5 September 2016 – Investigation Contract PW-CF7 v1.2

Please note that some formatting errors occurred under Clause 14. Termination – sub-clause 14.2 in earlier versions of PW-CF7: Investigation Contract.

Separate sub-clause references were applied to 4 paragraphs that should have been included under sub-clause 14.2.  Sub-clause 14.3 – 14.6 inclusive should have read as part of sub-clause 14.2 rather than being given separate sub-clause references.  This has now been rectified in version 1.2 (dated 05/09/2016).

4 July 2016 – Minor revisions to ITTW1 (Instructions to Tenderers for use with the Restricted Procedure for Works Contractors); ITTW1a (Restricted Procedure for Works Contractors where the Contract to be awarded is PW-CF2, PW-CF4, PW-CF7 or PW-CF8); and ITTW2 (Instruction to Tenderers for use with the Open Procedure for Works Contractors)

Minor revisions have been made to the ITTW1 (versions 1.7 and v2.0); ITTW1a (version 1.0); and ITTW2 (versions 1.4 and 2.0) to provide clarification to Award Criteria. Where the award criterion is the Most Economically Advantageous Tender meeting the specified minimum criteria (if any) as stated in the Particulars; the formulae to be used must be provided in Section 9.6 Assessment of Other Criteria.

28 June 2016 – The Construction Contracts Act, 2013

The Department of Public Expenditure and Reform published the Construction Contracts Act, 2013 on the 29th of July 2013. The Act is available to view at http://www.irishstatutebook.ie/eli/2013/act/34/enacted/en/html

On the 13th of April 2016 the Minister for Business and Employment signed the ‘Construction Contracts Act, 2013 (Appointed Day) Order 2016’ which gave legal effect to the provisions of the Act. The Order states that the ‘25th July, 2016 is appointed pursuant to section 12(2) of the Construction Contracts Act 2013 (No. 34 of 2013) and that Act shall apply in relation to construction contracts entered into after that date.

The provisions of the Act have effect on all construction contracts, as defined in the Act and will apply to all construction contracts awarded after the 25th July 2016. The main provisions of the Act are:

Payment: The Act requires that all construction contracts, as defined under the Act, shall provide for the amount of interim payment and amount of final payment or an adequate mechanism for determining those amounts. The Act also requires that that all construction contracts, as defined under the Act, shall provide for a payment claim date or an adequate mechanism for establishing the date for each amount due, and the period between payment claim date and the date the payment is due.

Suspension: The Act confers on the executing party under all construction contracts, as defined by the Act, the right of suspension for failure by the other party to pay an amount due in full by the date on which the amount is due. In addition the executing party is conferred with the right to suspend for failure of the other party to pay, in full, an amount due pursuant to the decision of an Adjudicator.

Adjudication: A party to a construction Contract, as defined under the Act, has the right to refer for adjudication any dispute relating to payment arising under the construction contract.

To reflect the provisions of the Act, amendments have been made to all the Public Works Contracts (versions 1 and 2), Schedules to the Contracts (versions 1 & 2), both Conditions of Engagement, Schedules to the Conditions of Engagement, and associated Guidance Notes.

The notable amendments to the documents include:
•  Adoption of certain terms defined in the Act, such as ‘Payment Claim Date’ and ‘Payment Claim Notice
•  The change of units of measurement of time from ‘Working Days’ to ‘Days’ under all payment clauses to facilitate compliance with the Act.
•  Amendment to the Suspension by the Contractor clause in PW-CF1 to PW-CF5 to comply with the Act.
•  Introduction of statutory Adjudication as an alternative dispute resolution method and the effects a referral to statutory Adjudication has on the existing contractual dispute resolution methods.
•  The removal from the Schedules the option for the Contracting Authority to specify payment periods other than ‘monthly’. (The only exception is PW-CF 6 & 7 where the extent of the Works may not extend beyond a single payment.)

17 May 2016 – ITTW2 Instruction to Tenderers for use with the Open Procedure for Works Contractors

A new ITTW2 v2.0 – Instruction to Tenderers for use with the Open Procedure for Works Contractors has been published as part of the revision of arrangements for the procurement of public works projects (Circular 01/16: ‘Construction procurement – revision of arrangements for the procurement of public works projects’ refers).

It should be noted that ITTW2 v2.0 has application only to PW-CF1 to PW-CF5 with the cited versions 2.0 and later.  ITTW2 v2.0 is available via the link to Circular Documents here.

03 May 2016 – Suitability Assessment Questionnaire: QW1 (v2.0) Restricted Procedure for Works Contractors, associated H&S Supplements 3.4.1 (Contractor) and 3.4.2 (PSCS) and new Appendices J & K; Suitability Assessment Questionnaire: QW4 (v1.0) – Restricted Procedure for Reserved Specialists, associated H&S Supplements 3.4.1 (Specialist) and 3.4.2 (Works Specialist with a Design Input) and QW4 Appendices A – K inclusive.

Note: EU Directives 2014/23/EU, 2014/24/EU and 2014/25/EU came into effect on 18 April 2016. The directives set out the procurement rules applicable to the award of public contracts. A new document titled the ‘European Single Procurement Document’ (ESPD) has been introduced as part of the new rules and, for procurements governed by the directives, contracting authorities must accept an ESPD completed in accordance with EU Regulation 2016/7
The revised QW1 and the new QW4 have been updated to facilitate the submission of the ESPD but the suite of suitability assessment questionnaires will be further amended in the coming weeks to take into account the new directives/transposing regulations and to enhance compatibility with the ESPD in the coming weeks.

QW1 v2.0
A number of amendments have been undertaken to QW1 – Restricted Procedure for Works Contractors, the following are the key amendments:
Section 1.0 has been amended to include a new Section 1.9 Specialist Works Reserved by the Contracting Authority to reflect the new procedure for Reserved Specialists. Existing sections 1.6 – 1.8 inclusive have been amended to restrict certain procedures to the appropriate form of public works contract.
Section 2.0 has been amended to request more detailed information from applicants so as to uniquely identify their business.
Section 3.0 has been amended to permit qualitative assessment of 3.3b and 3.3d and for certain criteria in Specialist Services and Specialist Works. Supplements 3.4.3 and 3.4.4 have been removed and, where a PSDP or Contractor as Designer appointment is necessary (typically for a Design and Build contract), the service provider suitability assessment questionnaire for the restricted procedure – QC1 should be used.
Criterion 3.3a has been amended to focus on turnover related to the business area that is the subject of the procurement.
A new Appendix J is provided to give contracting authorities the option to seek more detailed information from the applicant’s principal banker where this is appropriate.
A new Appendix K which is a template letter to be provided by the applicant’s Professional Indemnity Insurance provider stating that they can provide PII to the levels required.

QW4 v1.0
A new suitability assessment questionnaire for the procurement of Reserved Specialists (See guidance note GN2.3.3) has been published. The restricted procedure must be used when procuring Reserved Specialists and the format and structure of section 2.0 and 3.0 mirrors the revised QW1 v2.0 as set out above. Section 1.0 provides information that is pertinent to the procurement of Reserved Specialists.

30 March 2016 – Reserved Specialists documents: ITTW8 and FTS13 (both v1.0); GN 2.3.3 Specialists and the Public Works Contracts (v1.1); Model Forms MF 1.19 Reserved Specialist Performance Bond and MF 1.20 Notification to named Specialists of amounts included in Main Contract Payment Certificate for named Specialist works (all dated 30/03/2016); and link to Conditions of Sub-Contract (NN) published by the Construction Industry Federation

ITTW8
A separate Instructions to Tenderer has been developed for Reserved Specialist’s tenders.

FTS13
A separate Form of Tender and Appendix has been developed in conjunction with the Construction Industry Federation (CIF) for use with the Conditions of Sub-Contract (NN) published by the CIF. The term ‘appendix’ is used in place of ‘schedule’ in this case because this is the term used throughout the form of sub-contract. The document reference ‘FTS’ has been adopted to retain its classification as one of the suite of Forms of Tender and Schedule under Pillar 1 of the CWMF.

GN 2.3.3 Specialists and the Public Works Contracts v1.0 dated 22 January 2016 has been amended as follows:

• New Appendix IV added providing a link to the Conditions of Sub-Contract (NN) published by the Construction Industry Federation
• Section 1.6.2 – Item 3. Line added to clarify that the Reserved Specialist’s Works Requirements may be issued to main contract candidates after the bulk of the main contract tender documents where the Reserved Specialist’s Works Requirements are not finalised at the commencement of the main contract tender.
• Section 1.7.1 – Clarification that the outline programme submitted by a main contract tenderer as part of their Works Proposals must be compliant with the requirements set out in the Form of Tender and Schedule, part 1G.
MF 1.19 Reserved Specialist Performance Bond
A separate model form Performance Bond has been developed for Reserved Specialist’s tenders.

MF 1.20 Notification to named Specialists of amounts included in Main Contract Payment Certificate for named Specialist works
A separate model form has been developed to meet the requirements of the amended sub-clause 11.1.3 in PW-CF 1, PW-CF3 & PW-CF5.

Conditions of Sub-Contract (NN) published by the Construction Industry Federation
A link to the above conditions of sub-contract has been provided via the Circular Documents Page here.

21 March 2016 – Model Forms MF1.18 – Appointment of Standing Conciliator; MF1.16 Appointment of Conciliator; and MF1.17 Bond – Conciliator’s Recommendation (all dated 21 March 2016)

A new Model Form MF1.18 – Appointment of Standing Conciliator (dated 21 March 2016) has been published as part of the revision of arrangements for the procurement of public works projects (Circular 01/2016 refers). The Model Form details the terms and conditions that the Standing Conciliator shall be engaged upon by the Parties to the Contract.

It should be noted that the Standing Conciliator has application only to PW-CF1 to PW-CF4 with the cited versions 2.0 and later. MF1.18 is available via the link to Circular Documents here.

Model Forms MF1.16 Appointment of Conciliator (pre-21 March 2016) has been amended as follows:
• The reference clauses for Contract forms PW-CF6, PW-CF10 and PW-CF11 have been added.
• An explanatory note has been added to Clause 3 of the form which deals with fees and expenses. The explanatory note cross references the new Model Form MF1.18 Appointment of Standing Conciliator.

MF1.16 21/03/2016 is available under Pillar 1 Model Forms.

Model Form MF1.17 Bond – Conciliator’s Recommendation (pre-21 March 2016) has been amended as follows:
• The reference clauses for Contract forms PW-CF1 to PW-CF5 have been added, and amended where necessary for cited versions v2.0 or later.

Model Form MF1.17 21/03/2016 is available under Pillar 1 Model Forms.