11 December 2020 – Participants required for Office of Government Procurement’s Review of the operation of the roles of Standing Conciliator and the Project Board
The Office of Government Procurement (OGP) is undertaking a Review of the dispute resolution procedures in the public works contracts (the Review). As part of the Review we are seeking expressions of interest to participate in the Review of the operation of the roles of Standing Conciliator and the Project Board. If you have past and/or current experience and working knowledge of the roles of the Standing Conciliator and the Project Board, the OGP would like to hear from you.
Initially, we are seeking expressions of interest to participate in a survey and interview as part of the primary research stage (Stage 1) of the Review. The survey and interviews will be carried out by Indecon International Consultants on behalf of the OGP and all contributions will remain anonymous. Those submitting an expression of interest should ideally be or have been*:
– Appointed to the role of Standing Conciliator
– An Employer/Employer’s Personnel
– A Contractor/Contractor’s Personnel
– An Employer’s Representative (ER)
– A Contractor’s Representative/Contract Manager/Project Manager
– A Design Team Consultant
– Appointee to a Project Board
*On projects where the works stage has been ongoing for at least 12 months
If you are interested in participating in this survey and interview and possess the relevant experience as outlined above, please notify us of your expression of interest via the SCPB Review link.
The closing date for expressions of interest is Friday 15 January 2021.
The closing date for expressions of interest is Friday 15 January 2021.
Background of the Review
The Standing Conciliator role and the Project Board were introduced in 2016 in response to the OGP’s ‘Report on the Performance Review of the Public Works Contract’ in 2014. The report sets out a series of interim recommendations for the procurement of public works projects under the Capital Works Management Framework (CWMF) including:
– The introduction of an informal dispute resolution process at senior management level within the respective organisations that are parties to the Contract – the Project Board – for the purpose of reviewing disputes with the intent of reaching a resolution.
– The introduction of a Standing Conciliator for pre-dispute management purposes, in order to encourage proper engagement between the Parties and assist in the avoidance of disputes.
More detailed information is available in the OGP’s CWMF Guidance Note 3.1.1 on dispute resolution.
Engagement of Consultants
Indecon International Consultants have been appointed by the OGP to undertake an investigation of the current operation of the Project Board and the Standing Conciliator role. The investigation will involve gathering empirical data from industry practitioners involved in public works projects where Standing Conciliators and Project Boards have been appointed. This research constitutes Stage 1 of the Review. The data gathered will be collated and analysed by Indecon Consultants who will then, at the end of Stage 1, prepare a report for the OGP setting out conclusions and recommendations. It is the intention of the OGP to publish a summary of all findings and recommendations along with a position paper on dispute resolution under the public works contracts during Stage 2 of the Review.
– Stage 1
The research is programmed to take place over a 12-month period commencing in December 2020.
Phase 1 – Structuring:
During this phase a database of possible survey and interview participants will be compiled in order to aid in the design of the sampling methodology. It should be noted that not all who express an interest in participating in the research may be contacted.
Phase 2 – Gathering the Empirical Data:
During this phase an international practice review will take place. The survey design will be finalised prior to the initiation of research fieldwork, concluding with interviews with participants selected from the expressions of interest. Phases 1 and 2 are scheduled to be completed within the first 6 months of the programme.
Phase 3 – Analysing Empirical Data:
The empirical data collected from the research, surveys and interviews will be analysed and reported to the OGP during Phase 3.
Phase 4 – Reporting:
In this last phase of Stage 1, all detailed conclusions and recommendations will be formulated and reviewed prior to Indecon Consultants issuing their final report to the OGP. This will conclude the involvement of Indecon Consultants in the Review.
– Stage 2
Stage 2 will be carried out by the OGP in conjunction with the Government Construction Contracts Committee (GCCC). It will involve the evaluation of the data and recommendations reported from Stage 1 and conducting further analysis, if necessary, before publishing a position paper and thereafter considering policy amendments to the dispute resolution provisions in the suite of public works contracts.
Please be advised that participants can withdraw from the Review at any point.
10 December 2020 – Publication of OGP Brexit Information Note December 2020
Please note that the fourth in a series of information notes prepared by the OGP’s Policy Unit aimed to provide guidance for public bodies charged with dealing with public procurement and the management of public contracts in the context of changes which will arise due to Brexit has been published.
This update note is intended to provide public bodies with advice on actions they may wish to take in the context of Brexit and its implications for public procurement in Ireland.
23 July 2020 – Note: Guidance on Protocol Measures in Live and Future Tenders published
In consideration of the impact the measures required by the Return to Work Safely Protocol (the ‘Protocol’) may have on works programmes, the OGP has today published a Note providing guidance for Contracting Authorities regarding both ongoing and future works and works-related services tenders. This Note provides guidance for three scenarios:
Where the tender process was initiated before publication of the Protocol, the deadline for receipt of Tenders has passed, and the Contract has not yet been awarded.
Where the tender process was initiated before publication of the Protocol and the deadline for receipt of Tenders has not yet passed.
09 July 2020 – Template: Covid Co-operation Framework published
The OGP has today published the template ‘Covid Co-operation Framework’ outlined in its Note published on 24 June 2020. This template framework may be used by Employers party to the standard forms of Public Works Contract listed below to engage with Contractors on a ‘without prejudice’ basis in respect of the implementation of measures on construction sites required under the Return to Work Safely Protocol.
The Covid Co-operation Framework consists of two documents: (1) Letter Agreement, and (2) Covid Notice.
24 June 2020 – Note: Covid Co-operation Framework published
Since 18 May 2020 construction activity has been returning on all construction sites that were previously deemed non-essential in the context of the public health measures introduced to curb the spread of Covid-19. This includes the vast majority of public works projects.
In consideration of the challenges that the Return to Work Safely Protocol introduces to certain construction operations, the Office of Government Procurement is today publishing guidance for those Employers that are currently party to a standard form Public Works Contract (PWC) in relation to the implementation, by contractors, of the measures associated with meeting the requirements of the Protocol on construction sites. A template document formalising the agreement described in this note will be published next week.
This is the latest in a series of notes aimed at mitigating the impact of the necessary public health measures on the delivery of projects under the National Development Plan.
14 May 2020 – Note and template Pre-start Checklist for use by Employer’s Representatives published
In preparation for the re-commencement of construction activity on public works projects, subject to Government’s confirmation of the measures outlined in the Roadmap for the Reopening of Society and Business, the OGP has today published a short note and template pre-start checklist for use by Employer’s Representatives (ER) operating under the standard conditions of various forms of public works contract.
22nd April 2020 – Form of Letter Agreement for Covid-19 Ex-Gratia payment by Employer now published
Following the publication on 14th April 2020 of Update 1 to Note on procurement and contractual matters associated with the Covid-19 Response Measures, the OGP has today published the form of letter agreement to be used for a Covid-19 Ex Gratia payment by the Employer.
19 March 2020 – Note on procurement and contractual matters associated with the Covid-19 Response Measures
Purpose of this Note
The purpose of this note is to provide guidance to Contracting Authorities who
• are required to procure emergency professional services or works as a result of the Covid-19 response measures; or
• are currently a party to a public works contract or conditions of engagement or both;
As the Covid-19 response measures are updated by Government this note will be amended.
Please note that the terms Contracting Authority/client/Employer reflect the legal and contractual terms applied to a public body during the procurement and contract management stages of a project’s development.
Ireland is operating a containment strategy in line with advice from the World Health Organisation and the European Centre for Disease Prevention and Control.
We are now in the delay phase and the Covid-19 response measures introduced by Government up to the date of this note which include:
• the closure of schools, colleges, childcare facilities and cultural institutions;
• the banning of mass gatherings of more than 100 indoors and 500 outdoors;
• remote working where possible
• social distancing measures
• isolation and quarantine measures
At the time of publication of this Note, there are currently no restrictions on attending work, but where possible, people are encouraged to work from home. In order to reduce unnecessary face to face interaction in the workplace, break times and working times should be staggered and meetings done remotely or by phone.
All of these measures are necessary to slow and potentially halt the spread of the virus.
2.0 Emergency Procurements
The Office of Government Procurement issued ‘Information Note – Covid-19 (Coronavirus) and Public Procurement’ on 18 March 2020. Accordingly, it is important to note that the engagement of contractors or consultants to undertake emergency works associated with the development of treatment facilities for Covid-19 or to support the measures to halt the spread of the virus are not required to comply with the provisions of the Capital Works Management Framework. Nonetheless engagements should be undertaken in a manner that delivers value for money.
Contracting authorities should ensure that prudent budgetary oversight measures are in place to manage the engagement and should ensure that there is a contract in place to ensure both parties are clear on their obligations and entitlements. Cost reimbursable arrangements for works contractors and time based engagements for consultants are the most suitable given the urgency of the situation.
It is recognised that the Covid-19 response measures announced up to the date of this note are likely to impact both on operations on construction sites and the delivery of aspects of a design team’s services.
In these challenging times it is imperative that parties to contracts work together to ensure that the project can be delivered safely. This note sets out measures to assist parties to the contract to take the necessary steps to meet this objective.
Clients/Employers are asked to be proactive in the current climate and, if they have not already done so, to immediately make contact with key individuals including (where applicable to the stage of project development):
• Design team leader;
• Project Supervisor for the Design Process;
• Employer’s Representative;
• Project Supervisor for the Construction Stage;
• Assigned Certifier.
Clients/Employers should establish the current operational capability of the consultants and contractors they have engaged to continue to resource and undertake their duties in accordance with the terms of their contract whilst meeting health and safety requirements. They should also satisfy themselves as to their contingency arrangements.
3.1 Consultancy Contracts – Standard Conditions of Engagement
The Covid-19 response measures are likely to have an immediate impact on the resources available to the consultants. Where the consultant’s capacity has been impacted as a result of the measures it should raise these matters with the client. Both parties shall establish the best approach to ensuring the service can be continued, if necessary within redefined delivery parameters.
3.1.1 All stages:
The continued attendance of the various members at meetings is to be facilitated as far as possible by remote means such as video conferencing. Where this is not possible please ensure that the HSE Guidance is followed.
Where key personnel are unable to continue in their role then a deputy that is acceptable to the client may be proposed. Adjustments to the milestone delivery dates may be necessary to allow the project to continue to progress.
Under no circumstances should the service continue if the level of resources are such that they impact on key health and safety requirements. Should this arise, having exhausted alternatives, the client should suspend the service in accordance with Clause 4 of the Conditions of Engagement.
3.1.2 Construction stage:
Oversight of the works from a health and safety, quality and building regulations compliance is critical and it is imperative these roles be resourced adequately.
The Employer should call meetings under sub-clause 4.1 Co-operation [“Co-operation Meeting”] with the Employer’s Representative (ER) and the Contractor to discuss current operational matters relating to site activities.
Key operational matters to be discussed at the Co-operation Meeting should include:
• workers attendance;
• health and safety matters such as
– whether social distancing requirements can be met;
– proper welfare facilities
• whether the Employer’s Representative/Consultant/Contractor/Third parties can maintain proper oversight and/or supervision of the works;
• supply chain issues;
Once an assessment of risks has been carried out mitigation measures should be identified. Any adjustments necessary to the programme and the implications of same should be taken on board by the Contractor. The steps to be taken by the Contractor will be considered in greater detail in section 3.2 of this note.
Unless the Co-operation Meeting indicates risks that cannot be mitigated by the Contractor in order to meet health and safety requirements and maintain appropriate supervision then under the current restrictions imposed by Government:
• Inspections by all relevant parties can continue providing social distancing measures are adhered to and all other health and safety measures.
• Site meetings should continue and, where possible, undertaken remotely by means of video conferencing. Where this is not possible it should be managed in accordance with the HSE Guidelines.
Any issues relating to these matters must be immediately brought to the attention of the Employer.
3.2 Construction Contracts – Standard Form Public Works Contracts
The Covid-19 response measures are likely to have an immediate impact on the resources available to the Contractor. Both parties shall establish the best approach to ensuring the works can continue, if necessary within redefined delivery parameters, whilst meeting health and safety requirements.
As noted in section 3.1.2, sub-clause 4.1 Co-operation should be used as the vehicle to assess the likely impact of the Covid-19 response measures on the progress of the works, the issues currently arising and any potential mitigating measures that can be taken. Where the issues arising are linked to the impact of Covid-19 response measures the Employer should adopt a proactive and collaborative approach to address the issues.
The Public Works Contracts make provision for delay and both parties should work within the existing conditions of contract with respect to notification and management of delay. Sub-clause 9.3 Delay and Extension of Time requires the Contractor to notify the ER as soon as practicable of the delay and its cause.
At this point it is difficult to say how the Covid-19 response measures may impact on the progress of the works, however it may arise in a number of different ways. For example social distancing may require works to be undertaken differently, there may be a scarcity of key resources or an interruption to the supply of certain Works Items.
The manner in which each issue is dealt with will vary from project to project, will depend on local conditions and the scale, nature and complexity of the works. Many aspects may be resolved under Event Item 15 in the Form of Tender and Schedule, part 1K by allowing more time to complete the works, others may result in an adjustment to the Contract Sum.
In these cases it is suggested that the ER make use of sub-clause 10.4 Proposed Instruction by requesting the Contractor for a proposal to address the particular issues as they are identified under sub-clause 9.3.
Please note that the use of sub-clause 10.4 is without prejudice to the Contractor’s other rights under the contract.
It is important to ensure that the oversight, supervision and inspection roles continue and where this is not possible, or if for any reason the works cannot be executed in compliance with health and safety regulations, it may be necessary to close the site for a period of time. Because the oversight and inspection roles are undertaken by consultants and third parties whereas supervision is the responsibility of the Contractor in the first instance and consultants [engaged in health and safety supervisor roles] it is important that the Employer remains central in this process.
Therefore any decision to close the site will be taken in consultation with the Employer. Should it arise the ER should direct the Contractor to suspend the works under sub-clause 9.2.
Under the provisions of the suspension clause the works may be suspended for a period of up to 3 months after which the Contractor may request permission to proceed, if permission to proceed is not given within 28 days the Contractor may give notice to terminate.