Optional (see Notes section below)
Commonwealth Contract Terms clause C.C.22.A
|Legislation / Policy||
Freedom of Information Act 1982 (Cth)
This clause sets out a mechanism for the Customer (or nominees of the Customer) to access the Supplier’s (or its Subcontractor’s) premises, personnel, documents and assets relating to the Contract. It also allows the Customer to take copies of such information as well.
The clause authorises the Auditor-General and Australian Information Commissioner (including their delegates) as nominees of the Customer and also enables other nominees to be authorised as necessary.
This will assist with the Customer’s monitoring of the Supplier’s performance and compliance under the Contract.
This clause also requires that the Supplier’s obligations under the contract relating to Audit and Access are replicated in subcontracts and secondary subcontracts, when appropriate.
When exercising its rights under this clause, the clause requires the Customer and its nominees to comply with reasonable safety and security procedures in place at the Supplier’s or its Subcontractor’s premises.
Unless the access is required for an urgent purpose, the Customer is also required to provide reasonable notice to the Supplier and outlines the circumstances in which the Supplier may seek re-imbursement of the Supplier’s substantiated reasonable cost of complying such a request.
Audit and access
X.1 The Supplier:
- must maintain and ensure its Subcontractors maintain, proper business and accounting records relating to the supply of the Goods and/or Services and performance of the Contract;
- must not, without the prior written consent of the Customer, transfer, or permit the transfer of, custody or ownership, or allow the destruction, of any Commonwealth record (as defined in the Archives Act 1983(Cth));
- must, if requested by the Customer, return all Commonwealth records at the conclusion of the Contract, including any held by Subcontractors, to the Customer;
- agrees to provide to the Customer, or its nominee, access to the Supplier’s, or its Subcontractor’s premises, personnel, computer systems, documents and other records, and all assistance reasonably requested, for any purpose associated with the Contract or any review of the Supplier’s or the Customer’s performance under the Contract, and
- permit the Customer, or its nominee, to inspect and take copies of any records or other material.
X.2 Unless the access is required for an urgent purpose, the Customer will provide reasonable prior notice to the Supplier. If requested by the Supplier, the Customer may agree to reimburse the Supplier’s substantiated reasonable additional cost involved in complying with an urgent request.
X.3 When exercising the rights referred to in this clause, the Customer agrees and will require its nominees to comply with reasonable safety and security procedures in place at the Supplier’s or its Subcontractor’s premises.
X.4 Without detracting from their statutory powers, the Auditor-General and Australian Information Commissioner (including their delegates) are authorised as nominees of the Customer for the purposes of this clause.
X.5 During any audit, the Supplier will (unless requested in writing by the Customer not to do so) continue their performance under the Contract.
X.6 The Supplier must ensure that any subcontract entered into by the Supplier for the purposes of fulfilling the Supplier’s obligations under the contract imposes on the Subcontractor the same obligations regarding Audit and Access that the Supplier has under the Contract. Each subcontract must also require the same obligations (where relevant) to be included by the Subcontractor in any secondary subcontracts.
While use of this clause is optional, it is common for contracts to include a clause of this type.
Standardisation of contractual text results in efficiencies for both Parties to a contract. Before deciding whether a particular clause is appropriate, procurement officials should carefully consider the context of their procurement.
Clause wording may need to be changed to align with related clauses in a Contract such as clauses dealing with record keeping and management, provision, use and return of Commonwealth Material, security requirements, disclosure of information, confidentiality, privacy, FOI, fraud, reporting and intellectual property.
Otherwise, where this clause is included, the clause wording should be used without change.
Terms that are capitalised may need to be changed to align with the Contract terminology.