6 March 2014: Building Control (Amendment) Regulations 2014 – Procurement Implications for Contracting Authorities

The Building Control (Amendment) Regulations 2014 (the Regulations) apply to all buildings and works for which a Commencement Notice is submitted after 1 March 2014. The Regulations have implications for contracting authorities when procuring service providers and works contractors for public works projects. Guidance note GN 1.1.1, published today, is drafted to provide advice to contracting authorities in procuring the new roles set out in the Regulations for projects that have yet to go to tender and for those where the design team and Contractor may already be appointed but the Commencement Notice is not yet lodged. Amendments to the template documents published under the Capital Works Management Framework will follow shortly and in the interim contracting authorities are asked to read the guidance and incorporate the suggested procedures into existing and future tender competitions.

Link To: GN 1.1.1 v1.0 06/03/2014

27 January 2014 – Revisions to Public Works Contracts Documents Works Contracts to reference the Safety, Health and Welfare at Work (Construction) Regulations 2013.

The following documents for Public Works Contracts (Pillar 1) have been revised to reference the Safety, Health and Welfare at Work (Construction) Regulations 2013. The link to the HSA website in Appendices C1 and C2 have also been updated.

Contracts:      
PW-CF1
PW-CF2
PW-CF3
PW-CF4
PW-CF5
PW-CF6 and PW-CF 6 Appointment of Project Supervisor
PW-CF 7 Appointment of Project Supervisor
PW-CF 8 Appointment of Project Supervisor
PW-CF10

Model Forms:
MF10

Instructions to Tenderers:    
ITTW1
ITTW2
ITTW3
ITTW4
ITTW5

Pillar 3 Questionnaires:
QW1 and Supplements 3.4.1 to 3.4.4
QW2 and Supplements 3.4.1 to 3.4.4
QW3 and Supplements 3.4.1 to 3.4.2
Appendices C1 (QW1-QW3)
Appendices C2 (QW1 and QW2)

13 January 2014 – Revised Capital Works Management Framework (CWMF) Arbitration Rules for use with Public Works and Construction Services Contracts (AR1)

The Arbitration Rules for use with Public Works and Construction Services Contracts (AR1) have been comprehensively revised in line with the Arbitration Act 2010.  The revised rules must be used with all applicable contracts awarded subsequent to a tender deadline date of Friday, 24 January 2014. They may be used on contracts awarded prior to that date subject to the agreement of both parties.  Some notable changes include:

  • The Department of Public Expenditure and Reform reserves the right to publish the details of arbitration awards for disputes referred under the conditions of the public works contracts.
  • The introduction of a three person arbitral tribunal by agreement between parties; or where the amount in a dispute exceeds €10m.
  • Defined time periods for parties to submit a statement of case and statement of defence where appropriate.
  • References have been included in the Rules to Sections of the Arbitration Act 2010 and Articles of the UNCITRAL Model Law.

The following documents have been revised.

Pillar 1 – Contracts:

PW-CF1 Schedule dated 1/05/2013
PW-CF2 Schedule dated 1/05/2013
PW-CF3 Schedule dated 1/05/2013
PW-CF4 Schedule dated 1/05/2013
PW-CF5 Schedule dated 18/07/2013
PW-CF7 Schedule dated 1/05/2013
PW-CF10 Schedule dated 29/08/2011

Pillar 1 – Forms of Tender and Schedules:

FTS1v1.6 dated 1/05/2013
FTS2v1.6 dated 1/05/2013
FTS3 v1.7 dated 1/05/2013
FTS4 v1.7 dated 1/05/2013
FTS5 v1.7 dated 18/07/2013
FTS7 v1.3 dated 1/05/2013
FTS11 v1.1 dated 1/06/2012

Pillar 1 – Arbitration Rules:

AR1.0 v1.0 dated 28/07/2009

Pillar 2  – Standard Conditions of Engagement:

COE1 Schedule dated 18/03/2011
COE2 Schedule dated 26/02/2013

Pillar 2  – Forms of Tender and Schedules:

FTS9 v1.3 dated 18/03/2011
FTS10 v1.2 26/02/2013

Pillar 2 – Arbitration Rules:

AR1.0 v1.0 dated 28/07/2009

The following CWMF Guidance Notes will be updated shortly to reflect the revisions.

  • GN 1.0
  • GN 1.5
  • GN 1.7
  • GN 3.1
  • GL 1.0

2 January 2014 – Revision of Public Procurement Directives’ thresholds with effect from 1 January 2014:

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 2014.

Regulation (EU) No 1336/2013, revising the EU thresholds for the next two years, was adopted on 13 December 2013.

The thresholds will apply from 1 January 2014. The details are set out in the attached table. EU Thresholds for advertising in the Official Journal of the EU applicable from 1 January 2014.

The following CWMF Guidance Notes will be updated shortly to reflect the EU thresholds which are effective from 1 January 2014 to 31 December 2015:

  • GN 1.4 – Procurement Process for Works Contractors (v 1.1 – 17/01/2012
  •  GN 1.5 – Public Works Contract (v1.4 – 01/05/2013)
  • GN 1.6 – Procurement Process for Consultancy Services (Technical) (v1.2 – 17/01/2012)
  • GN 1.6.1 – Suitability Assessment of Service Providers, Restricted Procedure (v1.1 – 17/01/2012)
  • GN 1.6.2 – Suitability Assessment of Service Providers, Open Procedure (v1.2 – 17/01/2012)
  • GN 1.6.3 – Suitability Assessment of Construction Service Providers – Minimum Standards for Suitability Criteria
  • GN 2.3 – Procurement Process for Works Contractors (v 1.2 – 17/01/2012)
  • GN 2.3.1 – Suitability Assessment of Works Contractors, Restricted Procedure (v1.1 – 17/01/2012)
  • GN 2.3.2 – Suitability Assessment of Service Providers, Open Procedure (v1.1 – 17/01/2012)

19 December 2013: Brendan Howlin, Minister for Public Expenditure and Reform calls for submissions in respect of the Review of Public Works Contracts

On 10 December 2013, the Minister for Public Expenditure and Reform chaired the inaugural meeting of the main stakeholder bodies in the review of the public works contracts.

The public works contracts were introduced in 2007 as part of the Construction Procurement Reform Initiative and are used for all construction projects funded under the Exchequer Capital Programme.
Speaking at the meeting Minister Brendan Howlin welcomed stakeholders input to the review process stating that ‘It is important that the review is thorough but at the same time conducted expeditiously so that we can concentrate on the business at hand; delivering much needed public facilities and infrastructure.’
The Minister reminded stakeholders that the key objectives that underlie the public works contracts: cost certainty at contract award; value for money and efficient delivery of public works projects will remain core to any revisions proposed to Government as a result of the review

The Office of Government Procurement is conducting the review of the public works contracts and interested parties are invited to make written submissions by Friday, 17 January 2014.

Submissions may be sent by email to publicworkscontractsreview@per.gov.ie or by post to Public Works Contracts Review, Office of Government Procurement, Bishop’s Square, Redmond’s Hill, Dublin 2.

12 December 2013 – New Framework Agreement for use with the Term Maintenance and Refurbishment Works Contract

A new framework agreement has been developed for use with the Term Maintenance and Refurbishment Contract (PW-CF11).  PW-CF11 may be used to address urgent maintenance requirements or where certain types of planned maintenance and refurbishment are envisaged, in a way that is cost effective, provides value for money and does not involve a new procurement process each time unscheduled or certain types of planned maintenance and refurbishment works have to be carried out.

The contract (regardless of whether a Standard or Framework Agreement is used) expires once the aggregate value of Task Orders awarded under the contract reaches the Maximum Sum of €2m or the maximum term of 2 years is reached  – whichever is reached first.  Lower limits may be incorporated should the Contracting Authority so wish.  The aggregate value of Task Orders is the aggregate value awarded to all framework participants and does not mean that each framework participant can be awarded up to €2m of Task Orders.

Prior to the development of the framework agreement, PW-CF11 operated as a single-participant framework. The new framework agreement allows the contract to operate as a multi-participant framework providing greater flexibility to contracting authorities to award works off the framework but also to allow smaller contractors to tender for such works.  For this reason we have added an Instructions to Tenderers for an open procedure to the suite of documents.

It is recommended that those interested in using the PW-CF11 first read the revised Note to Employer which may be found by clicking on (more…) which is located beside the listing for PW-CF11 under Pillar 1 – Contracts.

The introduction of the framework agreement has resulted in a number of additional documents being added to the suite of documents associated with PW-CF11 which include:

ITT W7 v1.0 – Instructions to Tenderers (Open Procedure) – The open procedure may be used regardless of whether PW-CF11 is to be awarded in conjunction with the Framework Agreement or as a standalone contract however it must be used where PW-CF11 is to be used in conjunction with a multi-participant framework.

This is a new document, up to the date of its publication there was no provision for the award of PW-CF11 through an open procedure.  It follows the same format as the ITT W6.

PW-CF11 FA-ITT v1.0 – Invitation to tender for a Task Order under the Framework Agreement – This document sets out the tender rules for mini-competitions to be run under the framework options A, B1 and B2.

PW-CF11 FA v1.0 – Framework Agreement – This document sets out certain amendments to PW-CF11 to facilitate the framework operation.  Framework rules are also included.

In addition to this some changes have been made to existing documents and these changes include:

PW-CF11 v1.1 – Term Maintenance and Refurbishment Contract – Amendments include:

Clause 1 – This Contract – New clauses 1.12, 1.13 and 1.14

Clause 4 – Completing Tasks – Clause 4.4 has been enlarged to include the concept of an insolvency event as defined therein.

Clause 8 – Contractor’s Personnel – New clause 8.5 which indemnifies the Employer against claims by employees or former employees of the Contractor.  New clause 8.6 requiring the Contractor to provide details (to the extent allowed by the law) of those employed in conjunction with the Contract.

 

FTS 12 v1.1 – Form of Tender and Schedule – amended to include drop down menu option for Framework and Standard Agreements. The Framework Agreement should be used where PW-CF11 is to be used as a multi-participant or single-participant framework.  The Standard Agreement must be used where PW-CF11 is used as a standalone contract.

Maximum default period of 2 years included under the ‘Term’ section of the Schedule

Maximum Sum defaults to €2m if ‘Maximum Sum’ section of the Schedule is left blank or exceeds €2m.

ITT W6 v1.1 – Instructions to Tenderers (Restricted Procedure) – In the case where PW-CF11 is to be used as a standalone document or where a single participant framework is to be set up and it is envisaged that the aggregate value of Task Orders to be awarded will exceed €250,000 then the contracting authority may consider the use of the Restricted Procedure.

This version updates the document generally to eliminate unused sections.  Unused sections were included in v1.0 to maintain consistency with ITT W1 and ITT W2.  As bespoke ITTs for different contracts have been developed it was decided to discontinue this practice commencing with the publication of ITT W4 v1.1 in April 2013.

New additions:

Section 1 – Introduction –

·        Provision for Lots added.

Section 2 – Communications –

·        No change.

Section 3 – Candidates –

·        Option for joint ventures added.

Section 4 – Requirements for Tenders (formerly section 5) – Section 4 was not used in v1.0.

·        Addition of a description of tender documents which refers to Appendix 1.

·        Section on deposits removed.

Section 5 – Non-compliant tenders (formerly section 7) – Section 6 was not used in v1.0.

·        No change of substance.

Section 6 – Corrections, unbalanced and abnormal tenders and rates (formerly section 8) –

·        No change.

Section 7 – Assessment of Tenders (formerly section 9) –

·        Option provided to allow either a lowest price or MEAT award section 7.1.

·        Clarification of Notional Tender Total included in section 7.4

Section 8 – Award Process (formerly section 10) –

·        Reference to new notification letters in sections 8.1 and 8.2.

·        Reference to Standard Agreement and Framework Agreement included in section 8.4 and removal of option for contract to be executed under seal.

·        Removal of requirement to publish an award notice.

Appendices adjusted and new appendix added to include award criteria and weightings.

PW-CF11 SA v1.1 – Standard Agreement – This has been amended to remove the option to seal the Agreement and to remove the title ‘Deed’ from the head of the document.

PW-CF11 TO v1.1 – Task Order form – Change to footer details.  This form must be completed as appropriate and issued by the Employer prior to Contractor undertaking any work.  The Employer has no obligation under PW-CF11 to make any payment in the absence of a valid Task Order.

Note to Employer v1.1 – Revised to provide guidance on the use of PW-CF11 as a standalone, single-participant or multi-participant framework.

14 August 2013 – Revision to Costing Documents for Building and Civil Engineering Works

The following Costing documents (v1.0 dated 28/09/2009) for Building and Civil Engineering Works (under Pillar 3: Standard Forms for Cost Planning & Cost Control) have been updated to reflect the current standard rate of VAT in the Executive Summary (sheet 2 of the spreadsheets).

  •   CO1.1a    Costing Document (Building Works)
  •   CO2.1a    Costing Document (Civil Engineering Works) – Roads
  •   CO2.2a    Costing Document (Civil Engineering Works) – Water Services
  •   CO2.3a    Costing Document (Civil Engineering Works) – Marine

12 August 2013 – Public Works Contracts

The purpose of this statement is to address any uncertainty with regards to the interpretation of certain conditions of the Public Works Contracts following the Supreme Court decision of 9th May 2013 on the Registered Employment Agreements.  The Department of Public Expenditure and Reform welcomes the clarity brought by the statement from the Minister for Jobs, Enterprise and Innovation of the 27 June (which is reproduced in full below) and also notes the intention of the Minister for Jobs, Enterprise and Innovation to introduce legislation that will put in place a mechanism to permit parties to register employment agreements in a manner that is fully informed by the Supreme Court judgement.

In light of the Supreme Court decision and Minister Bruton’s statement of 27 June, the Department of Public Expenditure and Reform has been considering the references in the Pay and Conditions of Employment clause in the Public Works Contracts and is satisfied that no amendments are necessary to the clause.  The existing wording is consistent with the current position regarding REAs and should permit the recognition of any new employment agreements that may be registered under any such new legislation.

Statement from Minister Bruton re Registered Employment Agreements (reproduced from http://www.djei.ie/press/2013/20130627c.htm)

27 June 2013

The Minister for Jobs, Enterprise and Innovation, Richard Bruton T.D. today [Thursday] stated that he intends to bring forward legislation to address the recent Supreme Court ruling that struck down Registered Employment Agreements.

The Minister said “Last month, the Supreme Court struck down as unconstitutional the framework for Registered Employment Agreements as provided for in the 1946 Industrial Relations Act. This is an important issue for many employers and their employees particularly in relation to rates of pay and tendering for contracts. I intend as soon as possible to put in place legislation that will be fully informed by the Supreme Court judgment, but will introduce a revised framework to deal with these matters”.

NOTES FOR EDITORS

In the judgment delivered on 9 May last in McGowan and others v The Labour Court, Ireland and the Attorney General, the Supreme Court held that Part III of the Industrial Relations Act 1946 was invalid having regard to Article 15.2.1 of the Constitution.

That Article provides, in effect, that the exclusive power to make laws is vested in the Oireachtas. The Supreme Court took the view that Registered Employment Agreements are instruments having the status of laws made by private individuals subject only to a limited power of veto by a subordinate body. While the Constitution allows for the limited delegation of law making functions, the provisions of the 1946 Act went beyond what is permissible under the Constitution.

The effect of this decision is to invalidate the registration of employment agreements previously registered under Part III of the 1946 Act. In consequence the Labour Court no longer has jurisdiction to enforce, interpret or otherwise apply these agreements.

As a result, all such agreements no longer have any application beyond the subscribing parties and are not enforceable in law.

However, existing contractual rights of workers in sectors covered by Registered Employment Agreements are unaffected by the ruling. Contractual rights can be altered only by agreement between the parties involved.

There were 6 existing sectoral REAs registered or varied by the Labour Court in recent years: two in the Construction Sector and one each covering Electrical Contracting, Printing, Overhead Powerline Contractors and Dublin Drapery, Footwear and Allied Trades. It is estimated that between 70,000 and 80,000 workers were covered by these sectoral agreements. In addition, there were over 50 employment agreements covering individual enterprises that had been registered by the Court under the 1946 Act.

19 July – Revisions to Notification Letters

The following letters have been revised in line with the changed requirements for documentation to be supplied by consultants (news item dated 16 July 2013 refers to new requirements) who are identified as the successful tenderer as set out in the ITT:

  1. The Letters to Apparently Successful Tenderer seeking evidence/ Short-listed Candidates seeking evidence have been revised to remove all references to QC Supplements 3.4.1 to 3.4.3.
    • O.eu.4          Letter to apparently successful tenderer seeking evidence
    • O.na.4          Letter to apparently successful tenderer seeking evidence
    • R.eu.2          Letter to short-listed Candidates seeking evidence
    • R.na.2          Letter to short-listed Candidates seeking evidence

     

  2. The Letters to Successful Tenderer have been amended to include references to the documentation to be submitted.
  • O.eu.6         Letter to Successful Tenderer
  • O.na.6         Letter to Successful Tenderer
  • R.eu.7         Letter to Successful Tenderer
  • R.na.7         Letter to Successful Tenderer

Please note that where a version of the Suitability Assessment Questionnaires for Consultancy Services other than QC1 v2.0 16/07/2013 and QC2 v2.0 16/07/2013 have been used then version 1.0 of the above notification letters (dated 10 June 2013), which have been archived should be used.