consultant failing to exercise the duty of care
required by clause 2.2; and
THE
• Comply with all applicable legislation, regulations and any of the Client’s rules,
policies and standards that the Client may notify to the Consultant in writing from
time to time, except to the extent that compliance with any of the Client’s rules,
policies or standards would constitute a breach of the Consultant’s duty of care
under this Agreement. The Consultant may notify the Client where it considers
UNDER
any rule, policy or standard notified after the commencement of the Services
results in a material increase in the Consultant’s costs and such shall be treated
as notice of a Variation for the purposes of clauses 2.13 and 7.”
Clause 2.2 (Duty of Care)
Clause 2.2 is amended by adding the following:
“for a project of a similar type and size to the Client’s Project.”
RELEASED
Section 3: Obligations of the Client
Clause 3.3 (Client Decisions)
The following wording is added to the end of clause 3.3:
“The Consultant shall, in every case where it requires the Client to make a decision,
accompany the request for a decision with a reasonable level of information to
enable the Client to consider the matter at issue. The Client is entitled to request
further information as may be reasonably required by the Client to assist it in making
the relevant decision. The provision of information pursuant to this clause 3.3 shall
1982
be at no additional cost to the Client except where such is beyond what would
reasonably be expected to be provided by the Consultant as part of the Services.”
Clause 3.6 (Instructions to Others)
ACT
Clause 3.6 is amended by adding the following at the end:
“Notwithstanding the forgoing, in an urgent or emergency situation the Client may give
instructions directly to Other Consultants and/or Third Parties directly contracted to the
Client but in such an event the Client as soon as reasonably practicable must notify the
Consultant that instructions have been given.”
Clause 3.7 (Client to Give Early Warning)
The words “, as soon as reasonably practicable,” are inserted on the second line after the
word “must”.
The following is inserted as a second paragraph:
INFORMATION
“The Client shall not be required to inform the Consultant of anything which wil affect
the scope or timing of the Services that is related to another Government agency or
entity outside of the direct matters for which the Client is responsible as a Government
agency or entity.”
Clause 3.9 (Approvals)
OFFICIAL
The following is inserted after the last paragraph:
“Without limitation to the Client’s obligations in the 4th bullet point of clause 3.2, any
approval by the Client of infor
THE mation submitted to it by the Consultant (such
information must in all cases be provided by email or in hard copy by the Consultant)
shall not be taken to signify that the Client has checked the accuracy or
completeness of such information received from the Consultant and shall not relieve
the Consultant of any of its obligations under this Agreement unless approval is
expressly given on that basis or the parties expressly agree such in writing.”
UNDER
Section 4: Personnel
Clause 4.3 (Key Personnel)
Clause 4.3 is deleted and replaced with the following:
“The Consultant must obtain the Client’s prior written consent before replacing or
substituting any of the Key Personnel, including where the Client has required the
replacement in accordance with this clause 4.3, such consent not to be
unreasonably withheld or delayed.
RELEASED
The Client may, for good reason, require the Consultant to replace any Key
Personnel, any other person engaged by either the Consultant or any Subconsultant
if they are unsuitable or are not sufficiently available to perform the Services by
giving written notice to the Consultant specifying the Client’s reason(s). The cost of
FENZ Contract 3836
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replacing any person pursuant to this clause shall be borne solely by the Consultant
and any replacement or substitute person proposed must be no less skil ed and
experienced than the Key Personnel to be replaced.”
Section 5: Payments
5.5 Set-off
Add a new clause 5.5 as follows:
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5.5 (Set-off)
“Provided that it first gives writ en notice to the Consultant, the Client is entitled to set-
off against any sums that would otherwise be due to the Consultant under the
ACT
Agreement any actual amount owing as a debt due and payable in respect of any
claims the Client has against the Consultant in relation to the Client’s Project. This
right of set-off, deduction and withholding is without prejudice to any other right of set-
off, deduction or withholding provided for pursuant to this Agreement or otherwise.”
Section 6: Liability and Insurance
Clause 6.2 (Limitation of Liability)
The following paragraphs are added to clause 6.2:
INFORMATION
“However, such limitation shall not apply to the Client’s liability to pay the
Consultant’s fee or any liability of either party which arises:
•
in relation to any unauthorised use of the other party’s Intellectual
Property or Confidential Information in breach of this Agreement; or
•
in relation to an indemnity provided by the Consultant under clause 9.4.”
OFFICIAL
Clause 6.5 (Insurance)
Clause 6.5 is amended as follows:
THE
The first bullet point is deleted and replace with the following: “professional indemnity
insurance for the amount as set out in the Special Conditions;”
The following is added at the end of clause 6.5:
“The Consultant’s public liability insurance shal include the Client (which shall
UNDER
include the Client’s officers and employees) as an additional insured in respect of
their vicarious liability arising from the Consultant’s negligence in relation to the
performance of this Agreement.
The Consultant insurances required to be taken out by the Consultant shall be with
insurers with a minimum unsecured credit rating of least “A-” from Standard & Poor’s
(or equivalent) immediately on the execution of this Agreement. The Consultant
shall keep them in force for the length of time set out in the Special Conditions except
that in the case of professional indemnity insurance the maintenance obligation is
as sta
RELEASED ted in the second paragraph of this clause 6.5.”
Section 7: Variations
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Clause 7.4
Add a new clause 7.4 as follows:
7.4 (Reduction in Scope)
“The Client may reduce either or both of the scope of the Project, and the scope of
the Services, and may engage another party to undertake any such works so removed
from the scope, and in any such event the Consultant shall not be entitled to claim
any breach, damages or loss of profits against the Client.
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Within 15 days of any notice under this clause, the Consultant shall forward to the
Client:
(a) the proposed reduction in the consultancy fee for the reduction in the Services,
ACT
such amount to be agreed in accordance with Clauses 7.2 and 7.3; and
(b) the proposed amount of any reasonable out of pocket costs that the Consultant
incurs solely because of the reduction in Services.
Upon determination of the reduction of the consultancy fee in accordance with this
clause the consultancy fee shall be reduced accordingly.”
Section 9: Copyright of Documents
Clause 9.1 (New Intellectual Property)
INFORMATION
Clause 9.1 is amended by inserting the following at the end:
”Notwithstanding the foregoing, where any New Intellectual Property includes
Confidential Information, the Client’s or the Consultant’s use of that New Intellectual
Property is subject to ensuring compliance with clause 8.1 or 8.2 (as applicable). For
example, any Confidential Information is to be redacted or removed from the New
Intellectual Property prior to any further use.”
OFFICIAL
Clause 9.2 (Pre-existing Intellectual Property)
Delete the words “to the extent reasonably required to enable the Client to make use of the
THE
Services or use, adapt, update or amend the Works” and replace with the following:
“in relation to or in connection with this Agreement, the Services, the Works or the
Client’s Project, including for the planning, design, engineering, procurement,
construction, testing, commissioning, completion, operation, maintenance, repair,
replacement, modification, renewal, expansion and/or alteration of the Services,
Works or the Client’s P
UNDER roject.”
Clause 9.3
Clause 9.3 is amended by inserting the words: “part of the” after the words “concerning the”
on the fourth line.
Clause 9.4
Clause 9.4 is amended by adding the following at the end:
RELEASED
“The Consultant wil indemnify the Client against any loss, claim, damage, expense,
liability or proceeding suf ered or incurred at any time by the Client as a direct result
of any breach of any of the Consultant’s obligations, undertakings or warranties
contained or implied in this clause 9.4.”
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Section 10: Disputes
Clause 10.1
Clause 10.1 is amended by deleting the words “best endeavours” and replacing them with
“reasonable endeavours”.
Clause 10.2
Clause 10.2 is deleted and replaced with the following:
1982
“If the parties cannot resolve the dispute themselves within a reasonable time (but in
any event within 20 Working Days or such longer period agreed in writing), then either
Party may require that the dispute be referred to mediation by serving writ en notice
ACT
on the other.”
Clause 10.3
Clause 10.3 is amended by deleting the words “a reasonable time” and replacing them with
“20 Working Days of the date of either Party’s notice requiring mediation issued pursuant
to clause 10.2 (or such longer or shorter period as may be expressly agreed by the Parties)”
Clause 10.6
Add a new clause 10.6 as follows:
INFORMATION
“Nothing in this clause 10 shall prevent or prejudice the ability of either party to apply
to any court in order to seek interim injunctive relief against the other.”
Section 11: Termination
Clause 11.2 (Payment on Early Termination)
OFFICIAL
Add the following paragraph at the end of clause 11.2
“The Client wil not in any circumstances be responsible for abandonment costs or
lost fees for stages of the Services not performed as at the date of termination
THE
(including without limitation any loss of profit, or lost opportunity costs or claims
suffered by the Consultant) or for any fees for any Services for which the Client had
not, as at the date of termination, instructed the Consultant to proceed with.”
Clause 11.6 (Suspension)
UNDER
Add a new clause 11.6 as follows:
“The Client may suspend the performance of the Services by the Consultant at any
time by writ en notice specifying the reasons why the Services are suspended. As
soon as such notice is received by the Consultant, the Consultant will stop the
performance of the Services. The Client may withdraw the suspension of the Services
at any time by giving further writ en notice to the Consultant.
Suspension of the performance of the Services wil not prejudice or affect the accrued
RELEASED
rights or claims and liabilities of the Parties.
Where the Services are suspended other than for the default of the Consultant the
Client shall:
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• grant the Consultant additional time to complete the Services commensurate with
the period of suspension plus the period of time reasonably required by the
Consultant to remobilise should the Client later withdraw the suspension, and the
Consultant shall not be entitled to a Variation due to suspension under this clause
11.6;
• pay the Consultant for the Services provided to the date of suspension and any
reasonable costs incurred by the Consultant solely as a result of such suspension
(the Consultant wil take all reasonable steps to minimise all such costs);
1982
• have no claim against the Consultant solely by reason of any delay caused by or
arising from the suspension; and
• not be responsible for any costs or losses resulting from any such suspension
ACT
other than the reasonable costs which may be payable under the 2nd bullet above.
The Consultant may terminate this Agreement by written notice to the Client where
the Services remain suspended for a continuous period of more than three months
and the Client has not withdrawn the suspension or the parties have not agreed a
further extension of the suspension.
Where the Client gives notice to the Consultant withdrawing a suspension the
Consultant must remobilise, and as far as reasonably possible reassign Key
Personnel to the Project and provide sufficient employees (including Key Personnel)
with the necessary qualifications, licenses, skil s and experience to perform the
Services to the standard required by this Agreement within a reasonable time from
INFORMATION
the date it receives the Client’s notice.”
Section 12: General Provisions
Clause 12.8 (Notices)
In the first bullet point, delete the words “or by facsimile”.
OFFICIAL
Clause 12.10 (Survival of Provisions)
Add the following after the reference to “9” in clause 12.10:
THE
“and 10, 11 and 12”
Clause 12.15 (Client’s Regulatory Functions)
The following is added to the end of clause 12.15:
UNDER
“For the avoidance of doubt, any exercise of a regulatory function by the Client shall
not constitute a breach of this Agreement.”
Clause 12.19 (Prior Services)
A new clause 12.19 is added as follows:
“For the avoidance of doubt, where the Consultant has performed any Prior Services,
this Agreement wil retrospectively apply to those Prior Services from the date that it
RELEASED
is executed by both Parties.”
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Appendix A: Scope, Purpose, Programme and
Completion Date for Services
1
Scope and Purpose
We understand that specialist support is required to ensure that the two AMPs for the
fleet and equipment portfolios are complete, fit for purpose and consistent with good
1982
industry practice.
The current status is:
ACT
• Fleet portfolio - The draft Fleet AMP has been prepared internally and mostly
meets industry standards as set out in the IIMM. External guidance is now
required to ensure it is complete and fit for purpose.
• Equipment portfolio - Capability plans have been developed for the specific
logistics and equipment asset classes (about 24 in total). There is currently no
overreaching AMP for the logistics and equipment asset portfolio.
2
Programme and Completion Date for Services INFORMATION
Commencement Date:
Upon signing of contract by both parties
Completion Date:
30/6/2024
OFFICIAL
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Appendix B:
Fees, Expenses and Payment
1
Fees
1.1
[Agreed Hourly Rates (exclusive of GST)
The fee for the Services shall be calculated according to the following hourly rates [and
shall in no event be greater than $50,000 plus GST]:
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Role
Hourly Rate ($)
9(2)(a)
$9(2)(b)(ii)
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9(2)(a)
$9(2)(b)(ii)
9(2)(a)
$9(2)(b)(ii)
The Consultant shall record all costs against each task in terms of the rates set out
above and shall provide the Client with an itemised assessment of the expected final
cost. The Consultant shall provide a detailed breakdown of the fee incurred to date if
requested by the Client.
1.2
Valuing Variations
For the purposes of clause 7 of General Conditions of Contract for Consult
INFORMATION ancy
Services (Fourth Edition, December 2017), the Parties agree that the rates noted in
section 1.2 should be used to value Variations (if any).
2
Expenses and Disbursements
No expenses or disbursements are payable by the Client to the Consultant under this
Agreement unless approved by the Client.
OFFICIAL
3
Payment
The Consultant shall be entitled to payment monthly.
THE
The Consultant is not entitled to invoice until the end of the month in which the relevant
payment entitlement arises.
Payment shall be made on the 20th of the month following the month of issue of each
GST invoice (in accordance with clause 5.1 of the General Conditions of Contract for
Consultancy Services
UNDER (Fourth Edition, December 2017)).
The Consultant shall send all invoices to:
Email address:
[email address]
Attention: Jim Stuart-Black
Purchase Order reference
77535 to be included on all invoices.
RELEASED
FENZ Contract 3836
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Appendix C: Client’s Representative
1. Client’s Representative
Name of Client’s Representative Jim Stuart-Black
Street Address
Spark Central, Level 7, 42-52 Willis Street,
1982
Wellington, 6011
Postal Address
PO Box 2133, Wellington, 6140
ACT
Mobile Number
9(2)(a)
Email Address
[email address]
INFORMATION
OFFICIAL
THE
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RELEASED
FENZ Contract 3836
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Appendix D: Consultant’s Representative and
Consultant’s Key Personnel
1. Consultant’s Representative
Name of Consultant’s
9(2)(a)
Representative
1982
Street Address
Level 2
11 Chews Lane
ACT
Wellington 6011
Postal Address
PO Box 9126
Newmarket
Auckland 1149
Mobile Number
+9(2)(a)
Email Address
9(2)(a)
@morrisonlow.com
INFORMATION
OFFICIAL
THE
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RELEASED
FENZ Contract 3836
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Appendix E: Subconsultants and Subconsultants’ Key
Personnel
1. Subconsultants
Not Applicable
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2. Subconsultants’ Key Personnel
Not Applicable
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INFORMATION
OFFICIAL
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Appendix F: Other Consultants, Other Consultant’s
Insurance, Personnel, Equipment, Facilities and
Information Supplied by the Client
1. Other Consultants
Not Applicable
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2. Other Consultants’ Insurance
Not Applicable
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3. Client Personnel
Not Applicable
4. Equipment
Not Applicable
5. Facilities
Not Applicable
INFORMATION
OFFICIAL
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UNDER
RELEASED
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Appendix G: Client’s Risk Identification and Notification
There are no known risk(s) for this Agreement
Risk
Description
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1.
2.
ACT
3.
INFORMATION
OFFICIAL
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UNDER
RELEASED
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Appendix H: Client’s Request for Proposals
[Not used]
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ACT
INFORMATION
OFFICIAL
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RELEASED
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Appendix I: Consultant’s Proposal
Introduction
Thank you for the opportunity to provide this proposal for supporting the Fire and Emergency New
Zealand (FENZ) in the development of Asset Management Plans (AMP) for the fleet and equipment
portfolios. This proposal is based on meeting with Sarah Sinclair and Cushla Anich on 6 December
1982
2023.
Our understanding of your requirements
We understand that specialist support is required to ensure that the two AMPs for the fleet and ACT
equipment portfolios are complete, fit for purpose and consistent with good industry practice.
The current status is:
• Fleet portfolio - The draft Fleet AMP has been prepared internally and mostly meets industry
standards as set out in the I MM. External guidance is now required to ensure it is complete
and fit for purpose.
• Equipment portfolio - Capability plans have been developed for the specific logistics and
equipment asset classes (about 24 in total). There is currently no overreaching AMP for the
logistics and equipment asset portfolio.
INFORMATION
Methodology
This work will primarily be undertaken by Helen Ramsey with Cushla Anich providing peer review
and oversight. Helen has had previous experience with FENZ looking at fleet maintenance strategy
and approach. We will also draw on our recent experience with NZ Police and Mid-Central Health in
developing their fleet AMPs. We can start this work immediately to fit in with the overal timeframe
OFFICIAL
having AMPs and budgets completed by June 2024.
We will have a kick-off meeting with you to agree on the scope and timeframes, and specific
guidance tasks for the Fleet and Equipment AMP support. We will only undertake a task once
THE
briefed by you and fee estimate is confirmed. Our methodology for providing support is detailed
below in the detailed task methodology.
Detailed task methodology
Scope items
Proposed Morrison Low Role
UNDER
Kick-off meeting
We wil hold a kick-off meeting via Teams to confirm the scope and timeframe for the project and
agree what information is required.
Task 1 – Fleet
Tasks:
AMP review and
•
Fleet AMP review – Undertake a review of the draft AMP by Morrison Low’s strategic AM
development
specialist 9(2)(a)
to ensure the plan is heading in the right direction. We wil
identify weaknesses in the AMP, areas for improvement that are readily resolved with
the available information and within the project timeframe or identified for improvement
in the three-year programme. We wil review draft Fleet AMP to ensure the key themes
are captured adequately based on the proposed investment programmes as wel as our
RELEASED
industry knowledge.
The focus wil be on providing helpful comments to improve it. Practical examples wil be
used to guide the internal plan writer. Document the key review findings and
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Scope items
Proposed Morrison Low Role
recommendations in a short memorandum to enable FENZ to make necessary changes.
•
Morrison Low wil write some sections if required to meet the AMP deadline.
Key personnel:
• 9(2)(a) wil undertake a review of the Fleet AMP and provide recommendations and
suggestions / examples for improvement.
• 9(2)(a) wil review the recommendations.
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Key deliverables: Combination of comments within the AMP and review findings /
recommendations in memorandum format.
Client inputs: Draft Fleet AMP in Word version, regular updates of AMP as sections are
ACT
completed.
Timing: Late January 2024.
Task 2 –
Tasks:
Equipment AMP
•
Equipment AMP development – An AMP needs to be developed for the logistics and
review and
equipment asset portfolio that is consistent with industry standard. The initial stage wil
development
be to review the capability plans and then develop the AMP by Morrison Low’s strategic
AM specialist 9(2)(a)
. 9(2)(a) wil work with FENZ staff to ensure the right level of
data and analysis is provided within the AMP, understand the key issues and any gaps are
identified between equipment needs and available budget.
•
The focus wil be on developing the AMP using the information provided and
INFORMATION
understanding of the key issues.
Key personnel:
• 9(2)(a) wil develop the equipment AMP.
• 9(2)(a) wil review the draft AMP.
Key deliverables: Draft Equipment AMP in Word version.
Client inputs: Draft capability plans, data inventory, financial forecasts.
OFFICIAL
Timing: Late February 2024.
Our team
THE
We propose the fol owing experienced team to undertake this project with you:
• 9(2)(a)
is our project director for this project. She will provide strategic oversight,
mainly with the setup of the budget sheet and wil review the AMP key themes.
UNDER
• 9(2)(a)
wil review the budget outputs and provide property expertise as required.
9(2)(a) has completed the following projects for FENZ so has a good understanding of the people
capability, systems, processes, and data:
• Light Investor Confidence Rating on its Property, Equipment & logistic, Fleet and ICT
portfolios, and developed a Roadmap of improvements.
• Property AM assistance to understand the robustness of the existing data sets.
RELEASED
Brief bios for the project team were provided in our Property AM Assistance Proposal (May 2023).
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Fee structure
Based on the methodology above and our understanding of the specialist support required, the
estimated cost to provide support for the Fleet and Equipment AMPs would be
$50,000 (excluding
GST and disbursements).
The fee estimate is shown below:
1982
Task
Estimated fees
No.
Tasks
(excluding GST and
disbursements)
9(2)(b)(ii)
ACT
1
Review and assistance in writing some sections of the Fleet AMP
$
2
Development of the Equipment AMP in conjunction with FENZ
$9(2)(b)(ii)
TOTAL
$50,000
Our estimates are based on the following assumptions:
• Al estimated fees exclude GST and disbursements.
• Costs will be based on actuals variable depending on how much writing Morrison Low
undertakes.
INFORMATION
• The project meetings are via video conferencing (MS Teams).
• Supporting evidence is made available.
• Financial forecasts for both asset portfolios are provided.
We note that the All of Government Standard Conditions of Engagement will form the basis of our
engagement for this proposal. We invoice monthly for work completed to the end of that month,
although outputs may not be ful y documented at that time. We understand that scope may
OFFICIAL
fluctuate to meet your needs and we will advise you if there is any fee change accordingly.
Conclusion
THE
We trust that you find this proposal aligned with what you are seeking. Please feel free to contact
9(2)(a) if you have any queries or would like to refine the project scope further. We look forward to
working with you and making step changes in AM practices in your teams.
UNDER
RELEASED
Morrison Low
22
Annexure 1: Post-Tender Correspondence and
Clarifications
Not used
1982
ACT
INFORMATION
OFFICIAL
THE
UNDER
RELEASED
Morrison Low
23
Annexure 2: Notices to Tenderers
Not used
1982
ACT
INFORMATION
OFFICIAL
THE
UNDER
RELEASED
Morrison Low
24
All of Government Construction Consultancy Services Tracking
Slip
1982
Contract Award
Project name
Date
ACT
Agency
Fire and Emergency New Zealand
Provider
Morrison Low Ltd
Agency contact
Jim Stuart-Black
Provider contact
9(2)(a)
name & title
name & title
CA to DCE OSCD
Associate Director
Agency email
Jim.stuart-
Provider email
9(2)(a) @morrisonlow.com
address
[email address]
address
$50,000 excl. GST and
Value ($)
Additional notes
INFORMATION
disbursements
Contract Terms
Conditions of Contract for Consultancy Services as modified by the standard Crown amendments
Used
Note any
subcontractors
N/A
used and their
OFFICIAL
share of spend (%)
THE
Agency must note on GETS that the opportunity is sourced via the Al of
Government Construction Consultancy Services Panel.
Provider must check that the opportunity is sourced via the Al of Government
UNDER
Construction Consultancy Services Panel.
Please tag this Tracking Slip in your Financial Management System to indicate
AoG CCS.
RELEASED
Morrison Low
25
9(2)(a)
1982
ACT
INFORMATION
OFFICIAL
THE
UNDER
9(2)(b)(ii)
9(2)(b)(ii)
9(2)(b)(ii)
RELEASED
AoG Consultancy Services Order (CSO)
Part A – for Participating Agency (client) to complete
The Participating Agency (referred to as the client in Parts A – E of this Consultancy Services Order) wil
complete this and email the entire form (including al Parts) to the Provider.
1982
Today’s Date
21/3/2024
CSO or Project name
ICT AMP
Fire & Emergency New
Morrison Low &
Agency
Provider
ACT
Zealand
Associates Limited
Murray Mitchel
9(2)(a)
Agency contact
Provider contact
name & title
Chief Information &
name & title
Director
Technology Officer
Nominated Personnel
Chris Juriss
Nominated Personnel
9(2)(a)
Chris.Juriss@fireandeme
9(2)(a)@morrisonlow.c
Agency email address
rgency.nz
Provider email address
invoices@fireandemergen
om
INFORMATION
cy.nz
Agency phone #
Provider phone #
9(2)(a)
Sub Category
Outcome-based consultancy engagement (asset management)
GCDO Assurance Sub
no
Panel
OFFICIAL
Protective Security
no
Services Sub Panel
THE
UNDER
RELEASED
1
September 2018
A1. Purpose and any background information
Morrison Low (the Provider) are providing asset management assistance to FENZ (the Client) to
develop an Asset Management Plan (AMP) for the ICT portfolio.
FENZ require a complete document that meets good asset management (AM) practice. The AMP wil
include the latest information available and be a forward-looking plan to cover FENZ’s strategic
1982
direction for the ICT portfolio.
There are five main ICT asset classes in total with the addition of asset data and information as a new
asset class:
ACT
1. Operational Services.
2. Business Services (Applications).
3. End User Services.
4. ICT Delivery Services.
5. Asset Data and Information.
The asset classes are supported by various capabilities and it is intended that the Capability
Management Plans wil be developed at asset class level. The ICT AMP wil be the overarching
technical document with the lifecycle management detail provided in the Capability Management
Plans at asset class level.
INFORMATION
The ICT Asset Life Cycle Plan 2019-2031 outlines the approach for managing the ICT assets and wil be
used to populate the main lifecycle section in the ICT AMP. It is expected that it only requires to be
updated to reflect the latest asset hierarchy and financial forecasts.
The Digital Strategy 2021-2027 provides the ten year view for the ICT portfolio with a focus on getting
the foundations right.
OFFICIAL
A2. Specific questions / instructions for Provider
The Provider wil provide the Services set out in A1. Specific questions / instructions may be asked by
THE
the Client in relation to this engagement from time to time.
A3. Additional Information e.g. risks to client, additional contact information
Participating Agency’s Position on Expenses
The Participating Agency wil reimburse the Provider for its reasonable Expenses incurred in the
UNDER
provision of the Services and Deliverables provided that:
(a) the Participating Agency has given its prior written consent to the Provider incurring the Expenses;
and
(b) the Expenses are charged at cost.
The Participating Agency is under no obligation to pay for any Expenses that are claimed by the
Provider other than in accordance with this provision and reserves the right to request evidence of
RELEASED
Expenses incurred.
2
September 2018
A4. Client specific requirements
The key deliverables for the ICT AMP are:
ICT AMP structure with content noted at sub section level (using Property AMP structure as a starting
point).
1982
Finalised 2024 ICT AMP in the agreed structure (similar to Property AMP structure) using FENZ’s style
guide.
A3 AMP on a Page in well-presented format targeted at the non-technical audience.
Ten-year financial summaries based on agreed capital projects and optimised operational expenditure ACT
forecast based on best information available (provided by ICT team).
Three-year prioritised improvement programme (using template in Property AMP structure).
Risk register in FENZ’s template.
LOS table to good industry practice (using template in Property AMP structure).
A5. Timeframes
Start date: 22/3/2024
Completion date: 31/8/2024, unless this CSO is renewed by agreement or terminated earlier.
INFORMATION
A6. Indicative budget
1. Kick off meeting and agree AMP content $3,700
2. AMP development $26,000
3. Finalise AMP $8,300
Total = $38,000 (excluding GST and disbursements)
4. Develop structure for capability management plans – future phase (to be estimates (if agree to
OFFICIAL
proceed)
A7. Outputs of the Services THE
See A1, A4 A5 above
A8. Tables
[Tables can be inserted here]
UNDER
A9. Provider liability cap
The maximum liability of the Provider to the CoE and the Participating Agency for al Losses under or
in connection with this Consultancy Services Order is as per clause 12.4 of Part F (having regard to the
relevant Tier).
RELEASED
Part B – for Provider to complete
3
September 2018
The Provider wil complete Part B and email the form back to the client
B1. Specific Services to be provided
Refer to the ful methodology in Morrison Low’s proposal (12 March 2024). Summary of method is:
Phase 1 - Kick-off meeting and agree AMP content:
1982
Kick-off meeting - We wil have a kick-off meeting with you to agree on the scope, timeframes, key issues
and information to be provided. Cushla Anich and Richard Slater wil attend this meeting via Teams. The
ICT Team’s approach to asset data and information as a new asset class wil be discussed and wil be agreed
ACT
on how it wil be presented in the AMP (as early in maturity).
Agree AMP content – Using the structure developed for the Property AMP, the overal structure wil be
amended fol owing the kick off meeting and to al ow the alignment with the Capability Management Plans
being developed for the five asset classes. The content wil be noted in each sub section for client review
prior to starting the ful AMP development. The format of the proposed A3 AMP on a Page wil also be
discussed and agreed upon. We would use the Roadmap prepared in 2022 as a starting point for the
Improvement Programme.
Validate existing information - Information wil be reviewed for completeness at a high level to ensure that
the AMPs are based on sound underlying information and to help develop the improvement programme
where there are weaknesses or gaps identified through this process. Workshop / interview key staff where
information is not readily available.
INFORMATION
Phase 2 - AMP development
AMP analysis - Key information wil be analysed and prepared ready for inputting into the AMP to meet
industry good practice for AM. Analysis wil include asset inventory, risk register review, level of service
(LOS) table, financial forecast summaries based on likely capital projects for the AMP period and prioritised
three-year improvement programme.
Activity Risk Register - Operational risk registers are being developed throughout FENZ across the
directorates. It is good practice to develop an Activity Risk Register for the AMP. We would expect the
higher risks are presented in the AMP and reference the operational risk register for the detail. Morrison
OFFICIAL
Low wil facilitate activity risk workshop with ICT’S asset managers using the corporate risk matrix if
necessary.
Develop draft ICT AMP – Develop the AMP as first draft using the analysis from above and the other key
THE
information. A wel -presented graphic showing the asset hierarchy wil be prepared for feedback and
inclusion in the AMP.
Phase 3 - Finalise AMP
Gather feedback on draft AMP – We propose to gather feedback on the draft AMP and AMP on a Page with
a Teams meeting.
UNDER
Finalise draft AMP - Fol owing feedback from the initial draft, the AMP wil be updated including any new
information.
RELEASED
4
September 2018
B2. Sub Category and Tier to be Provided
Selection
Sub-category of Services
Tier (1/2/3)
Accounting
Assurance
2
Audit
1982
Finance and economics
Procurement and logistics
ACT
Taxation
Business change
Human resource
Marketing and public relations
Operations management and risk
Policy, research and development
2
B3. Can you confirm that the Nominated Personnel (if any) is available to provide the Services?
The nominated people are available to provide these services. These include 9(2)(a)
9(2)(a) and 9(2)(a)
.
INFORMATION
B4. Can you confirm that the timeframe is acceptable?
We can confirm that we can develop and ICT AMP by 31 August 2024.
B5. Estimated Start and End Date
OFFICIAL
Start
22/3/24
End
31/8/24
THE
UNDER
RELEASED
5
September 2018
B6. Estimate / Quote (excluding GST, if any)
Fees
$38,000
Administration Fee (Tier 1 and 2 only)
$380
(Optional) The above Fees are apportioned as fol ows:
1982
Job Level 1
$
Job Level 2
$
ACT
Job Level 3
$
Job Level 4
$
Job Level 5
$
Fixed Fee (Job Level 1)
$
Fixed Fee (Job Level 2)
$
Fixed Fee (Job Level 3)
$
Fixed Fee (Job Level 4)
$
Fixed Fee (Job Level 5)
$
INFORMATION
Monthly Retainer
$
Subcontracting
$
Expenses
$
Total Charges
$38,380
Identify whether the Total Charges is an Total charges are an estimate. Estimate based on hourly
OFFICIAL
Estimate / Quote and the method that rate for similar AM projects. This is based on AOG charge
the Charges have been calculated
out rates (excluding GST) as fol ows: ·$9(2)(b)(ii)for 9(2)(a)
and 9(2)(a)
and $9(2)(b)(ii)for 9(2)(a)
THE
Additional information / assumptions:
Various catch-up meetings wil by video conference or face to face as fol ows:
Auckland for Cushla Anich
Wel ington for Richard Slater
UNDER
RELEASED
6
September 2018
Job Level
Indicative Characteristics
• 15+ years of extensive professional experience in their specialised field in a consultancy
role.
• An industry leader and key influencer who is respected for their professional proficiency
and knowledge.
Level 5
• Recognised as a trusted adviser to ministers and/or senior executive teams.
1982
• Acts as the senior responsible person on major client engagements. Able to be accountable
for leading complex projects/programs.
• Responsible for leading a high performing team of professionals, including the coaching
ACT
and mentoring of col eagues at Levels 1–4.
• 10+ years of substantial professional experience in their specialised field in a consultancy
role.
• Strong theoretical base in subject area, with ability to apply best practice principles to the
subject matter context.
Level 4
• Senior team leader with the ability to deputise for the senior responsible person and coach
and mentor more junior staff.
• Ability to coordinate contributions of other specialists to complete a joint project.
• Can engage with clients at strategic/management level if required.
• 3-10 years of notable professional experience in their specialised field in a consultancy role.
INFORMATION
• A trusted performer on a wide range of client-facing consultancy projects in both the
private and public sectors.
• Thorough knowledge of functional area, combining a broad grasp of relevant best practice
principles.
Level 3
• Ability to participate in multi-disciplinary teams and to work independently (with limited
supervision).
• Performs professional level analysis requiring technical skil s and independent initiative
within a wel -defined program of work.
OFFICIAL
• Contacts with clients predominantly at a working level.
• 1-3 years of demonstrable professional experience in their specialised field in a consultancy
THE
role.
• Previous experience on a range of client-facing consultancy projects, preferably in both the
private and public sectors.
Level 2
• Has a theoretical base in subject area, possibly supplemented through recent study, with
the ability to translate theory into practice
• Performs a variety of analytical tasks requiring independent initiative and knowledge.
UNDER
• Interacts with clients predominantly at the working level.
• 0+ years of relevant professional experience in a professional environment.
• Evidence of prior contributions to consultancy engagements.
Level 1
• Performs a range of administrative tasks to support the wider team.
• Work is performed under the guidance of col eagues at Levels 3-5.
RELEASED
7
September 2018
B7. Conflict of Interest declaration and Additional Information
I, [name of authorised signatory of Provider] have made diligent inquiry whether [name of Provider] has any
actual, potential or perceived Conflict of Interest were it to provide the Services described in this
Consultancy Services Order and I have disclosed any actual, potential or perceived Conflict of Interest and
how it wil be managed below:
1982
No perceived conflicts
ACT
B8. Additional information
B9. Signatures
Name of Provider’s authorised signatory
9(2)(a)
Signature of authorised signatory
9(2)(a)
INFORMATION
The client accepts and authorises this
[Yes]
Consultancy Services Order
Name of client’s authorised signatory
Murray Mitchel
OFFICIAL
Signature of authorised signatory
9(2)(a)
THE
Date of acceptance
Client’s job reference or purchase order number
[if required]
Please send this link below to
UNDER your agency contacts to complete after each engagement. For long
engagements, we recommend sending this at key milestones to seek feedback throughout the
engagement.
Consultancy (https://www.research.net/r/ClientSatisfactionSurvey-AoGcontracts-CSO)
GCDO Assurance (https://www.research.net/r/GCDOAssuranceServices-CSO)
RELEASED
8
September 2018
Part C – Variations to Part A
LEAVE BLANK WHEN ISSUING CONSULTANCY SERVICES ORDER
The client wil complete Part C if they wish to change any details in Part A
C1. Revised scope and/or timeframe
1982
ACT
INFORMATION
OFFICIAL
THE
UNDER
RELEASED
9
September 2018
Part D – Variations to Part B
LEAVE BLANK WHEN ISSUING CONSULTANCY SERVICES ORDER
The Provider wil complete this only if and when it receives a Variation per Part C above from the client
D1. Revised Estimate (excluding GST, if any)
1982
Revised Fees
$[Add in total Fees]
Administration Fee (Tier 1 and 2 only)
$[1% of Fees for Services for which the Provider is Tier 1 or Tier 2]
ACT
(Optional) The above Fees are apportioned as fol ows:
Job Level 1
$
Job Level 2
$
Job Level 3
$
Job Level 4
$
Job Level 5
$
Fixed Fee (Job Level 1)
$
Fixed Fee (Job Level 2)
$
INFORMATION
Fixed Fee (Job Level 3)
$
Fixed Fee (Job Level 4)
$
Fixed Fee (Job Level 5)
$
Monthly Retainer
$
Subcontracting
$
OFFICIAL
Revised Expenses
$
Total Charges
$
THE
Identify whether the Total Charges is an
Estimate / Quote and the method that
the Charges have been calculated
Additional information / assumptions:
UNDER
RELEASED
10
September 2018
Part E – Acceptance
LEAVE BLANK WHEN ISSUING CONSULTANCY SERVICES ORDER
The Provider and client to complete on acceptance of this Consultancy Services Order
1982
E1. Signatures
Name of Provider’s authorised signatory
ACT
Signature of authorised signatory
The client accepts and authorises this
[Yes/No]
Consultancy Services Order
Name of client’s authorised signatory
INFORMATION
Signature of authorised signatory
Date of acceptance
Client’s job reference or purchase order number
[if required]
OFFICIAL
Please send this link below to your agency contacts to complete after each engagement. For long
engagements, we recommend sending this at key milestones to seek feedback throughout the
engagement.
THE
Consultancy (https://www.research.net/r/ClientSatisfactionSurvey-AoGcontracts-CSO)
GCDO Assurance (https://www.research.net/r/GCDOAssuranceServices-CSO)
UNDER
RELEASED
11
September 2018
Part F – Terms
THE PROVIDER AND PARTICIPATING AGENCIES ARE NOT PERMITTED TO AMEND
THIS PART F.
This Part F contains an extract of selected terms and conditions from the Services Agreement
1982
(the Agreement). Clause, schedule and paragraph references have been updated to refer to
clauses, schedules and paragraphs in this Part F where applicable. For the full terms and
conditions that govern the Services, please refer to the Agreement.
ACT
1.
Appointment
the terms of this Consultancy Services
Order.
1.1
Appointment
(b)
The Provider will use all reasonable
(a)
The Participating Agency appoints the
endeavours to ensure that, on the date
Provider to provide Services to the
the Documentation is provided under this
Participating Agency as detailed in this
Consultancy Services Order, such
Consultancy Services Order and the
Documentation is in a readable and
Provider accepts that appointment, in
readily useable format.
accordance with the terms of this
Consultancy Services Order.
2.2
Agents may procure Services
(b)
Certain obligations of the Provider in this
The Participating Agency may, by notice to the
Consultancy Services Order do not apply
Provider and the CoE, appoint one or more third
INFORMATION
to sub-categories of Services for which
parties to procure Services under this
the Provider has been appointed as a
Consultancy Services Order on the Participating
Tier 3 Provider as fol ows:
Agency’s behalf and/or receive invoices, as if
that agent was a Participating Agency, provided
(i)
the Participating Agency may
that any such procurement is for the sole benefit
nominate specific Personnel to
of the Participating Agency.
be the primary providers or to
supervise the delivery of the
2.3
Timely performance
Services but clauses 6.2(b) to
The Provider will ensure that the Services to be
6.2(e) do not apply to any
performed under this Consultancy Services
nominated Personnel;
Order are provided on or before the date
OFFICIAL
(ii)
the relevant Services are not
specified for performance (if any) in this
required to meet or exceed the
Consultancy Services Order and, if no time is
Service Levels specified in
specified, within a reasonable time after the issue
Schedule 3 (Performance
of the Consultancy Services Order.
Measurement) and clause 2.5(a),
2.4
Delay
THE
Schedule 3 (Performance
Measurement) do not apply;
(a)
If the Provider considers that it is (or is
likely to be) prevented or delayed from
(ii )
the Provider is not required to
achieving a date or time for performance
pay an Administration Fee and
(Milestone) specified in this Consultancy
clause 8.3(a)(v) does not apply;
Services Order (Delay), it will:
(iv)
the Provider is not required to
(i)
immediately provide notice
conduct the Agency Satisfaction
verbal y or in writing to the
Survey for the relevant Services
Participating Agency, setting out:
UNDER
and clause 5.1(h) does not apply;
(A)
the cause of the Delay
(v)
the Provider and Participating
and its expected
Agency are not obligated to
duration;
escalate a dispute to the CoE’s
Al -of-Government Procurement
(B)
the effect of the Delay on
Manager, Centre of Expertise for
its ability to perform its
Consultancy, in accordance with
obligations under this
clause 13.2(c)(i ); and
Consultancy Services
Order (including any
(vi)
as otherwise stated in this
future Milestones);
Consultancy Services Order.
(C)
what extension, if any, to
2.
Services
the relevant Milestone is
RELEASED
2.1
Services
being sought; and
(a)
The Provider will provide Services to the
(D)
what steps, if any, the
Participating Agency in accordance with
Participating Agency
12
September 2018
may take to mitigate the
to make use of it for the purpose
effect of the Delay; and
for which it was requested;
(ii)
take al reasonable steps
(iv)
act in the best interests of the
necessary (including by the
Participating Agency in the
al ocation of additional
provision of Services to the
resources) to eliminate or avoid
Participating Agency; and
the Delay and, in al cases,
mitigate its effects.
(v)
provide Services to the
reasonable satisfaction of the
1982
(b)
If the Provider and Participating Agency
Participating Agency (as reported
agree that the Delay is acceptable or
to the CoE).
wish to amend the Milestone:
3.
Estimates and Quotes
(i)
the Provider wil complete and
submit Part C of this Consultancy
3.1
Estimates and Quotes
ACT
Services Order to the
(a)
The Provider must provide an Estimate
Participating Agency; and
or Quote for al Services to be provided
(ii)
upon receipt of the completed
under this Consultancy Services Order,
Part C of this Consultancy
unless the total Fees in respect of the
Services Order, the Participating
Services under this Consultancy
Agency must promptly advise the
Services Order are likely to be less than
Provider in writing if the
$10,000 (exclusive of GST) or such other
completed Part C is acceptable.
amount as determined by the CoE and
notified to the Provider.
(c)
If the Provider does not achieve the
Milestone (as amended from time to
(b)
Despite clause 3.1(a), if, during the
time) and the Participating Agency’s acts
course of providing the Services, the
or omissions, or those of its Personnel or
Provider becomes aware that the total
third parties acting on its behalf, have not
Fees (excluding GST) are likely to
caused the Provider to fail to achieve the
exceed the amount referred to in clause
Milestone, the Participating Agency may,
3.1(a), the Provider must provide an
without prejudice to any other right or
Estimate in accordance with clauses
INFORMATION
remedy, suspend payment of any
3.1(c) to (e).
Charges relating to this Consultancy
(c)
Al Estimates and Quotes wil be
Services Order until the Provider
provided at no cost to the Participating
remedies the relevant failure.
Agency.
2.5
Service standards
(d)
Al Estimates and Quotes must specify
(a)
The Provider must provide the Services
the estimated timeframe to perform the
in relation to the sub-categories for which
Services requested in this Consultancy
the Provider has been appointed as a
Services Order and the Rates of
Tier 1 and Tier 2 Provider to a standard
Personnel providing the Services and
that reaches or exceeds the Service
include any Expenses likely to be
OFFICIAL
Levels specified in Schedule 3
incurred in providing the Services.
(Performance Measurement).
(e)
Al Quotes and Estimates must be
(b)
In addition, the Provider must:
provided to the Participating Agency in
writing and must be included in this
(i)
provide the Services diligently,
Consultancy Services Order.
THE
efficiently, effectively and in
accordance with Industry Best
(f)
To avoid doubt and without limiting
Practice;
clause 4.5(c) of the Services Agreement,
if any Quote or Estimate is not
(ii)
ensure that the Services to be
acceptable to the Participating Agency,
performed under this
the Participating Agency and Provider
Consultancy Services Order are
may seek to negotiate a more favourable
provided on or before the date
Quote or Estimate, including a decrease
specified for performance (if any)
in the Rates on which the Quote or
in this Consultancy Services
Estimate was based.
UNDER
Order and, if no time is specified,
within a reasonable time after the
3.2
If Charges exceed the Estimate
issue of this Consultancy
(a)
If during the course of providing the
Services Order;
Services under this Consultancy
(ii )
ensure that al Documentation,
Services Order, the Provider becomes
information and advice (including
aware that the total Charges (excluding
Documentation, information and
GST) are likely to exceed the Estimate,
advice provided prior to the issue
the Provider must give written notice to
of this Consultancy Services
the Participating Agency using Part D of
Order) provided to the
this Consultancy Services Order as soon
Participating Agency or
as the Provider becomes so aware, but
published on the Provider
no later than the time the costs accrued
Database is Fit for Purpose so
or incurred reach 80% of the Estimate.
RELEASED
that, without limitation, it contains
(b)
The notice under clause 3.2(a) must
sufficient content and detail to
specify a revised Estimate for the
enable the Participating Agency
Services and include the reason the total
13
Charges will exceed the original
(ii)
any Personnel or Subcontractors
Estimate.
of the Provider do not engage in
any activity or obtain interests
(c)
The Participating Agency has sole
that might result in the Provider
discretion whether to approve a revised
or such Personnel or
Estimate and must act reasonably when
Subcontractors having an actual,
deciding whether to approve a revised
potential or perceived Conflict of
Estimate.
Interest,
(d)
When a revised Estimate is approved,
that cannot be managed to the
1982
the Participating Agency must provide
satisfaction of the Participating Agency.
written notice of the same to the
Provider.
(d)
If, after commencing Services under this
Consultancy Services Order, the
(e)
If a Provider has provided an Estimate to
Provider becomes aware of any matter,
the Participating Agency for Services, the
circumstance, interest or activity that ACT
Participating Agency is not liable to pay
may give rise to any actual, potential or
the Provider any amount exceeding the
perceived Conflict of Interest, the
Estimate unless the Participating Agency
Provider must immediately notify the
has approved a revised Estimate.
Participating Agency of al relevant
3.3
If Charges exceed the Quote
details and must immediately cease work
on the Services until such time as the
(a)
The Provider acknowledges that neither
Participating Agency provides written
the CoE nor the Participating Agency are
notice confirming the Provider may
obliged to pay any Charges to the
continue to perform the Services or
Provider in relation to Services
terminates the engagement of the
performed under this Consultancy
Provider in respect to the Services to be
Services Order if those Charges exceed
performed under this Consultancy
any Quote provided in relation to this
Services Order in accordance with
Consultancy Services Order, unless the
clause 4.1(e).
Participating Agency has given its prior
written consent in accordance with
(e)
If the Participating Agency considers that
clause 3.3(b).
the Provider has an actual Conflict of
Interest of sufficient gravity that the
INFORMATION
(b)
If the Participating Agency agrees to
Provider can no longer perform Services
al ow the Provider to increase the
for it, the Participating Agency may, by
Charges:
written notice to the Provider, terminate
this Consultancy Services Order with
(i)
the Provider wil complete and
immediate effect on the date of
submit Part D of this Consultancy
termination specified in that notice.
Services Order to the
Participating Agency; and
(f)
Any approval or notice given by the
Participating Agency pursuant to clause
(ii)
upon receipt of the completed
4.1(b) or 4.1(d) may require the Provider
Part D of this Consultancy
to take steps reasonably required by the
Services Order, the Participating
OFFICIAL Participating Agency to manage the
Agency must promptly advise the
Conflict of Interest, and the Provider
Provider (in writing) if the
must provide written notice confirming its
completed Part D is acceptable.
acceptance of those steps before it may
4.
Conflicts of interest
commence or continue to provide the
Services under this Consultancy
THE
4.1
Conflicts of interest
Services Order.
(a)
The Provider must, upon receipt of this
5.
Responsibilities
Consultancy Services Order, make
diligent inquiry whether it has any actual,
5.1
Provider responsibilities
potential or perceived Conflicts of
In addition to its other obligations under this
Interest if it were to provide the Services
Consultancy Services Order, the Provider wil :
specified in this Consultancy Services
Order and, if no such Conflict of Interest
(a)
respond promptly, accurately and
UNDER
exists, the Provider must provide
adequately to any requests for
confirmation to that effect to the
information made by the Participating
Participating Agency.
Agency in relation to the Services,
including requests for advice;
(b)
If the Provider has an actual, potential or
perceived Conflict of Interest, the
(b)
in performing Services for the
Provider must immediately notify the
Participating Agency under this
Participating Agency and must not begin
Consultancy Services Order comply with
performing the Services without the prior
al privacy and other policies and
written approval of the Participating
guidelines issued by the Participating
Agency.
Agency and notified or made available to
the Provider;
(c)
The Provider must take al reasonable
steps to ensure that:
(c)
obtain, maintain and comply with any
RELEASED
governmental, regulatory or other
(i)
a situation does not arise that
approvals, permissions, consents,
might result in an actual,
licences, and requirements necessary to
potential or perceived Conflict of
provide the Services and perform its
Interest; and
14
obligations under this Consultancy
6.
Resourcing
Services Order;
6.1
General requirements
(d)
comply with al Laws at al times during
the Term in so far as they relate to the
The Provider will provide and maintain sufficient
provision of the Services, including the
resources (including human resources,
Privacy Act 1993 and all applicable
equipment, telecommunications connectivity,
consumer laws;
premises and other facilities) to enable it to
perform its obligations on time and otherwise in
(e)
ensure that it and its Personnel providing
accordance with this Consultancy Services
1982
the Services do not access the
Order.
Participating Agency’s information or
systems except to the extent necessary
6.2
Provider’s Nominated Personnel
to provide the Services and for no other
(a)
The Participating Agency may, in this
purpose;
Consultancy Services Order, nominate
ACT
(f)
as soon as is practicable, notify the
specific Personnel (Nominated
Participating Agency of any problems or
Personnel) to be the primary providers
issues that arise in relation to the
or to supervise the delivery of the
performance of its obligations under this
Services.
Consultancy Services Order, including
(b)
If any Nominated Personnel nominated
any problems or issues that wil , or are
in this Consultancy Services Order are
likely to, affect the provision or quality of
not available to provide or supervise the
the Services or the ability of the Provider
Services requested, the Provider must
to perform its obligations under this
immediately notify the Participating
Consultancy Services Order;
Agency and provide details of other
(g)
without limiting any other provision of this
Personnel (if any) with the necessary
Consultancy Services Order, use al
skil s and experience to provide or
reasonable endeavours to avoid
supervise the Services requested
damaging or adversely affecting any
pursuant to this Consultancy Services
Participating Agency’s reputation;
Order.
(h)
in relation to the sub-categories for which
(c)
Notice given under clause 6.2(b) must
INFORMATION
the Provider has been appointed as a
specify the period for which the
Tier 1 and Tier 2 Provider, conduct the
Nominated Personnel will continue to be
Agency Satisfaction Survey by asking
unavailable.
the Participating Agency the questions
(d)
Upon receipt of notice under clause
recorded in Annexure A of Schedule 5
6.2(b), the Participating Agency must
(Governance) to the Services Agreement
notify the Provider whether the
within 5 Business Days of the Services in
replacement Personnel are acceptable.
this Consultancy Services Order being
completed.
(e)
The Participating Agency is under no
obligation to accept any replacement
5.2
Participating Agencies’ responsibilities
Personnel and, if it does not approve the
OFFICIAL
The Participating Agency has the following
replacement Personnel, the Provider
responsibilities in relation to the Services:
may not commence or continue providing
the Services.
(a)
to manage its operational relationship
with the Provider, including in relation to
6.3
Personnel
the fulfilment of this Consultancy
(a)
The Provider will ensure that all of its
THE
Services Order;
Personnel who are engaged in the
(b)
to notify the Provider of all relevant
performance of the Provider’s obligations
policies, guidelines and procedures of
under this Consultancy Services Order:
the Participating Agency that the
(i)
have the requisite skil s,
Provider must comply with when
expertise, qualifications and
performing the Services under this
experience;
Consultancy Services Order;
(ii)
have, before performing any
(c)
to provide adequate instructions and
such obligations, obtained al
UNDER
information to the Provider to al ow it to
security clearances and passed
perform the Services under this
al probity checks required by, or
Consultancy Services Order;
necessary to provide the
(d)
to make timely decisions where
Services to, the Participating
approvals or consents are reasonably
Agency;
sought by the Provider in performing the
(ii )
comply with al health, safety,
Services under this Consultancy
security and other policies, codes
Services Order;
of conduct, procedures and
(e)
to pay the Charges; and
reasonable directions as may be
reasonably required by the
(f)
to use its best efforts to resolve any
Participating Agency from time to
dispute directly with the Provider before
time; and
involving the CoE in accordance with
RELEASED clause 13.
(iv)
wil carry out their respective
duties with due care, skill and
diligence.
15
(b)
The Participating Agency wil notify the
8.
Price and payment
Provider of any security clearances and
probity checks required by, or necessary
8.1
Calculation of Charges
to provide the Services to, the
The Charges will be calculated in accordance
Participating Agency.
with the terms of Schedule 2 (Pricing).
6.4
Subcontracting
8.2
Participating Agency to pay for Services
(a)
The Provider will not subcontract the
(a)
The Participating Agency wil pay the
performance of al or part of the Services
Provider the Charges applicable to any
1982
or any of its other obligations under this
Services procured by the Participating
Consultancy Services Order, except with
Agency on the terms of this clause 8.
the prior written consent of the
Participating Agency.
(b)
The Charges and Administration Fee
comprise the total amount payable by the
(b)
The Provider is solely responsible for the
ACT
Participating Agency for the Services.
selection of each Subcontractor and
must ensure that each Subcontractor is
8.3
Invoicing and payment
creditworthy, qualified and has the
relevant experience to perform the work
Except as otherwise provided in Schedule 2
it is required to carry out for the Provider.
(Pricing) or as agreed with the Participating
Agency in this Consultancy Services Order, the
(c)
To the extent permitted by Law, the
Provider wil invoice the Participating Agency (or,
Provider is and remains ful y responsible
if the Participating Agency has instructed the
for any act or omission of any
Provider in writing, the third party agent) for the
Subcontractor.
Charges and the Participating Agency wil pay
those Charges, in accordance with the fol owing
(d)
The Provider must ensure that each
terms:
Subcontract contains obligations on the
Subcontractor that are consistent with
(a)
the Provider wil render one itemised
the relevant terms of this Consultancy
invoice to the Participating Agency at the
Services Order, including in relation to
end of each month during the Term for
clauses 5.1 (Provider responsibilities),
al Services performed during that month
6.3(a) (Personnel), 10 (Confidentiality),
specifying (as applicable):
INFORMATION
11 (Intel ectual Property) and 14
(Termination) and Schedule 3
(i)
the nature and amount of the
(Performance Measurement), together
Fees or other applicable fees
with clause 15 (Audit) of the Services
and fee structures;
Agreement.
(ii)
the Personnel and their
(e)
If, in the Participating Agency’s
applicable Rate;
reasonable opinion, a Subcontractor is:
(ii )
the hours bil ed (by Personnel
(i)
material y not performing in
and in the aggregate);
accordance with the terms of this
(iv)
the nature and amount of any
Consultancy Services Order, the
Expenses (including any third
OFFICIAL
Participating Agency may, by
party charges to be passed on to
notice to the Provider, require the
the Participating Agency);
Provider to procure that the
Subcontractor performs the
(v)
if applicable, the amount
relevant obligations within 10
representing the Administration
Business Days, failing which the
Fee;
THE
Participating Agency may, by
notice to the Provider, require the
(vi)
how much of the Estimate or
Provider to remove that
Quote has been used;
Subcontractor; or
(vi )
a brief description of the Services
(ii)
a material threat to the health,
provided during that month; and
safety or security of the
(vi i)
any other matters the
Personnel or property of the
Participating Agency may
Participating Agency, or has
reasonably request;
UNDER
breached security or
confidentiality requirements of
(b)
each correctly rendered invoice wil be
this Consultancy Services Order,
payable on or before the 20th day of the
the Participating Agency may, by
month fol owing the month in which the
notice to the Provider, require the
invoice was received;
Provider to remove that
Subcontractor,
(c)
the Participating Agency wil have no
obligation to pay any Charges which are
and the Provider wil ensure the
invoiced more than 90 days after the
immediate removal of that Subcontractor.
date that such amount was required to
be invoiced pursuant to this clause 8.3;
7.
Changes
and
7.1
Change procedure
(d)
the Provider may only invoice the
RELEASED The Participating Agency may agree any
Participating Agency for any Expenses at
variations to this Consultancy Services Order
the cost actual y incurred by the
with the Provider using Part C of the Consultancy
Provider.
Services Order.
8.4
Invoice disputes
16
If the Participating Agency or the Provider
(c)
this Consultancy Services Order
disputes an invoice:
constitutes its legal, valid and binding
obligations and is enforceable in
(a)
it may withhold the disputed sum and, if
accordance with its terms.
applicable, associated Administration
Fee until the dispute is resolved;
9.2
Provider’s warranties
(b)
the dispute wil be resolved in
The Provider represents, warrants and
accordance with clause 13; and
undertakes that:
1982
(c)
it wil pay the undisputed portion in
(a)
it wil perform its obligations under this
accordance with clause 8.3.
Consultancy Services Order with due
care, skill, promptness and diligence at
The Provider will not be excused from performing
al times;
its obligations under this Consultancy Services
Order while an invoice is disputed by the
(b)
it has, and wil have throughout the ACT
Participating Agency.
Term, sufficient Personnel to supply the
Services and to perform its other
8.5
Taxes
obligations under this Consultancy
(a)
Except for any GST payable by the
Services Order;
Participating Agency, any present or
(c)
it, and each of its Personnel engaged in
future tax, levy, impost, duty, charge,
the performance of the Services, has,
assessment or fee of any nature
and wil have throughout the Term, the
(including applicable interest and
necessary expertise and all necessary
penalties) payable in connection with this
governmental, regulatory or other
Consultancy Services Order under any
approvals, permissions, consents,
Law is to be paid by the Provider and not
licences, qualifications, accreditations
passed on to the Participating Agency
and requirements to provide the Services
unless otherwise expressly agreed in
and perform its other obligations under
writing by the Participating Agency.
this Consultancy Services Order;
(b)
The Participating Agency may deduct
(d)
it wil comply with the requirements of al
from any payment to be made to the
Laws as they relate to the provision of
Provider any withholding taxes or other
Services by the Provider;
INFORMATION
deductions that it is required by Law to
make.
(e)
the possession or use of any item of
Intel ectual Property supplied or licensed
8.6
Administration Fee
by it, or the use of any item of Intel ectual
In relation to the sub-categories for which the
Property by it to perform its obligations
Provider has been appointed as a Tier 1 or Tier 2
under this Consultancy Services Order,
Provider, the Provider wil ensure that each
wil not infringe the rights of any third
invoice issued to the Participating Agency for the
party;
Charges includes, in addition to the Charges, a
(f)
all Documentation (and any other
separate amount equal to 1% of the Fees
information or advice supplied by it to the
(excluding GST) (the Administration Fee).
Participating Agency) and any
OFFICIAL
8.7
Suspension of payment
information and data reported to the CoE
wil be accurate, complete and (as
(a)
Without prejudice to any other right or
applicable) Fit for Purpose;
remedy that may be available to the
Participating Agency, the Participating
(g)
there are no existing agreements,
THE
Agency may suspend payment of al or
undertakings or arrangements which
any part of the Charges if the CoE has
prevent it from entering into this
notified the Provider that the Provider is
Consultancy Services Order, or which
in Material Breach, until that Material
would impede the performance of its
Breach is remedied.
obligations under this Consultancy
Services Order, or that it would breach
(b)
If the Material Breach is not capable of
by entering into this Consultancy
remedy the Participating Agency and the
Services Order;
Provider agree to treat the Charges as
being in dispute and clause 14 wil apply.
(h)
it is not (and nor is any of its Personnel)
UNDER
a party to any litigation, proceedings or
9.
Warranties
disputes which could adversely affect its
ability to perform its obligations under
9.1
General warranties
this Consultancy Services Order; and
Each party represents, warrants and undertakes
(i)
it has not offered any inducement in
that:
connection with the entering into or
(a)
it has ful power, capacity and authority
negotiation of this Consultancy Services
to execute, deliver and perform its
Order, and will not offer any inducement
obligations under this Consultancy
in connection with the supply of Services
Services Order;
to the Participating Agency.
(b)
it has, and wil continue to have, al the
9.3
Continuous application
necessary consents, permissions,
The warranties, representations and
RELEASED licences and rights to enter into and
undertakings set out in clause 9.2 wil be deemed
perform its obligations under this
to be given by the Provider continuously
Consultancy Services Order; and
throughout the Term.
17
9.4
Notification
(iv)
that becomes available to the
recipient from a source other
Each party will promptly notify the other if at any
than a party to this Consultancy
time during the Term it breaches any of the
Services Order, provided that the
warranties, representations and undertakings in
recipient has no reason to
this clause 9.
believe such source is itself
9.5
Other warranties excluded
bound by an obligation of
confidence to the person that
Al warranties (statutory, express or implied)
disclosed that information or is
1982
which are not expressly referred to in this
otherwise prohibited under Law
Consultancy Services Order are excluded to the
from disclosing such information;
ful est extent permitted by Law.
(v)
to any Professional Adviser for
10.
Confidentiality
the purposes of rendering
professional services to a party
ACT
10.1
Protection of Confidential Information
in relation to this Consultancy
(a)
Subject to clauses 10.1(c) and 10.2, the
Services Order;
Provider and the Participating Agency
(vi)
to the extent that such disclosure
wil treat as confidential and not disclose
is authorised by this Consultancy
to any third party nor use for its own
Services Order; or
benefit any Confidential Information that
is the Confidential Information of the
(vi )
if such disclosure is approved for
other.
release with the consent of the
party from whom the Confidential
(b)
The Provider will:
Information is first received.
(i)
ensure that al Confidential
10.2
Limited disclosure
Information of the Participating
Agency (and any backup
(a)
The Provider may, subject to clause
archives containing such
10.2(d), disclose the Confidential
Confidential Information) in the
Information of the Participating Agency to
possession or control of the
its Subcontractors, Personnel, Related
Provider from time to time is kept
Entities and Professional Advisers who
INFORMATION
secure and managed and
need to know the same for the sole
protected and only disclosed or
purpose of enabling the Provider to
otherwise dealt with in
perform its obligations and exercise its
accordance with this
rights under this Consultancy Services
Consultancy Services Order;
Order.
(ii)
not use any Agency Information
(b)
The Participating Agency may, subject to
for its own purposes or for any
clause 10.2(d), disclose the Confidential
purposes different from those
Information of the Provider to its third
contemplated by this
party suppliers, Personnel and
Consultancy Services Order; and
Professional Advisers and any other
Participating Agencies (including the
OFFICIAL
(ii )
advise the CoE in writing if any
CoE) who need to know the same in
Confidential Information of the
connection with the Services.
Participating Agency wil be
transferred or stored outside
(c)
The Provider will not disclose the
New Zealand before such
Participating Agency’s Confidential
information is transferred and will
Information to any of its Subcontractors,
THE
confirm that the requirements of
Related Entities or Professional
this clause 10.1 wil be met while
Advisers, and the Participating Agency
such Confidential Information is
wil not disclose the Provider’s
stored outside New Zealand.
Confidential Information to any of its third
party suppliers or Professional Advisers,
(c)
Clause 10.1(a) does not prevent the
unless the recipient has given a written
disclosure of Confidential Information:
confidentiality undertaking to the
(i)
if that information was known, or
disclosing party in terms substantial y
becomes known, to the public
similar to those set out in this clause 10.
UNDER
through no act or default of the
(d)
Any undertaking given pursuant to
recipient;
clause 10.2(c) wil be provided to the
(ii)
that the recipient is required by
other party to this Consultancy Services
Law or parliamentary practice
Order on request.
(including parliamentary
11.
Intellectual Property
questions) to disclose, or to a
Select Committee or to a Minister
11.1
Intellectual Property owned by Provider
of the Crown, so long as the
recipient provides notice of the
(a)
The Participating Agency acknowledges
required disclosure promptly
that al :
upon receipt of notice of the
(i)
Intel ectual Property held by the
required disclosure (if it is
Provider before the
RELEASED
permitted to do so by Law);
Commencement Date;
(ii )
that was lawful y known to the
(ii)
Intel ectual Property developed
recipient prior to the date it was
independently from this
received;
18
Consultancy Services Order by
(d)
To the extent that the Provider needs to
the Provider, and that is not
use any of the Participating Agency’s IP
developed, commissioned or
for the purpose of performing its
created under or in connection
obligations under this Agreement, the
with this Consultancy Services
Participating Agency grants to the
Order; and
Provider, subject to any written direction
given by the Participating Agency, of a
(ii )
adaptations and modifications to
royalty-free, non-exclusive, non-
the Intellectual Property
transferable licence to use and store the
described in clauses 11.1(a)(i)
1982
Participating Agency’s IP for the sole
and (i ),
purpose of performing its obligations
remains the Provider’s sole and
under this Consultancy Services Order
exclusive property (Provider IP).
during the Term.
(b)
To the extent that the Participating
11.3
Intellectual Property owned by third parties
ACT
Agency needs to use any of the Provider
(a)
To the extent that the Provider needs to
IP to receive the ful benefit of the
use any Intellectual Property held or
Services, the Provider grants to the
owned by a third party (Third Party IP)
Participating Agency a royalty-free, non-
in performing the Services under this
exclusive licence (including, if agreed in
Consultancy Services Order, the
this Consultancy Services Order, the
Provider wil use its best endeavours to
right to sublicense) to use, copy, modify
obtain the ful est rights of use and
and distribute during the Term any
licence of that Third Party IP (on terms
Provider IP provided to the Participating
and at a cost to be agreed with the
Agency by or on behalf of the Provider.
Participating Agency) as are necessary
11.2
Intellectual Property owned by Participating
for the performance of those Services for
Agency
the benefit of the Participating Agency.
(a)
The Provider acknowledges that the
(b)
The Participating Agency acknowledges
Participating Agency or its licensor has,
that the Provider may have limited ability
and continues to have, sole and
to obtain rights and/or a licence to use
exclusive ownership of al Intel ectual
any Third Party IP and, where the
INFORMATION
Property rights in all of the Agency
Provider, using its best endeavours,
Information together with all adaptations
cannot obtain appropriate rights and/or a
and modifications of such Agency
licence for the Participating Agency to
Information (Pre-contract Participating
use that Third Party IP, the warranty in
Agency IP).
clause 9.2(e) applies.
(b)
Al Intel ectual Property created or
12.
Liability
developed by the Provider or its
12.1
Indemnity
employees or Subcontractors in
performing the Services and developing
(a)
The Provider will, to the extent permitted
the Documentation wil be owned by the
by Law, indemnify the Participating
Participating Agency from the date the
Agency against al Losses suffered or
OFFICIAL
Intel ectual Property is created or
incurred by the Participating Agency as a
developed (Post-contract Participating
result of any:
Agency IP and, together with the Pre-
contract Participating Agency IP, the
(i)
unlawful, malicious or negligent
Participating Agency IP).
act or omission by the Provider;
THE
(c)
If the Provider (or any of its
(ii)
personal injury, sickness, death
Subcontractors) has under any Law any
or loss of, or damage to, tangible
right in or claim to any of the
property due to an act or
Participating Agency IP or holds any of
omission of the Provider; or
the Participating Agency IP, the Provider
(ii )
any other breach by the Provider
(by itself and for its Subcontractors):
of its obligations under this
(i)
assigns to the Participating
Consultancy Services Order.
Agency all of its rights, title and
(b)
The Provider will, subject to clause
UNDER
interest in and to the
12.1(c), indemnify the Participating
Participating Agency IP from the
Agency against al Losses suffered or
date it was created or developed;
incurred by the Participating Agency as a
and
result of any claim that the possession or
(ii)
waives al right of lien or similar
use of any Intel ectual Property supplied
rights as may now or later be
or licensed by the Provider, or the use of
claimed in the Participating
any Intel ectual Property used to provide
Agency IP; and
the Services, infringes any third party’s
rights.
(ii )
waives al of its moral rights
under Part 4 of the Copyright Act
(c)
The Provider will have no liability under
1994 in the Participating Agency
clause 12.1(b) to the extent that any IP
IP,
Claim arises from any:
RELEASED and the Provider wil sign al documents
(i)
modification by the Participating
and do al acts and things that are
Agency of any item of Intel ectual
necessary to give effect to this clause
Property supplied or licensed by
11.2(c).
19
the Provider without the approval
(i)
obtain for the Participating
of the Provider;
Agency the legal right to
continued use of the infringing
(ii)
use by the Participating Agency
materials; or
of Intel ectual Property supplied
or licensed by the Provider for
(ii)
replace, modify or resupply the
any purpose disal owed by this
infringing materials so that there
Consultancy Services Order or
is no further infringement, without
the applicable Intel ectual
adversely affecting the
Property licence (but only if the
performance or functionality of
1982
licence has been provided to the
those materials.
Participating Agency prior to
such use); or
12.3
Maximum liability of Participating Agency
(ii )
use of Intellectual Property used
In addition to its obligation to pay the Charges,
to provide the Services if and to
the maximum aggregate liability of the
ACT
the extent that Intellectual
Participating Agency to the Provider under or in
Property was supplied by the
connection with this Consultancy Services Order
Participating Agency.
wil be, in respect of al Losses, limited to the
total Charges paid and payable under this
12.2
IP Claims
Consultancy Services Order.
(a)
In the event of a claim under clause
12.4
Maximum liability of the Provider
12.1(b) (an IP Claim):
The maximum liability of the Provider to the
(i)
the Participating Agency will give
Participating Agency for al Losses under or in
the Provider notice of the IP
connection with this Consultancy Services Order
Claim as soon as practicable
in respect of al claims wil not exceed:
and, to the extent permissible by
Law, permit the Provider (at the
(a)
in relation to the sub-categories for which
Provider's cost) to handle al
the Provider has been appointed as a
negotiations for settlement and to
Tier 1 Provider, the greater of:
control and direct any litigation
(i)
10 times the total Charges paid
that may fol ow (Control of the
and payable under this
INFORMATION
IP Claim);
Consultancy Services Order;
(ii)
if the Provider has Control of the
(ii)
$5,000,000; and
IP Claim:
(ii )
any greater amount or multiple
(A)
the Participating Agency
set out in this Consultancy
wil provide al
Services Order;
reasonable assistance to
the Provider (at the
(b)
in relation to the sub-categories for which
Provider's cost) in the
the Provider has been appointed as a
handling of any
Tier 2 Provider, the greater of:
negotiations and OFFICIAL
litigation; and
(i)
10 times the total Charges paid
and payable under this
(B)
the Provider wil keep the
Consultancy Services Order;
Participating Agency
informed of the defence
(ii)
$2,000,000; and
or negotiations of the IP
(ii )
any greater amount or multiple
THE
Claim and diligently
set out in this Consultancy
conduct any litigation or
Services Order; and
negotiations, using
competent counsel and
(c)
in relation to the sub-categories for which
in a manner that does
the Provider has been appointed as a
not adversely affect the
Tier 3 Provider, the greater of:
name or reputation of the
Participating Agency;
(i)
10 times the total Charges paid
and payable under this
(ii )
the Provider wil not enter into
Consultancy Services Order;
UNDER
any settlement or compromise in
relation to the IP Claim without
(ii)
$1,000,000; and
the prior written consent of the
(ii )
any greater amount or multiple
Participating Agency (which will
set out in this Consultancy
not be unreasonably withheld);
Services Order.
and
12.5
No double dipping
(iv)
the Provider wil notify the CoE of
the IP Claim, and the outcome
A party to this Consultancy Services Order (or
within 5 Business Days of the
the CoE acting on behalf of the Participating
claim being concluded.
Agency in accordance with the Services
Agreement) cannot recover for the same Loss
(b)
If any IP Claim disrupts the Participating
under both this Consultancy Services Order and
Agency's use or enjoyment of a Service,
the Services Agreement.
RELEASED the Provider will (unless otherwise
requested by the CoE), at its own
12.6
Exclusions on liability
expense and at its option, immediately:
20
The limitations on liability set out in clauses 12.3
the Participating Agency may, to the
and 12.4 wil not limit the liability of:
extent that any Service requested by the
Participating Agency under this
(a)
the Provider under clauses 12.1(a) and
Consultancy Services Order has not
12.1(b) (other than in respect of
been delivered and delivery has, or will
negligent acts or omissions under clause
be, delayed by the Force Majeure Event,
12.1(a)(i) and breach by the Provider of
terminate this Consultancy Services
its obligations under this Consultancy
Order, by notice to the Provider within
Services Order under clause 12.1(a)(i i),
five Business Days following receipt by
which are subject to the limitations of
1982
the Participating Agency of notice of the
liability in clauses 12.3 and 12.4);
Force Majeure Event, at no cost to the
(b)
the Provider for any fraudulent act or
Participating Agency, subject to the
omission; or
Participating Agency paying for Services
delivered up to the date of the Force
(c)
either party for any breach of
Majeure Event.
ACT
confidentiality.
12.9
Insurance
12.7
Categories of loss
(a)
During the Term and for a period of two
(a)
Irrespective of how liability arises, neither
years fol owing the termination of this
the Provider nor the Participating Agency
Consultancy Services Order, the
wil , under any circumstances, be liable
Provider wil , at its own expense, ensure
for any indirect loss or damage (including
that it maintains adequate insurance in
consequential loss) arising under or in
respect of its potential liability for loss or
connection with this Consultancy
damage under this Consultancy Services
Services Order.
Order in accordance with Industry Best
Practice, but as a minimum the Provider
(b)
The Participating Agency wil not, under
must hold:
any circumstances, be liable for any loss
of profits or loss of revenue suffered by
(i)
professional indemnity
the Provider in connection with this
insurance;
Consultancy Services Order.
12.8
Force majeure
(ii)
public liability insurance in
INFORMATION
respect of the Services provided
(a)
The Provider and the Participating
under this Consultancy Services
Agency wil not be liable to the other for
Order; and
any failure to perform its obligations
under this Consultancy Services Order
during the time and to the extent that
(ii )
other insurance to cover
such performance is prevented, whol y or
standard commercial risks
substantial y, by reason of any Force
(including in respect of
Majeure Event.
Documentation which is the
property of the Participating
(b)
The party subject to the Force Majeure
Agency and in the Provider’s
Event (the non-performing party) must:
possession or control).
OFFICIAL
(i)
notify the other party as soon as
practicable after the Force
(b)
The Provider will, at the Participating
Majeure Event occurs and
Agency’s request, promptly provide
provide ful information
satisfactory evidence that it has complied
concerning the Force Majeure
with its obligations in this clause 12.9.
THE
Event, including the extent of its
inability to perform, an estimate
13.
Dispute resolution
of the time likely to be required to
13.1
Dispute
overcome the Force Majeure
Event and the steps the non-
In the event of any dispute, difference or
performing party wil take to
question arising out of, or in connection with, this
comply with clauses 12.8(b)(i )
Consultancy Services Order or its formation (a
and 12.8(b)(i i);
dispute):
UNDER
(ii)
use al reasonable endeavours to
(a)
the Participating Agency and the
mitigate and remedy the effect of
Provider wil each use its best efforts to
the Force Majeure Event and
resolve the dispute through good faith
minimise the impact of the event
negotiations and informal dispute
on the other party; and
resolution techniques, and wil continue
to perform its obligations under this
(ii )
use al reasonable endeavours to
Consultancy Services Order as far as
perform its obligations under this
possible as if the dispute had not arisen,
Consultancy Services Order as
pending final settlement of the dispute;
far as is practicable,
and
and the Participating Agency will not be
(b)
neither the Participating Agency nor the
required to pay Charges to the extent
Provider wil commence any formal
that the Provider fails to perform its
proceedings relating to the dispute
obligations to the Participating Agency
RELEASED
unless it has complied with clause 13.2.
due to a Force Majeure Event.
13.2
Escalation
(c)
If the non-performing party affected by
the Force Majeure Event is the Provider,
21
(a)
The Participating Agency and the
satisfaction of the Participating
Provider wil each advise its respective
Agency within 10 Business Days
Representative (or equivalent person) of
fol owing the date of receipt by
a dispute on the day that the dispute
the Provider of the Participating
arises.
Agency’s notice of the Material
Breach;
(b)
The Representatives wil use their best
efforts to resolve the dispute in
(c)
in accordance with clause 4.1(e) (Conflict
accordance with clause 13.1(a).
of Interest); or
1982
(c)
If the dispute is not resolved:
(d)
in accordance with clause 12.8(c) (Force
Majeure Event).
(i)
within 10 Business Days, the
dispute wil be escalated to
15.2
Consequences of termination or expiry
senior representatives of the
Provider and the Participating
(a)
In the event of termination or expiry ofACT
Agency with delegated authority
this Consultancy Services Order, the
to resolve the dispute; and
Participating Agency wil not be obliged
to make any payment to the Provider
(ii)
in relation to the sub-categories
except for any Charges payable for
for which the Provider has been
Services supplied pursuant to this
appointed as a Tier 1 and Tier 2
Consultancy Services Order before the
Provider, within a further 10
effective date of expiry or termination.
Business Days, the dispute will
be escalated to the CoE’s
(b)
Termination or expiry wil not, unless
Manager, All-of-Government
otherwise provided in this Consultancy
Contracts and the Provider’s
Services Order, affect:
Chief Executive.
(i)
any rights and remedies
13.3
Mediation
available to either party which
have accrued up to and including
(a)
If a dispute is not resolved under clause
the date of termination or expiry;
13.2, either party may, by written notice
and
to the other, refer the dispute to
INFORMATION
mediation, or they may agree in writing to
(ii)
the provisions of this
refer the dispute to mediation.
Consultancy Services Order
which expressly, or by their
(b)
The mediation will be conducted by a
nature, survive termination or
single mediator in accordance with the
expiry, including clauses 16
terms of the Resolution Institute
(Entire agreement), 10
Standard Mediation Agreement and at a
(Confidentiality), 11 (Intel ectual
fee to be agreed by the parties.
Property), 12 (Liability), 13
(Dispute Resolution), 15.2
(c)
If the parties fail to agree on the identity
(Consequences of termination or
of the mediator and/or the mediator’s fee
expiry) and 17 (General) and
within five Business Days of referral of
Schedule 1 (Definitions);
the dispute to mediation, the mediator
OFFICIAL
wil be chosen, and the mediator’s fee
(ii )
the continued application of
determined, by the chairperson for the
clauses of the Services
time being of Resolution Institute (or his
Agreement which expressly, or
or her nominee).
by their nature, are intended to
continue to apply to this
THE
13.4
Urgent relief
Consultancy Services Order after
Nothing in this clause 13 will preclude either
termination or expiry of this
party from taking immediate steps to seek urgent
Consultancy Services Order,
relief before a New Zealand court.
including clauses
1.4 (Precedence) and 15 (Audit).
14.
Termination
(c)
After expiry or termination of this
14.1
Termination of Consultancy Services Order
Consultancy Services Order for any
reason, each party wil , within five
15.
The Participating Agency may terminate
Business Days of receiving notice from
UNDER
this Consultancy Services Order:
the other party, return al Documentation,
(a)
for convenience by giving the Provider at
Confidential Information or other property
least one month’s prior written notice;
belonging to the other party (or destroy
such Confidential Information, if
(b)
by notice to the Provider with immediate
requested), except if such
effect on the date of termination specified
Documentation, Confidential Information
in that notice, if the Provider commits a
or other property is required to be
Material Breach which is:
retained by any Law.
(i)
not capable of being remedied
16.
Entire agreement
(and, for the avoidance of doubt,
paragraphs (a) and (b) of the
16.1
Entire agreement
definition of “Material Breach” are
(a)
This Consultancy Services Order is
deemed incapable of being
RELEASED
intended to be read in conjunction with
remedied); or
the Services Agreement. The provisions
(ii)
capable of being remedied but
of the Services Agreement (not already
which is not remedied to the
included in this Consultancy Services
22
Order) which confer rights, obligations or
legal, accounting or regulatory requirements), will
benefits on the parties or the CoE in
be co-ordinated with, and must first be approved
respect of this Consultancy Services
in writing by, the Participating Agency prior to
Order are intended to apply to this
release.
Consultancy Services Order.
17.6
Notices
(b)
Subject to clause 16.1(a), no other terms
or conditions, including any conditions of
(a)
Unless otherwise specified in this
sale, invoices or any other
Consultancy Services Order, each notice
communication not included in this
or other communication under this
1982
Consultancy Services Order
Consultancy Services Order wil be made
(Communication), wil be incorporated
in writing and delivered by post, personal
into this Consultancy Services Order,
delivery or email to the addressee at the
even if at some later date the other party
addressee’s postal address, physical
(including, in the case of the Participating
address or email address (as applicable)
ACT
Agency) signs or otherwise purports to
and marked for the attention of the
accept those terms and conditions or the
person or office holder (if any) from time
terms of that Communication.
to time designated for that purpose by
the addressee.
(c)
For the avoidance of doubt, and without
limiting clauses 16.1(a) and 16.1(b):
(b)
The Provider’s postal address, physical
address and email address is set out in
(i)
any Communication which is
the Provider Database and may be
expressed or intended to operate
amended by the Provider at any time.
as an indemnity, warranty,
representation, undertaking,
(c)
The Participating Agency’s postal
condition or other term of such a
address, physical address and email
nature is hereby disapplied and
address is as notified by the Participating
excluded from this Consultancy
Agency to the Provider and may be
Services Order; and
amended by the Participating Agency at
any time.
(ii)
any part of this Consultancy
Services Order which describes
(d)
A notice or other communication wil be
the nature, scope, price or
deemed to be received:
INFORMATION
manner of delivery of Services
(i)
in the case of a letter sent to the
wil , subject to clause 16.1(c)(i),
addressee’s postal address, on
form part of this Consultancy
the third Business Day after
Services Order, but only to the
posting;
extent that it does not conflict
with any other part of this
(ii)
in the case of personal delivery,
Consultancy Services Order.
on receipt; and
17.
General
(ii )
in the case of an email, at the
time the email leaves the
17.1
Interpretation
communications system of the
sender, provided that the sender:
OFFICIAL
The rules of interpretation set out in clause 19.1
of the Services Agreement apply to this
(A)
does not receive any
Consultancy Services Order.
error message relating to
the sending of the email
17.2
Relationship of the parties
at the time of sending;
THE
Nothing expressed or implied in this Consultancy
and
Services Order will be deemed to constitute
(B)
has obtained
either party as the partner, agent, or joint
confirmation that the
venturer of the other party.
email has been delivered
17.3
Costs
to the recipient (which
confirmation may be in
A party who has an obligation to do anything
the form of an automated
under this Consultancy Services Order will
delivery receipt from the
perform that obligation at its own cost, unless a
communications system
UNDER
term of this Consultancy Services Order
of the recipient),
expressly provides otherwise.
on the Business Day on which it
17.4
Assignment
is dispatched or, if dispatched
Neither party may assign, novate, transfer or
after 5 p.m. (in the place of
otherwise dispose of the whole or any part of its
receipt), on the next Business
rights and obligations under this Consultancy
Day after the date of dispatch.
Services Order without first obtaining the other
17.7
Severability
party’s consent (which wil not be unreasonably
withheld or delayed).
If any term or provision of this Consultancy
Services Order is held to be illegal, invalid or
17.5
Public disclosures
unenforceable it wil be severed from this
Subject to clause 10, al public disclosures by the
Consultancy Services Order without affecting the
RELEASED Provider relating to this Consultancy Services
legality, validity or enforceability of the remaining
Order, including the fact of its existence (but not
provisions.
including any announcement intended solely for
17.8
Waiver
internal distribution or any disclosure required by
23
(a)
Neither party will be deemed to have
(c)
legal names, logos, trademarks, brands or images of
waived any right under this Consultancy
the Participating Agency, including al related
Services Order unless the waiver is in
Intel ectual Property of the Participating Agency and
writing and signed by the parties.
the New Zealand Coat of Arms or any other coat of
arms or emblem used by the Participating Agency,
(b)
Any failure or delay by a party to
exercise any right or power under this
but excluding the Provider’s working papers;
Consultancy Services Order wil not
operate as a waiver of that right or
Annexure means any document physically attached to a
power.
Schedule and identified as such and any other document
1982
incorporated by reference in any part of this Consultancy
(c)
Any waiver by a party of any breach, or
Services Order (other than an Annexure);
failure to exercise any right, under this
Consultancy Services Order wil not
Appointment Letter means the letter issued to the Provider
constitute a waiver of any subsequent
by the CoE, as amended or reissued from time to time,
breach or continuing right.
confirming (among other things) the Provider’s appointment
ACT
as an Al -of-Government provider of consultancy services
17.9
Remedies cumulative
and detailing the terms and conditions of the appointment
(including the Services and the applicable Tier(s));
Except as is expressly stated otherwise in this
Consultancy Services Order:
Business Day means any day of the year other than a
Saturday, a Sunday or a public holiday (as defined in section
(a)
the rights, powers and remedies
44 of the Holidays Act 2003) observed at the location of the
provided in this Consultancy Services
Participating Agency;
Order are cumulative and are not
exclusive of any rights, powers or
Charges means the amount payable by Participating
remedies provided by Law or under this
Agencies for Services and includes Fees and Expenses, as
Consultancy Services Order; and
described in Schedule 2 (Pricing) and agreed in this
Consultancy Services Order;
(b)
the exercise of any rights, powers and
remedies provided in this Consultancy
CoE means the Ministry of Business, Innovation and
Services Order will not prejudice the
Employment, the Centre of Expertise for Consultancy
exercise of any other right, power or
Services;
remedy under this Consultancy Services
INFORMATION
Order or existing at Law.
Commencement Date is the date on which this Consultancy
Services Order is signed by both parties or, if two dates, the
17.10
Counterparts
later date;
This Consultancy Services Order may be signed
Confidential Information means:
in two counterparts, each of which wil be
deemed an original, but both of which together
(a)
al information and trade secrets already
are to constitute a single instrument.
communicated or subsequently communicated under
or in connection with this Consultancy Services Order,
17.11
Governing law and jurisdiction
including information obtained during the negotiation of
this Consultancy Services Order or in the performance
(a)
This Consultancy Services Order is
of this Consultancy Services Order and information on
governed by, and wil be construed in
the Provider Database;
OFFICIAL
accordance with, the laws of New
Zealand.
(b)
any information about the business or property of either
party including any information:
(b)
Subject to clause 13, each party
irrevocably submits to the exclusive
(i)
relating to the financial position of that party;
jurisdiction of the New Zealand courts for
THE
the purpose of hearing and determining
(ii)
concerning that party’s suppliers and customers;
any dispute under, or in connection with,
or
this Agreement.
(ii )
relating to that party’s internal management,
structure, Personnel or strategies;
(c)
the terms of this Consultancy Services Order; and
(d)
Agency Information;
Conflict of Interest means any matter, circumstance,
UNDER
SCHEDULE 1: DEFINITIONS
interest or activity of the Provider, its Personnel or
Subcontractors, arising by whatever means that directly or
In this Consultancy Services Order, unless the context
indirectly conflicts with:
otherwise requires:
(a)
the duties of the Provider and any of its Personnel or
Administration Fee means the amount referred to in clause
Subcontractors to the Participating Agency; or
8.6;
(b)
the interests of the Participating Agency in relation to
Agency Information means al :
this Consultancy Services Order or otherwise in
(a)
information and records belonging to the Participating
respect to the provision of consultancy services to the
Agency that are supplied to or col ected by the Provider
Participating Agency either before or after the
for the purpose of enabling the Provider to perform its
Commencement Date;
obligations under this Consultancy Services Order;
or otherwise impairs or might appear to impair the ability of
(b)
compilations of data created by a Participating Agency
the Provider (or any of its Personnel or Subcontractors) to
RELEASED
or the Provider for the purposes of this Consultancy
provide the Services to the Participating Agency under this
Services Order; and
Consultancy Services Order diligently, independently,
24
impartial y and in the best interests of the Participating
but does not include an event to the extent that:
Agency;
(e)
the effect of that event could have been substantially
Consultancy Services Order means this service order
prevented, avoided or overcome or mitigated by:
relating to the supply of Services issued by the Participating
Agency;
(i)
implementation of any contracted business
continuity or disaster recovery service, or any
Contract Quarter means a period of three consecutive
contingency plans agreed between the parties or
months commencing on 1 January, 1 April, 1 July or 1
which a party has represented it has in place; or
October;
1982
(ii)
exercising a reasonable standard of care; or
Control means, in relation to the Provider or any ultimate or
intermediate holding company or Holding Entity of the
(ii )
using information provided by the other party or
Provider, the power to:
which is available in the public domain; or
(a)
manage, directly or indirectly, the operation of the
(f)
it is an event for which the party affected is or was ACT
business; or
directly responsible; or
(b)
control, directly or indirectly, the composition of the
(g)
that event is constituted or caused by any act or
board of directors or board of management or
omission of Personnel or a Subcontractor unless and
equivalent governing body,
to the extent that the Personnel or Subcontractor was
itself affected by an event, which if it occurred in
of the Provider or such ultimate or intermediate holding
relation to either party would have been a Force
company or Holding Entity, whether through the ownership of
Majeure Event; or
voting securities, by contract or otherwise, and for these
purposes “holding company” wil have the same meaning as
(h)
that event is constituted or caused by an Insolvency
in section 5 of the Companies Act 1993;
Event or the insolvency of a Subcontractor or lack of
funds for any reason;
Documentation means al advice, communications,
documentation (including information on the Provider
GST means goods and services tax under the Goods and
Database) and reports (whether in paper, electronic, audio or
Services Tax Act 1985;
audio-visual format) relating to, or provided as part of, the
Holding Entity means a trust, unit trust, partnership, limited
Services together with additions, modifications to, and
partnership, unincorporated joint venture or other body
replacements of, that documentation, but excludes the
corporate or unincorporated body of persons that Controls
Provider’s working papers;
the Provider, and includes any natural person that Controls
INFORMATION
Estimate means an estimate of the total Charges for the
the Provider;
Services required by the Participating Agency;
Industry Best Practice means the high professional
Expense means any actual and reasonable out-of-pocket
standard that would reasonably be expected from a prudent
costs incurred by the Provider in the delivery of the Services
and experienced provider of consultancy services in New
and agreed to in this Consultancy Services Order, and
Zealand having regard to market practice at the relevant
includes any freight and related costs, travel ing and
time;
incidental expenses and other costs, disbursements, fees,
Insolvency Event means, in relation to the Provider:
charges and expenses directly or indirectly incurred by the
Provider;
(a)
the presentation of an application for its liquidation that
is not discharged within 30 days of its filing or which is
OFFICIAL
Fees means the amount payable by the Participating Agency
not demonstrated to the Participating Agency prior to
to the Provider for its time spent delivering the Services
the expiry of that 30 day period as being an application
calculated on the basis of the Rates, excluding Expenses;
that is frivolous or vexatious;
Fit for Purpose means, in relation to any Service or
(b)
any step taken in or toward the making of any
Documentation to be provided by the Provider to the
compromise, proposal or deed of arrangement with al
THE
Participating Agency, that such Services or Documentation
or some of its creditors;
are, in descending order of priority, fit for the purpose(s):
(c)
the appointment of a liquidator, receiver, statutory
(a)
expressly made known in writing by the Participating
manager, administrator or similar official, to it;
Agency to the Provider (including in this Consultancy
Services Order); or
(d)
the suspension or threatened suspension by it of the
payment of its debts;
(b)
for which the Provider, given its knowledge of the
Participating Agency and understanding why the
(e)
cessation by it of a whole or any relevant part of its
Services or Documentation are required, has reason to
business in New Zealand;
UNDER
expect such Services or Documentation to be used;
(f)
the enforcement of any security against the whole or a
Force Majeure Event means an event or circumstance
substantial part of its assets; or
beyond the reasonable control of either party which makes it
impossible or il egal to perform, or prevents compliance with,
(g)
any other insolvency event or proceedings analogous
or the performance of, a party’s obligations under this
to any of the foregoing occurring in any relevant
Consultancy Services Order, including:
jurisdiction;
(a)
fire, floods, tsunami, storms, tempest, earthquake or
Intellectual Property means copyright, al rights in relation
other act of God;
to inventions (including patents), registered and unregistered
trademarks, registered and unregistered designs, trade or
(b)
any act of a public enemy, war, riot, or act of civil or
other proprietary rights or rights derivative of those rights
military authority;
(including licence rights) anywhere in the world as well as
any other rights in intel ectual property which are recognised
(c)
nuclear, chemical or biological contamination; and
or protected under Law;
RELEASED
(d)
subject to paragraph (g) of this definition, any act of a
Law means:
third party engaged in subversive or terrorist activity or
sabotage,
25
(a)
any statute, regulation, bylaw, ordinance or
Provider Database means the IT platform described in
subordinate legislation in force from time to time to
Schedule 7 (Provider Database) to the Services Agreement;
which a party is subject;
Quote means a fixed price, capped price or other pre-agreed
(b)
the common law and the law of equity as applicable to
basis for establishing the Charges for Services required by
the parties from time to time;
the Participating Agency where the Provider is prevented
from increasing the Charges without the prior written consent
(c)
any binding court order, judgment or decree;
of the Participating Agency;
(d)
any applicable industry code of practice or conduct,
Rates means the rates (whether hourly, daily or weekly or
1982
convention, policy, rule or standard to which a party is
other time-related basis) payable to the Provider for providing
bound; or
the Services, determined in accordance with Schedule 2
(e)
any applicable direction, policy, permission, consent,
(Pricing), excluding Expenses;
licence, rule or order that is binding on a party and that
Related Entity means a related company under the
is made or given by any governmental or regulatory
Companies Act 1993 (New Zealand) or a related body
ACT
body having jurisdiction over a party or any of that
corporate under the Corporations Act 200, provided that any
party’s assets, resources or business,
reference in the Companies Act 1993 to a “company” is
in any jurisdiction that is applicable to this Consultancy
deemed to include any partnership, body corporate,
Services Order;
association or other entity, whether corporate or
unincorporated, irrespective of the place of incorporation or
Losses means liabilities, expenses, losses, damages and
registration of that partnership, body corporate, association
costs (including legal costs on a ful indemnity basis);
or other entity;
Material Breach means any material breach by the Provider
Representative has the meaning given in paragraph 3.1 of
of the terms of this Consultancy Services Order or the
Schedule 5 (Governance) to the Services Agreement);
occurrence of any event having a material effect on the ability
of the Provider to perform its obligations under this
Service Level means a required standard for the Provider’s
Consultancy Services Order (other than a Force Majeure
performance of its obligations under this Consultancy
Event), including:
Services Order, as described in Schedule 3 (Performance
Measurement);
(a)
the occurrence of an Insolvency Event in relation to the
Provider or the likely occurrence of an Insolvency
Service Level Default means a failure by the Provider to
Event;
meet one or more Service Levels;
INFORMATION
(b)
the occurrence of a change in Control of the Provider
Services means the consultancy services provided from time
or any ultimate or intermediate holding company or
to time under the terms of this Consultancy Services Order;
Holding Entity of the Provider that the CoE has not
Services Agreement means the Al -of-Government services
previously approved (acting reasonably);
agreement relating to the supply of Tier 1 and 2 consultancy
(c)
any representation or warranty made by the Provider in
services between the CoE and the Provider;
terms of this Consultancy Services Order being found
Subcontractor means any person to whom the Provider has
to be untrue or incorrect; and
subcontracted any part of its obligations under this
(d)
any failure on the part of the Provider to comply with,
Consultancy Services Order or who is a supplier to the
observe or perform any of the terms of this
Provider in respect of this Consultancy Services Order and
Consultancy Services Order in circumstances where
includes the employees and subcontractors of that person
OFFICIAL
that contract breach or that contract breach together
and Subcontract wil be construed accordingly;
with other contract breaches is considered by the
Term means the period commencing on the date that this
Participating Agency on reasonable grounds to cause
Consultancy Services Order is signed by both parties and
the Provider to be unable or unwil ing, or be likely to be
ending on the earlier of:
unable or unwil ing, to perform its obligations under this
THE
Consultancy Services Order;
(a)
the date on which the Services are completed in
accordance with this Consultancy Services Order; and
Maximum Rates means the maximum Rates payable to the
Provider for providing the Services, as recorded in the
(b)
the date on which this Consultancy Services Order is
Provider Database, excluding Expenses;
terminated in accordance with its terms; and
Panel means the Al -of-Government panel of providers who
Tiers means any of Tiers 1 and Tiers 2 for which members
provide consultancy services to Participating Agencies,
of the Panel are appointed and, in respect of the Provider,
including any sub-panel, as detailed on
means the Tier(s) the Provider is appointed to as detailed in
www.procurement.govt.nz;
the Appointment Letter.
UNDER
Participating Agency means the Participating Agency that
is a party to this Consultancy Services Order;
SCHEDULE 2: PRICING
Participating Agencies means each of the CoE and every
other Eligible Agency that is a party to the memorandum of
understanding between the CoE and al other Participating
1.
Introduction
Agencies relating to the management of their relationship
with each other and with the Provider in relation to the
This Schedule sets out general principles
Services, as amended from time to time;
underlying the Charges.
Personnel includes partners, principals, directors,
2.
Principles
employees, agents, officers and individual independent
contractors;
2.1
Participating Agency will only pay for
Services ordered
RELEASED
Professional Adviser means any accounting, legal,
procurement or technical professional;
(a)
The Provider will invoice the Participating
Agency for the Charges in accordance
26
with clause 8.3 of this Consultancy
(a)
At al times during the Term, the Provider
Services Order.
wil , in relation to the sub-categories for
which the Provider has been appointed
(b)
The Participating Agency wil only pay for
as a Tier 1 and Tier 2 Provider, perform
Services that it orders in accordance with
its obligations to meet or exceed the
this Consultancy Services Order.
Service Levels.
2.2
No minimum volume
(b)
The Provider acknowledges that any
The Participating Agency is not required to meet
failure to meet the Service Levels may
1982
a minimum aggregate expenditure or volume
have a significant impact on the
level for any Services.
Participating Agency.
2.3
No interest
2.3
Changes to Service Levels
No interest wil be payable on any amount due to
(a)
From time to time during the Term, the
the Provider under this Consultancy Services
CoE and the Provider may negotiate in
ACT
Order.
good faith to add, delete or modify then-
existing Service Levels to reflect
2.4
Rates
changes in the Participating Agencies’
requirements or objectives.
(a)
The Fees are calculated on the Rates,
being either the Rates that are recorded
(c)
Any changes to Service Levels will be
on the Provider Database or, subject to
effected in accordance with clause 10 of
paragraph 3, a different Rate as
the Services Agreement.
negotiated between the Provider and
Participating Agency and recorded in this
3.
Performance measurement
Consultancy Services Order.
3.2
Failure to meet Service Levels
(a)
The Maximum Rates are the maximum
If the Provider fails to achieve one or more of the
amounts payable by the Participating
Service Levels in any Contract Quarter in respect
Agency for the Services.
of this Consultancy Services Order, it will:
3.
Charges
(a)
take such steps and do all things
The Charges payable by the Participating
necessary, as soon as possible, to
INFORMATION
Agency for Services must not include any Fees
correct the failure; and
invoiced at Rates higher than the Maximum
(a)
notify the Participating Agency of the
Rates recorded in the Provider Database.
reasons for the failure and the steps that
the Provider is taking to ensure that the
failure is not repeated; and
SCHEDULE 3: PERFORMANCE MEASUREMENT
(b)
consider whether the Charges for the
Services that are subject to the Service
Level Default should be reduced to
1.
Introduction
reflect the lower value of the Services
provided.
This Schedule describes, in relation to the sub-
OFFICIAL
categories for which the Provider has been
Annexure A: Service Levels
appointed as a Tier 1 and Tier 2 Provider:
(a)
the Service Levels; and
Parameter
1. Services Fit for Purpose
(b)
how performance against Service Levels
THE
Description Were the Services subject to this
wil be measured and reported.
Consultancy Services Order Fit for
2.
Service Levels
Purpose?
2.1
Format
Purpose
To ensure Services provided are Fit for
Purpose.
Each Service Level is described in Annexure A
using the fol owing format:
Calculation
The Participating Agency wil advise
whether the Services are Fit for Purpose as
Parameter
Description
part of the Agency Satisfaction Survey.
UNDER
Description
Description of what the Service
Service
100% of Services delivered to the
Level wil measure
Level
Participating Agency must be Fit for
Purpose
Why
it
is
important
to
Purpose.
Participating Agencies that the
Service Level is met
Calculation
Method for calculating the
Service Level
Service Level
The performance standard that
the Provider is required to meet
or exceed
RELEASED
2.2
Service Levels must be met
27
Parameter
2. Timely Performance of Services
Description Did the Provider perform the Services
subject to this Consultancy Services Order
within the timeframe recorded in this
Consultancy Service Order (or as amended
by agreement from time to time)?
Purpose
To ensure on-time provision of Services
1982
requested under a Consultancy Services
Order.
Calculation
The Provider is required to report on this
metric as part of the reporting requirements
in Schedule 6 (Reporting) to the Services
ACT
Agreement.
Service
The Provider must deliver al Services
Level
subject to this Consultancy Services Order
within the agreed timeframe for delivery
recorded in this Consultancy Services Order
including any variation to the timeframe
recorded in Part D of this Consultancy
Services Order.
Parameter
3. Services Performed to budget
Description Were the Charges for the Services subject
to this Consultancy Services Order within
the Estimate or Quote recorded in this
Consultancy Services Order?
INFORMATION
Purpose
To ensure Services requested under a
Consultancy Services Order are performed
on or under the Provider’s Estimate or
Quote.
Calculation
The Provider is required to report on this
metric as part of the reporting requirements
in Schedule 6 (Reporting) to the Services
Agreement.
Service
The Provider must deliver al Services
OFFICIAL
Level
subject to this Consultancy Services Order
within the agreed Estimate or Quote
recorded in this Consultancy Services Order
including any variation to the Estimate
recorded in Part D of this Consultancy
THE
Services Order.
UNDER
RELEASED
28
Sensitivity: General
AoG Consultancy Services Order (CSO)
Part A – for Participating Agency (client) to complete
The Participating Agency (referred to as the client in Parts A – E of this Consultancy Services Order) will
complete this and email the entire form (including all Parts) to the Provider.
1982
Today’s Date
26 May 2025
CSO or Project name
FENZ AMP Reviews
ACT
Fire and Emergency New
Agency
Provider
Beca Ltd
Zealand (FENZ)
Jim Stuart-Black
9(2)(a)
Agency contact
Chief Advisor to DCE
Provider contact
Technical
name & title
Organisational Strategy
name & title
Director/Principal -
and Capability
Asset Advisory
Development Branch
Nominated Personnel
Jim Stuart-Black
Nominated Personnel
9(2)(a)
INFORMATION
Jim.Stuart-
9(2)(a)
@b
Agency email address
Black@fireandemergen
Provider email address
eca.com
cy.nz
Agency phone #
9(2)(a)
Provider phone #
9(2)(a)
OFFICIAL
Subcategory
MBIE Consultancy Services Providers – Assurance
GCDO Assurance Sub
THE
Panel
Protective Security
Services Sub Panel
UNDER
RELEASED
1
March 2020
Sensitivity: General
A1. Purpose and any background information
The purpose of this project is to review four FENZ Asset Management Plans (AMPs) to confirm to FENZ
and the Board they are ‘useable’ documents that follow a coherent framework and that they ‘work’:
1. Fleet
2. Property
3. ICT
4. Equipment and Logistics
1982
Focussing on the following four ‘themes’ for each AMP review:
a. Story – do the AMPs cohesively convey the ‘plan’ for the portfolios, considering the
ACT
ability to be implemented.
b. Gaps – are there any significant gaps in the structure, information or presentation.
c. Assumptions and Risks - what assumptions have been made and are there any
obvious contradictions, gaps or risks to plan implementation.
d. Improvement Plan – has an adequate and appropriate improvement plan been
identified for the AMP.
A2. Specific questions / instructions for Provider
The following tasks are agreed:
INFORMATION
1. Project commencement via internal meetings to develop the report format/content
and drafting process.
2. Review the fours AMPs for ‘story, gaps, assumptions, improvement plan’.
3. Test the main assumptions.
4. Engage with the activity/AMP leads, if required.
OFFICIAL
5. Draft the report (one report with four sub-sections) outlining:
a. The process we followed to complete the reviews
b. Our findings and recommendations
THE
c. Review with FENZ and finalise.
A3. Additional Information e.g. risks to client, additional contact information
UNDER
A4. Client specific requirements
A5. Timeframes
The project will commence immediately, with the draft outcome report due on 6 June 2025 and final
version due 13 June 2025.
RELEASED
2
March 2020
Sensitivity: General
A6. Indicative budget
A7. Outputs of the Services
1. Draft the report (one report with four sub-sections) outlining:
a. The process we followed to complete the reviews
1982
b. Our findings and recommendations
c.
Review with FENZ and finalise.
ACT
A8. Tables
N/A
A9. Provider liability cap
5 x Estimated Fee
Part B – for Provider to complete
The Provider will complete Part B and email the form back to the client
INFORMATION
B1. Specific Services to be provided
Provide asset management plan review services for four FENZ AMPs and associated report detailing the
findings.
B2. Sub Category and Tier to be ProvidedOFFICIAL
Selection
Sub-category of Services
Tier (1/2/3)
Accounting
confirmed
Assurance
1
THE
Audit
Finance and economics
Procurement and logistics
Taxation
UNDER
Business change
Human resource
Marketing and public relations
Operations management and risk
Policy, research and development
RELEASED
3
March 2020
Sensitivity: General
B3. Can you confirm that the Nominated Personnel (if any) is available to provide the Services?
9(2)(a)
is the nominated Beca appointment to this task and is available to provide the
services. The project team is:
Resource
Location
Role
9(2)(a)
Palmerston North
Technical Lead
9(2)(a)
Nelson
Technical Review / Job Director
9(2)(a)
1982
Auckland
Asset Management Support
9(2)(a)
Auckland
Lifecycle Management Specialist
9(2)(a)
Palmerton North
Job Manager / Risk Reviewer
ACT
B4. Can you confirm that the timeframe is acceptable?
The timeframe is acceptable.
B5. Estimated Start and End Date
Start
26 May 2025
End
13 June 2025
INFORMATION
OFFICIAL
THE
UNDER
RELEASED
4
March 2020
Sensitivity: General
B6. Estimate / Quote (excluding GST, if any)
Fees
$49,687.00
Administration Fee (Tier 1 and 2 only)
$[1% of Fees for Services for which the Provider is Tier 1 or Tier 2]
(Optional) The above Fees are apportioned as follows:
Job Level 1
$
1982
Job Level 2
$
Job Level 3
$
ACT
Job Level 4
$
Job Level 5
$
Fixed Fee (Job Level 1)
$
Fixed Fee (Job Level 2)
$
Fixed Fee (Job Level 3)
$
Fixed Fee (Job Level 4)
$
Fixed Fee (Job Level 5)
$
INFORMATION
Monthly Retainer
$0
Subcontracting
$0
Expenses
$0
Total Charges
$49,687.00
OFFICIAL
Identify whether the Total Charges is an
Fee estimate
Estimate / Quote and the method that
the Charges have been calculated
THE
Additional information / assumptions:
1. The level of financial review is to be agreed, although challenge of the stated amounts is
not required.
2. The expenditure focus of FENZ currently is ‘H&S and Security’.
UNDER
3. There is current no AM Policy or SAMP.
4. We will not be testing all the stated assumptions but will provide a general examination
of those identified as key.
5. Consistency between the AMPs is not a focus.
6. No travel or other disbursement is required as this is a desktop only exercise.
RELEASED
5
March 2020
Sensitivity: General
Job Level
Indicative Characteristics
• 15+ years of extensive professional experience in their specialised field in a consultancy role.
• An industry leader and key influencer who is respected for their professional proficiency and
knowledge.
• Recognised as a trusted adviser to ministers and/or senior executive teams.
Level 5
• Acts as the senior responsible person on major client engagements. Able to be accountable
for leading complex projects/programs.
1982
• Responsible for leading a high performing team of professionals, including the coaching and
mentoring of colleagues at Levels 1–4.
ACT
• 10+ years of substantial professional experience in their specialised field in a consultancy role.
• Strong theoretical base in subject area, with ability to apply best practice principles to the
subject matter context.
Level 4
• Senior team leader with the ability to deputise for the senior responsible person and coach
and mentor more junior staff.
• Ability to coordinate contributions of other specialists to complete a joint project.
• Can engage with clients at strategic/management level if required.
• 3-10 years of notable professional experience in their specialised field in a consultancy role.
• A trusted performer on a wide range of client-facing consultancy projects in both the private
and public sectors.
INFORMATION
• Thorough knowledge of functional area, combining a broad grasp of relevant best practice
principles.
Level 3
• Ability to participate in multi-disciplinary teams and to work independently (with limited
supervision).
• Performs professional level analysis requiring technical skills and independent initiative
within a well-defined program of work.
• Contacts with clients predominantly at a working level.
OFFICIAL
• 1-3 years of demonstrable professional experience in their specialised field in a consultancy
role.
THE
• Previous experience on a range of client-facing consultancy projects, preferably in both the
private and public sectors.
Level 2
• Has a theoretical base in subject area, possibly supplemented through recent study, with the
ability to translate theory into practice
• Performs a variety of analytical tasks requiring independent initiative and knowledge.
• Interacts with clients predominantly at the working level.
UNDER
• 0+ years of relevant professional experience in a professional environment.
• Evidence of prior contributions to consultancy engagements.
Level 1
• Performs a range of administrative tasks to support the wider team.
• Work is performed under the guidance of colleagues at Levels 3-5.
RELEASED
6
March 2020
Sensitivity: General
B7. Conflict of Interest declaration and Additional Information
I, [Priyani de Silva-Currie] have made diligent inquiry whether [Beca] has any actual, potential or
perceived Conflict of Interest were it to provide the Services described in this Consultancy Services
Order and I have disclosed any actual, potential or perceived Conflict of Interest and how it will be
managed below:
1982
No current or perceived conflict of interest. Any potential conflicts will be advised immediately to FENZ.
B8. Additional information
ACT
Copies of the current versions of the AMPs and associated financials.
B9. Signatures
Name of Provider’s authorised signatory
9(2)(a)
Signature of authorised signatory
INFORMATION
The client accepts and authorises this
[Yes/No]
Consultancy Services Order
Name of client’s authorised signatory
Jim Stuart-Black (DCE OSCD – Acting)
OFFICIAL
Signature of authorised signatory
THE
Date of acceptance
27 May 2027
Client’s job reference or purchase order number
PO# 84532
UNDER
Please send this link below to your agency contacts to complete after each engagement. For long
engagements, we recommend sending this at key milestones to seek feedback throughout the
engagement.
Consultancy (https://www.research.net/r/ClientSatisfactionSurvey-AoGcontracts-CSO)
GCDO Assurance (
https://www.research.net/r/GCDOAssuranceServices-CSO)
RELEASED
7
March 2020
Sensitivity: General
Part C – Variations to Part A
LEAVE BLANK WHEN ISSUING CONSULTANCY SERVICES ORDER
The client will complete Part C if they wish to change any details in Part A
C1. Revised scope and/or timeframe
1982
ACT
INFORMATION
OFFICIAL
THE
UNDER
RELEASED
8
March 2020
Sensitivity: General
Part D – Variations to Part B
LEAVE BLANK WHEN ISSUING CONSULTANCY SERVICES ORDER
The Provider will complete this only if and when it receives a Variation per Part C above from the client
D1. Revised Estimate (excluding GST, if any)
Revised Fees
$[Add in total Fees]
1982
Administration Fee (Tier 1 and 2 only)
$[1% of Fees for Services for which the Provider is Tier 1 or Tier 2]
(Optional) The above Fees are apportioned as follows:
ACT
Job Level 1
$
Job Level 2
$
Job Level 3
$
Job Level 4
$
Job Level 5
$
Fixed Fee (Job Level 1)
$
Fixed Fee (Job Level 2)
$
INFORMATION
Fixed Fee (Job Level 3)
$
Fixed Fee (Job Level 4)
$
Fixed Fee (Job Level 5)
$
Monthly Retainer
$
OFFICIAL
Subcontracting
$
Revised Expenses
$
Total Charges
$
THE
Identify whether the Total Charges is an
Estimate / Quote and the method that
the Charges have been calculated
UNDER
Additional information / assumptions:
RELEASED
9
March 2020
Sensitivity: General
Part E – Acceptance
LEAVE BLANK WHEN ISSUING CONSULTANCY SERVICES ORDER
The Provider and client to complete on acceptance of this Consultancy Services Order
E1. Signatures
1982
Name of Provider’s authorised signatory
ACT
Signature of authorised signatory
The client accepts and authorises this
[Yes/No]
Consultancy Services Order
Name of client’s authorised signatory
INFORMATION
Signature of authorised signatory
Date of acceptance
Client’s job reference or purchase order number
[if required]
OFFICIAL
Please send this link below to your agency contacts to complete after each engagement. For long
engagements, we recommend sending this at key milestones to seek feedback throughout the
engagement.
THE
Consultancy (https://www.research.net/r/ClientSatisfactionSurvey-AoGcontracts-CSO)
GCDO Assurance (
https://www.research.net/r/GCDOAssuranceServices-CSO)
UNDER
RELEASED
10
March 2020
link to page 68 link to page 68 link to page 66 link to page 70 link to page 68 link to page 75
Part F – Terms
Sensitivity: General
THE PROVIDER AND PARTICIPATING AGENCIES ARE NOT PERMITTED TO AMEND
THIS PART F.
This Part F contains an extract of selected terms and conditions from the Services Agreement (the
Agreement). Clause, schedule and paragraph references have been updated to refer to clauses,
schedules and paragraphs in this Part F where applicable. For the full terms and conditions that govern
the Services, please refer to the Agreement.
1982
Part F – Terms
THE PROVIDER AND PARTICIPATING AGENCIES ARE NOT PERMITTED TO AMEND ACT
THIS PART F.
This Part F contains an extract of selected terms and conditions from the Services Agreement
(the Agreement). Clause, schedule and paragraph references have been updated to refer to
clauses, schedules and paragraphs in this Part F where applicable. For the full terms and
conditions that govern the Services, please refer to the Agreement.
1.
Appointment
(v)
the Provider and Participating
INFORMATION
Agency are not obligated to
1.1
Appointment
escalate a dispute to the CoE’s
All-of-Government Procurement
(a)
The Participating Agency appoints the
Manager, Centre of Expertise for
Provider to provide Services to the
Consultancy, in accordance with
Participating Agency as detailed in this
clause
13.2(c)(ii); and
Consultancy Services Order and the
Provider accepts that appointment, in
(vi)
as otherwise stated in this
accordance with the terms of this
Consultancy Services Order.
Consultancy Services Order.
2.
Services
(b)
Certain obligations of the Provider in this
OFFICIAL
Consultancy Services Order do not apply
2.1
Services
to sub-categories of Services for which
the Provider has been appointed as a
(a)
The Provider will provide Services to the
Tier 3 Provider as follows:
Participating Agency in accordance with
the terms of this Consultancy Services
THE
(i)
the Participating Agency may
Order.
nominate specific Personnel to
be the primary providers or to
(b)
The Provider will use all reasonable
supervise the delivery of the
endeavours to ensure that, on the date
Services but clauses 6.2(b) to
the Documentation is provided under this
6.2(e) do not apply to any
Consultancy Services Order, such
nominated Personnel;
Documentation is in a readable and
readily useable format.
(ii)
the relevant Services are not
UNDER
required to meet or exceed the
2.2
Agents may procure Services
Service Levels specified in
The Participating Agency may, by notice to the
Schedule 3 (Performance
Provider and the CoE, appoint one or more third
Measurement) and clause 2.5(a),
parties to procure Services under this
Schedule 3 (Performance
Consultancy Services Order on the Participating
Measurement) do not apply;
Agency’s behalf and/or receive invoices, as if
(iii)
the Provider is not required to
that agent was a Participating Agency, provided
pay an Administration Fee and
that any such procurement is for the sole benefit
clause
8.3(a)(v) does not apply;
of the Participating Agency.
(iv)
the Provider is not required to
2.3
Timely performance
conduct the Agency Satisfaction
The Provider will ensure that the Services to be
RELEASED Survey for the relevant Services
performed under this Consultancy Services
and clause
5.1(h) does not apply;
Order are provided on or before the date
specified for performance (if any) in this
11
March 2020
link to page 66 link to page 66 link to page 66 link to page 66 link to page 67
Sensitivity: General
Consultancy Services Order and, if no time is
(b)
In addition, the Provider must:
specified, within a reasonable time after the issue
of the Consultancy Services Order.
(i)
provide the Services diligently,
efficiently, effectively and in
2.4
Delay
accordance with Industry Best
Practice;
(a)
If the Provider considers that it is (or is
likely to be) prevented or delayed from
(ii)
ensure that the Services to be
achieving a date or time for performance
performed under this
(
Milestone) specified in this Consultancy
Consultancy Services Order are
Services Order (
Delay), it will:
provided on or before the date
specified for performance (if any)
(i)
immediately provide notice
1982
in this Consultancy Services
verbally or in writing to the
Order and, if no time is specified,
Participating Agency, setting out:
within a reasonable time after the
(A)
the cause of the Delay
issue of this Consultancy
and its expected
Services Order;
ACT
duration;
(iii)
ensure that all Documentation,
(B)
the effect of the Delay on
information and advice (including
its ability to perform its
Documentation, information and
obligations under this
advice provided prior to the issue
Consultancy Services
of this Consultancy Services
Order (including any
Order) provided to the
future Milestones);
Participating Agency or
published on the Provider
(C)
what extension, if any, to
Database is Fit for Purpose so
the relevant Milestone is
that, without limitation, it contains
being sought; and
sufficient content and detail to
enable the Participating Agency
(D)
what steps, if any, the
to make use of it for the purpose
Participating Agency
for which it was requested;
may take to mitigate the
effect of the Delay; and
(iv)
act in the best interests of the
INFORMATION
Participating Agency in the
(ii)
take all reasonable steps
provision of Services to the
necessary (including by the
Participating Agency; and
allocation of additional
resources) to eliminate or avoid
(v)
provide Services to the
the Delay and, in all cases,
reasonable satisfaction of the
mitigate its effects.
Participating Agency (as reported
to the CoE).
(b)
If the Provider and Participating Agency
agree that the Delay is acceptable or
3.
Estimates and Quotes
wish to amend the Milestone:
3.1
Estimates and Quotes
OFFICIAL
(i)
the Provider will complete and
submit Part C of this Consultancy
(a)
The Provider must provide an Estimate
Services Order to the
or Quote for all Services to be provided
Participating Agency; and
under this Consultancy Services Order,
unless the total Fees in respect of the
THE
(ii)
upon receipt of the completed
Services under this Consultancy
Part C of this Consultancy
Services Order are likely to be less than
Services Order, the Participating
$10,000 (exclusive of GST) or such other
Agency must promptly advise the
amount as determined by the CoE and
Provider in writing if the
notified to the Provider.
completed Part C is acceptable.
(b)
Despite clause
3.1(a), if, during the
(c)
If the Provider does not achieve the
course of providing the Services, the
Milestone (as amended from time to
Provider becomes aware that the total
UNDER
time) and the Participating Agency’s acts
Fees (excluding GST) are likely to
or omissions, or those of its Personnel or
exceed the amount referred to in clause
third parties acting on its behalf, have not
3.1(a), the Provider must provide an
caused the Provider to fail to achieve the
Estimate in accordance with clauses
Milestone, the Participating Agency may,
3.1(c) to (e).
without prejudice to any other right or
remedy, suspend payment of any
(c)
All Estimates and Quotes will be
Charges relating to this Consultancy
provided at no cost to the Participating
Services Order until the Provider
Agency.
remedies the relevant failure.
(d)
All Estimates and Quotes must specify
2.5
Service standards
the estimated timeframe to perform the
Services requested in this Consultancy
RELEASED
(a)
The Provider must provide the Services
Services Order and the Rates of
in relation to the sub-categories for which
Personnel providing the Services and
the Provider has been appointed as a
include any Expenses likely to be
Tier 1 and Tier 2 Provider to a standard
incurred in providing the Services.
that reaches or exceeds the Service
Levels specified in Schedule 3
(e)
All Quotes and Estimates must be
(Performance Measurement).
provided to the Participating Agency in
12
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Sensitivity: General
writing and must be included in this
4.
Conflicts of interest
Consultancy Services Order.
4.1
Conflicts of interest
(f)
To avoid doubt and without limiting
clause 4.5(c) of the Services Agreement,
(a)
The Provider must, upon receipt of this
if any Quote or Estimate is not
Consultancy Services Order, make
acceptable to the Participating Agency,
diligent inquiry whether it has any actual,
the Participating Agency and Provider
potential or perceived Conflicts of
may seek to negotiate a more favourable
Interest if it were to provide the Services
Quote or Estimate, including a decrease
specified in this Consultancy Services
in the Rates on which the Quote or
Order and, if no such Conflict of Interest
Estimate was based.
exists, the Provider must provide
1982
confirmation to that effect to the
3.2
If Charges exceed the Estimate
Participating Agency.
(a)
If during the course of providing the
(b)
If the Provider has an actual, potential or
Services under this Consultancy
perceived Conflict of Interest, the
Services Order, the Provider becomes
Provider must immediately notify the
ACT
aware that the total Charges (excluding
Participating Agency and must not begin
GST) are likely to exceed the Estimate,
performing the Services without the prior
the Provider must give written notice to
written approval of the Participating
the Participating Agency using Part D of
Agency.
this Consultancy Services Order as soon
as the Provider becomes so aware, but
(c)
The Provider must take all reasonable
no later than the time the costs accrued
steps to ensure that:
or incurred reach 80% of the Estimate.
(i)
a situation does not arise that
(b)
The notice under clause
3.2(a) must
might result in an actual,
specify a revised Estimate for the
potential or perceived Conflict of
Services and include the reason the total
Interest; and
Charges will exceed the original
(ii)
any Personnel or Subcontractors
Estimate.
of the Provider do not engage in
(c)
The Participating Agency has sole
any activity or obtain interests
discretion whether to approve a revised
that might result in the Provider
INFORMATION
Estimate and must act reasonably when
or such Personnel or
deciding whether to approve a revised
Subcontractors having an actual,
Estimate.
potential or perceived Conflict of
Interest,
(d)
When a revised Estimate is approved,
the Participating Agency must provide
that cannot be managed to the
written notice of the same to the
satisfaction of the Participating Agency.
Provider.
(d)
If, after commencing Services under this
(e)
If a Provider has provided an Estimate to
Consultancy Services Order, the
the Participating Agency for Services, the
Provider becomes aware of any matter,
OFFICIAL
Participating Agency is not liable to pay
circumstance, interest or activity that
the Provider any amount exceeding the
may give rise to any actual, potential or
Estimate unless the Participating Agency
perceived Conflict of Interest, the
has approved a revised Estimate.
Provider must immediately notify the
Participating Agency of all relevant
THE
3.3
If Charges exceed the Quote
details and must immediately cease work
on the Services until such time as the
(a)
The Provider acknowledges that neither
Participating Agency provides written
the CoE nor the Participating Agency are
notice confirming the Provider may
obliged to pay any Charges to the
continue to perform the Services or
Provider in relation to Services
terminates the engagement of the
performed under this Consultancy
Provider in respect to the Services to be
Services Order if those Charges exceed
performed under this Consultancy
any Quote provided in relation to this
UNDER
Services Order in accordance with
Consultancy Services Order, unless the
clause
4.1(e).
Participating Agency has given its prior
written consent in accordance with
(e)
If the Participating Agency considers that
clause
3.3(b).
the Provider has an actual Conflict of
Interest of sufficient gravity that the
(b)
If the Participating Agency agrees to
Provider can no longer perform Services
allow the Provider to increase the
for it, the Participating Agency may, by
Charges:
written notice to the Provider, terminate
(i)
the Provider will complete and
this Consultancy Services Order with
submit Part D of this Consultancy
immediate effect on the date of
Services Order to the
termination specified in that notice.
Participating Agency; and
RELEASED
(f)
Any approval or notice given by the
(ii)
upon receipt of the completed
Participating Agency pursuant to clause
Part D of this Consultancy
4.1(b) or
4.1(d) may require the Provider
Services Order, the Participating
to take steps reasonably required by the
Agency must promptly advise the
Participating Agency to manage the
Provider (in writing) if the
Conflict of Interest, and the Provider
completed Part D is acceptable.
must provide written notice confirming its
13
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Sensitivity: General
acceptance of those steps before it may
(a)
to manage its operational relationship
commence or continue to provide the
with the Provider, including in relation to
Services under this Consultancy
the fulfilment of this Consultancy
Services Order.
Services Order;
5.
Responsibilities
(b)
to notify the Provider of all relevant
policies, guidelines and procedures of
5.1
Provider responsibilities
the Participating Agency that the
Provider must comply with when
In addition to its other obligations under this
performing the Services under this
Consultancy Services Order, the Provider will:
Consultancy Services Order;
(a)
respond promptly, accurately and
1982
(c)
to provide adequate instructions and
adequately to any requests for
information to the Provider to allow it to
information made by the Participating
perform the Services under this
Agency in relation to the Services,
Consultancy Services Order;
including requests for advice;
(d)
to make timely decisions where ACT
(b)
in performing Services for the
approvals or consents are reasonably
Participating Agency under this
sought by the Provider in performing the
Consultancy Services Order comply with
Services under this Consultancy
all privacy and other policies and
Services Order;
guidelines issued by the Participating
Agency and notified or made available to
(e)
to pay the Charges; and
the Provider;
(f)
to use its best efforts to resolve any
(c)
obtain, maintain and comply with any
dispute directly with the Provider before
governmental, regulatory or other
involving the CoE in accordance with
approvals, permissions, consents,
clause
13.
licences, and requirements necessary to
provide the Services and perform its
6.
Resourcing
obligations under this Consultancy
Services Order;
6.1
General requirements
(d)
comply with all Laws at all times during
The Provider will provide and maintain sufficient
INFORMATION
the Term in so far as they relate to the
resources (including human resources,
provision of the Services, including the
equipment, telecommunications connectivity,
Privacy Act 1993 and all applicable
premises and other facilities) to enable it to
consumer laws;
perform its obligations on time and otherwise in
accordance with this Consultancy Services
(e)
ensure that it and its Personnel providing
Order.
the Services do not access the
Participating Agency’s information or
6.2
Provider’s Nominated Personnel
systems except to the extent necessary
(a)
The Participating Agency may, in this
to provide the Services and for no other
Consultancy Services Order, nominate
purpose;
specific Personnel (
Nominated
OFFICIAL
(f)
as soon as is practicable, notify the
Personnel) to be the primary providers
Participating Agency of any problems or
or to supervise the delivery of the
issues that arise in relation to the
Services.
performance of its obligations under this
(b)
If any Nominated Personnel nominated
THE
Consultancy Services Order, including
in this Consultancy Services Order are
any problems or issues that will, or are
not available to provide or supervise the
likely to, affect the provision or quality of
Services requested, the Provider must
the Services or the ability of the Provider
immediately notify the Participating
to perform its obligations under this
Agency and provide details of other
Consultancy Services Order;
Personnel (if any) with the necessary
(g)
without limiting any other provision of this
skills and experience to provide or
Consultancy Services Order, use all
supervise the Services requested
UNDER
reasonable endeavours to avoid
pursuant to this Consultancy Services
damaging or adversely affecting any
Order.
Participating Agency’s reputation;
(c)
Notice given under clause
6.2(b) must
(h)
in relation to the sub-categories for which
specify the period for which the
the Provider has been appointed as a
Nominated Personnel will continue to be
Tier 1 and Tier 2 Provider, conduct the
unavailable.
Agency Satisfaction Survey by asking
(d)
Upon receipt of notice under clause
the Participating Agency the questions
6.2(b), the Participating Agency must
recorded in Annexure A of Schedule 5
notify the Provider whether the
(Governance) to the Services Agreement
replacement Personnel are acceptable.
within 5 Business Days of the Services in
this Consultancy Services Order being
(e)
The Participating Agency is under no
RELEASED completed.
obligation to accept any replacement
Personnel and, if it does not approve the
5.2
Participating Agencies’ responsibilities
replacement Personnel, the Provider
The Participating Agency has the following
may not commence or continue providing
responsibilities in relation to the Services:
the Services.
6.3
Personnel
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Sensitivity: General
(a)
The Provider will ensure that all of its
Business Days, failing which the
Personnel who are engaged in the
Participating Agency may, by
performance of the Provider’s obligations
notice to the Provider, require the
under this Consultancy Services Order:
Provider to remove that
Subcontractor; or
(i)
have the requisite skills,
expertise, qualifications and
(ii)
a material threat to the health,
experience;
safety or security of the
Personnel or property of the
(ii)
have, before performing any
Participating Agency, or has
such obligations, obtained all
breached security or
security clearances and passed
confidentiality requirements of
1982
all probity checks required by, or
this Consultancy Services Order,
necessary to provide the
the Participating Agency may, by
Services to, the Participating
notice to the Provider, require the
Agency;
Provider to remove that
(iii)
comply with all health, safety,
Subcontractor,
ACT
security and other policies, codes
and the Provider will ensure the
of conduct, procedures and
immediate removal of that Subcontractor.
reasonable directions as may be
reasonably required by the
7.
Changes
Participating Agency from time to
time; and
7.1
Change procedure
(iv)
will carry out their respective
The Participating Agency may agree any
duties with due care, skill and
variations to this Consultancy Services Order
diligence.
with the Provider using Part C of the Consultancy
Services Order.
(b)
The Participating Agency will notify the
Provider of any security clearances and
8.
Price and payment
probity checks required by, or necessary
to provide the Services to, the
8.1
Calculation of Charges
Participating Agency.
The Charges will be calculated in accordance
INFORMATION
6.4
Subcontracting
with the terms of Schedule 2 (Pricing).
(a)
The Provider will not subcontract the
8.2
Participating Agency to pay for Services
performance of all or part of the Services
(a)
The Participating Agency will pay the
or any of its other obligations under this
Provider the Charges applicable to any
Consultancy Services Order, except with
Services procured by the Participating
the prior written consent of the
Agency on the terms of this clause
8.
Participating Agency.
(b)
The Charges and Administration Fee
(b)
The Provider is solely responsible for the
comprise the total amount payable by the
selection of each Subcontractor and
Participating Agency for the Services.
OFFICIAL
must ensure that each Subcontractor is
creditworthy, qualified and has the
8.3
Invoicing and payment
relevant experience to perform the work
Except as otherwise provided in Schedule 2
it is required to carry out for the Provider.
(Pricing) or as agreed with the Participating
THE
(c)
To the extent permitted by Law, the
Agency in this Consultancy Services Order, the
Provider is and remains fully responsible
Provider will invoice the Participating Agency (or,
for any act or omission of any
if the Participating Agency has instructed the
Subcontractor.
Provider in writing, the third party agent) for the
Charges and the Participating Agency will pay
(d)
The Provider must ensure that each
those Charges, in accordance with the following
Subcontract contains obligations on the
terms:
Subcontractor that are consistent with
the relevant terms of this Consultancy
(a)
the Provider will render one itemised
UNDER
Services Order, including in relation to
invoice to the Participating Agency at the
clauses
5.1 (Provider responsibilities),
end of each month during the Term for
6.3(a) (Personnel), 10 (Confidentiality),
all Services performed during that month
11 (Intellectual Property) and 14
specifying (as applicable):
(Termination) and Schedule 3
(i)
the nature and amount of the
(Performance Measurement), together
Fees or other applicable fees
with clause 15 (Audit) of the Services
and fee structures;
Agreement.
(ii)
the Personnel and their
(e)
If, in the Participating Agency’s
applicable Rate;
reasonable opinion, a Subcontractor is:
(iii)
the hours billed (by Personnel
(i)
materially not performing in
and in the aggregate);
RELEASED accordance with the terms of this
Consultancy Services Order, the
(iv)
the nature and amount of any
Participating Agency may, by
Expenses (including any third
notice to the Provider, require the
party charges to be passed on to
Provider to procure that the
the Participating Agency);
Subcontractor performs the
relevant obligations within 10
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Sensitivity: General
(v)
if applicable, the amount
8.7
Suspension of payment
representing the Administration
Fee;
(a)
Without prejudice to any other right or
remedy that may be available to the
(vi)
how much of the Estimate or
Participating Agency, the Participating
Quote has been used;
Agency may suspend payment of all or
any part of the Charges if the CoE has
(vii)
a brief description of the Services
notified the Provider that the Provider is
provided during that month; and
in Material Breach, until that Material
(viii)
any other matters the
Breach is remedied.
Participating Agency may
(b)
If the Material Breach is not capable of
reasonably request;
1982
remedy the Participating Agency and the
(b)
each correctly rendered invoice will be
Provider agree to treat the Charges as
payable on or before the 20th day of the
being in dispute and clause 14 will apply.
month following the month in which the
9.
Warranties
invoice was received;
ACT
9.1
General warranties
(c)
the Participating Agency will have no
obligation to pay any Charges which are
Each party represents, warrants and undertakes
invoiced more than 90 days after the
that:
date that such amount was required to
be invoiced pursuant to this clause 8.3;
(a)
it has full power, capacity and authority
and
to execute, deliver and perform its
obligations under this Consultancy
(d)
the Provider may only invoice the
Services Order;
Participating Agency for any Expenses at
the cost actually incurred by the
(b)
it has, and will continue to have, all the
Provider.
necessary consents, permissions,
licences and rights to enter into and
8.4
Invoice disputes
perform its obligations under this
Consultancy Services Order; and
If the Participating Agency or the Provider
disputes an invoice:
(c)
this Consultancy Services Order
INFORMATION
constitutes its legal, valid and binding
(a)
it may withhold the disputed sum and, if
obligations and is enforceable in
applicable, associated Administration
accordance with its terms.
Fee until the dispute is resolved;
9.2
Provider’s warranties
(b)
the dispute will be resolved in
accordance with clause
13; and
The Provider represents, warrants and
undertakes that:
(c)
it will pay the undisputed portion in
accordance with clause
8.3.
(a)
it will perform its obligations under this
Consultancy Services Order with due
The Provider will not be excused from performing
care, skill, promptness and diligence at
its obligations under this Consultancy Services
OFFICIAL all times;
Order while an invoice is disputed by the
Participating Agency.
(b)
it has, and will have throughout the
Term, sufficient Personnel to supply the
8.5
Taxes
Services and to perform its other
THE
(a)
Except for any GST payable by the
obligations under this Consultancy
Participating Agency, any present or
Services Order;
future tax, levy, impost, duty, charge,
(c)
it, and each of its Personnel engaged in
assessment or fee of any nature
the performance of the Services, has,
(including applicable interest and
and will have throughout the Term, the
penalties) payable in connection with this
necessary expertise and all necessary
Consultancy Services Order under any
governmental, regulatory or other
Law is to be paid by the Provider and not
approvals, permissions, consents,
passed on to the Participating Agency
UNDER
licences, qualifications, accreditations
unless otherwise expressly agreed in
and requirements to provide the Services
writing by the Participating Agency.
and perform its other obligations under
(b)
The Participating Agency may deduct
this Consultancy Services Order;
from any payment to be made to the
(d)
it will comply with the requirements of all
Provider any withholding taxes or other
Laws as they relate to the provision of
deductions that it is required by Law to
Services by the Provider;
make.
(e)
the possession or use of any item of
8.6
Administration Fee
Intellectual Property supplied or licensed
In relation to the sub-categories for which the
by it, or the use of any item of Intellectual
Provider has been appointed as a Tier 1 or Tier 2
Property by it to perform its obligations
RELEASED
Provider, the Provider will ensure that each
under this Consultancy Services Order,
invoice issued to the Participating Agency for the
will not infringe the rights of any third
Charges includes, in addition to the Charges, a
party;
separate amount equal to 1% of the Fees
(f)
all Documentation (and any other
(excluding GST) (the
Administration Fee).
information or advice supplied by it to the
Participating Agency) and any
16
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Sensitivity: General
information and data reported to the CoE
(iii)
advise the CoE in writing if any
will be accurate, complete and (as
Confidential Information of the
applicable) Fit for Purpose;
Participating Agency will be
transferred or stored outside
(g)
there are no existing agreements,
New Zealand before such
undertakings or arrangements which
information is transferred and will
prevent it from entering into this
confirm that the requirements of
Consultancy Services Order, or which
this clause
10.1 will be met while
would impede the performance of its
such Confidential Information is
obligations under this Consultancy
stored outside New Zealand.
Services Order, or that it would breach
by entering into this Consultancy
(c)
Clause 10.1(a) does not prevent the
1982
Services Order;
disclosure of Confidential Information:
(h)
it is not (and nor is any of its Personnel)
(i)
if that information was known, or
a party to any litigation, proceedings or
becomes known, to the public
disputes which could adversely affect its
through no act or default of the
ability to perform its obligations under
recipient;
ACT
this Consultancy Services Order; and
(ii)
that the recipient is required by
(i)
it has not offered any inducement in
Law or parliamentary practice
connection with the entering into or
(including parliamentary
negotiation of this Consultancy Services
questions) to disclose, or to a
Order, and will not offer any inducement
Select Committee or to a Minister
in connection with the supply of Services
of the Crown, so long as the
to the Participating Agency.
recipient provides notice of the
required disclosure promptly
9.3
Continuous application
upon receipt of notice of the
The warranties, representations and
required disclosure (if it is
undertakings set out in clause
9.2 will be deemed
permitted to do so by Law);
to be given by the Provider continuously
(iii)
that was lawfully known to the
throughout the Term.
recipient prior to the date it was
9.4
Notification
received;
INFORMATION
Each party will promptly notify the other if at any
(iv)
that becomes available to the
time during the Term it breaches any of the
recipient from a source other
warranties, representations and undertakings in
than a party to this Consultancy
this clause
9.
Services Order, provided that the
recipient has no reason to
9.5
Other warranties excluded
believe such source is itself
bound by an obligation of
All warranties (statutory, express or implied)
confidence to the person that
which are not expressly referred to in this
disclosed that information or is
Consultancy Services Order are excluded to the
otherwise prohibited under Law
OFFICIAL
fullest extent permitted by Law.
from disclosing such information;
10.
Confidentiality
(v)
to any Professional Adviser for
the purposes of rendering
10.1
Protection of Confidential Information
professional services to a party
THE
(a)
Subject to clauses 10.1(c) and 10.2, the
in relation to this Consultancy
Provider and the Participating Agency
Services Order;
will treat as confidential and not disclose
(vi)
to the extent that such disclosure
to any third party nor use for its own
is authorised by this Consultancy
benefit any Confidential Information that
Services Order; or
is the Confidential Information of the
other.
(vii)
if such disclosure is approved for
release with the consent of the
(b)
The Provider will:
party from whom the Confidential
UNDER
(i)
ensure that all Confidential
Information is first received.
Information of the Participating
10.2
Limited disclosure
Agency (and any backup
archives containing such
(a)
The Provider may, subject to clause
Confidential Information) in the
10.2
(d), disclose the Confidential
possession or control of the
Information of the Participating Agency to
Provider from time to time is kept
its Subcontractors, Personnel, Related
secure and managed and
Entities and Professional Advisers who
protected and only disclosed or
need to know the same for the sole
otherwise dealt with in
purpose of enabling the Provider to
accordance with this
perform its obligations and exercise its
Consultancy Services Order;
rights under this Consultancy Services
RELEASED
Order.
(ii)
not use any Agency Information
for its own purposes or for any
(b)
The Participating Agency may, subject to
purposes different from those
clause
10.2(d), disclose the Confidential
contemplated by this
Information of the Provider to its third
Consultancy Services Order; and
party suppliers, Personnel and
Professional Advisers and any other
17
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Sensitivity: General
Participating Agencies (including the
Participating Agency from the date the
CoE) who need to know the same in
Intellectual Property is created or
connection with the Services.
developed (
Post-contract Participating
Agency IP and, together with the Pre-
(c)
The Provider will not disclose the
contract Participating Agency IP, the
Participating Agency’s Confidential
Participating Agency IP).
Information to any of its Subcontractors,
Related Entities or Professional
(c)
If the Provider (or any of its
Advisers, and the Participating Agency
Subcontractors) has under any Law any
will not disclose the Provider’s
right in or claim to any of the
Confidential Information to any of its third
Participating Agency IP or holds any of
party suppliers or Professional Advisers,
the Participating Agency IP, the Provider
1982
unless the recipient has given a written
(by itself and for its Subcontractors):
confidentiality undertaking to the
disclosing party in terms substantially
(i)
assigns to the Participating
similar to those set out in this clause
10.
Agency all of its rights, title and
interest in and to the
(d)
Any undertaking given pursuant to
Participating Agency IP from the
ACT
clause
10.2(c) will be provided to the
date it was created or developed;
other party to this Consultancy Services
and
Order on request.
(ii)
waives all right of lien or similar
11.
Intellectual Property
rights as may now or later be
claimed in the Participating
11.1
Intellectual Property owned by Provider
Agency IP; and
(a)
The Participating Agency acknowledges
(iii)
waives all of its moral rights
that all:
under Part 4 of the Copyright Act
1994 in the Participating Agency
(i)
Intellectual Property held by the
IP,
Provider before the
Commencement Date;
and the Provider will sign all documents
and do all acts and things that are
(ii)
Intellectual Property developed
necessary to give effect to this clause
independently from this
11.2(c).
INFORMATION
Consultancy Services Order by
the Provider, and that is not
(d)
To the extent that the Provider needs to
developed, commissioned or
use any of the Participating Agency’s IP
created under or in connection
for the purpose of performing its
with this Consultancy Services
obligations under this Agreement, the
Order; and
Participating Agency grants to the
Provider, subject to any written direction
(iii)
adaptations and modifications to
given by the Participating Agency, of a
the Intellectual Property
royalty-free, non-exclusive, non-
described in clauses 11.1(a)(i)
transferable licence to use and store the
and (ii),
OFFICIAL Participating Agency’s IP for the sole
remains the Provider’s sole and
purpose of performing its obligations
exclusive property (
Provider IP).
under this Consultancy Services Order
during the Term.
(b)
To the extent that the Participating
Agency needs to use any of the Provider
11.3
Intellectual Property owned by third parties
THE
IP to receive the full benefit of the
(a)
To the extent that the Provider needs to
Services, the Provider grants to the
use any Intellectual Property held or
Participating Agency a royalty-free, non-
owned by a third party (
Third Party IP)
exclusive licence (including, if agreed in
in performing the Services under this
this Consultancy Services Order, the
Consultancy Services Order, the
right to sublicense) to use, copy, modify
Provider will use its best endeavours to
and distribute during the Term any
obtain the fullest rights of use and
Provider IP provided to the Participating
licence of that Third Party IP (on terms
UNDER
Agency by or on behalf of the Provider.
and at a cost to be agreed with the
11.2
Intellectual Property owned by Participating
Participating Agency) as are necessary
Agency
for the performance of those Services for
the benefit of the Participating Agency.
(a)
The Provider acknowledges that the
Participating Agency or its licensor has,
(b)
The Participating Agency acknowledges
and continues to have, sole and
that the Provider may have limited ability
exclusive ownership of all Intellectual
to obtain rights and/or a licence to use
Property rights in all of the Agency
any Third Party IP and, where the
Information together with all adaptations
Provider, using its best endeavours,
and modifications of such Agency
cannot obtain appropriate rights and/or a
Information (
Pre-contract Participating
licence for the Participating Agency to
RELEASED
Agency IP).
use that Third Party IP, the warranty in
clause
9.2(e) applies.
(b)
All Intellectual Property created or
developed by the Provider or its
12.
Liability
employees or Subcontractors in
performing the Services and developing
12.1
Indemnity
the Documentation will be owned by the
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Sensitivity: General
(a)
The Provider will, to the extent permitted
handling of any
by Law, indemnify the Participating
negotiations and
Agency against all Losses suffered or
litigation; and
incurred by the Participating Agency as a
result of any:
(B)
the Provider will keep the
Participating Agency
(i)
unlawful, malicious or negligent
informed of the defence
act or omission by the Provider;
or negotiations of the IP
Claim and diligently
(ii)
personal injury, sickness, death
conduct any litigation or
or loss of, or damage to, tangible
negotiations, using
property due to an act or
competent counsel and
1982
omission of the Provider; or
in a manner that does
(iii)
any other breach by the Provider
not adversely affect the
of its obligations under this
name or reputation of the
Consultancy Services Order.
Participating Agency;
ACT
(b)
The Provider will, subject to clause
(iii)
the Provider will not enter into
12.1
(c), indemnify the Participating
any settlement or compromise in
Agency against all Losses suffered or
relation to the IP Claim without
incurred by the Participating Agency as a
the prior written consent of the
result of any claim that the possession or
Participating Agency (which will
use of any Intellectual Property supplied
not be unreasonably withheld);
or licensed by the Provider, or the use of
and
any Intellectual Property used to provide
(iv)
the Provider will notify the CoE of
the Services, infringes any third party’s
the IP Claim, and the outcome
rights.
within 5 Business Days of the
(c)
The Provider will have no liability under
claim being concluded.
clause
12.1(b) to the extent that any IP
(b)
If any IP Claim disrupts the Participating
Claim arises from any:
Agency's use or enjoyment of a Service,
(i)
modification by the Participating
the Provider will (unless otherwise
Agency of any item of Intellectual
requested by the CoE), at its own
INFORMATION
Property supplied or licensed by
expense and at its option, immediately:
the Provider without the approval
(i)
obtain for the Participating
of the Provider;
Agency the legal right to
(ii)
use by the Participating Agency
continued use of the infringing
of Intellectual Property supplied
materials; or
or licensed by the Provider for
(ii)
replace, modify or resupply the
any purpose disallowed by this
infringing materials so that there
Consultancy Services Order or
is no further infringement, without
the applicable Intellectual
adversely affecting the
Property licence (but only if the
OFFICIAL
performance or functionality of
licence has been provided to the
those materials.
Participating Agency prior to
such use); or
12.3
Maximum liability of Participating Agency
(iii)
use of Intellectual Property used
In addition to its obligation to pay the Charges,
THE
to provide the Services if and to
the maximum aggregate liability of the
the extent that Intellectual
Participating Agency to the Provider under or in
Property was supplied by the
connection with this Consultancy Services Order
Participating Agency.
will be, in respect of all Losses, limited to the
total Charges paid and payable under this
12.2
IP Claims
Consultancy Services Order.
(a)
In the event of a claim under clause
12.4
Maximum liability of the Provider
12.1(b) (an IP Claim):
UNDER
The maximum liability of the Provider to the
(i)
the Participating Agency will give
Participating Agency for all Losses under or in
the Provider notice of the IP
connection with this Consultancy Services Order
Claim as soon as practicable
in respect of all claims will not exceed:
and, to the extent permissible by
Law, permit the Provider (at the
(a)
in relation to the sub-categories for which
Provider's cost) to handle all
the Provider has been appointed as a
negotiations for settlement and to
Tier 1 Provider, the greater of:
control and direct any litigation
that may follow (
Control of the
(i)
10 times the total Charges paid
IP Claim);
and payable under this
Consultancy Services Order;
(ii)
if the Provider has Control of the
RELEASED IP Claim:
(ii)
$5,000,000; and
(A)
the Participating Agency
(iii)
any greater amount or multiple
will provide all
set out in this Consultancy
reasonable assistance to
Services Order;
the Provider (at the
Provider's cost) in the
19
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Sensitivity: General
(b)
in relation to the sub-categories for which
substantially, by reason of any Force
the Provider has been appointed as a
Majeure Event.
Tier 2 Provider, the greater of:
(b)
The party subject to the Force Majeure
(i)
10 times the total Charges paid
Event (the
non-performing party) must:
and payable under this
Consultancy Services Order;
(i)
notify the other party as soon as
practicable after the Force
(ii)
$2,000,000; and
Majeure Event occurs and
provide full information
(iii)
any greater amount or multiple
concerning the Force Majeure
set out in this Consultancy
Event, including the extent of its
Services Order; and
1982
inability to perform, an estimate
(c)
in relation to the sub-categories for which
of the time likely to be required to
the Provider has been appointed as a
overcome the Force Majeure
Tier 3 Provider, the greater of:
Event and the steps the non-
performing party will take to
(i)
10 times the total Charges paid
comply with clauses
12.8(b)(ii)
ACT
and payable under this
and 12.8(b)(iii);
Consultancy Services Order;
(ii)
use all reasonable endeavours to
(ii)
$1,000,000; and
mitigate and remedy the effect of
the Force Majeure Event and
(iii)
any greater amount or multiple
minimise the impact of the event
set out in this Consultancy
on the other party; and
Services Order.
(iii)
use all reasonable endeavours to
12.5
No double dipping
perform its obligations under this
A party to this Consultancy Services Order (or
Consultancy Services Order as
the CoE acting on behalf of the Participating
far as is practicable,
Agency in accordance with the Services
and the Participating Agency will not be
Agreement) cannot recover for the same Loss
required to pay Charges to the extent
under both this Consultancy Services Order and
that the Provider fails to perform its
the Services Agreement.
obligations to the Participating Agency
INFORMATION
12.6
Exclusions on liability
due to a Force Majeure Event.
The limitations on liability set out in clauses
12.3
(c)
If the non-performing party affected by
and 12.4 will not limit the liability of:
the Force Majeure Event is the Provider,
the Participating Agency may, to the
(a)
the Provider under clauses
12.1(a) and
extent that any Service requested by the
12.1(b) (other than in respect of
Participating Agency under this
negligent acts or omissions under clause
Consultancy Services Order has not
12.1(a)(i) and breach by the Provider of
been delivered and delivery has, or will
its obligations under this Consultancy
be, delayed by the Force Majeure Event,
Services Order under clause
12.1(a)(iii),
OFFICIAL terminate this Consultancy Services
which are subject to the limitations of
Order, by notice to the Provider within
liability in clauses 12.3 and 12.4);
five Business Days following receipt by
the Participating Agency of notice of the
(b)
the Provider for any fraudulent act or
Force Majeure Event, at no cost to the
omission; or
THE
Participating Agency, subject to the
(c)
either party for any breach of
Participating Agency paying for Services
confidentiality.
delivered up to the date of the Force
Majeure Event.
12.7
Categories of loss
12.9
Insurance
(a)
Irrespective of how liability arises, neither
the Provider nor the Participating Agency
(a)
During the Term and for a period of two
will, under any circumstances, be liable
years following the termination of this
UNDER
for any indirect loss or damage (including
Consultancy Services Order, the
consequential loss) arising under or in
Provider will, at its own expense, ensure
connection with this Consultancy
that it maintains adequate insurance in
Services Order.
respect of its potential liability for loss or
damage under this Consultancy Services
(b)
The Participating Agency will not, under
Order in accordance with Industry Best
any circumstances, be liable for any loss
Practice, but as a minimum the Provider
of profits or loss of revenue suffered by
must hold:
the Provider in connection with this
Consultancy Services Order.
(i)
professional indemnity
insurance;
12.8
Force majeure
(a)
The Provider and the Participating
(ii)
public liability insurance in
RELEASED Agency will not be liable to the other for
respect of the Services provided
any failure to perform its obligations
under this Consultancy Services
under this Consultancy Services Order
Order; and
during the time and to the extent that
such performance is prevented, wholly or
(iii)
other insurance to cover
standard commercial risks
20
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Sensitivity: General
(including in respect of
(c)
If the parties fail to agree on the identity
Documentation which is the
of the mediator and/or the mediator’s fee
property of the Participating
within five Business Days of referral of
Agency and in the Provider’s
the dispute to mediation, the mediator
possession or control).
will be chosen, and the mediator’s fee
determined, by the chairperson for the
time being of Resolution Institute (or his
(b)
The Provider will, at the Participating
or her nominee).
Agency’s request, promptly provide
satisfactory evidence that it has complied
13.4
Urgent relief
with its obligations in this clause
12.9.
Nothing in this clause 13 will preclude either
13.
Dispute resolution
1982
party from taking immediate steps to seek urgent
relief before a New Zealand court.
13.1
Dispute
14.
Termination
In the event of any dispute, difference or
question arising out of, or in connection with, this
14.1
Termination of Consultancy Services Order
ACT
Consultancy Services Order or its formation (a
dispute):
The Participating Agency may terminate this
Consultancy Services Order:
(a)
the Participating Agency and the
Provider will each use its best efforts to
(a)
for convenience
by giving the Provider at
resolve the dispute through good faith
least one month’s prior written notice;
negotiations and informal dispute
(b)
by notice to the Provider with immediate
resolution techniques, and will continue
effect on the date of termination specified
to perform its obligations under this
in that notice, if the Provider commits a
Consultancy Services Order as far as
Material Breach which is:
possible as if the dispute had not arisen,
pending final settlement of the dispute;
(i)
not capable of being remedied
and
(and, for the avoidance of doubt,
paragraphs (a) and (b) of the
(b)
neither the Participating Agency nor the
definition of “Material Breach” are
Provider will commence any formal
deemed incapable of being
proceedings relating to the dispute
INFORMATION
remedied); or
unless it has complied with clause
13.2.
(ii)
capable of being remedied but
13.2
Escalation
which is not remedied to the
(a)
The Participating Agency and the
satisfaction of the Participating
Provider will each advise its respective
Agency within 10 Business Days
Representative (or equivalent person) of
following the date of receipt by
a dispute on the day that the dispute
the Provider of the Participating
arises.
Agency’s notice of the Material
Breach;
(b)
The Representatives will use their best
OFFICIAL
efforts to resolve the dispute in
(c)
in accordance with clause 4.1(e) (Conflict
accordance with clause
13.1(a).
of Interest); or
(c)
If the dispute is not resolved:
(d)
in accordance with clause 12.8(c) (Force
Majeure Event).
(i)
within 10 Business Days, the
THE
dispute will be escalated to
14.2
Consequences of termination or expiry
senior representatives of the
(a)
In the event of termination or expiry of
Provider and the Participating
this Consultancy Services Order, the
Agency with delegated authority
Participating Agency will not be obliged
to resolve the dispute; and
to make any payment to the Provider
(ii)
in relation to the sub-categories
except for any Charges payable for
for which the Provider has been
Services supplied pursuant to this
appointed as a Tier 1 and Tier 2
Consultancy Services Order before the
UNDER
Provider, within a further 10
effective date of expiry or termination.
Business Days, the dispute will
(b)
Termination or expiry will not, unless
be escalated to the CoE’s
otherwise provided in this Consultancy
Manager, All-of-Government
Services Order, affect:
Contracts and the Provider’s
Chief Executive.
(i)
any rights and remedies
available to either party which
13.3
Mediation
have accrued up to and including
(a)
If a dispute is not resolved under clause
the date of termination or expiry;
13.2, either party may, by written notice
and
to the other, refer the dispute to
(ii)
the provisions of this
mediation, or they may agree in writing to
Consultancy Services Order
RELEASED refer the dispute to mediation.
which expressly, or by their
(b)
The mediation will be conducted by a
nature, survive termination or
single mediator in accordance with the
expiry, including clauses
15
terms of the Resolution Institute
(Entire agreement),
10
Standard Mediation Agreement and at a
(Confidentiality),
11 (Intellectual
fee to be agreed by the parties.
Property),
12 (Liability), 13
21
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Sensitivity: General
(Dispute Resolution),
14.2
16.
General
(Consequences of termination or
expiry) and 16 (General) and
16.1
Interpretation
Schedule 1 (Definitions);
The rules of interpretation set out in clause 19.1
(iii)
the continued application of
of the Services Agreement apply to this
clauses of the Services
Consultancy Services Order.
Agreement which expressly, or
16.2
Relationship of the parties
by their nature, are intended to
continue to apply to this
Nothing expressed or implied in this Consultancy
Consultancy Services Order after
Services Order will be deemed to constitute
termination or expiry of this
either party as the partner, agent, or joint
1982
Consultancy Services Order,
venturer of the other party.
including clauses
1.4 (Precedence) and 15 (Audit).
16.3
Costs
(c)
After expiry or termination of this
A party who has an obligation to do anything
Consultancy Services Order for any
under this Consultancy Services Order will
ACT
reason, each party will, within five
perform that obligation at its own cost, unless a
Business Days of receiving notice from
term of this Consultancy Services Order
the other party, return all Documentation,
expressly provides otherwise.
Confidential Information or other property
16.4
Assignment
belonging to the other party (or destroy
such Confidential Information, if
Neither party may assign, novate, transfer or
requested), except if such
otherwise dispose of the whole or any part of its
Documentation, Confidential Information
rights and obligations under this Consultancy
or other property is required to be
Services Order without first obtaining the other
retained by any Law.
party’s consent (which will not be unreasonably
withheld or delayed).
15.
Entire agreement
16.5
Public disclosures
15.1
Entire agreement
Subject to clause
10, all public disclosures by the
(a)
This Consultancy Services Order is
Provider relating to this Consultancy Services
INFORMATION
intended to be read in conjunction with
Order, including the fact of its existence (but not
the Services Agreement. The provisions
including any announcement intended solely for
of the Services Agreement (not already
internal distribution or any disclosure required by
included in this Consultancy Services
legal, accounting or regulatory requirements), will
Order) which confer rights, obligations or
be co-ordinated with, and must first be approved
benefits on the parties or the CoE in
in writing by, the Participating Agency prior to
respect of this Consultancy Services
release.
Order are intended to apply to this
Consultancy Services Order.
16.6
Notices
(b)
Subject to clause 15.1(a), no other terms
(a)
Unless otherwise specified in this
OFFICIAL
or conditions, including any conditions of
Consultancy Services Order, each notice
sale, invoices or any other
or other communication under this
communication not included in this
Consultancy Services Order will be made
Consultancy Services Order
in writing and delivered by post, personal
(
Communication), will be incorporated
delivery or email to the addressee at the
THE
into this Consultancy Services Order,
addressee’s postal address, physical
even if at some later date the other party
address or email address (as applicable)
(including, in the case of the Participating
and marked for the attention of the
Agency) signs or otherwise purports to
person or office holder (if any) from time
accept those terms and conditions or the
to time designated for that purpose by
terms of that Communication.
the addressee.
(c)
For the avoidance of doubt, and without
(b)
The Provider’s postal address, physical
limiting clauses
15.1(a) and 15.1(b):
address and email address is set out in
UNDER
the Provider Database and may be
(i)
any Communication which is
amended by the Provider at any time.
expressed or intended to operate
as an indemnity, warranty,
(c)
The Participating Agency’s postal
representation, undertaking,
address, physical address and email
condition or other term of such a
address is as notified by the Participating
nature is hereby disapplied and
Agency to the Provider and may be
excluded from this Consultancy
amended by the Participating Agency at
Services Order; and
any time.
(ii)
any part of this Consultancy
(d)
A notice or other communication will be
Services Order which describes
deemed to be received:
the nature, scope, price or
(i)
in the case of a letter sent to the
RELEASED manner of delivery of Services
addressee’s postal address, on
will, subject to clause
15.1(c)(i),
the third Business Day after
form part of this Consultancy
posting;
Services Order, but only to the
extent that it does not conflict
(ii)
in the case of personal delivery,
with any other part of this
on receipt; and
Consultancy Services Order.
22
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Sensitivity: General
(iii)
in the case of an email, at the
16.11
Governing law and jurisdiction
time the email leaves the
communications system of the
(a)
This Consultancy Services Order is
sender, provided that the sender:
governed by, and will be construed in
accordance with, the laws of New
(A)
does not receive any
Zealand.
error message relating to
the sending of the email
(b)
Subject to clause 13, each party
at the time of sending;
irrevocably submits to the exclusive
and
jurisdiction of the New Zealand courts for
the purpose of hearing and determining
(B)
has obtained
any dispute under, or in connection with,
1982
confirmation that the
this Agreement.
email has been delivered
to the recipient (which
confirmation may be in
the form of an automated
delivery receipt from the
ACT
communications system
of the recipient),
SCHEDULE 1: DEFINITIONS
on the Business Day on which it
In this Consultancy Services Order, unless the context
is dispatched or, if dispatched
otherwise requires:
after 5 p.m. (in the place of
receipt), on the next Business
Administration Fee means the amount referred to in clause
Day after the date of dispatch.
8.6;
16.7
Severability
Agency Information means all:
If any term or provision of this Consultancy
(a)
information and records belonging to the Participating
Services Order is held to be illegal, invalid or
Agency that are supplied to or collected by the Provider
unenforceable it will be severed from this
for the purpose of enabling the Provider to perform its
Consultancy Services Order without affecting the
obligations under this Consultancy Services Order;
legality, validity or enforceability of the remaining
(b)
compilations of data created by a Participating Agency
provisions.
INFORMATION
or the Provider for the purposes of this Consultancy
16.8
Waiver
Services Order; and
(a)
Neither party will be deemed to have
(c)
legal names, logos, trademarks, brands or images of
waived any right under this Consultancy
the Participating Agency, including all related
Services Order unless the waiver is in
Intellectual Property of the Participating Agency and
writing and signed by the parties.
the New Zealand Coat of Arms or any other coat of
arms or emblem used by the Participating Agency,
(b)
Any failure or delay by a party to
exercise any right or power under this
but excluding the Provider’s working papers;
Consultancy Services Order will not
Annexure means any document physically attached to a
OFFICIAL
operate as a waiver of that right or
Schedule and identified as such and any other document
power.
incorporated by reference in any part of this Consultancy
(c)
Any waiver by a party of any breach, or
Services Order (other than an Annexure);
failure to exercise any right, under this
Appointment Letter means the letter issued to the Provider
THE
Consultancy Services Order will not
by the CoE, as amended or reissued from time to time,
constitute a waiver of any subsequent
confirming (among other things) the Provider’s appointment
breach or continuing right.
as an All-of-Government provider of consultancy services
16.9
Remedies cumulative
and detailing the terms and conditions of the appointment
(including the Services and the applicable Tier(s));
Except as is expressly stated otherwise in this
Consultancy Services Order:
Business Day means any day of the year other than a
Saturday, a Sunday or a public holiday (as defined in section
(a)
the rights, powers and remedies
44 of the Holidays Act 2003) observed at the location of the
UNDER
provided in this Consultancy Services
Participating Agency;
Order are cumulative and are not
exclusive of any rights, powers or
Charges means the amount payable by Participating
remedies provided by Law or under this
Agencies for Services and includes Fees and Expenses, as
Consultancy Services Order; and
described in Schedule 2 (Pricing) and agreed in this
Consultancy Services Order;
(b)
the exercise of any rights, powers and
remedies provided in this Consultancy
CoE means the Ministry of Business, Innovation and
Services Order will not prejudice the
Employment, the Centre of Expertise for Consultancy
exercise of any other right, power or
Services;
remedy under this Consultancy Services
Commencement Date is the date on which this Consultancy
Order or existing at Law.
Services Order is signed by both parties or, if two dates, the
RELEASED
16.10
Counterparts
later date;
This Consultancy Services Order may be signed
Confidential Information means:
in two counterparts, each of which will be
(a)
all information and trade secrets already
deemed an original, but both of which together
communicated or subsequently communicated under
are to constitute a single instrument.
or in connection with this Consultancy Services Order,
including information obtained during the negotiation of
23
Sensitivity: General
this Consultancy Services Order or in the performance
charges and expenses directly or indirectly incurred by the
of this Consultancy Services Order and information on
Provider;
the Provider Database;
Fees means the amount payable by the Participating Agency
(b)
any information about the business or property of either
to the Provider for its time spent delivering the Services
party including any information:
calculated on the basis of the Rates, excluding Expenses;
(i)
relating to the financial position of that party;
Fit for Purpose means, in relation to any Service or
Documentation to be provided by the Provider to the
(ii)
concerning that party’s suppliers and customers;
Participating Agency, that such Services or Documentation
or
are, in descending order of priority, fit for the purpose(s):
(iii)
relating to that party’s internal management,
(a)
expressly made known in writing by the Participating
1982
structure, Personnel or strategies;
Agency to the Provider (including in this Consultancy
(c)
the terms of this Consultancy Services Order; and
Services Order); or
(d)
Agency Information;
(b)
for which the Provider, given its knowledge of the
Participating Agency and understanding why the
ACT
Conflict of Interest means any matter, circumstance,
Services or Documentation are required, has reason to
interest or activity of the Provider, its Personnel or
expect such Services or Documentation to be used;
Subcontractors, arising by whatever means that directly or
indirectly conflicts with:
Force Majeure Event means an event or circumstance
beyond the reasonable control of either party which makes it
(a)
the duties of the Provider and any of its Personnel or
impossible or illegal to perform, or prevents compliance with,
Subcontractors to the Participating Agency; or
or the performance of, a party’s obligations under this
Consultancy Services Order, including:
(b)
the interests of the Participating Agency in relation to
this Consultancy Services Order or otherwise in
(a)
fire, floods, tsunami, storms, tempest, earthquake or
respect to the provision of consultancy services to the
other act of God;
Participating Agency either before or after the
Commencement Date;
(b)
any act of a public enemy, war, riot, or act of civil or
military authority;
or otherwise impairs or might appear to impair the ability of
the Provider (or any of its Personnel or Subcontractors) to
(c)
nuclear, chemical or biological contamination; and
provide the Services to the Participating Agency under this
(d)
subject to paragraph (g) of this definition, any act of a
INFORMATION
Consultancy Services Order diligently, independently,
third party engaged in subversive or terrorist activity or
impartially and in the best interests of the Participating
sabotage,
Agency;
but does not include an event to the extent that:
Consultancy Services Order means this service order
relating to the supply of Services issued by the Participating
(e)
the effect of that event could have been substantially
Agency;
prevented, avoided or overcome or mitigated by:
Contract Quarter means a period of three consecutive
(i)
implementation of any contracted business
months commencing on 1 January, 1 April, 1 July or 1
continuity or disaster recovery service, or any
October;
contingency plans agreed between the parties or
which a party has represented it has in place; or
OFFICIAL
Control means, in relation to the Provider or any ultimate or
intermediate holding company or Holding Entity of the
(ii)
exercising a reasonable standard of care; or
Provider, the power to:
(iii)
using information provided by the other party or
(a)
manage, directly or indirectly, the operation of the
which is available in the public domain; or
THE
business; or
(f)
it is an event for which the party affected is or was
(b)
control, directly or indirectly, the composition of the
directly responsible; or
board of directors or board of management or
equivalent governing body,
(g)
that event is constituted or caused by any act or
omission of Personnel or a Subcontractor unless and
of the Provider or such ultimate or intermediate holding
to the extent that the Personnel or Subcontractor was
company or Holding Entity, whether through the ownership of
itself affected by an event, which if it occurred in
voting securities, by contract or otherwise, and for these
relation to either party would have been a Force
UNDER
purposes “holding company” will have the same meaning as
Majeure Event; or
in section 5 of the Companies Act 1993;
(h)
that event is constituted or caused by an Insolvency
Documentation means all advice, communications,
Event or the insolvency of a Subcontractor or lack of
documentation (including information on the Provider
funds for any reason;
Database) and reports (whether in paper, electronic, audio or
audio-visual format) relating to, or provided as part of, the
GST means goods and services tax under the Goods and
Services together with additions, modifications to, and
Services Tax Act 1985;
replacements of, that documentation, but excludes the
Holding Entity means a trust, unit trust, partnership, limited
Provider’s working papers;
partnership, unincorporated joint venture or other body
Estimate means an estimate of the total Charges for the
corporate or unincorporated body of persons that Controls
Services required by the Participating Agency;
the Provider, and includes any natural person that Controls
the Provider;
RELEASED
Expense means any actual and reasonable out-of-pocket
costs incurred by the Provider in the delivery of the Services
Industry Best Practice means the high professional
and agreed to in this Consultancy Services Order, and
standard that would reasonably be expected from a prudent
includes any freight and related costs, travelling and
and experienced provider of consultancy services in New
incidental expenses and other costs, disbursements, fees,
Zealand having regard to market practice at the relevant
time;
24
Sensitivity: General
Insolvency Event means, in relation to the Provider:
(d)
any failure on the part of the Provider to comply with,
observe or perform any of the terms of this
(a)
the presentation of an application for its liquidation that
Consultancy Services Order in circumstances where
is not discharged within 30 days of its filing or which is
that contract breach or that contract breach together
not demonstrated to the Participating Agency prior to
with other contract breaches is considered by the
the expiry of that 30 day period as being an application
Participating Agency on reasonable grounds to cause
that is frivolous or vexatious;
the Provider to be unable or unwilling, or be likely to be
(b)
any step taken in or toward the making of any
unable or unwilling, to perform its obligations under this
compromise, proposal or deed of arrangement with all
Consultancy Services Order;
or some of its creditors;
Maximum Rates means the maximum Rates payable to the
(c)
the appointment of a liquidator, receiver, statutory
Provider for providing the Services, as recorded in the
1982
manager, administrator or similar official, to it;
Provider Database, excluding Expenses;
(d)
the suspension or threatened suspension by it of the
Panel means the All-of-Government panel of providers who
payment of its debts;
provide consultancy services to Participating Agencies,
including any sub-panel, as detailed on
(e)
cessation by it of a whole or any relevant part of its
www.procurement.govt.nz;
ACT
business in New Zealand;
Participating Agency means the Participating Agency that
(f)
the enforcement of any security against the whole or a
is a party to this Consultancy Services Order;
substantial part of its assets; or
Participating Agencies means each of the CoE and every
(g)
any other insolvency event or proceedings analogous
other Eligible Agency that is a party to the memorandum of
to any of the foregoing occurring in any relevant
understanding
between the CoE and all other Participating
jurisdiction;
Agencies relating to the management of their relationship
with each other and with the Provider in relation to the
Intellectual Property means copyright, all rights in relation
Services, as amended from time to time;
to inventions (including patents), registered and unregistered
trademarks, registered and unregistered designs, trade or
Personnel includes partners, principals, directors,
other proprietary rights or rights derivative of those rights
employees, agents, officers and individual independent
(including licence rights) anywhere in the world as well as
contractors;
any other rights in intellectual property which are recognised
or protected under Law;
Professional Adviser means any accounting, legal,
procurement or technical professional;
INFORMATION
Law means:
Provider Database means the IT platform described in
(a)
any statute, regulation, bylaw, ordinance or
Schedule 7 (Provider Database) to the Services Agreement;
subordinate legislation in force from time to time to
which a party is subject;
Quote means a fixed price, capped price or other pre-agreed
basis for establishing the Charges for Services required by
(b)
the common law and the law of equity as applicable to
the Participating Agency where the Provider is prevented
the parties from time to time;
from increasing the Charges without the prior written consent
of the Participating Agency;
(c)
any binding court order, judgment or decree;
Rates means the rates (whether hourly, daily or weekly or
(d)
any applicable industry code of practice or conduct,
OFFICIAL
other time-related basis) payable to the Provider for providing
convention, policy, rule or standard to which a party is
the Services, determined in accordance with Schedule 2
bound; or
(Pricing), excluding Expenses;
(e)
any applicable direction, policy, permission, consent,
Related Entity means a related company under the
licence, rule or order that is binding on a party and that
Companies Act 1993 (New Zealand) or a related body
THE
is made or given by any governmental or regulatory
corporate under the Corporations Act 200, provided that any
body having jurisdiction over a party or any of that
reference in the Companies Act 1993 to a “company” is
party’s assets, resources or business,
deemed to include any partnership, body corporate,
in any jurisdiction that is applicable to this Consultancy
association or other entity, whether corporate or
Services Order;
unincorporated, irrespective of the place of incorporation or
registration of that partnership, body corporate, association
Losses means liabilities, expenses, losses, damages and
or other entity;
costs (including legal costs on a full indemnity basis);
Representative has the meaning given in paragraph 3.1 of
UNDER
Material Breach means any material breach by the Provider
Schedule 5 (Governance) to the Services Agreement);
of the terms of this Consultancy Services Order or the
occurrence of any event having a material effect on the ability
Service Level means a required standard for the Provider’s
of the Provider to perform its obligations under this
performance of its obligations under this Consultancy
Consultancy Services Order (other than a Force Majeure
Services Order, as described in Schedule 3 (Performance
Event), including:
Measurement);
(a)
the occurrence of an Insolvency Event in relation to the
Service Level Default means a failure by the Provider to
Provider or the likely occurrence of an Insolvency
meet one or more Service Levels;
Event;
Services means the consultancy services provided from time
(b)
the occurrence of a change in Control of the Provider
to time under the terms of this Consultancy Services Order;
or any ultimate or intermediate holding company or
RELEASED
Services Agreement means the All-of-Government services
Holding Entity of the Provider that the CoE has not
agreement relating to the supply of Tier 1 and 2 consultancy
previously approved (acting reasonably);
services between the CoE and the Provider;
(c)
any representation or warranty made by the Provider in
Subcontractor means any person to whom the Provider has
terms of this Consultancy Services Order being found
subcontracted any part of its obligations under this
to be untrue or incorrect; and
Consultancy Services Order or who is a supplier to the
25
link to page 69
Sensitivity: General
Provider in respect of this Consultancy Services Order and
This Schedule describes, in relation to the sub-
includes the employees and subcontractors of that person
categories for which the Provider has been
and
Subcontract will be construed accordingly;
appointed as a Tier 1 and Tier 2 Provider:
Term means the period commencing on the date that this
(a)
the Service Levels; and
Consultancy Services Order is signed by both parties and
ending on the earlier of:
(b)
how performance against Service Levels
will be measured and reported.
(a)
the date on which the Services are completed in
accordance with this Consultancy Services Order; and
2.
Service Levels
(b)
the date on which this Consultancy Services Order is
2.1
Format
terminated in accordance with its terms; and
1982
Each Service Level is described in Annexure A
Tiers means any of
Tiers 1 and
Tiers 2 for which members
using the following format:
of the Panel are appointed and, in respect of the Provider,
Parameter
Description
means the Tier(s) the Provider is appointed to as detailed in
the Appointment Letter.
Description
Description of what the Service
ACT
Level will measure
SCHEDULE 2: PRICING
Purpose
Why
it
is
important
to
Participating Agencies that the
Service Level is met
1.
Introduction
Calculation
Method
for
calculating
the
Service Level
This Schedule sets out general principles
underlying the Charges.
Service Level
The performance standard that
the Provider is required to meet
2.
Principles
or exceed
2.1
Participating Agency will only pay for
Services ordered
2.2
Service Levels must be met
(a)
The Provider will invoice the Participating
Agency for the Charges in accordance
(a)
At all times during the Term, the Provider
INFORMATION
with clause 8.3 of this Consultancy
will, in relation to the sub-categories for
Services Order.
which the Provider has been appointed
as a Tier 1 and Tier 2 Provider, perform
(b)
The Participating Agency will only pay for
its obligations to meet or exceed the
Services that it orders in accordance with
Service Levels.
this Consultancy Services Order.
(b)
The Provider acknowledges that any
2.2
No minimum volume
failure to meet the Service Levels may
have a significant impact on the
The Participating Agency is not required to meet
Participating Agency.
a minimum aggregate expenditure or volume
OFFICIAL
level for any Services.
2.3
Changes to Service Levels
2.3
No interest
(a)
From time to time during the Term, the
CoE and the Provider may negotiate in
No interest will be payable on any amount due to
good faith to add, delete or modify then-
the Provider under this Consultancy Services
THE
existing Service Levels to reflect
Order.
changes in the Participating Agencies’
2.4
Rates
requirements or objectives.
(a)
The Fees are calculated on the Rates,
(c)
Any changes to Service Levels will be
being either the Rates that are recorded
effected in accordance with clause 10 of
on the Provider Database or, subject to
the Services Agreement.
paragraph 3, a different Rate as
3.
Performance measurement
negotiated between the Provider and
UNDER
Participating Agency and recorded in this
3.2
Failure to meet Service Levels
Consultancy Services Order.
If the Provider fails to achieve one or more of the
(a)
The Maximum Rates are the maximum
Service Levels in any Contract Quarter in respect
amounts payable by the Participating
of this Consultancy Services Order, it will:
Agency for the Services.
(a)
take such steps and do all things
3.
Charges
necessary, as soon as possible, to
correct the failure; and
The Charges payable by the Participating
Agency for Services must not include any Fees
(a)
notify the Participating Agency of the
invoiced at Rates higher than the Maximum
reasons for the failure and the steps that
Rates recorded in the Provider Database.
the Provider is taking to ensure that the
RELEASED
failure is not repeated; and
(b)
consider whether the Charges for the
SCHEDULE 3: PERFORMANCE MEASUREMENT
Services that are subject to the Service
Level Default should be reduced to
reflect the lower value of the Services
1.
Introduction
provided.
26
Sensitivity: General
Annexure A: Service Levels
Parameter
1. Services Fit for Purpose
Description
Were
the
Services
subject
to
this
Consultancy
Services
Order
Fit
for
Purpose?
Purpose
To ensure Services provided are Fit for
Purpose.
1982
Calculation
The Participating Agency will advise whether
the Services are Fit for Purpose as part of
the Agency Satisfaction Survey.
Service
100%
of
Services
delivered
to
the
ACT
Level
Participating
Agency
must
be
Fit
for
Purpose.
Parameter
2. Timely Performance of Services
Description
Did the Provider perform the Services
subject to this Consultancy Services Order
within
the
timeframe
recorded
in
this
Consultancy Service Order (or as amended
by agreement from time to time)?
Purpose
To ensure on-time provision of Services
requested under a Consultancy Services
Order.
INFORMATION
Calculation
The Provider is required to report on this
metric as part of the reporting requirements
in Schedule 6 (Reporting) to the Services
Agreement.
Service
The Provider must deliver all Services
Level
subject to this Consultancy Services Order
within the agreed timeframe for delivery
recorded in this Consultancy Services Order
including any variation to the timeframe
recorded in Part D of this Consultancy
OFFICIAL
Services Order.
Parameter
3. Services Performed to budget
THE
Description
Were the Charges for the Services subject
to this Consultancy Services Order within the
Estimate
or
Quote
recorded
in
this
Consultancy Services Order?
Purpose
To ensure Services requested under a
Consultancy Services Order are performed
on or under the Provider’s Estimate or
UNDER
Quote.
Calculation
The Provider is required to report on this
metric as part of the reporting requirements
in Schedule 6 (Reporting) to the Services
Agreement.
Service
The Provider must deliver all Services
Level
subject to this Consultancy Services Order
within
the
agreed
Estimate
or
Quote
recorded in this Consultancy Services Order
including any variation to the Estimate
RELEASED recorded in Part D of this Consultancy
Services Order.
27
AoG Consultancy Services Order (CSO)
Part A – for Participating Agency (client) to complete
The Participating Agency (referred to as the client in Parts A – E of this Consultancy Services Order) will
complete this and email the entire form (including all Parts) to the Provider.
AM Implementation
Today’s Date
26/5/25
CSO or Project name
1982
Plan
Fire & Emergency New
Morrison Low &
Agency
Provider
Zealand
Associates Limited
ACT
Jim Stuart-Black
9(2)(a)
Agency contact
Provider contact
name & title
name & title
Chief Strategic Advisor
Director
Nominated Personnel
Jim Stuart-Black
Nominated Personnel
9(2)(a)
Jim.Stuart-
Black@fireandemergenc
9(2)(a)@morrisonlow.c
Agency email address
y.nz
Provider email address
om
INFORMATION
invoices@fireandemerg
ency.nz
Agency phone #
9(2)(a)
Provider phone #
9(2)(a)
Sub Category
Outcome-based consultancy engagement (asset management)
OFFICIAL
GCDO Assurance Sub
no
Panel
Protective Security
THE
no
Services Sub Panel
UNDER
RELEASED
1
September 2018
Document Outline
- 3836_CCCS-Form-of-Agreement_FENZ_MorrisonLow-080124.pdf
- The General Conditions of Contract for Consultancy Services (Fourth Edition, December 2017) are amended as follows:
- Section 1: Definitions and Interpretation
- Section 2: Obligations of the Consultant
- Clause 2.1 (The Services)
- Clause 2.2 (Duty of Care)
- Section 3: Obligations of the Client
- Clause 3.3 (Client Decisions)
- Clause 3.6 (Instructions to Others)
- “Notwithstanding the forgoing, in an urgent or emergency situation the Client may give instructions directly to Other Consultants and/or Third Parties directly contracted to the Client but in such an event the Client as soon as reasonably practicable ...
- Clause 3.7 (Client to Give Early Warning)
- The following is inserted as a second paragraph:
- Clause 3.9 (Approvals)
- The following is inserted after the last paragraph:
- Section 4: Personnel
- Clause 4.3 (Key Personnel)
- Add a new clause 5.5 as follows:
- Section 6: Liability and Insurance
- Clause 6.2 (Limitation of Liability)
- Clause 6.5 (Insurance)
- Section 7: Variations
- Clause 7.4
- Add a new clause 7.4 as follows:
- Section 9: Copyright of Documents
- Clause 9.1 (New Intellectual Property)
- Clause 9.2 (Pre-existing Intellectual Property)
- “in relation to or in connection with this Agreement, the Services, the Works or the Client’s Project, including for the planning, design, engineering, procurement, construction, testing, commissioning, completion, operation, maintenance, repair, rep...
- Clause 9.3
- Clause 9.4
- Section 10: Disputes
- Clause 10.1
- Clause 10.2
- Clause 10.3
- Clause 10.6
- “Nothing in this clause 10 shall prevent or prejudice the ability of either party to apply to any court in order to seek interim injunctive relief against the other.”
- Section 11: Termination
- Clause 11.2 (Payment on Early Termination)
- Clause 11.6 (Suspension)
- Section 12: General Provisions
- “and 10, 11 and 12”
- Introduction
- Methodology
- Our team
- Fee structure
- Conclusion
- All of Government Construction Consultancy Services Tracking Slip
- 3836_Variation-1.pdf
- 3988_Signed-CSO-FENZ-ICT-AMP-210324.pdf
- 4588_Beca-AMP-Reviews-CSO-27-May-2025_signed-JSB.pdf
- 4589_ML-CSO-FENZ-AM-Impl-plan-27-May_signed-JSB.pdf
