Are we committed by the Stage 2 EOI?
Q. If we fill out the paperwork for Stage 2 to express an interest, are we
then obliged to be part of the alliance if the lead agency is successful? We
were unable to gather much information from the lead agency, and do not want to
commit to something which can not be followed through.
A. Your question raises a number of issues.
Firstly, it is important for members of a consortium or alliance to try
and get the arrangements sorted out before the EOI for Stage 2 is submitted to
DoCS so that your agency, as a potential partner in the alliance, can be clear
of what is expected of it – that is to clarify issues such as what services and
outputs your agency will be required to deliver and how much money your agency
will receive for providing this service. It is only when you are clear
about these types of questions, as well as the contractual arrangements around
the alliance, that you can make an effective decision about whether being part
of this EIP alliance is right for your agency. The details provided in the
Tool 2 - Checklist for small to medium sized NGOs in forming partnership under
Tools and Resources on this website should help your agency work out the types
of questions you may require answered by the lead agency.
Next, it is important for members of a consortium or alliance to try
and get the arrangements sorted out before the EOI for Stage 2 is submitted to
DoCS, as after that process, the next step will be for DoCS to enter into
contract arrangements with the successful tenderers to actually deliver the
service. So at that point you would be required to commit to what will become
part of a binding contract. The draft Service Specifications Early
Intervention Program (available on the DoCS website) state that:
‘Where the Lead Agency is part of a consortium, this organisation must be authorised to negotiate, act on behalf of, and bind each member of the consortiu. Written confirmation of this authority must be attached to the service specification. All consortiums should clearly set out the roles and responsibilities of each member organisation in an endorsed/approved agreement’ (draft Service Specifications Early Intervention Program from the DoCS website, Section 1.5.1, page 6).
Any changes to the Lead Agency, member agencies or the consortia agreement after that time will require the approval of DoCS – refer Section 2.9 Contract Management Requirements for Cosortia, pages 15-16 of the draft Service Specifications Early Intervention Program from the DoCS website.
It is therefore important that you try and get the information you need from the lead agency now in order to be able to make a decision that participation in the alliance to deliver the service is some thing that can be followed through once a decision on funding is made by DoCS.
Another matter is that that one of the criteria to assess Stage 2 EOIs that will be used by DoCS are the governance arrangements to support an integrated service model (including integration of service arrangements). Not only does each agency in the consortium or alliance have to complete Section 2 of the EOI form, but Section 3 requires details to be provided of the EIP service component to be provided by each member of the consortium and asks for some documentation about the arrangements for working together in the alliance or consortium. DoCS has indicated that this can take the form of an MOU, formal agreement or letter of intent). To have these arrangements in place, it is important for all agencies to have reached some agreement about how the partnership or alliance will work. And of course in the process of this being developed, it is important that you make sure the interests of your agency are protected.
Another potential problem if an agency joins a consortium or alliance and then does not proceed relates to the veracity of the bid. A question to consider is what if the EOI is successful because one organisation is seen as a desirable partner or consortium member and other tenderers lose out narrowly, then the organisation pulls out?
And remember, you do not have to sign or agree to something that you are not happy with. It is better not to proceed than to get into something that you cannot work with. A strategy at this time would be to work out the information your agency needs from the lead agency (the checklist in Tools 2 can be used to help you do this) and request that the lead agency provide this information prior to you agreeing to be part of the consortium or alliance.
Finally your agency also needs to look closely at anything it signs because it may be something binding them to the contract. If your agency is unsure or concerned about any of your rights or obligations under any agreement your agency may be entering into in relation to the Stage 2 of the EOI for EIP, your agency should seek independent legal advice (separate to the other parties in the consortium or alliance). While NCOSS cannot offer legal advice, all agencies are advised to seek professional legal advice on all contractual matters.
then obliged to be part of the alliance if the lead agency is successful? We
were unable to gather much information from the lead agency, and do not want to
commit to something which can not be followed through.
A. Your question raises a number of issues.
Firstly, it is important for members of a consortium or alliance to try
and get the arrangements sorted out before the EOI for Stage 2 is submitted to
DoCS so that your agency, as a potential partner in the alliance, can be clear
of what is expected of it – that is to clarify issues such as what services and
outputs your agency will be required to deliver and how much money your agency
will receive for providing this service. It is only when you are clear
about these types of questions, as well as the contractual arrangements around
the alliance, that you can make an effective decision about whether being part
of this EIP alliance is right for your agency. The details provided in the
Tool 2 - Checklist for small to medium sized NGOs in forming partnership under
Tools and Resources on this website should help your agency work out the types
of questions you may require answered by the lead agency.
Next, it is important for members of a consortium or alliance to try
and get the arrangements sorted out before the EOI for Stage 2 is submitted to
DoCS, as after that process, the next step will be for DoCS to enter into
contract arrangements with the successful tenderers to actually deliver the
service. So at that point you would be required to commit to what will become
part of a binding contract. The draft Service Specifications Early
Intervention Program (available on the DoCS website) state that:
‘Where the Lead Agency is part of a consortium, this organisation must be authorised to negotiate, act on behalf of, and bind each member of the consortiu. Written confirmation of this authority must be attached to the service specification. All consortiums should clearly set out the roles and responsibilities of each member organisation in an endorsed/approved agreement’ (draft Service Specifications Early Intervention Program from the DoCS website, Section 1.5.1, page 6).
Any changes to the Lead Agency, member agencies or the consortia agreement after that time will require the approval of DoCS – refer Section 2.9 Contract Management Requirements for Cosortia, pages 15-16 of the draft Service Specifications Early Intervention Program from the DoCS website.
It is therefore important that you try and get the information you need from the lead agency now in order to be able to make a decision that participation in the alliance to deliver the service is some thing that can be followed through once a decision on funding is made by DoCS.
Another matter is that that one of the criteria to assess Stage 2 EOIs that will be used by DoCS are the governance arrangements to support an integrated service model (including integration of service arrangements). Not only does each agency in the consortium or alliance have to complete Section 2 of the EOI form, but Section 3 requires details to be provided of the EIP service component to be provided by each member of the consortium and asks for some documentation about the arrangements for working together in the alliance or consortium. DoCS has indicated that this can take the form of an MOU, formal agreement or letter of intent). To have these arrangements in place, it is important for all agencies to have reached some agreement about how the partnership or alliance will work. And of course in the process of this being developed, it is important that you make sure the interests of your agency are protected.
Another potential problem if an agency joins a consortium or alliance and then does not proceed relates to the veracity of the bid. A question to consider is what if the EOI is successful because one organisation is seen as a desirable partner or consortium member and other tenderers lose out narrowly, then the organisation pulls out?
And remember, you do not have to sign or agree to something that you are not happy with. It is better not to proceed than to get into something that you cannot work with. A strategy at this time would be to work out the information your agency needs from the lead agency (the checklist in Tools 2 can be used to help you do this) and request that the lead agency provide this information prior to you agreeing to be part of the consortium or alliance.
Finally your agency also needs to look closely at anything it signs because it may be something binding them to the contract. If your agency is unsure or concerned about any of your rights or obligations under any agreement your agency may be entering into in relation to the Stage 2 of the EOI for EIP, your agency should seek independent legal advice (separate to the other parties in the consortium or alliance). While NCOSS cannot offer legal advice, all agencies are advised to seek professional legal advice on all contractual matters.
posted by Council of Social Service of NSW at 3:48 PM
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