12 January 2017 – Instructions to Tenderers

Please note that the links to the Public Works Contracts on the Construction Procurement Reform website in the Particulars Section of the following Instructions to Tenderers have been amended to reflect the mandatory requirement for contracting authorities to use the amended forms of Public Works Contracts with a cited revision reference commencing with v2 on all works procurements commencing from 9th January 2017.  As this is an administrative amendment only, there is no change to the version number or date of the documents.

  • ITTW 1 v2.1 dated 4th July 2016
  • ITTW1a v1.1 dated 4th July 2016
  • ITTW2 v2.1 dated 4th July 2016
  • ITTW1 v1.8 dated 4th July 2016
  • ITTW2 v1.5 dated 4th July 2016

10 January 2017 – Amended Forms of Public Works Contracts

Further to the news item published on 22 December 2016, it is now mandatory for contracting authorities to use the amended forms of Public Works Contracts with a cited revision reference commencing with v2 on all works procurements commencing from 9th January 2017. These contracts and their associated pre-qualification questionnaires, instructions to tenderers, forms of tender, and model forms are available to download under Pillars 1 and 3 respectively.

Where the deadline for receipt of tenders for works is after 8 January 2017, sanction must be formally applied for and obtained from the Government Contracts Committee for Construction (GCCC) for use of the latest versions of the conditions of the Public Works Contracts (PW-CF1 – PW-CF5 inclusive), their associated Instructions to Tenderers and Forms of Tender and Schedule with a cited revision reference commencing with v1.  Click on the link to Circular 1/16 – Derogation Documents to access these documents and the associated QW1 suitability assessment questionnaire, where applicable.

9 January 2017 – Amendment to Employer designed public works contract to cater for tendered rate of delay costs of named Specialists

The amended forms of Employer designed public works contracts (PW-CF1, PW-CF3 & PW-CF5) include new arrangements for direct tendering to specialist works contractors who are to be appointed by the main contractor – Reserved Specialists.  The arrangement for novating Specialist works contractors to the main contractor continues to be available under the amended forms of public works contract.  Both types of specialists are known as ‘named Specialists’ and, where applicable, the categories of specialist works will be listed in the Form of Tender and Schedule, part 1F (iii).  If novated Specialists are to apply, the identity of the specialists to be novated will also be provided in part 1F (iii) where they have been appointed.

A separate tender competition is held for Reserved Specialists where they respond independently to the tendered hourly rates, tendered percentage addition for costs of materials, tendered percentage addition/deduction for costs of plant and tendered rate of delay costs.  Because the tender deadline for the main contract is in advance of that for the Reserved Specialists, tendering main contractors will not be aware of the rates that the Reserved Specialists are applying in their tender response.  Sub-clause 10.6 was amended to reflect this but sub-clause 10.7 was not amended at the time of publication of v2.0 to reflect that the same position is to apply to calculating the Delay Cost should it arise under the Contract.

Whilst the tender for a novated Specialist (and their appointment) will typically take place in advance of the main contract, the same principle will apply.  Tendering main contractors are only to take account of their own costs when responding to the Form of Tender and Schedule, part 2D, where named Specialists are to apply to an Employer designed public works contract.

Sub-clause 10.7.1 (1) has now been amended to clarify that where sub-clause 10.7.1(1) applies to the Delay Cost calculation under the Contract then, in calculating the sum due to the Contractor, the tendered rate of delay costs of the named Specialist must be taken into account where the named Specialist works are delayed by a Compensation Event under the Contract between the Employer and the [main] Contractor.

Notes have also been inserted into FTS1, FTS3 & FTS5 to further clarify the position to main contractors when they are preparing their tender response.

22 December 2016 – Implementation of Amended Forms of Public Works Contracts

A lead-in time of approximately 9 months has been allowed since the publication of Circular 01/2016 was published.  This has allowed contracting authorities to avail of a limited derogation up until 8 January 2017, which permitted the use of the latest versions of the conditions of the Public Works Contracts (PW-CF1 – PW-CF5 inclusive), their associated Instructions to Tenderers and Forms of Tender and Schedule with a cited revision reference commencing with v1. published under Pillar 1 of the CWMF on www.constructionprocurement.gov.ie in the circumstances set out under 6 (a) of Circular 01/2016.

However this phased implementation will end on 8th JanuaryIt will be mandatory for contracting authorities to use the amended forms of Public Works Contracts with a cited revision reference commencing with v2 on all works procurements commencing from 9th January 2017.

Where the deadline for receipt of tenders for works is after 8 January 2017, sanction must be formally applied for and obtained from the Government Contracts Committee for Construction (GCCC) for use of the latest versions of the conditions of the Public Works Contracts (PW-CF1 – PW-CF5 inclusive), their associated Instructions to Tenderers and Forms of Tender and Schedule with a cited revision reference commencing with v1. published under Pillar 1 of the CWMF on www.constructionprocurement.gov.ie.

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.