LEGAL SERVICES MULTI-USE LIST GUIDANCE MATERIAL€¦ · · 2018-01-05LEGAL SERVICES MULTI-USE...

LEGAL SERVICES MULTI-USE LIST GUIDANCE MATERIAL

http://agate.agdnet.ag.gov.au/resources/forms/


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Contents

Part One - Introduction _________________________________________________________ 4 1. Background ______________________________________________________________________ 4 2. Purpose _________________________________________________________________________ 4 3. Scope of the LSMUL _______________________________________________________________ 4 4. Requests for exemptions ___________________________________________________________ 5 5. Exceptional circumstances __________________________________________________________ 5 6. Opportunity for exempt Agencies to opt-in _____________________________________________ 5 7. Tied work and Counsel _____________________________________________________________ 6

Part Two - Approaching the LSMUL ________________________________________________ 7 8. Using Categories of Law ____________________________________________________________ 7 9. List Rates ________________________________________________________________________ 7 10. Pricing mechanisms ________________________________________________________________ 7 11. Establishing parcelling arrangements __________________________________________________ 8 12. Cooperative procurement arrangements _____________________________________________10 13. Establishing clustering arrangements _________________________________________________10 14. Establishing piggybacking arrangements ______________________________________________10

Part Three - Purchasing Legal Services from the LSMUL _______________________________ 11 15. Quotes _________________________________________________________________________11 16. Joint responses to a Request for Quote _______________________________________________11 17. The relevant procurement thresholds ________________________________________________12 18. Purchasing Legal Services valued at less than the relevant Threshold Amount ________________12 19. Purchasing Legal Services valued at or above the relevant Threshold Amount ________________12 20. Assessing value for money _________________________________________________________12 21. Ordering Legal Services ____________________________________________________________13 22. Default Terms and Conditions ______________________________________________________13 23. Insurance requirements, limited liability schemes and proportionate liability ________________14

Part Four – Performance Reporting Framework _____________________________________ 15 24. Performance Reporting Framework overview _________________________________________15

Part Five - Reporting ___________________________________________________________ 15 25. Reporting to OLSC ________________________________________________________________15 26. Certificate of compliance __________________________________________________________15

Part Five - Security and confidentiality ____________________________________________ 16 27. Security ________________________________________________________________________16 28. Confidential Information not to be disclosed __________________________________________16

Attachment A ________________________________________________________________ 17 Glossary of Terms _____________________________________________________________________17

Attachment B ________________________________________________________________ 19 Example Request for Quote Template ____________________________________________________19

Attachment C ________________________________________________________________ 21 Example Order Template _______________________________________________________________21


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The Report of the Review of Commonwealth Legal Services Procurement (the Blunn Krieger Report), released in 2009, recommended that the Commonwealth adopt a more strategic, coordinated and whole-of-government approach to legal services arrangements. The Blunn Krieger Report emphasised the importance of developing the role of the informed purchaser within the Commonwealth, and the need to connect with, harness and use existing expertise and experience within the Commonwealth to support that role.

Following the release of the Blunn Krieger Report, and Learning from Experience – Lateral Economics report on Commonwealth Legal Services Purchasing (the Gruen Report) in 2010, the Government has committed to enhancing the management and delivery of legal services across the Commonwealth. As part of the reforms, the Attorney-General’s Department (AGD) has established a whole-of-government multi-use list for purchasing legal services, the Legal Services Multi-Use List (LSMUL). The LSMUL includes service providers who have been pre-qualified to provide legal services to agencies across four broad categories of legal work. Those service providers included on the LSMUL have satisfied the conditions for participation outlined in the Application for Inclusion (AFI) documents.

All Commonwealth agencies subject to the Public Governance, Performance and Accountability Act 2013 (with some exceptions) are required to use the LSMUL when purchasing external domestic legal services.

Assistant Secretary Office of Legal Services Coordination

1 July 2016


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Part One - Introduction

1. Background

1.1. The Attorney-General’s Department (AGD) through the Office of Legal Services Coordination (OLSC), has established a whole-of-government legal services multi-use list (LSMUL).

1.2. The objectives of the LSMUL are to:

a. reduce barriers to entry into the market for Commonwealth legal work;

b. gather and disseminate information on the performance of Service Providers in the provision of Legal Services to Agencies; and

c. support Agencies in their ongoing function as informed purchasers of Legal Services.

2. Purpose

2.1 The purpose of this Guidance Material (the Guidance) is to provide information to departments, agencies and service providers in relation to the operation of the LSMUL.

2.2 The Guidance must be read in conjunction with the relevant Commonwealth financial framework policies, including the Commonwealth Procurement Rules (CPRs), and the Legal Services Directions 2005 (the Directions).

2.3 Agencies and Service Providers must be familiar with the Conditions for Participation in the LSMUL, and the ‘Legal Services Multi-Use List Deed’ (the Deed) including the Operational Rules for the LSMUL.

2.4 Definitions set out in the Deed apply to the Guidance unless otherwise specified. A Glossary of Terms is included in this Guidance at Attachment A.

2.5 In the event of any inconsistency between the Guidance and the Deed, the terms of the Deed will prevail. A copy of the Deed is available from the LSMUL webpage.

3. Scope of the LSMUL

3.1 Most Departments, Agencies and bodies which are subject to the Public Governance, Performance and Accountability Act 2013 (PGPA Act) are required under Appendix F of the Legal Services Directions 2005 (the Directions) to purchase Legal Services from Service Providers on the LSMUL.

3.2 Limited exceptions to the requirement to use the LSMUL include those Agencies that are:

a. Government Business Enterprises;

b. currently exempt from complying with Appendix F of the Directions under paragraph 13.1(a) of the Directions; or

c. Commonwealth companies.

http://www.ag.gov.au/lsmul


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3.3 However, Agencies who are exempt from the requirement to use the LSMUL may elect to use the LSMUL by seeking approval in writing from OLSC. See paragraph 6 below for more information in relation to exempt Agencies.

4. Requests for exemptions

4.1 The Attorney-General may grant an exemption to the requirement for an Agency to use the LSMUL, in whole or in part. If an Agency wishes to seek an exemption from use of the LSMUL broadly, or in relation to a particular matter or class of matters, the Agency may seek an exemption by providing a written request to OLSC.

4.2 Requests for exemptions will be considered based on merit on a case-by-case basis.

4.3 Consideration will be given to whether the request for exemption demonstrates that there is an exceptional circumstance.

5. Exceptional circumstances

5.1 Exemptions due to exceptional circumstances may only be granted for one-off matters. If an Agency wishes to use a Service Provider that is not included in the LSMUL in more than one instance, the Agency must request that the Service Provider apply for inclusion on the LSMUL.

Examples –Exceptional Circumstances Multi-party disputes

An exceptional circumstance may arise where all Service Providers on the LSMUL that could provide services in that area of law have been engaged by other parties to a multi-party dispute. In these circumstances, purchasing legal services from a Service Provider included in the LSMUL in the Dispute Resolution and Litigation category may create a conflict of interest.

Specialist Legal Services

An exceptional circumstance may arise where an Agency requires one-off, specialist legal advice on a matter and there are not any Service Providers included on the LSMUL that have the required expertise to provide advice on that matter.

6. Opportunity for exempt Agencies to opt-in

6.1 Agencies that are exempt from using the LSMUL may still elect to purchase through the LSMUL under clause 4.1.3 of the Deed. To opt-in, exempt Agencies should provide a written request to OLSC via [email protected]. That Agency’s details will then be included on the LSMUL IT solution and they will be able to access Service Provider details in order to purchase from the LSMUL.

mailto:[email protected]


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7. Tied work and Counsel

7.1 Under the Directions, constitutional, Cabinet, national security, certain public international law and most drafting work undertaken for a Non-Corporate Commonwealth Entity (NCE) is tied to particular providers of Legal Services, namely the Australian Government Solicitor, the Department of Foreign Affairs and Trade and the Attorney-General’s Department.

7.2 The LSMUL does not affect arrangements for tied areas of Commonwealth legal work.

7.3 However, the List Rates will apply to tied work provided by a Service Provider that is included on the LSMUL, subject to the guidance set out in paragraph 9 below.

7.4 In addition, the LSMUL does not affect arrangements for engaging Counsel.


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Part Two - Approaching the LSMUL

8. Using Categories of Law

8.1 The LSMUL is divided into four broad categories of law:

a. Government and Administrative Law;

b. Corporate and Commercial Law;

c. Dispute Resolution and Litigation; and

d. All Other Legal Services.

8.2 The categories of law will allow Agencies to narrow the legal services market to a smaller number of Service Providers when they are looking to purchase certain types of Legal Services.

8.3 Agencies should make an initial assessment as to the particular area of the Legal Services required before scoping the market.

8.4 Subject to paragraphs 8.5 and 16, if an Agency anticipates that work may cross more than one category of law, then it must only seek to engage a Service Provider which has been pre-qualified in each of the relevant categories.

8.5 In some circumstances, it may be appropriate for an Agency to engage more than one Service Provider for a multi-dimensioned matter. That will be a matter for the Agency in determining the scope of its Legal Services needs. OLSC will be available for Agencies to discuss these issues as they arise.

9. List Rates

9.1 Subject to paragraph 9.3, an Agency must not be charged more than the List Rate for any Legal Services purchased from a Service Provider through the LSMUL.

9.2 Service Providers List Rates are available to Agencies on the LSMUL IT solution.

9.3 A Service Provider may only charge more than the List Rate if the Agency determines that the agreed price is overall of greater benefit to the Agency. For example, blended rates may exceed a lawyer’s hourly rate but provide overall value for money to the Agency.

9.4 An Agency may negotiate lower rates or innovative pricing arrangements with a Service Provider.

10. Pricing mechanisms

10.1 An Agency may request that a Service Provider provide a quote using a particular pricing mechanism. All pricing mechanisms are allowable under the Deed as long as the maximum rate does not exceed the List Rate (except as outlined in paragraph 9.3 above).

10.2 Pricing arrangements that Agencies may consider include, but are not limited to:

a. hourly rates, broken down per lawyer level;


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b. daily rates;

c. hourly/daily secondment rate;

d. blended rate (i.e. one hourly rate that applies regardless of the level of the lawyer);

e. fixed price (i.e. agree up front on the total cost of the matter);

f. fixed cap (i.e. invoices for a matter cannot exceed a fixed amount);

g. milestone payments (i.e. with each milestone being capped or each milestone having a fixed price);

h. hourly caps; or

i. a combination of any of the above pricing mechanisms.

10.3 Service Providers included details about their innovative fee arrangements in their application for inclusion on the LSMUL. This information is available to Agencies through the LSMUL IT solution.

10.4 Details of the agreed pricing arrangements must be included in the Order documentation. For example, if an Agency is using the Order template, details of the pricing arrangements must be included under the ‘Fees and Charges’ item.

11. Establishing parcelling arrangements

11.1 Agencies can approach Service Providers to submit detailed quotes for parcels of Legal Services that, individually, may be valued at or above the relevant Threshold Amount. When establishing parcelling arrangements with Service Providers on the LSMUL, Agencies must ensure they are complying with the financial framework and the CPRs (see paragraph 2.2).

11.2 Parcels may range from a specific task or matter, to broader categories of work required over a period of time. For example, an Agency could choose to parcel all of its employment law services, or all of its merits review matters, or it could parcel its Legal Services needs by a particular category of law identified at paragraph 8.1, over a period of time.

11.3 Parcelling arrangements would be suitable for those Agencies with high volume routine matters, with a more or less guaranteed level of work or expenditure. Parcelling arrangements may also apply to complex or high volume litigation matters.

11.4 It is not necessary for Agencies to assess value for money for individual purchases valued above the relevant Threshold Amount where a parcelling arrangement exists and the services are being procured from the Service Provider with whom the arrangement has been entered into. This is because value for money must be assessed at the point of establishing the parcel arrangement.


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11.5 Although the LSMUL offers Agencies flexibility when purchasing Legal Services, parcelling arrangements must be consistent with the objectives of the LSMUL. Use of the LSMUL should drive efficiencies and enable Agencies to establish suitable arrangements for the provision of ongoing Legal Services.

11.6 Parcelling arrangements should not exceed 3 years, and must be reviewed annually by the Agency (OLSC does not need to be involved in any such reviews). Regular review of parcelling arrangements will ensure that Agencies can take full advantage of any new entrants to the LSMUL since the initial parcelling arrangement was established, and to ensure Agencies are achieving best value for money.

11.7 In addition, in parcelling Legal Services, Agencies:

a. must not seek to cover all of their Legal Services requirements in a single arrangement for a fixed period;

b. must not establish parcelling arrangements with a single provider;

c. must not use arrangements which are designed to frustrate the operation of the LSMUL; and

d. should seek to use or try a broader range of Service Providers that best suits its needs and should not prevent genuine consideration of alternative providers.

Example – Parcelling Arrangements

The following scenarios are examples of when an Agency might choose to establish a parcelling arrangement:

Legal services for multiple matters An Agency requires commercial Legal Services for a number of matters which individually would not necessarily exceed the Agency’s Threshold Amount but, when considered as a whole, would exceed the Threshold Amount. The Agency determines that it would not be efficient, effective or economical to undertake separate procurement processes for each of these individual matters. Instead, the Agency considers that a parcelling arrangement is suitable, as it removes the need to seek quotes for each individual matter which falls within the scope of the parcel.

Multiple routine litigation matters

An Agency requires litigation services on a daily basis, often in urgent circumstances. The Agency determines that parcelling its litigation work is the most suitable manner of procuring Legal Services because it removes the requirement to scope the broader market and undertake a value for money assessment on a case-by-case basis.

Large project with multiple procurements

An Agency has a large project which would involve several separate procurements. To ensure a consistent approach to the management of legal risk, the Agency prefers to use a single legal services provider for the project. The Agency determines that parcelling services for these matters is suitable, as it removes the need to seek quotes for each individual procurement matter within


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the scope of the parcel. This approach meets the objective of ensuring consistency of legal services.

12. Cooperative procurement arrangements

12.1 The Department of Finance Cooperative Agency Procurement guidance notes that cooperative procurement enables the use of a procurement contract by more than one Agency. This can be achieved through either a joint approach to the market (clustering) or where an Agency accesses another Agency's established contract (piggybacking).

12.2 Agencies may utilise cooperative procurement mechanisms when accessing the LSMUL. When using these arrangements, Agencies will need to make the cooperative approach clear in the RFQ documentation.

12.3 A general overview of these mechanisms is provided at paragraphs 13 and 14. However, Agencies should refer to the Department of Finance guidance for further details.

13. Establishing clustering arrangements

13.1 Two or more Agencies can agree to cluster together to seek a quotes from Service Providers. Such an approach may allow smaller Agencies to access volume discounts that may otherwise be unavailable to them due to the relatively small size of their Legal Services needs or expenditure.

13.2 Agencies would need to decide whether to enter into one Contract together, subject to financial approvals, the Chief Executive Instructions or directions and other requirements, or enter into separate Contracts on the basis of the shared quote received.

13.3 An Agency may choose to cluster when approaching the market to establish a parcel arrangement.

14. Establishing piggybacking arrangements

14.1 Piggybacking provisions may also be included in a Contract when establishing a parcelling arrangement.

14.2 In such a case, the lead Agency would include the standard Commonwealth provision that enables portfolio Agencies and/or other Agencies generally to access all or some, especially price or discount arrangements, of the terms and conditions of the Contract that establishes the parcelling arrangement.

http://www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/policy-framework/cooperative-agency/principles.html


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Part Three - Purchasing Legal Services from the LSMUL

15. Quotes

15.1 For the purpose of this section of the Guidance, a quote (or ‘tender’) is defined as the estimated cost of Legal Services required by the Agency. The process of seeking quotes need not be complex or cumbersome.

15.2 From 1 January 2016, the Commonwealth Contracting Suite (CCS) applies to all non-corporate Commonwealth entities (NCEs). Corporate Commonwealth entities are encouraged to use best endeavors to apply this policy.

15.3 NCEs must use the CCS when purchasing goods or services valued under $200,000 (including GST) except for specific situations. Exceptions include procurements from a mandated whole of government arrangement, such as the Legal Services Multi-Use List. As a result, the CCS is not used when purchasing legal services from the LSMUL.

15.4 Agencies may invite all or some of the listed Service Providers in the relevant category of legal work to submit a quote. An Agency should have regard to the size and complexity of the matter or parcel of work, and any internal Agency procurement guidance, when determining the number of quotes to seek.

15.5 How quotes are sought and presented is a matter to be determined for each Agency. However, appropriate evidence of the Agency’s value for money assessment should be kept in order to satisfy Australian Government records management policy. For example, a purchasing officer may decide to seek a quote for Legal Services estimated to be below the relevant Threshold Amount by calling one Service Provider to discuss the scope of legal work required. If the Service Provider supplies the quote verbally, the purchasing officer should record the quote discussed. This could be done by sending the Service Provider an email confirming the proposed arrangement.

15.6 When seeking quotes from Service Providers for any type of legal work estimated to be for an amount greater than the relevant procurement Threshold Amount (see paragraph 17.1 below), an Agency must have regard to the minimum time limits set out in the CPRs for potential suppliers to prepare and lodge a submission.

15.7 A Request for Quote template is provided at Schedule 2 of the Deed and can be used by Agencies to seek quotes when purchasing from the LSMUL. However, use of this template is not mandatory and Agencies may amend the template or use an Agency specific form to request a quote for Legal Services. An example of a completed Request for Quote is at Attachment B.

16. Joint responses to a Request for Quote

16.1 If a Request for Quote permits, two or more Service Providers appointed to the LSMUL may jointly respond to a Request for Quote issued by an Agency.

16.2 An Agency could specify whether responses are permissible under the ‘Other Requirements’ item of the Request for Quote template.

http://www.finance.gov.au/procurement/commonwealth-contracting-suite/policy/


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17. The relevant procurement thresholds

17.1 The relevant procurement thresholds for Agencies set out in the CPRs (Threshold Amount) apply when purchasing Legal Services through the LSMUL.

17.2 For example, if a NCE is accessing the LSMUL to purchase Legal Services, the relevant Threshold Amount is $80,000 (GST inclusive). If a prescribed Corporate Commonwealth Entity (CCE) is accessing the LSMUL to purchase Legal Services, then the relevant Threshold Amount is $400,000 (GST inclusive).

17.3 The approach at paragraphs 18 and 19 does not need to be followed where the procurement is otherwise consistent with the CPRs. For example, an Agency may direct source Legal Services from a single Service Provider if the relevant conditions in the CPRs have been met (under the CPRs, Agencies should refer to the requirements in relation to Limited Tenders).

18. Purchasing Legal Services valued at less than the relevant Threshold Amount

18.1 If an Agency estimates that the required Legal Services to be purchased is valued at less than the relevant Threshold Amount, then the Agency may seek at least one quote from a Service Provider on the LSMUL.

18.2 Consistent with the CPRs, an Agency must be satisfied, after making reasonable enquires, that it is achieving value for money when purchasing Legal Services through the LSMUL.

19. Purchasing Legal Services valued at or above the relevant Threshold Amount

19.1 If an Agency estimates that the required Legal Services to be purchased will be at or above the relevant Threshold Amount, Agencies must select two or more Service Providers on the LSMUL to supply quotes for the Legal Services (for more information, Agencies should refer to the requirements in relation to Select Tenders in the CPRs, and Prequalified Tenders in the CPRs).

19.2 An Agency should specify the scope of work required when seeking quotes to enable comparisons to be made and assist in assessing value for money.

20. Assessing value for money

20.1 The procurement of Legal Services through the LSMUL is a matter for Agencies. However, Agencies must have regard to applicable statutory requirements and the CPRs.

20.2 The List Rates submitted by Service Providers on the LSMUL (see paragraph 9) are the maximum rate that a Service Provider may charge for Legal Services and represents a starting point for negotiations on price. Agencies should not solely rely on the price (whether the List Rate or an alternative negotiated rate) when undertaking a value for money assessment.

20.3 The value for money assessment, as required by the CPRs, must be conducted by an Agency at the time Legal Services are being purchased. The relevant Agency delegate must have a reasonable degree of confidence that value for money is being achieved when purchasing Legal Services from a Service Provider through the LSMUL.


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20.4 The value for money assessment should be accompanied by sufficient documentation to support the purchasing decision. For example, a purchasing officer may document the relevant matters taken into account when considering value for money. The CPRs provide further advice on assessing value for money (value for money obligations remain in the CPRs). Otherwise, the purchasing officer can contact their internal procurement adviser for advice.

21. Ordering Legal Services

21.1 When an Order for Legal Services is issued by an Agency in accordance with the Deed, a separate Contract is created between the Agency and the Service Provider.

21.2 The Order template at Schedule 3 of the Deed can be used when procuring Legal Services through the LSMUL. However, use of the Order template is not mandatory and Agencies may amend the template or use an agency specific form or other manner to order Legal Services. An example of a completed Order is at Attachment C.

22. Default Terms and Conditions

22.1 When procuring Legal Services an Agency may use the Default Terms and Conditions in Schedule 4 of the Deed or its own terms and conditions under an Agency Specific Agreement. The Order must identify which terms and conditions will apply to the Contract.

22.2 Where an Agency uses an Agency Specific Agreement to procure Legal Services through the LSMUL, there are a number of standard clauses in the default terms and conditions that must, at a minimum, be used. That is, relevant clauses in an Agency Specific Agreement must be no less favourable than the identified clauses in the Default Terms and Conditions (clauses 4, 5, 8, 10, 13, 14, 16.1, 16.2 and 16.8). Those terms relate to things such as compliance with the Directions and relevant Legislation, Confidential Information and Conflicts. To assist, these clauses are identified in the Deed with highlighting.

Example - How an Agency could Order Legal Services

A Non-Corporate Commonwealth Entity is purchasing Legal Services for an individual matter with an estimated value at or above $80,000 (GST inclusive). The Agency decides to seek quotes from three Service Providers on the LSMUL having regard to the size and level of complexity of the work. The purchasing officer completes the Request for Quote template from Schedule 2 of the Deed and sends the request directly to the three selected Service Providers. The purchasing officer selects one of the Service Providers based on a value for money assessment and documents the reasons for the decision. The purchasing officer then uses the Order template (Schedule 3 of the Deed) to create a Contract with the selected Service Provider listing the Default Terms and Conditions in the Order.


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23. Insurance requirements, limited liability schemes and proportionate liability

23.1 The Deed sets out insurance requirements for Service Providers including:

a. professional indemnity insurance for an amount not less than AU$10 million per event;

b. public liability insurance for an amount of not less than AU$10 million per event; and

c. workers’ compensation insurance as required by law.

23.2 Agencies are able to state Agency specific insurance requirements. However, Agencies should only request additional insurance requirements if necessary. The Request for Quote and Order templates allow for additional insurance requirements to be added. If Agency specific insurance requirements are not required, then the insurance requirements under the Deed will apply.

23.3 Service Providers listed on the LSMUL are permitted to be members of State or Territory law society limitation of liability schemes provided they have a liability cap for an amount not less than AU$10 million.

23.4 When placing an Order with a Service Provider, the Agency is responsible for checking that the relevant Service Provider is not a member of a limitation of liability scheme or, if they are, that the liability cap is for an acceptable amount. Acceptance of a liability cap or otherwise should continue to form part of an Agency’s risk assessment process. If a liability cap is agreed, through a Service Providers’ membership of a limitation of liability scheme or otherwise, clause 13 of the Default Terms and Conditions should be amended accordingly.

23.5 Following an Agency’s risk assessment, an Agency may decide that the proportionate liability provision at clause 13.1 of the Default Terms and Conditions is not required. In such a case, the Agency and Service Provider may agree to remove that clause.

23.6 Clause 13 is highlighted as a term which, if there is an Agency Specific Agreement, must be included as a “term no less favourable to the Commonwealth”. For the purpose of clause 13.1, this means that if an Agency wants to include a provision excluding proportionate liability schemes in an Agency Specific Agreement, the Service Provider has to agree its inclusion. However, the Agency and Service Provider may agree that such a provision is not required, in which case clause 4.5.6 of the Deed will not be taken to have been breached. This only applies to clause 13.1 of the Default Terms and Conditions.


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Part Four – Performance Reporting Framework

24. Performance Reporting Framework overview

The reporting obligations under paragraphs 6 and 7 of Appendix F of the Directions have been removed. Those paragraphs related to government agencies reporting to the Office of Legal Services Coordination (OLSC) concerning the rating for external legal services to the Commonwealth and the publication of these evaluations by OLSC.

The repealing of paragraphs 6 and 7 of Appendix F does not disturb the operation of paragraph 8 of Appendix F which may be relied upon to obtain performance information from Commonwealth entities, including as to the performance of external legal services providers on the Legal Services Multi-Use List.

Part Five - Reporting

25. Reporting to OLSC

25.1 Under the Directions, Agencies must include in each Contract the requirement for Service Providers to report to OLSC within 30 days after the end of each financial year:

a. the total value of work undertaken for the Commonwealth by the Service Provider during that financial year;

b. the amount of Pro Bono Work undertaken by the Service Provider during that financial year in a template approved by OLSC; and

c. any other information on performance or relevant to the operation of the LSMUL as specified in the Operational Rules.

25.2 The requirements outlined in paragraph 27.1 are included in the Default Terms and Conditions. If an Agency is not using the Default Terms and Conditions, then these requirements must be included in the Agency Specific Agreement.

26. Certificate of compliance

26.1 Subject to any exemption, the Chief Executive of a NCE is responsible for providing OLSC, within 60 days after the end of each financial year, with a certificate setting out the extent to which the Chief Executive believes there has been compliance by the Agency with the Directions, including compliance with Appendix F.

26.2 The Deed requires a Service Provider to inform the Agency immediately of, and promptly report to the Agency in writing, any breach or potential breach of the Directions.

26.3 Further direction on certificates of compliance is set out in Guidance Note 3, Compliance with the Legal Services Directions 2005 and can be found at www.ag.gov.au.

http://www.ag.gov.au/


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Part Five - Security and confidentiality

27. Security

27.1 The Deed outlines security requirements that Service Providers must meet. Agencies can specify additional security requirements through the Order process. For example, an Agency may include in the Order form that Personnel working on the matter must have or obtain a national security clearance.

27.2 Given the security and confidentiality requirements of Commonwealth legal work, Legal Services purchased through the LSMUL must be performed in Australia.

28. Confidential Information not to be disclosed

28.1 The LSMUL IT solution is an integral part of the legal services procurement reform by enabling information to be shared between Agencies. Agencies must ensure that the confidentially of all information available on the LSMUL IT solution is maintained. Agency Personnel must not disclose any Confidential Information of a Service Provider to a third party (including another service provider) without the express permission (in writing) of that Service Provider.

28.2 Examples of Confidential Information that will be accessible through the LSMUL IT solution include List Rates provided by Service Providers.

28.3 Examples of measures that Agencies should take to ensure Confidential Information is not disclosed include:

a. ensuring that the LSMUL IT solution cannot be accessed without a password;

b. only issuing a password to a user who requires access to the LSMUL IT solution as part of their regular duties;

c. requiring staff to keep passwords confidential; and

d. review user and password allocation from time to time to ensure that only those with a current need continue to have access.

28.4 Agencies should be particularly aware of their responsibility to maintain confidentiality when working with secondees from a Service Provider. For example, a secondee should not be given access to the LSMUL IT solution, or be involved in the purchasing of Legal Services through the LSMUL.

Attachment A

Glossary of Terms

AGD means the Commonwealth Attorney-General’s Department;

Agency or Agencies means any Commonwealth department, agency or body subject to the Public Governance, Performance and Accountability Act 2013 (PGPA Act) that is required by the Legal Services Directions, or elects, to procure legal services from the LSMUL;

Agency Specific Agreements means any Agency specific terms and conditions of contract, other than the Default Terms and Conditions, an Agency may use from time to time to acquire Legal Services from a Service Provider, and includes all associated documents, processes and procedures incorporated into those agreements;

Commonwealth means the Commonwealth of Australia;

Commonwealth Procurement Rules (CPRs)

means the Commonwealth Procurement Rules published by the Department of Finance

Conditions for Participation means the Conditions for Participation set out in Part 1 of the Application for Inclusion;

Confidential Information means information that is by its nature confidential, but does not include information which is or becomes public knowledge other than by a breach of the Deed or law;

Conflict means any matter, circumstance, interest, or activity affecting the Participant, its personnel or subcontractors which may or may appear to impair the ability of the Participant to provide the Legal Services to an Agency diligently and independently;

Contract means a contract for the provision of Legal Services formed between a Service Provider and an Agency, by the Agency issuing an Order to the Service Provider in accordance with the Deed;

Counsel means a barrister from the private bar, or a legal practitioner engaged as a barrister, briefed to advise or appear in tribunal or court proceedings, but does not include the Solicitor-General;

Deed means the LSMUL Deed including any schedules, attachments or documents incorporated by reference;

Default Terms and Conditions means the terms and conditions of contract provided for in Schedule 4 to the Deed;

Directions means the Commonwealth Attorney-General's Legal Services Directions issued under s 55ZF of the Judiciary Act 1903 (Cth);

Guidance means this Guidance Material, as amended from time to time;

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Legal Services means those professional services against each category of legal work that the Service Provider was appointed to the LSMUL to provide to Agencies on request, but does not include the services of Counsel or professional services obtained from a non-Australian service provider in respect of issues arising in jurisdictions outside of Australia;

Legal Services Multi-Use List (LSMUL)

means the multi-use list established by AGD to enable Agencies to acquire Legal Services;

Legislation means a provision of a statute or subordinate legislation of the Commonwealth, or of a State, Territory or local authority;

List Rates means the list rates in the Service Provider’s Application for Inclusion, amended from time to time in accordance with the Operational Rules;

LSMUL IT solution means the SharePoint solution for information sharing in relation to the LSMUL;

Office of Legal Services Coordination (OLSC)

means the Office of Legal Services Coordination in AGD;

Operational Rules or Rules means the rules governing how the LSMUL will operate set out in Schedule 1 to the Deed, as may be modified from time to time by AGD;

Order

means an order issued by an Agency requesting the provision of specific Legal Services by the Service Provider, in the form set out in Schedule 3 to the Deed or in the form or manner used by the requesting Agency;

Performance Reporting Framework

means the performance indicators, performance criteria, reporting requirements and management arrangements provided for in the Operational Rules;

Personnel means: a. in relation to the Service Provider – any natural person

who is a partner, officer, employee, agent or professional advisor of the Participant or of a subcontractor; and

b. in relation to an Agency – any natural person, other than a person referred to in paragraph (a), who is an officer, employee, agent or professional advisor (other than the Participant) of the Agency;

Pro Bono work has the same meaning as ‘pro bono legal services’ as defined in the National Pro Bono Aspirational Target Statement of Principles developed by the National Pro Bono Resource Centre, as at 1 September 2008;

Service Provider means a legal service provider appointed to the LSMUL;

Threshold Amount means the relevant procurement thresholds for Agencies set out in the CPRs;

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Attachment B

Example Request for Quote Template

Note: The use of this template by an Agency is not mandatory when procuring Legal Services from the LSMUL.

Insert name of Agency Attorney-General’s Department

Agency file reference 12/1111

RFQ Number 101

Date of RFQ 6 January 2016

Agency Project Officer (Instructing Officer)

Jane Smith

Required response time for quote

14 days (taking into account minimum time limits set out in the CPRs)

Work specification for Legal Services

We are seeking to engage a consultant to develop the technical and business statement of requirements for a new IT platform. Advice is sought on the attached draft consultancy contract. In particular, advice is sought on the risks associated with the proposed amendments to the standard contractual provisions relating to:

(a) Indemnity; and (b) Insurance requirements.

The proposed amendments to the standard contractual provisions are detailed in the attached contract material. Advice is also sought on the operation of clauses 4 and 5. We require the legal adviser to attend a meeting with the consultant and Instructing Officer on 10 February 2016. Further advice may be sought following the meeting on 10 February 2016.

Proposed Order Commencement Date

30 January 2016

Proposed Order Term / Completion Date

2 weeks, with further period, up to a maximum of 2 months, on the same terms and conditions of this RFQ.

Timeframes/ Milestones Advice to be provided by 3 February 2016. Attendance at meeting on 10 February 2016.

Required qualifications and experience

Experience drafting Commonwealth Government contracts (mandatory) Experience advising on indemnity and insurance issues (desirable)

Specified Personnel Not Applicable

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Subcontractors Not Applicable

Location Canberra

Terms and Conditions Default Terms and Conditions

Fees, Charges and Disbursements

Hourly blended rate

Commonwealth Material Procurement plan Letter from proposed consultant proposing amendments to the contract.

Existing Material Not Applicable

Contract Material Draft consultancy contract

Confidential Information Information on confidentiality provisions is available at: http://www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/contract-issues/confidentiality-procurement-cycle/principles.html

Agency Confidential information Period of Confidentiality

Agency data Indefinitely

Any Personal Information held by the Agency

Indefinitely

Security Classified Information Indefinitely

The Service Provider Confidential information

Period of Confidentiality

Information on the Service Providers performance

Indefinitely

List Rates (excluding the total value of the Contract)

Indefinitely

Additional Security requirements

Not Applicable

Additional Insurance Requirements

Not Applicable

Other Requirements Value Add Service - Provision of risk management training in contract indemnity and insurance requirement for up to two Departmental legal officers.

http://www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/contract-issues/confidentiality-procurement-cycle/principles.html



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Attachment C

Example Order Template

Note: The use of this template by an Agency is not mandatory when procuring Legal Services from the LSMUL.

This Order is made in accordance with the Deed and needs to be read in conjunction with that document, including the Default Terms and Conditions or, where relevant, the Agency Specific Agreement and any attachments to this Order.

Sam Jones Jones and Associates 4 London Cct Canberra City ACT 2601 9 389 256 785

Sent via e-mail: [email protected]

Insert name of Agency Attorney-General’s Department

Agency file reference 12/1111

Order Number 102

Agency Project Officer (Instructing Officer)

Jane Smith

Work specification for Legal Services

We are seeking to engage a consultant to develop the technical and business statement of requirements for a new IT platform. Advice is sought on the attached draft consultancy contract. In particular, advice is sought on the risks associated with the proposed amendments to the standard contractual provisions relating to:

(a) Indemnity; and (b) Insurance requirements.

Advice is also sought on the operation of clauses 4 and 5. We require the legal adviser to attend a meeting with the consultant on 9 February 2016 to negotiate the amended contract. Attached:

• Draft consultancy contract, including proposed amendments • Procurement plan • Letter from consultant requesting amendments to the

standard contract provisions. Commencement Date 30 January 2016

mailto:[email protected]

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Order Term 2 weeks from the Commencement Date (initial term).

The Agency may in its sole discretion extend the term of this Order beyond the initial term for a further period or periods, up to a maximum of 2 months on the same terms and conditions of this Order, by giving at least 1 weeks prior written notice to the Service Provider (or such shorter period of notice as the Service Provider may accept) prior to end of the initial term of this Order.

Timeframes/ Milestones 3 February 2016 – Final written advice to be provided. 10 February 2016 – Legal Adviser to attend meeting with instructing officer and consultant.

Specified Personnel Not Applicable

Subcontractors Not Applicable

Location Canberra office

Terms and Conditions Default Terms and Conditions

Fees, Charges and Disbursements

Hourly blended rate, up to a maximum of $5000.

Fees can be claimed at the completion of services.

Commonwealth Material Procurement plan

Letter from proposed consultant proposing amendments to the contract.

Existing Material Not Applicable

Contract Material See work specifications

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