General vs Comprehensive QITC Contract Conditions

The new Queensland Information Technology Contracting (QITC) framework provides agencies with four main contracting options for procuring ICT products and services, as set out in our last update. Two of the options are to contract using the:

• QITC General Contract Conditions or
• QITC Comprehensive Contract Conditions.

Recommended circumstances for use

The new QITC framework recommends that the QITC General Contract Conditions are used for low risk procurements with a contract value under $1 million.

The QITC Comprehensive Contract Conditions are recommended for use for:

• low risk procurements with a contract value over $1 million
• moderate or high risk procurements of any contract value.

The recommendations are not binding on agencies. An agency may choose to use the QITC Comprehensive Contract Conditions for a low risk, low value procurement. Similarly, an agency may choose to procure high risk or high value deliverables under the QITC General Contract Conditions.

Key differences between the General and Comprehensive QITC Contract Conditions

Scope of ICT products and services

The QITC General Contract Conditions are drafted to cover the following ICT products and services:

• Hardware, including the supply and maintenance of hardware products
• Software, including the supply, development and support of licensed software
• ‘As a service’ aka cloud services
• ICT professional services.

The QITC Comprehensive Contract Conditions, together with the applicable Modules, cover those ICT products and services as well as the following:

• Managed services
• Telecommunications services
• Systems integration services.

If an agency is procuring any of these three categories of ICT products and services, then they would need to use the QITC Comprehensive Contract Conditions.

The unique terms governing the provision of each of the relevant categories of ICT products and services are specified in:

• the QITC General Contract Conditions themselves; or
• the seven different Modules for the QITC Comprehensive Contract Conditions.

Parts of the contracts

A contract using the QITC General Contract Conditions is comprised of:

• the standard QITC General Contract Conditions
• a completed General Contract Details, including Additional Provisions agreed between the parties, if any
• any completed schedules, if required.

There are no separate Modules and Module Order Forms for contracts using the QITC General Contract Conditions. Also, there are no separate, template schedules specifically prepared for use with the QITC General Contract Conditions. However, the 11 template schedules for the QITC Comprehensive Contract Conditions can be adapted for use with a General Contract relatively easily.

A contract using the QITC Comprehensive Contract Conditions is comprised of:

• the standard QITC Comprehensive Contract Conditions
• a completed Comprehensive Contract Details, including Additional Provisions agreed between the parties, if any
• the applicable Modules which correspond to the ICT products and services to be supplied under the Comprehensive Contract
• the completed Module Order Forms for each of the applicable Modules
• the completed schedules.

Standard terms and conditions

The standard QITC General Contract Conditions and QITC Comprehensive Contract Conditions are, in large part, substantially similar.  Both sets of standard terms address the key legal issues which require negotiation and agreement under contracts, including:

• ownership and licensing of intellectual property rights
• caps on the parties’ liability
• minimum insurance requirements.

However, the QITC Comprehensive Contract Conditions contain terms which are:

• more comprehensive than
• additional to,

those in the QITC General Contract Conditions.

For example, the QITC Comprehensive Contract Conditions contain more comprehensive versions of clauses relating to:

• documentation
• acceptance testing
• price, invoicing and payment
• delays
• security (i.e. financial security and performance guarantee)
• dispute resolution.

The QITC Comprehensive Contract Conditions contain additional terms addressing:

• staged implementation
• performance reviews
• liquidated damages
• most favoured price
• retention of monies
• escrow of source code
• establishment of a management committee
• unexpected events (aka force majeure)
• electronic incidents.

Some of the additional terms in the QITC Comprehensive Contract Conditions may only apply to a contract if the Comprehensive Contract Details indicate that they apply. For example, if the Comprehensive Contract Details state that liquidated damages do not apply, then the relevant provisions simply do not apply for the purposes of the individual Comprehensive Contract.

For ease of contract administration and management, an agency might choose to always use the QITC Comprehensive Contract Conditions. This is because they are substantially similar to the QITC General Contract Conditions, except they offer a number of additional, optional terms which may be relied upon by agencies on a case-by-case basis as needed in specific circumstances.

The framework for the QITC Comprehensive Contract Conditions will also be more familiar to agencies who are experienced in contracting under the former Government Information Technology Contracting (GITC) framework.

ICT products and services specific terms and conditions

The terms specifically governing the provision of hardware, software, as-a-service and ICT professional services are all included in the QITC General Contract Conditions themselves. The terms will only apply if an agency is procuring the relevant products or services, as specified in the General Contract Details. Accordingly, the QITC General Contract Conditions contain terms which may not be applicable for the particular procurement. For example, if an agency is only procuring hardware and hardware support services, then the terms governing software, as-a-service and ICT professional services in the QITC General Contract Conditions will not apply.

The terms specifically governing the provision of various ICT products and services are specified in seven different Modules for the QITC Comprehensive Contract Conditions. The terms in the Modules will only apply if the agency indicates that the relevant Module forms part of the Comprehensive Contract in the Comprehensive Contract Details and also completes the Module Order Form which corresponds to the Module.

The terms of the Modules relating to hardware, software, as-a-service and ICT professional services are more comprehensive than the equivalent terms governing those categories of products and services in the QITC General Contract Conditions. For example, the Modules for hardware, software and as-a-service include reseller provisions which are not included in the QITC General Contract Conditions.

What this means for your agency

The General and Comprehensive QITC Contract Conditions obviously share a number of similarities in their terms. For effective procurement and contracting, agencies should ensure that they’re aware of the differences between the two sets of standard terms, including:

• the different ICT products and services covered by each set of terms
• the varying level of detail in the common terms
• the additional terms which are only found in the QITC Comprehensive Contract Conditions.

By doing so, agencies will be able to more easily identify the standard terms which best fit their procurement needs and obtain the benefit of the more detailed or additional terms if and when required.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}