In July of last year, in response to an appeal of a High Court decision not to lift the suspension of the award of a public contract, the Supreme Court held that the Remedies Regulations* did not give the court jurisdiction to lift the suspension of a contract award in the circumstances where an unsuccessful tenderer or candidate initiates proceedings to review the decision of a contracting authority to award a public contract.  An ‘automatic suspension’ effectively applies until the High Court reaches a decision on the substantive issue.

The Remedies Regulations allow tenderers or candidates who feel that a procurement process was not carried out in an open, fair and transparent manner the option of seeking recourse from the courts.

SI 130 and 131 have been amended to give leave to contracting authorities to apply to the courts to lift the ‘automatic suspension’ and to give the High Court jurisdiction to lift an ‘automatic suspension’ should it see fit to do so.

The amending Regulations (listed below) are available under Regulations on this website and are also published on the Oireachtas website under 2015 Statutory Instruments

• S.I. No. 192/2015 – European Communities (Public Authorities Contracts) (Review Procedures) (Amendment) Regulations 2015.
• S.I. No. 193/2015 – European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) (Amendment) Regulations 2015.

*SI 130 and 131 of 2010 which transpose the Remedies Directives into Irish law

The review of the performance of the public works contracts was published in December 2014.  Arising out of that review, a series of interim amendments are being implemented which will amend the current conditions of contract used to deliver public works projects.

The Government Contracts Committee for Construction (GCCC) is hosting a series of information sessions on the amended forms of public works contracts which are due to be published in July.

The sessions will include an overview of the objectives that underpin the public works contracts, a summary of the review process itself, the rationale behind the interim amendments and detailed descriptions of the amended conditions of contract.  The sessions will also provide an opportunity to put questions to representatives of the GCCC on the conditions of contract and other aspects covered by the Capital Works Management Framework.

The venues and dates are as follows:

Each date will consist of a morning and afternoon session.  The morning session, from 10.00am to 1.00pm, is for public sector officials directly involved in the delivery of public works contracts either in contract administration or contract management.  The afternoon session, from 2.00pm to 5.00pm, is primarily for contractors and consultants.

The Information Sessions are free of charge but places are limited and will be allocated on a first come, first served basis.  Admission will only be possible with a booking confirmation that will be issued by email.

Please bring a copy of your email confirmation with you on the day.

To register for one of the Information Sessions please click on the link below.

Registration for Information Sessions

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.

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.

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.

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

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.

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.

Changes have been made to the incorrect default values in the Schedule ‘Part 1 E – Performance Bond’ of the FTS-5 (v1.6 01/05/2013) and PW-CF5 Schedule (01/05/2013).

The default value for Performance Bonds for contracts using the Minor Works Contract is now 12½% and for Substantial Completion is 6.25%:

Significant changes have been made to the pre-qualification and tender documentation for construction-related service providers. The changes to the pre-qualification process are to streamline the procedure for both applicants/tenderers and for contracting authorities. The assessment methodology for awarding contracts set out in the tender documents (Section 9.5 in the Instructions to Tenderers) has been amended to ensure that quality is the deciding factor in the award of contracts for service providers.

Two standard pre-qualification questionnaire templates have been developed; one for a restricted procedure and the other for an open procedure. They are based upon the QC 1 and QC 2 forms but have been modified to integrate the Safety and Health assessment and a facility to declare certain criteria into a single form. This innovation permits the withdrawal of supplements 3.4.1 (Health and Safety Competence of Designer), 3.4.2 (Health and Safety Competence of PSDP) and 3.4.3 (Health and Safety Competence of PSCS) since these Safety and Health criteria will now be assessed under the new QC 1 and QC 2 forms. These new forms are designed to provide greater flexibility in their use and as a result QC 3 (Independent PSDP) and QC 4 (Independent PSCS) have been withdrawn.

Contracting authorities will decide which criteria in any qualification process may be self-declared by the applicant/tenderer and which criteria require the evidence supporting the applicant’s/tenderer’s claims that they meet the standard set out in the questionnaire.

The changes to the forms will require Safety and Health declarations to be provided prior to appointment as against at the pre-qualification stage and to reflect this, three new model forms; MF2.4, MF2.5 and MF2.6 for general service providers, PSDP and PSCS roles respectively, have been included under the Model Forms section of Pillar 2. The requirement to submit these declarations (where required) has been included in the Particulars to the Instructions to Tenderers and in the Letter to Successful Tenderer.

Guidance Note GN1.6.3 – Prequalification of Consultants using Minimum Standards for Suitability Criteria sets out suggested minimum standards to be used in the suitability assessment questionnaires for service providers.

The amendments are set out in greater detail below:

The following amendments are being made to documents under Pillar 2 – Instructions to Tenderers (Services):

Pillar 2

The following amendments have been made to the Instructions to Tenderers (Services) ITT S1a, ITT S1b, ITT S2a and ITT S2b:

Section 9.5 Assessment Methodology –

subsection (a) changed to state the minimum requirements that a tender must achieve under quality criteria

subsection (d) – formula to give ‘price’ score has been amended to deduct 0.5% of the total marks available for price for every 1% difference between the lowest eligible tender and the tender under consideration. A written formula has also been included.

subsection (e) – has been amended to provide that the tenderer who scores the highest marks for quality when all criteria have been taken into consideration is given the maximum marks available for quality. A formula is then provided to ensure that all other tenderers have their score adjusted proportionately.

subsection (f) – a formula has been provided to ensure that the overall marks awarded to tenderers reflects the Quality : Price Ratio set out in the Particulars. A section has been included to describe the circumstances where two or more tenderers may have the same score at the end of the evaluation process.

Section 10.2 Notification

This section has been amended to take account of the new suite of notification letters, which are now available on the Capital Works Management Framework under Pillar 2 – Model Forms – Notification Letters

Section 10.3 Letter to Successful Tenderer

This section has been changed to reflect the removal of the Letter of Intent and its replacement with the Letter to the Successful Tenderer included in the new suite of notification letters referred to above.

Model Forms MF2.1, MF2.4, MF2.5 and MF2.6

MF2.1 Professional Indemnity Insurance Certificate has had some minor amendments – formatting only.

MF2.4 Health and Safety Compliance Declaration by all general service providers is a new Safety and Health declaration to be provided by a service provider who may be considered a ‘designer’ under Regulation 2 of the Safety, Health and Welfare at Work (Construction) Regulations 2006 – 2013. This declaration must be signed and returned by the successful tenderer prior to appointment.

MF2.5 Health and Safety Compliance Declaration by PSDP/HSC is a new Safety and Health declaration to be provided by a service provider to be appointed to the role of Project Supervisor Design Process under the Safety, Health and Welfare at Work (Construction) Regulations 2006 – 2013. This declaration must be signed and returned by the successful tenderer prior to appointment.

MF2.6 Health and Safety Compliance Declaration by PSCS is a new Safety and Health declaration to be provided by a service provider to be appointed to the role of Project Supervisor Construction Stage under the Safety, Health and Welfare at Work (Construction) Regulations 2006 – 2013. This declaration must be signed and returned by the successful tenderer prior to appointment.

Pillar 3

Suitability Assessment Questionnaires for Service Providers – QC 1 and QC 2 both version 2.0

QC 1 v2.0 – Suitability Assessment Questionnaire for the restricted procedure includes changes to the pre-qualification process for service providers. The form structure remains familiar to users however this belies the substantial change to the document which now incorporates the Safety and Health Supplements into a single form that is intended to be signed by the Principal Service Provider declaring that they meet those qualification criteria that the contracting authority has set out as appropriate for self-declaration. As a result, contracting authorities are now required to generate a separate SAQ for each Principal Service provider.

QC 2 v2.0 – Suitability Assessment Questionnaire for the open procedure includes similar amendments to those outlined for QC 1 v2.0 outlined above.

The Employer Notes for QC1 and QC2 have been updated to reflect the changes.

QC 3, QC 4 and Health and Safety Supplements 3.4.1 (Health and Safety Competence of Designer), 3.4.2 (Health and Safety Competence of PSDP) and 3.4.3 (Health and Safety Competence of PSCS) have all been withdrawn.

Appendices C1 and C2 which are Health and Safety Declarations have also been withdrawn.

Pillar 4

New guidance note GN1.6.3 – Prequalification of Consultants using Minimum Standards for Suitability Criteria

This new guidance note sets out suggested minimum standards to be used in the suitability assessment questionnaires for service providers.