Government Agency Agreement – final template

Government Agency Agreement

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Government Agency Agreement – final template

Table of contents PARTIES ....................................................................................................................................... 3 PURPOSE AND OVERVIEW ............................................................................................................ 3 1.

Purpose.............................................................................................................................. 3

2.

Role of the Co-ordinating Agency ........................................................................................ 4

3.

Definitions & interpretation................................................................................................ 4

GOVERNMENT-AGENCY COMMITMENTS ...................................................................................... 5 4.

Collaboration ..................................................................................................................... 5

5.

Consistency in approach ..................................................................................................... 6

6.

Dispute resolution for integrated contracts ......................................................................... 6

7.

Sharing of information........................................................................................................ 6

8.

Agency consultation ........................................................................................................... 7

RELATIONSHIP MANAGEMENT ..................................................................................................... 7 9.

Principles ........................................................................................................................... 7

10.

Roles and Responsibilities................................................................................................... 7

CONTRACT RELATED .................................................................................................................... 8 11.

Review of contracting framework documents ..................................................................... 8

12.

Variations........................................................................................................................... 8

Appendix 1: Co-ordinating Agency Purpose ................................................................................ 10 Appendix 2 – Definitions & interpretation .................................................................................. 12 Appendix 3 – Approach to Coordinated Audit Programme .......................................................... 13 Appendix 4 – Approach to Coordinated Monitoring Programme.................................................. 15

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Government Agency Agreement – final template

Parties This Government Agency Agreement is made between

(1)

Her Majesty the Queen in right of New Zealand acting by and through David Smol, Chief Executive, the Ministry of Business, Innovation & Employment (the Co-ordinating Agency)

and

(2)

[Her Majesty the Queen in right of New Zealand acting by and through [insert details for the Purchasing Agency] [Name of other Eligible Agency contracting entity] (Purchasing Agency)

Purpose and overview 1.

Purpose

1.1

The purpose of this Government Agency Agreement (GAA) is to support the management of the Framework Terms and Conditions, Outcome Agreements and Outcome Agreement Management Plans by Purchasing Agencies and Providers, with some post-implementation guidance from/involvement of the Co-ordinating Agency.

1.2

The GAA has a particular focus on Purchasing Agency commitments, including collaboration commitments – both in favour of Providers and other Purchasing Agencies. This GAA generally refers to “Purchasing Agencies”. However, each such reference applies equally to every Purchasing Agency who enters into a GAA and is a commitment that binds that Purchasing Agency individually.

1.3

The GAA will help:

1.4

(a)

Purchasing Agencies and Providers who enter into Outcomes Agreements (incorporating the Framework Terms and Conditions) fulfil their respective obligations;

(b)

Ensure effective communication between the Purchasing Agencies and Providers, and the Co-ordinating Agency (where applicable);

(c)

Build open, constructive and collaborative relationships between the Purchasing Agencies and Providers and, where relevant, other stakeholders, which could include the Co-ordinating Agency; and

(d)

Set out procedures to be followed by Purchasing Agencies for dealing professionally with future issues and developments.

This GAA is intended to create binding obligations (to the extent permissible at Law) only as between the Co-ordinating Agency and the Purchasing Agency. The Co-ordinating Agency

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Government Agency Agreement – final template will enter into this form of agreement with each Purchasing Agency. These obligations will remain in place while a Purchasing Agency is party to an Outcome Agreement.

2.

Role of the Co-ordinating Agency

2.1

The Cabinet Minute on Ministerial Expectations for the NGO Contracting (CAB Min (13) 8/3A) has directed “the Ministry of Business, Innovation & Employment, as the lead agency for NGO contracting, to transition departments and wider State services agencies who contract with NGOs for services provided within NZ to the contracting framework”.

2.2

Pursuant to the Cabinet Minute titled “Speed Up Reforms with Better Public Services Seed Fund (Paper 2)” (CAB Min (13) 8/3), the Ministry of Business, Innovation & Employment (MBIE) was provided with appropriation funding to lead the NGO Contracting work referred to in clause 2.1 above for the period from March 2013 to 30 June 2016.

2.3

To support the increased levels of collaboration, information sharing and cooperation required to effectively implement the contracting framework, MBIE agrees to act as the Coordinating Agency for the period until 30 June 2016, to: (a)

act as the Centre of Expertise (CoE), providing contracting tools, templates, training and education for Purchasing Agencies and Providers;

(b)

update the contracting framework documents to establish a suite of contract and contract management documents that can be used by departments and wider State services agencies;

(c)

facilitate greater and improved collaboration and information sharing between Purchasing Agencies when working with the same Provider;

(d)

own the Framework Terms and Conditions (e.g. manage any updates to the Framework Terms and Conditions - note this does not include any involvement in Outcome Agreements between a Purchasing Agency and Provider); and

(e)

own and manage this GAA, including sign-up by Government agencies.

2.4

Additional detail on the purpose and functions of the Co-ordinating Agency role is provided in the table at Appendix 1.

2.5

No later than 1 July 2015, the Co-ordinating Agency will begin facilitating discussion with all Purchasing Agencies who have then-current Outcome Agreements (probably through the Social Sector Purchasing Steering Group) about whether MBIE should continue its role of Coordinating Agency beyond 30 June 2016, or whether that role should move to one of the other Purchasing Agencies.

3.

Definitions & interpretation

3.1

Unless the context otherwise requires, all terms defined in the Framework Terms and Conditions have the same meaning in this GAA. Definitions for terms used solely in this GAA are listed at Appendix 2. 4

Government Agency Agreement – final template

Government-Agency Commitments 4.

Collaboration

4.1

Purchasing Agencies will work together on an ongoing basis to increase and improve collaboration in their selection of and engagement with NGOs. This means Purchasing Agencies communicating regularly, and in a co-ordinated manner, about NGO initiatives addressing the Outcomes and/or Services sought by Purchasing Agencies or identified in the Outcome Agreements.

4.2

Recognising that addressing the monitoring needs of Purchasing Agencies, providing them regular reports and responding to Audit requests is a significant cost for both Providers and Purchasing Agencies, Purchasing Agencies will work together, wherever appropriate and practical including with relevant Providers to co-ordinate the timing and content of: (a)

their Statutory Audit Rights consistent with clauses 5.5 and 5.6 of the Framework Terms and Conditions. Details of the approach to co-ordinated Audit are in Appendix 3;

(b)

any non-Statutory Audit Right activity the Purchasing Agency may wish to undertake. Details of the approach to co-ordinated Audit are in Appendix 3;

(c)

their Special Enquiry Rights consistent with clauses 5.4 and 5.6 of the Framework Terms and Conditions. Details of the approach to co-ordinated Audit (which are similar in nature to how Purchasing Agencies would co-ordinate their Special Enquiry Rights) are in Appendix 3; and

(d)

their Regular Reports consistent with clauses 5.3 and 5.6 of the Framework Terms and Conditions. Details of the approach to co-ordinated monitoring (incorporating coordinated reporting) are in Appendix 4.

4.3

If a Purchasing Agency has multiple Outcome Agreements with a Provider it will attempt to co-ordinate (within business units in that Purchasing Agency) the timing and content of Audit, Special Enquiry Rights and Regular Reports and monitoring in a manner consistent with section 5 of the Framework Terms and Conditions.

4.4

Purchasing Agencies who enter Outcome Agreements with the same Provider agree to discuss their respective Audit, monitoring and reporting requirements and how those requirements might be co-ordinated to minimise disruptions and cost to Providers (as described in clauses 5.1-5.9 (inclusive) of the Framework Terms and Conditions), while still achieving the Purchasing Agency’s requirements to demonstrate the Provider’s accountability and to comply with the Purchasing Agency’s own obligations, including its legislative audit requirements.

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Government Agency Agreement – final template

5.

Consistency in approach

5.1

Purchasing Agencies will work together to achieve greater consistency in their approach to categorising and managing risk when engaging a Provider for Services under an Outcome Agreement. This means a commitment to: (a)

including only those terms (additional to the template form) and conditions in an Outcome Agreement that are necessary to manage or mitigate identified risks that are relevant to a particular contracting initiative;

(b)

only requesting information that is necessary to manage or mitigate any such identified risk;

(c)

using the same or similar frameworks or tools for identifying and classifying risks associated with a particular contracting initiative; and

(d)

discussing identified risks and their management/mitigation with the Provider in advance of entering into an Outcome Agreement so as to better inform whether and what terms (additional to the template form) and conditions should apply.

5.2

The Co-ordinating Agency has developed a “Decision Support Tool” to assist Purchasing Agencies to identify and manage or mitigate risks in a more consistent manner. Purchasing Agencies will use the Decision Support Tool, or a similar tool, in the adoption of a risk based approach to development of an Outcome Agreement and Outcome Agreement Management Plan (if being used).

6.

Dispute resolution for integrated contracts

6.1

Where more than one Purchasing Agency is party to the same Outcome Agreement (i.e. an Integrated Outcome Agreement), the Purchasing Agencies commit to work together in a collaborative, constructive and open manner amongst themselves to resolve any dispute between themselves or with the Provider. The Purchasing Agencies agree to adopt a ‘government greater good’ perspective, rather than a single agency perspective, when engaged in dispute resolution with Other Purchasing Agencies.

7.

Sharing of information

7.1

Where more than one Purchasing Agency is a party to an Outcome Agreement, or when different business units within a single Purchasing Agency are contracting with the same Provider using an Outcome Agreement, each Purchasing Agency, or business unit within a Purchasing Agency (if applicable), will look to share reporting and monitoring information about the Provider or relevant Services between themselves. They will work with Providers to agree which information will be shared and with whom. Each Purchasing Agency agrees to comply with all relevant laws, in particular, the Privacy Act 1993, when sharing information with each other.

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Government Agency Agreement – final template

8.

Agency consultation

8.1

Where more than one Purchasing Agency is a party to an Outcome Agreement (i.e. an Integrated Outcome Agreement), the Purchasing Agency will notify and consult (if required) with Other Purchasing Agencies:

8.2

(a)

if it wants to extend the term of the Outcome Agreement;

(b)

if it wants to vary the Outcome Agreement;

(c)

following the issue of a Dispute Notice;

(d)

if it wants to recover, reduce or suspend payments from a Provider under clause 13.1 of the Framework Terms and Conditions; or

(e)

if it wants to terminate or exit the Outcome Agreement.

Where more than one Purchasing Agency has entered into Outcome Agreements with a Provider (i.e. multiple Outcome Agreements exist with a single Provider) the Purchasing Agency will notify other Purchasing Agencies who also have Outcome Agreements with that same Provider as soon as reasonably practicable: (a)

if it proposes to vary their Outcome Agreement and that variation may have flow on impact to the Outcome Agreements that other Purchasing Agencies have with that Provider;

(b)

following the issue of a Dispute Notice if that Dispute may have a flow on impact to the Outcome Agreements that other Purchasing Agencies have with that Provider;

(c)

after it takes steps to recover, reduce or suspend payments from a Provider that may have a flow on impact to the Outcome Agreements that other Purchasing Agencies have with that Provider; or

(d)

if it wants to terminate any or all Outcome Agreements with that Provider and that termination may have a flow on impact to the Outcome Agreements that other Purchasing Agencies have with that Provider.

Relationship Management 9.

Principles

9.1

In addition to the principles outlined in the Framework Terms and Conditions, each Purchasing Agency will manage each Outcome Agreement in a manner that is consistent with Kia Tūtahi (The Relationship Accord between the Communities of Aotearoa New Zealand and the Government of New Zealand) and the Code of Funding Practice.

10.

Roles and Responsibilities

10.1

The Coordinating Agency is responsible for: 7

Government Agency Agreement – final template (a)

regular communication and liaison with Purchasing Agencies to facilitate effective and efficient collaboration across government

(b)

facilitating information sharing across relevant Purchasing Agencies

(c)

co-ordination of a government wide approach to:

(d)

10.2

(i)

co-ordinated Audit (excluding Statutory Audit Rights)

(ii)

co-ordinated monitoring

assessing the need for, and undertake, review of the Framework Terms and Conditions and this GAA to ensure currency and fitness for purpose.

Each Purchasing Agency will: (a)

provide information to the Coordinating Agency or its nominee (including via the audit register and central contract register – once in place) in a timely manner to enable the effective management of co-ordinated Audit, reporting and monitoring;

(b)

proactively engage and collaborate with other Purchasing Agencies to ensure a coordinated, consistent and efficient approach to engagement with, and delivery of Services by, the Provider;

(c)

ensure they commit the appropriate time and resources to meet the commitments recorded in clauses 4-8 of this GAA; and

(d)

notify the Co-ordinating Agency of any issues or difficulties associated with the use or application of the Framework Terms and Conditions, this GAA, any Outcome Agreement or OAMP.

Contract Related 11.

Review of contracting framework documents

11.1

The Co-ordinating Agency will review the Framework Terms and Conditions and the template form of Outcome Agreement(s) no less frequently than every 3 years.

11.2

The Co-ordinating Agency will consult with Purchasing Agencies who have then-current Outcome Agreements as part of any review of the Framework Terms and Conditions and the template form of Outcome Agreement(s).

12.

Variations

12.1

If variations to the Framework Terms and Conditions and/or and the template form of Outcome Agreement(s) (as published on the procurement.govt.nz website) are considered necessary, the Co-ordinating Agency will lead and facilitate consultation over any proposed variation. The Co-ordinating Agency will provide all Purchasing Agencies who have thencurrent Outcome Agreements with notice of the variation, and consult with them about proposed variations, as appropriate. 8

Government Agency Agreement – final template 12.2

In addition to consulting with Purchasing Agencies about proposed variations to the Framework Terms and Conditions and/or and the template form of Outcome Agreement(s), the Co-ordinating Agency must also consider the views of a representative range of Providers to ensure that the all-important element of co-design of those documents is maintained. The Co-ordinating Agency has sole discretion to determine which Providers are consulted on any proposed variations provided it has first sought the views of those Purchasing Agencies who have then-current Outcome Agreements as to which Providers should be consulted on the proposed variations.

12.3

The Co-ordinating Agency will have the final decision about any variations to the Framework Terms and Conditions and the template form of Outcome Agreement(s) provided that at least 75% of Purchasing Agencies (by value of the Services being provided under the thencurrent Outcome Agreements) consulted support the proposed variation.

12.4

No variations to the Framework Terms and Conditions and/or the template form of Outcome Agreement(s) will take retrospective effect unless both the Purchasing Agency and Provider agree otherwise in relation to a specific Outcome Agreement.

12.5

Any variation to this GAA must be agreed in writing by the Co-ordinating Agency and Purchasing Agency, and it is acknowledged that the Co-ordinating Agency wants to maintain the consistency of the GAA across all Purchasing Agencies who sign it to the greatest extent possible, so may want to consult other Purchasing Agencies on any proposed changes before agreeing to them.

Signatures Signed for and on behalf of the Co-ordinating Agency as follows:

Signed by [insert name and title of signatory]

Date

Signed for and on behalf of the Purchasing Agency as follows:

Signed by [insert name and title of signatory]

Date 9

Government Agency Agreement – final template

Appendix 1 – Co-ordinating Agency Purpose The following table provides an overview of the purpose and functions for the Co-ordinating Agency. Co-ordinating Agency Purpose Facilitate collaboration and information sharing between Purchasing Agencies •

Audit

Functions As detailed below.

The Co-ordinating Agency promulgates expectations regarding co-ordinated Audits. Co-ordinating Agency facilitates development and maintenance of a central register that contains information that allows Purchasing Agencies to identify Audits undertaken or scheduled to be undertaken by other purchasers of Services from the same Provider.

•

Monitoring

Promulgate expectations for co-ordinated monitoring to Purchasing Agencies. Develop and maintain a central register containing information and functionality that allows Purchasing Agencies to identify other Purchasing Agencies who also purchase Services from the same Provider.

•

Central register

Framework Terms and Conditions /Government Agency Agreement

Establish and manage a searchable register of Outcome Agreements to provide greater visibility of the Providers each Purchasing Agency contracts with to assist greater coordination, collaboration and information sharing between Purchasing Agencies.

Own / manage the Framework Terms and Conditions (FTC), template form of Outcome Agreement(s) (OA) and the Government Agency Agreement (GAA). Undertake no less frequently than every 3 years, reviews of the FTC, OA and GAA with Purchasing Agencies. Undertake no less frequently than every 3 years, reviews of the FTC and/or OA with Providers selected by the Coordinating Agency (following consultation with Purchasing Agencies).

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Government Agency Agreement – final template

Manage issues with, or suggestions to amend, the FTC, OA and GAA as and when they arise. Establishment and management of a reference group (including Purchasing Agency and Provider representation) as part of the review and update process. Centre of Expertise (CoE) – good practice lead •

•

Tools

Training / education

Develop and maintain contracting tools and resources for each Purchasing Agency to use. Tools and resources may include without limitation: •

Decision Support Tool (DST)

•

Outcome Agreement and Management Plan templates

•

Reporting templates (RBA)

•

User Guides for the FTC, OA, OAMP, DST

•

Examples of populated OA(s), OAMP, DST.

Training and education of Purchasing Agency personnel including: •

framework structure

•

contract management skills and tools

•

outcomes based contracting (including Results Based Accountability™)

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Government Agency Agreement – final template

Appendix 2 – Definitions & interpretation In this GAA, unless the context otherwise requires: Audit means audits undertaken: (a)

either pursuant to a Statutory Audit Right or a non-Statutory Audit Right described in an Outcome Agreement ; and

(b)

as part of any Purchasing Agency’s framework to pre-approve or accredit a Provider;

Decision Support Tool means the tool developed as part of the Streamlined Contracting with NGOs (Non-Government Organisation) programme to assist Purchasing Agencies to adopt a more consistent approach to risk identification and management, with a particular focus on contract and organisation related risks; Integrated Outcome Agreement means an Outcome Agreement to which more than one Purchasing Agency is a party; Social Sector Purchasing Steering Group means the Steering Group constituted to oversee a range of initiatives across Purchasing Agencies to improve the efficiency and effectiveness purchasing social services (in the broadest sense, including, without limitation, health, justice, education services), and includes representatives from: (a)

Ministry of Social Development

(b)

Ministry of Health;

(c)

Ministry of Justice;

(d)

Ministry of Education;

(e)

Ministry of Business, Innovation and Employment;

(f)

Department of Corrections;

(g)

Te Puni Kōkiri;

(h)

Treasury; and

(i)

State Services Commission.

Statutory Audit Right means any audit or review of the Provider and/or Services permitted or required by Law.

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Government Agency Agreement – final template

Appendix 3 – Approach to Coordinated Audit Coordinated Audit recognises the significant cost to both Providers and Purchasing Agencies of duplicate Audit activity. The approach to coordinated Audit has been developed to reduce this duplication by providing a mechanism under which findings of common Audit areas, e.g. business viability, can be shared across Purchasing Agencies who have Outcome Agreements with a particular Provider, or are considering entering an Outcome Agreement with that Provider. This Appendix details the coordinated Audit process Purchasing Agencies have agreed to adopt when entering into Outcome Agreements with a Provider. Before entering into an Outcome Agreement the Purchasing Agency will discuss and agree with the Provider the Audit requirements for the specific engagement. This will include identifying any applicable legislation, regulation, standards, codes of practice or policy based audit requirements. The Purchasing Agency will try to identify what Audits are already being undertaken by other Purchasing Agencies, including reviewing the central audit register (when developed). If a new Audit is required the Purchasing Agency will, in discussion with the Provider, schedule the new Audit to minimise the impact on the Provider. This may include conducting the Audit at the same time as other Audits being undertaken by other Purchasing Agencies. The following provisions apply to Purchasing Agencies that are considering undertaking an Audit (but not a Statutory Audit Right): 1.

Where Audits are already being undertaken by other Purchasing Agencies, the Purchasing Agency will review the scope and scheduling of these Audits to see if the Audit information that will be gathered will meet the Purchasing Agency’s requirements.

2.

If the frequency or scope of those Audits does not meet the Purchasing Agency’s requirements it will liaise with the Purchasing Agency that commissioned or conducted the Audit and try to agree a change to the scope, timing or frequency to meet both Purchasing Agencies requirements.

3.

Where an existing Audit arrangement only partially meets the requirements of the Purchasing Agency and it is not practical to amend the scope, timing or frequency of the existing Audit, the Purchasing Agency agrees that any additional audit activity undertaken will only cover those areas outside the scope of the existing Audit.

4.

The Purchasing Agencies involved may agree an audit cost sharing arrangement.

5.

Each Purchasing Agency will ensure all their Audit requirements of a particular Provider are recorded on the central audit register (when developed).

The Social Sector Purchasing Steering Group, and its accreditation working group will review the above approach, and if necessary recommend any changes to coordinated Audit. Any changes to 13

Government Agency Agreement – final template this appendix will follow the procedure described in clause 12.5 of this Government Agency Agreement.

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Government Agency Agreement – final template

Appendix 4 – Approach to Coordinated Monitoring

Coordinated monitoring recognises the cost to Providers and Purchasing Agencies of uncoordinated monitoring activity. The approach to coordinated monitoring has been developed to reduce this cost by providing a process under which Purchasing Agencies can coordinate their requirements. This Appendix details the coordinated monitoring process Purchasing Agencies have agreed to adopt when preparing to enter into an Outcome Agreement with a selected Provider. Prior to entering into an outcome Agreement the Purchasing Agency will discuss and agree with the Provider the monitoring requirements for the specific engagement. This will include identifying any regular monitoring visits, reviews or reports. In parallel with the above discussion the Purchasing Agency should liaise and review the monitoring arrangements other Purchasing Agencies have in place for the Provider. In reviewing these existing monitoring arrangements the Purchasing Agency should look to identify opportunities to: 1.

Align or phase visit timings where this benefits one or more of the parties

2.

Share findings from monitoring visits where these will satisfy another Purchasing Agency’s monitoring requirements

3.

Standardise reporting formats and requirements where this benefits one or more of the parties

4.

Co-ordinate timing and scope of reviews where this benefits one or more of the parties

Purchasing Agencies may agree to share monitoring costs. The Social Sector Purchasing Steering Group, or its nominee will review this approach, and if necessary recommend any changes to the above approach to coordinated monitoring. Any changes to this appendix will follow the procedure described in clause 12.5 of this Government Agency Agreement.

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