Australia: Does your next Council project have State or Commonwealth Government Funding?

WHO SHOULD READ THIS

  • Those involved in procurement for local government.

THINGS YOU NEED TO KNOW

  • State and Commonwealth funding agreements can include requirements and conditions on Council that are not addressed by Council's standard form project documents.

WHAT YOU NEED TO DO

  • Review your standard form project documentation (both for procurement and contracts), to ensure you are properly addressing requirements of State and Commonwealth Funding.

Sources of State and Commonwealth Funding

Following the recent devastation of cyclone Debbie and the associated rainfall and flooding, it is anticipated that some Councils may be eligible for grants from the Queensland Reconstruction Authority (including under the NDRRA, for the period of 28 March and 6 April). The area activation is available here.

In addition, back in February, the Queensland Government has launched a $130 million Jobs and Regional Growth Fund, as part of its $1 billion plan to create jobs outside the State's south-east, stating:

'The Jobs and Regional Growth Fund will provide one-off financial assistance from $100,000 to $10 million in either direct grants or relief of State charges to promote growth and job creation.'

The other packages forming part of the $1 billion plan include:

  • the Building Our Regions program, which is focused on regional infrastructure creating a program for local government projects, targeting critical infrastructure in regional areas ($375 million)
  • the Works for Queensland program designed to support local councils across the state undertaking job-creating, maintenance or minor infrastructure projects ($200 million), and
  • the Significant Regional Infrastructure Projects Program, part of the State Infrastructure Fund, which is fast-tracking key economic and social infrastructure projects in regional centres right across Queensland including transport, health and education infrastructure ($180 million).

The Commonwealth is also showing some willingness to invest, with the Northern Australia Infrastructure Facility Act 2016 (Cth) passed on 3 May 2016 and the headquarters being established in Cairns. That program alone, over five years, offers concessional finance to encourage and complement private sector investment in infrastructure that benefits Northern Australia. This may include developments in airports, communications, energy, ports, rail and water. No doubt this brings opportunity for Council involvement, whether directly or indirectly.

What are the State and Commonwealth Funding requirements?

When Council embarks on any project with State or Commonwealth funding, it needs to ensure that the requirements of the State or Commonwealth, as the case may be, are encapsulated in its downstream project documents (including conditions of tender and contracts). While the exact requirements will differ between funding arrangements and from project to project, there are several key areas that Councils should keep in mind when drafting their project contracts where State or Commonwealth funding is concerned.

Unfortunately it is not simply a case of making sure the payment milestones align with the project contracts and the funding arrangement. The issues identified below are not dealt with by many standard form documents in the industry (including Australian Standards for construction1).

  • The Codes & Guidelines: Councils should be aware that codes and guidelines may apply to works funded by the State or Commonwealth. Councils would need to include certain provisions in its project documents for building work where these codes and guidelines apply. For example, a documented dispute resolution process for payment disputes with subcontractors would be required if the Commonwealth Code for the Tendering and Performance of Building Work 2016 were to apply (note: this has replaced the 2013 Building Code – so documents referring to the old code need to be updated).
  • Conditions Precedent, Suspension & Termination Rights: The State or Commonwealth may make funding subject to certain conditions precedent being satisfied (e.g. obtaining particular approvals) or provide that funding can potentially be suspended or terminated. These risks need to be addressed in the project contracts, to ensure Council is insulated (e.g. not placed in a situation where it is obliged to pay the contractor without suitable funding available).
  • Provision of information to Council: Councils should be aware of legislation regarding privacy and access to information. Funding agreements may also require Councils to transfer to them any intellectual property rights from the project and collect relevant information on behalf of the State or the Commonwealth. The use of information contemplated in Council's project contracts (unless properly amended) is often not wide enough to cover the State or Commonwealth's own intended use of the information (which may include things like research and development), so appropriate amendments are often required to Council's project contracts to address this issue.
  • Council issuing information: Council, as a recipient of funding, would usually be obliged to ensure that confidential or personal information obtained from the State or Commonwealth is protected and only disclosed or used for the purposes of the project. Again, the risk allocation of these provisions needs to be 'back to back' with the funding agreements to ensure Council is not exposed.
  • Records & Audit Rights: It is not uncommon for records to be required to be retained by Council under a funding agreement for a period of six or seven years from the completion of the project. The State or Commonwealth may have audit rights, and in some instances, they may also require direct access to a project site and associated personnel. Council's project contracts need to make provision for these rights, or otherwise Council risks placing itself in breach of the funding agreement or triggering claims against it from its own contractors.

Summary

Ultimately Council's ability to deliver key projects to its particular constituents will often rest on access to funding from the State and Commonwealth, and such funding is nearly always delivered through a funding agreement. While Council may have special conditions for industry standard contracts, often the issues identified above are not addressed fully in those special conditions (or need to be brought up to date to cover the latest developments and requirements of funding agreements).

Footnote

1 Most of these issues are not addressed in either AS2124 or AS4000.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions