Queensland Government Bulletin: Key issues in contracting under QITC

With the Queensland Information Technology Contracting (QITC) framework now well established, it is timely to look at the some of the key issues that can arise for government in using the framework.

Service level agreements (SLA) can be tricky for customers – it is common for them to be included in a contract, but then not measured, and for any service credits not to be claimed. However, a good SLA can be the main tool to ensure good supplier performance in the contract's operational phase, which is especially critical given contracts are often being extended for longer periods.

The key to a good SLA is to keep it simple – identify one to three key KPIs specific to the project to measure and apply credits to, have a credits regime that escalates as the performance gets poorer, and include termination rights as a final remedy. As part of this, the customer needs to ensure a significant amount of the relevant fees are at risk.

Specifications and requirements remain an ongoing challenge. It can be hard for government to document its requirements in detail – often these evolve throughout the project. But these documents, whether available at the start or down the track, are key to setting the appropriate bar for the supplier to reach, especially if acceptance testing is part of the project.

Acceptance testing remains important for customers to ensure that they are getting what they need and will be paying for. Suppliers often claim that this is not required, especially for off-the-shelf software, but customers should resist these arguments. Good quality products and services should have no problems passing reasonable acceptance testing.

Cyber security is a growing challenge for all customers and the contractual requirements for supplier security are ever increasing – from a paragraph or two a few years ago, to potentially a few pages in some contracts now. While the QITC does contain various requirements in relation to security, it may be necessary to supplement this – such as with additional clauses, reference to relevant customer or other standards, and including a requirement for cyber security insurance in the additional insurance provisions.

Customers should also clearly describe the commercial details they have agreed upon with the supplier. Clear pricing details (broken down into individual components as necessary) and payment arrangements need to be set out in the schedules. Customers need to consider and try to avoid paying too much ahead of delivery. This can be particularly tricky if third-party software providers are involved and are seeking payment for the software from the start of the contract, even though the customer may not be actively using the software during the implementation phase. Pricing should also clearly cover any additional items that may be required, and any potential increases so that the customer has cost certainty throughout the contract term (including extensions).

Customers should also be mindful of their obligations as these can often lead to delay claims or variations from suppliers. For the most part, the contract is about the supplier providing a product or service and the customer paying for it. As such, other obligations on the customer should be relatively limited and very specific.

Finally, a good contract is of no use if it is not properly managed. Any significant contract (whether it involves high risks or value) should have proper contract management processes in place. These processes may include the development of a contract management manual, management of key dates (particularly end of term and extensions), briefings for the operational team on key contract features, and careful management of any variations.

If you have any questions about the QITC framework or your contract management processes, please get in touch with partner Andrew Hynd.

Media

Unqualified ‘advisor’ loses appeal of ban
A Gladstone law graduate who was banned from practising law after moonlighting as a lawyer has failed in his appeal to have the ban overturned. His activities included advising on court processes and procedures; helping to create affidavits and other documents; helping prepare cases for litigation; and drafting correspondence (22 September 2023). Read more here.

Former senior public servant to head Covid-19 inquiry
Retired public servant Robyn Kruk has been appointed to an independent panel inquiring into state and federal responses to the Covid-19 Pandemic. The 12-month inquiry will examine a range of factors, including vaccination and PPE preparedness, public health messaging, financial support for individuals and businesses, and support for people during lockdowns domestically and overseas (21 September 2023). Read more here.

Qld to consider Victorian-style Airbnb levy as it weighs up housing options
Queensland will consider Victoria’s state-wide levy on short-stay accommodation providers, such as Airbnb and Stayz, as it mulls its next move in regulating the sector. It comes after the Brisbane City Council lifted rates for some short-term rental properties in July last year (20 September 2023). Read more here.

Queensland Government updates justice legislation, removing prohibition on naming alleged sex offenders
Laws allowing the public naming of people charged with certain sexual offences in Queensland have been passed in State Parliament. The reforms, contained in the Justice and Other Legislation Amendment Bill 2023, were among other legislative amendments to modernise and strengthen Queensland’s laws relating to the operation of courts and tribunals, and the justice system (13 September 2023). Read more here.

Key property reforms tackle sunset clauses, smoking and pets in units
The Body Corporate and Community Management and Other Legislation Amendment Bill 2023 was recently introduced in the Queensland Parliament. The Bill limits when property developers can invoke a ‘sunset clause’ to terminate ‘off the plan’ contracts for land to specific situations. (24 August 2023). Read more here.

Publications

Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)
The Australian Human Rights Commission has published a guideline designed to educate organisations and businesses about the relevant unlawful conduct covered by the positive duty now imposed on employers. This comes in accordance with the suite of reforms enacted by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth). Read the guidelines here.

Unemployment rate rises to 3.7 per cent in July
The unemployment rate remained at 3.7 per cent in August according to data released recently by the Australian Bureau of Statistics. Monthly hours worked fell 0.5 per cent in August 2023 (following the increase of 0.2 per cent in July), while employment rose by 0.5 per cent. Details here.

Gas supply outlook for first quarter 2024 shows likely surplus
Australia’s east coast gas market should have a 1.4 petajoule surplus in the first quarter of 2024, even if the LNG producers export all their uncontracted gas, the ACCC’s September 2023 interim gas inquiry report shows. Read the Regulator’s report on the on the supply-demand outlook of natural gas in Australia here.

The Bureau declares El Nino and positive Indian Ocean Dipole events
The Bureau of Meteorology recently declared that El Niño and a positive Indian Ocean Dipole are underway. Warmer and drier conditions will be more likely over spring and summer for parts of Australia, under the influence of these two climate drivers. Read more here.

Practice

Administrative Appeals Tribunal Bulletin Issue No. 18/2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. Read more here.

New QLS President named
Rebecca Fogerty, an Accredited Specialist in Criminal Law, will be Queensland Law Society President in 2024 after nominations closed on 21 September 2023. In accordance with rule 33(1)(a) of the Legal Profession (Society) Rules 2007, Rebecca, who was elected Vice President in July 2022, will take up the role on 1 January. Read more here.

QCAT Practice Direction No. 2 of 2023
The practice direction in relation to Applications for review of decisions made about animals, which came into effect from 28 August 2023, contains information that will assist parties in understanding the process and provide directions to parties about some of the things they must do. This practice direction supersedes practice direction 8 of 2022. Read more here.

Practice Direction No. 3 of 2023
This Practice Direction applies to summary proceedings under the Justices Act 1886 for a domestic violence offence. A summary proceeding for a domestic violence offence is defined in schedule 3 of the Evidence Act 1977. Read more here.

Cases

Coughlan v Queensland Police Service [2023] QCATA 112
ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – GROUNDS FOR REFUSAL – where the applicant was concerned that two police officers misused his personal information in a police database – where he sought information on accesses to his personal information in the database under Information Privacy Act 2009 (Qld) (IP Act) – where the respondent and, on external review, the Office of the Information Commissioner (OIC), refused disclosure

Crime and Corruption Commission v Carne [2023] HCA 28
State Parliament – parliamentary privilege – where Crime and Corruption Commission ("Commission") conducted investigation in response to complaint alleging corrupt conduct and maladministration by Public Trustee of Queensland – where Commission then composed Report on allegations and investigation – where Commission sought to use Parliamentary Crime and Corruption Committee ("Committee") to make Report public

Edser v QSuper Board [2023] FCA 1120
ADMINISTRATIVE LAW – appeal from determination of the Australian Financial Complaints Authority (Authority) – Whether Authority erred in its interpretation of the clear causation test – whether Authority made a legally unreasonable, irrational or illogical finding, or a critical finding of fact for which there was no evidential support – whether Authority was required to resolve ambiguities in medical report – whether Authority erred in its determination of the clear causation

Sea Swift Pty Ltd v Torres Strait Island Regional Council [2023] QSC 203
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the applicant is a shipping company that operates in the area governed by the respondent – where the respondent implemented a regime of Maritime Fees for use of its landing facilities – where the respondent’s CEO decided to issue to the applicant 253 Default Maritime Fee (“DMF”) invoices for the period from April 2015 to June 2018 for alleged underreporting of its use of facilities

Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27
Industrial law (Cth) – prohibition of taking adverse action against person to prevent exercise of workplace right – Workplace right – where s 340(1)(b) of Fair Work Act 2009 (Cth) provided that person must not take adverse action against another person to prevent exercise of workplace right – where Qantas Airways Ltd made decision to outsource ground handling operations – where outsourcing decision was adverse action in respect of affected employees

Legislation

Bills introduced
Emblems of Queensland and Other Legislation Amendment Bill 2023
Local Government (Councillor Conduct) and Other Legislation Amendment Bill 2023

Bills passed without amendment
Health Practitioner Regulation National Law (Surgeons) Amendment Bill 2023

Bills amended during passage
Justice and Other Legislation Amendment Bill 2023
Water Legislation Amendment Bill 2023

Proclamations commencing Acts made
Proclamation No. 1 – Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (commencing remaining provisions)

Subordinate legislation notified
Criminal Practice Amendment Rule (No. 2) 2023
Local Government (Fraser Coast Regional Council – Suspension of Councillor) Amendment Regulation 2023
Local Government (Gold Coast City Council – Suspension of Councillor) Amendment Regulation 2023
Mutual Recognition (Queensland) (Tasmanian Container Deposit Scheme) Amendment Regulation 2023
State Penalties Enforcement and Other Legislation Amendment Regulation 2023
Trans-Tasman Mutual Recognition (Queensland) (NT and Tasmanian Container Deposit Schemes) Notice 2023

Disclaimer
The information in this bulletin is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this bulletin is accurate at the date it is received or that it will continue to be accurate in the future.

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Andrew Hynd

Queensland Government Bulletin: Key issues in contracting under QITC

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Andrew Hynd

Queensland Government Bulletin: Key issues in contracting under QITC

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Practice

Cases

Legislation

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