Common use of Excusable performance failures Clause in Contracts

Excusable performance failures. 8.4.1 The Department recognises that circumstances may arise in which it may be reasonable to take into account specific instances or events that have resulted in a performance failure by the Health Services Manager. Instances or events such as these will be excluded for the purpose of determining whether a performance failure has been triggered and whether abatement applies for that measure. 8.4.2 The categories of events that may constitute excusable performance failures for the purpose of this clause 8.4 are: a. events that the Department recognises as being beyond the reasonable control of the Health Services Manager (provided the Health Services Manager has taken all proper and reasonable steps to minimise the occurrence or impact of such events); or b. a Force Majeure Event; The Department will (acting reasonably) have the final say on whether an event qualifies for exclusion under this clause. 8.4.3 The Health Services Manager must notify the Department’s national office of any event that it considers qualifies as an excusable performance failure as soon as practicable (no later than three days) after the Health Services Manager becomes aware of the event. Details about the event and reasons why the event are considered an excusable performance failure must be provided to the Department’s national office for consideration. Additionally, the Health Services Manager must include an estimate of the flow-on effect of the event, including time required to overcome the event, and how the effect impacts the Health Services Manager from achieving the CRs. 8.4.4 The Department will consider any events including the flow-on effects nominated by the Health Services Manager, in conjunction with the Department’s Service Delivery Manager, as excusable performance failures and will notify the Health Services Manager of whether it accepts or rejects that the event is an excusable performance failure within three business days of receiving the details of the claimed excusable performance failure from the Health Services Manager. If the Department rejects an event as an excusable performance failure, the Department will provide the Health Services Manager with reasons in writing for the rejection. If the Department fails to provide a written response to the Health Services Manager within three business days, the excusable performance failure will be automatically accepted.