20 January 2016 – Publication of the amended Public Works Contracts

The Department of Public Expenditure and Reform published Circular 01/16: ‘Construction procurement – revision of arrangements for the procurement of public works projects’ on 18 January 2016.

A review of the performance of the Public Works Contract was undertaken by the Government Contracts Committee for Construction (GCCC) in 2014. The ‘Report on the Performance Review of the Public Works Contracts’ was published by the Office of Government Procurement in December 2014, setting out a series of interim recommendations and a framework for engagement of a medium term strategy for the procurement of public works projects.

Extensive consultation was undertaken throughout 2015 by the Office of Government Procurement following the publication of its proposals to implement the interim recommendations. Work on the interim recommendations which amend the Public Works Contracts is now complete and the conditions of contract for Public Works Contracts PW-CF1 – PW-CF5, inclusive, their associated tender documents and guidance have been published.

The interim measures introduced to amend the Public Works Contracts are as follows:

1. Mandatory production of a fully measured Bill of Quantities to an approved method of measurement, and inconsistencies between the Bill of Quantities and the Works Requirements, for projects using Public Works Contracts forms PW-CF1, PW-CF3 and PW-CF5, will be a Compensation Event.

The Pricing Document for Public Works Contract Forms PW-CF1, PW-CF3 and PW-CF5 shall be a Bill of Quantities to an approved method of measurement for use with the Public Works Contracts. No other document is to be included in the Pricing Document for these forms of Contract. The Schedule to the Contract will define which approved method of measurement the Bill of Quantities must be completed in accordance with and the option to transfer, to the Contractor, the risk of quantities under Schedule Part 1K(17) has been removed. (Please refer to Guidance Note GN 1.5.3 – The Pricing Document, for full details of this interim amendment)

2. The direct tendering of Specialist works packages, by the Employer, whereupon the Contractor will enter into a sub-contract with the respective successful Specialist tenderer

For all projects designed by the Contracting Authority and carried out under PW-CF1, PW-CF3 and PW-CF5 this process allows for Specialists to tender for defined Works packages directly to the Contracting Authority, and following completion of evaluation of the tender, by the Contracting Authority, the successful Specialist and the Contractor shall enter a sub-contract for a Specialist Contract Sum, which will form part of the Contract Sum with the Contractor. The Contractor will be entitled to tender, in their tender, a percentage addition for each Specialist which will form part of their Contract with the Employer. (Please refer to Guidance Note GN 2.3.3 – Specialists and the Public Works Contract, for full details of this interim amendment)

3. (i) The introduction of an informal dispute resolution process at senior management level within the respective organisations that are Parties to the Contract.
For all projects carried out under Public Works Contract forms PW-CF1 to PW-CF4, inclusive, the Parties to the Contract may engage, without prejudice, in a dispute resolution process on certain disputes prior to reference to conciliation. The Conditions of Contract detail the Dispute Management Procedure for resolution of disputed Employer’s Representative Determinations. The procedure shall consist of meetings of the Project Board, for the purpose of reviewing disputes referred thereto with the intent of reaching a resolution. (Please refer to Guidance Note GN 3.1.1 – Dispute Resolution, for full details of this interim amendment).

3. (ii) The introduction of a Standing Conciliator for pre-dispute management purposes
For all Contracts carried out using Public Works Contract form PW-CF1 to PW-CF4, inclusive, where the anticipated Contract Sum will be in excess of €10million, a Standing Conciliator must be appointed by the Parties. Where the anticipated Contract Sum will be less than €10million, the Employer will have the option of requiring a Standing Conciliator to be appointed by the Parties. The Standing Conciliator shall fulfil the role of the Conciliator in all cases, should a dispute be referred to conciliation under sub-clause 13.2. The intention behind the introduction of the Standing Conciliator is to encourage proper engagement between the Parties to assist the Parties in the avoidance of disputes, to assist the Parties in avoidance of costly and lengthy formal dispute resolution procedures, and to assist the Parties to establish agreement upon issues before they crystallise into a dispute. (Please refer to Guidance Note GN 3.1.1 – Dispute Resolution, for full details of this interim amendment).

The arrangements to be undertaken by contracting authorities are the subject of Circular 01/16. The revised arrangements are being put in place with effect from 4 April 2016 for the procurement of public works projects using the Public Works Contracts PW-CF1 – PW-CF5, inclusive.
Contracting authorities are encouraged to adopt the amended conditions of Public Works Contract from the date of their publication, however it is recognised that the extent to which they can be adopted will depend on the scope of service under which the design team has been engaged [on Employer designed contracts].
In recognition of this the Circular sets out a derogation for projects where the design team has been engaged prior to 4 April 2016 and their scope of service does not reflect the service provision required to meet the requirements of the amended forms of contract. This derogation is available for a limited period – up to 8 January 2017 – thereafter the amended forms must be used unless written sanction is given by the GCCC following an application from the Contracting Authority concerned.

End

04 January 2016 – Revision of Public Procurement Directives’ thresholds with effect from 1 January 2016:

The EU Commission has revised the Public Procurement Directive’s thresholds resulting in an increase in the thresholds for advertising in the Official Journal of the EU which comes into effect on 1 January 2016.

The thresholds will apply from 1 January 2016. The details are set out in the attached table. EU Thresholds for advertising in the Official Journal of the EU applicable from 1 January 2016

 

5 August 2015: Appendix A to Suitability Assessment Questionnaires for Service Providers QC1 and QC2 (dated 06/09/2011)

Please note that Appendix A to Suitability Assessment Questionnaires for Service Providers QC1 and QC2 (dated 29/04/2011) were incorrectly available to download as the current versions on the Construction Procurement website. The correct current versions of Appendix A to QC1 and QC2 (dated 06/09/2011) are now available under Pillar 3 – Suitability Assessment Questionnaires. Earlier versions dated 29/04/2011 are available under Archives – Pillar 3.

13 July 2015: Standard Conditions of Engagement for Consultancy Services (Technical) (COE1) – Schedule A and B (28 May 2015); and Form of Tender and Schedule, Consultancy Services (Technical) (FTS9 v1.6 28/05/2015)

Clause 18 ‘Insurance types, terms’ – has been amended for Professional Indemnity Insurance to reflect the guidance set out in GN 1.6.3 – Suitability Assessment of Construction Service Providers – Minimum Standards for Suitability Criteria. Link to GN 1.6.3: http://constructionprocurement.gov.ie/wp-content/uploads/GN-1.6.3-Minimum-standards-v1.0-16-07-13.pdf 

2 July 2015 – GCCC Information Sessions on the forthcoming amendments to the Public Works Contracts

The Government Contracts Committee for Construction (GCCC) has concluded their series of information sessions on the proposed amendments to the public works contracts.

The information sessions included an overview of the objectives that underpin the public works contracts, a summary of the review process itself, the rationale behind the interim amendments and detailed descriptions of the amended conditions of contract.  The sessions also provided an opportunity to put questions to representatives of the GCCC on the conditions of contract and other aspects covered by the Capital Works Management Framework.

Copies of the presentations from the information sessions are now available here.

26th May 2015: Amending legislation is published in response to the recent Supreme Court judgement on the Remedies Regulations

In July of last year, in response to an appeal of a High Court decision not to lift the suspension of the award of a public contract, the Supreme Court held that the Remedies Regulations* did not give the court jurisdiction to lift the suspension of a contract award in the circumstances where an unsuccessful tenderer or candidate initiates proceedings to review the decision of a contracting authority to award a public contract.  An ‘automatic suspension’ effectively applies until the High Court reaches a decision on the substantive issue.

The Remedies Regulations allow tenderers or candidates who feel that a procurement process was not carried out in an open, fair and transparent manner the option of seeking recourse from the courts.

SI 130 and 131 have been amended to give leave to contracting authorities to apply to the courts to lift the ‘automatic suspension’ and to give the High Court jurisdiction to lift an ‘automatic suspension’ should it see fit to do so.

The amending Regulations (listed below) are available under Regulations on this website and are also published on the Oireachtas website under 2015 Statutory Instruments

  • S.I. No. 192/2015 – European Communities (Public Authorities Contracts) (Review Procedures) (Amendment) Regulations 2015.
  • S.I. No. 193/2015 – European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) (Amendment) Regulations 2015.

*SI 130 and 131 of 2010 which transpose the Remedies Directives into Irish law

26th May 2015 – GCCC Information Sessions on the forthcoming amendments to the Public Works Contracts

The review of the performance of the public works contracts was published in December 2014.  Arising out of that review, a series of interim amendments are being implemented which will amend the current conditions of contract used to deliver public works projects.

The Government Contracts Committee for Construction (GCCC) is hosting a series of information sessions on the amended forms of public works contracts which are due to be published in July.

The sessions will include an overview of the objectives that underpin the public works contracts, a summary of the review process itself, the rationale behind the interim amendments and detailed descriptions of the amended conditions of contract.  The sessions will also provide an opportunity to put questions to representatives of the GCCC on the conditions of contract and other aspects covered by the Capital Works Management Framework.

The venues and dates are as follows:

1. Carlow Institute of Technology Monday 15 June 2015
2. Sligo Institute of Technology Thursday 18 June 2015
3. Galway Mayo Institute of Technology Friday 19 June 2015
4. University College Cork Monday 22 June 2015
5. Trinity College Dublin Friday 26 June 2015
6. Trinity College Dublin Monday 29 June 2015

Each date will consist of a morning and afternoon session.  The morning session, from 10.00am to 1.00pm, is for public sector officials directly involved in the delivery of public works contracts either in contract administration or contract management.  The afternoon session, from 2.00pm to 5.00pm, is primarily for contractors and consultants.

The Information Sessions are free of charge but places are limited and will be allocated on a first come, first served basis.  Admission will only be possible with a booking confirmation that will be issued by email.

Please bring a copy of your email confirmation with you on the day.

To register for one of the Information Sessions please click on the link below.

Registration for Information Sessions

15 April 2015 – Publication of the ‘Implementation of the interim measures to amend the Public Works Contracts’

The Office of Government Procurement today published a document titled Implementation of the interim measures to amend the Public Works Contracts.  Its publication marks the conclusion of a series of bilateral meetings with identified industry stakeholders which have been ongoing since the report on the Review of the Performance of the Public Works Contracts was published in December 2014.

The document summarises the detailed amendments it is proposed to make to the conditions of contract to give effect to 3 of the 4 interim measures set out in Report on the Review of the Performance of the Public Works Contract published in December 2014.  Draft wording of the conditions is not included at this stage but rather the intent of the new/amended conditions is set out.  Comments on the measures as they are outlined may be sent by close of business Friday, 1 May 2015 to: publicworkscontractsreview@per.gov.ie.    A final meeting with industry stakeholders will be held early in June after the draft conditions of contract are circulated in late May.

Please note that these measures are still in a development phase and are subject to amendment.

In relation to the 4th interim recommendation (Recommendation No. 3) – A MEAT award for contracts in excess of €2m – industry stakeholders have been invited to participate on a working group to develop award criteria.  The group will be chaired by the Office of Government Procurement and will aim to report by the end of July of this year.

At this stage in the process the proposed publication date for the new forms of contract is June 2015.  Transitional arrangements will apply to facilitate the change associated with Interim Recommendation No.1.   This will apply to circumstances where the consultants’ scope of services did not include a requirement for a bill of quantities to the standard of one of the standard methods of measurement.  However contracting authorities who are scheduled to engage design teams from this date onwards should include the following requirements in the scope of services required of the design team where the form of contract to be used is PW-CF1, PW-CF3 and PW-CF5:

The design team shall be responsible for the production of a Bill of Quantities to one of the recognised methods of measurement as appropriate to the works projects as set out below.

  • Building works – Agreed Rules of Measurement Version 4 (ARM 4) as amended for use with the public works contract.  Supplement 2 of ARM 4 must be used for mechanical and electrical works and the project quantity surveyor is responsible for the measurement of the M&E works to ARM 4 (Supplement 2) standard.
  • Civil engineering works – Civil Engineering Standard Method of Measurement 3rd Edition (CESMM 3) as amended for use with the public works contract.
  • Road construction – Method of Measurement for Road Works (MMRW) published by the National Roads Authority as Volume 3 of the Manual of Contract Documents for Road works.

11 December 2014 – Publication of the “Report on the Performance Review of the Public Works Contract”

At a gathering of construction industry stakeholders in Government Buildings today, Minister of State, Simon Harris T.D. announced the outcome of the first stage of the review of the Public Works Contracts which was undertaken by the Government Contracts Committee for Construction.  The event marked the publication of a report entitled “Report on the performance of the Public Works Contract” on the review by the Office of Government Procurement, which sets out recommendations for interim amendments to the contracts and a framework for a medium term strategy to inform engagement between industry stakeholders,

The interim recommendations are aimed at rebalancing risk currently transferred to contractors under the contracts in recognition of the different economic environment to the one into which the contracts were introduced in 2007 and in particular the very different challenges facing both Government and the industry in delivering construction projects.

The recommendations will be implemented by the middle of next year.  Broader engagement on the procurement of public projects will take place with industry stakeholders throughout 2015.  They will be invited to contribute to a medium-term strategy which will encompass procurement and recent developments in the fields of technology and legislation governing the construction industry.  Key areas such as performance evaluation, risk management and different contracting strategies will also be considered as part of the strategy with recommendations to be put to Government before the end of next year.

The submissions received as part of the review of the public works contracts are available to download here.

24 November 2014 –Term Maintenance and Refurbishment Works Contract – Schedule to Contract (24/11/2014); and Form of Tender and Schedule (FTS12 v 1.3 24/11/2014)

The default value for Clause 2.1 ‘Term’ has been amended from ‘If no time period is stated or that stated exceeds two years then it shall read as two years.’ to read ‘In the case of a multi-participant framework, if no time period is stated or that stated exceeds two years then it shall read as two years.  In the case of a single participant framework, if no time period is stated or that stated exceeds four years then it shall read as four years.’ to distinguish between a multi-participant and a single participant framework.  This amendment reflects the guidance on the limits applicable to the use of the Term Maintenance and Refurbishment Contract in the Employer Note.