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.

5 November 2014 – Public Consultation on Transposition of the new EU Procurement Directives

The European Parliament and the Council adopted three new procurement Directives in spring of this year. (Public Procurement; Utilities and Concession Contracts). Ireland and all other Member States are required to implement/ transpose the new Directives into national legislation by 17 April 2016. In Ireland this is by way of Statutory Instrument.

The new suite of Directives comprises:

  • Public Procurement: Directive 2014/24/EU on public procurement,  which  will repeal  Directive 2004/18/EC
  • Utilities: Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and  postal services sectors, which  will repeal Directive 2004/17/EC ; and
  • Concessions: Directive 2014/23/EU on the award of Concession Contracts, which does not directly replace any previous Directive.

A summary of the main features of the new public procurement Directive is accessible below as a reference guide to the Directive outlining some of the alterations to the existing procurement regime and new provisions in the 2014 Directive.

Most of the provisions of the Directives are mandatory for Ireland to transpose into national law but there are some areas where the Directives permit policy choices and these are the focus of this consultation.

The Consultation Document below highlights the key policy choices for Ireland and seeks the views of public sector users, private sector tenderers, relevant representative bodies and other interested parties. Responses to the specific questions raised in this consultation paper will be considered in drafting the Statutory Instruments.

If you have responses to the questions raised and comments on the areas in question the Transposition Unit in the OGP would welcome written views by email, to be sent to transposition@ogp.gov.ie. Submissions will be published on the OGP website www.procurement.ie.

This consultation process will run from Friday 31 October to Friday 12 December, 2014, so please submit your views by then to ensure that they are available for consideration in the preparation of the Statutory Instruments.

Related Document: 

acrobat_logo transposition_of_the_new_public_procurement_directives_-_consultation_document.pdf

acrobat_logosummary_document.pdf

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

The following amendments have been made to the Arbitration Rules for use with Public Works and Construction Services Contracts (AR1).:

  • Sub-clause 2.2.5 The first ‘are’ has been replaced by the word ‘or’
  • Sub-clause 4.3.1 ‘the parties the arbitral tribunal’ has been replaced with the parties and the arbitral tribunal’
  • Sub-clauses 3.5.6 and 6.3 ‘Office of Government Procurement, Department of Public Expenditure and Reform, Government Buildings, Upper Merrion Street, Dublin 2’ has been amended to ‘Office of Government Procurement, Public Procurement Policy Unit, Department of Public Expenditure and Reform, Government Buildings, Upper Merrion Street, Dublin 2.

Version 1.1 dated 13 January 2014 has been archived

27 June 2014: Building Control (Amendment) Regulations 2014 – Changes to Capital Works Management Framework template documents

Further to the News Item of 6 March 2014: Building Control (Amendment) Regulations 2014 – Procurement Implications for Contracting Authorities and the publication of GN 1.1.1 v1.0 06/03/2014, the template documents published under the Capital Works Management Framework have now been amended to reflect the changes.

The Particulars to the Instructions to Tenders – Works, indicate that the form of contract applicable to the tender is the one published on the Construction Procurement Reform website 10 days before the latest date for the receipt of tenders.  Contracting authorities should take note of this requirement should they choose to apply the new form of contract in any current tender competition.

The revised Form of Tender and Schedule (FTS9) should be used for all Construction Service Provider tenders.

The changes made to the standard template works contractors and service providers’ documents are set out in detail below.

Pillar 1 – Public Works Contracts – Amendments to PW-CF1, PW-CF3, PW-CF5, and Schedules

Clause 1 – The Contract

Sub-clause 1.1 Definitions

The following new definitions have been included:

  • Ancillary Certificate
  • Assigned Certifier
  • Building Control Regulations – note there is a slightly different wording for PW-CF3 and PW-CF5 in recognition that the Building Control Regulations will not apply to all aspects of civil engineering projects.
  • Code of Practice for Inspecting and Certifying Buildings and Works
  • Inspection Plan
  • Inspection Notification Framework

The following existing definitions have been amended:

  • Consent – ‘Ancillary Certificate’ added to the first sentence.
  • Contractor’s Documents – ‘Consents’ added to the first sentence.
  • Employer’s Personnel – ‘Assigned Certifier’ included as the last item in the list of bullet points
  • Substantial Completion of the Works or a part of the Works [including a Section] –  ‘the details in the Certificate of Compliance on Completion of the Works or a part thereof have been included on the Register maintained under Part IV of the Building Control Regulations.’ has been added as a new point (5).

Clause 4 – Management

Sub-clause 4.8.2 – ‘[including other Consents]’ has been added at the end of point (2) – Clause 4.8 not used in PW-CF5

Sub-clause 4.8.4 – ‘and any other Consents’ has been added to the end of the last line – Clause 4.8 not used in PW-CF5

Sub-clause 4.9 – ‘having regard to the requirements of the Inspection Plan and Inspection Notification Framework’ has been added to the end of the first sentence. ‘and any Inspection Plan requirements’ has been added into the square brackets at the end of the second sentence.

Sub-clause 4.11.1 – ‘including any requirements arising from the Inspection Plan and Inspection Notification Framework’ has been added to the end of the sub-clause.

A new sub-clause 4.12.2 has been added to sub-clause 4.12 Documents.

Clause 5 – Contractor’s Personnel

Sub-clause 5.5 – ‘(i)’ has been included after both references to the Schedule, part 1F to accommodate a second matrix in the Schedule, part 1F.

A new sub-clause 5.8 Ancillary Certificates has been added.

Clause 8 – Quality, Testing and Defects

Sub-clause 8.3.1 – ‘Assigned Certifier’ has been added into the first sentence.

Sub-clause 8.3.2 – ‘and the Assigned Certifier’ has been added after both references to Employer’s Representative.

Sub-clause 8.3.3 –  ‘and the Assigned Certifier’ has been added after the first reference to Employer’s Representative.

Sub-clause 8.4.1 – ‘[including the Inspection Plan]’ has been added into the first sentence. ‘and the Assigned Certifier’ has been added into the second sentence.

Clause 11 Payment

Sub-clause 11.4.1 – ‘(i)’ has been included after both references to the Schedule, part 1F to accommodate a second matrix in the Schedule, part 1F.

Schedule

Part 1 F has been split into part 1 F (i) Collateral Warranties and a new section – F (ii) Ancillary Certificates.

Pillar 1 – Public Works Contracts – Amendments to PW-CF2, PW-CF4, and Schedules

Clause 1 – The Contract

Sub-clause 1.1 Definitions

The following new definitions have been included:

  • Ancillary Certificate
  • Assigned Certifier
  • Building Control Regulations – note there is a slightly different wording for PW-CF4 in recognition that the Building Control Regulations will not apply to all aspects of civil engineering projects.
  • Code of Practice for Inspecting and Certifying Buildings and Works
  • Design Certificate
  • Inspection Plan
  • Inspection Notification Framework

The following existing definitions have been amended:

  • Consent – ‘Ancillary Certificate’ and ‘Design Certificate’ added to the first sentence.
  • Contractor’s Documents – ‘Consents’ added to the first sentence.
  • Contractor’s Personnel – ‘Design Certifier’ added to the first sentence.
  • Employer’s Personnel – ‘Assigned Certifier’ included as the last item in the list of bullet points
  • Substantial Completion of the Works or a part of the Works [including a Section] –  ‘the details in the Certificate of Compliance on Completion of the Works or a part thereof have been included on the Register maintained under Part IV of the Building Control Regulations.’ has been added as a new point (5).

Clause 4 – Management

Sub-clause 4.8.2 – ‘[including other Consents]’ has been added at the end of point (2)

Sub-clause 4.9 – ‘having regard to the requirements of the Inspection Plan and Inspection Notification Framework’ has been added to the end of the first sentence. ‘and any Inspection Plan requirements’ has been added into the square brackets at the end of the second sentence.

Sub-clause 4.11.1 – ‘including any requirements arising from the Inspection Plan and Inspection Notification Framework’ has been added to the end of the sub-clause.

A new sub-clause 4.12.2 has been added to sub-clause 4.12 Documents.

Clause 5 – Contractor’s Personnel

Sub-clause 5.5 – ‘(i)’ has been included after both references to the Schedule, part 1F to accommodate a second matrix in the Schedule, part 1F.

A new sub-clause 5.8 Ancillary Certificates has been added.

Clause 8 – Quality, Testing and Defects

Sub-clause 8.3.1 – ‘Assigned Certifier’ has been added into the first sentence.

Sub-clause 8.3.2 – ‘and the Assigned Certifier’ has been added after both references to Employer’s Representative.

Sub-clause 8.3.3 – ‘and the Assigned Certifier’ has been added after the first reference to Employer’s Representative.

Sub-clause 8.4.1 – ‘[including the Inspection Plan]’ has been added into the first sentence. ‘and the Assigned Certifier’ has been added into the second sentence.

Clause 9 – Time and Completion

Sub-clause 9.1.1 – ‘The Contractor shall give the Employer at least 20 working days’ notice prior to the date that the Contractor intends to commence constructing the Works.’ has been added as the last line of the sub-clause.

Clause 11 Payment

Sub-clause 11.4.1 – ‘(i)’ has been included after both references to the Schedule, part 1F to accommodate a second matrix in the Schedule, part 1F.

Schedule

Part 1 F has been split into part 1 F (i) Collateral Warranties and a new section – F (ii) Ancillary Certificates.

Pillar 1 – Public Works Contracts – Amendments to PW-CF6

Clause 1 – The Contract

Sub-clause 1.1

The following new definitions have been included:

  • Assigned Certifier
  • Building Control Regulations – the same definition as used in PW-CF3, PW-CF4 and PW-CF5 is used here.

Sub-clause 1.2

  • The following new condition has been included under ‘substantially complete and substantial completion’ :

‘the details in the Certificate of Compliance on Completion of the Works or a part thereof have been included on the Register maintained under Part IV of the Building Control Regulations.’

Clause 2 – The Site, starting and completing the Works

Sub-clause 2.9 – ‘and shall provide any document necessary to demonstrate compliance with the Building Control Regulations’ has been added to the end of the sub-clause.

Clause 3 – The Works

Sub-clause 3.7 – ‘Assigned Certifier’ has been added into the first sentence.

Sub-clause 3.8 – ‘and the Assigned Certifier’ has been added after both references to Employer’s Representative.

Pillar 1 – Public Works Contracts – Amendments to PW-CF11 Term Maintenance and Refurbishment Works

Clause 1

Sub-clause 1.2 – a definition of Building Control Regulations has been added

Sub-clause 7.3 – ‘(including Contractor’s Personnel)’ has been added after the first reference to the Contractor.  ‘in conformance with the Building Regulations’ has been added after ‘good practice’, and ‘Where requested by the Employer’s Representative, the Contractor shall provide the certification necessary to comply with the Building Control Regulations.’ has been added as a new last sentence.

Pillar 1 – Forms of Tender and Schedules FTS1 to FTS5

Part 1 F has been split into part 1 F (i) Collateral Warranties and a new section – F (ii) Ancillary Certificates.

Pillar 2 – Standard Conditions of Engagement – Amendments to Instructions to Tenderers

 ITTS1(a); ITTS1(b); ITTS2(a); and ITTS2(b)

  • New Section 5.12 Assigned Certifier.
  • New Section 5.13 Design Certificate.
    • Additions to Particulars to indicate whether the service provider will be required to provide the Assigned Certifier role (Instructions Section 5.12) or to sign the Design Certificate (Instructions section 5.13).
  • Additional rows added for quality criteria and sub-criteria.

Pillar 2 – Standard Conditions of Engagement – Amendments to Form of Tender and Schedule (Service Providers)

FTS9 and COE1 Schedule

Schedule B

  • Two new sections added on first page to indicate whether the service provider will be appointed as Assigned Certifier or whether they will be required to sign the Design Certificate.
  • Consultants Stage Services has been updated to include all Whole Stages/Sub-stages.
  • Project Supervisor for the Design Process Service section updated to reference Safety Health and Welfare (Construction) Regulations 2013.

The proposed review of the CWMF Guidance Notes will reflect the changes above.

26 May 2014 – Revision to MF 2.2 Client Instructions – Letter of Acceptance (MF 2.2 31/03/2011)

The Client Instructions to Model Form 2.2 Letter of Acceptance (MF 2.2 31/03/2011) has been revised to reflect the following amendments:
• Reference to ‘2.7 Schedule A’, under ‘5. The Brief’; and ‘6. The Pricing Schedule’ on page 3 has been amended to read ‘1.7 Schedule A’ under both 5 and 6; and
• Footer details in the document have been amended from ‘MF2.3’ to ‘MF2.2’.