CWMF Covid19 Guidance and Templates

The Office of Government Procurement (OGP) has today published updated versions of the CWMF template public works contracts.

These contract forms now include a new ‘Covid-19 Mandatory Closure’ clause which provides Employers and Contractors with a clear process to extend time and, where appropriate, share certain costs in the event of a mandatory closure of a site due to Covid-19. These contract amendments are designed to provide certainty to both parties in the event of such a closure and enable the more accurate pricing of risk in public works tenders.

In addition to updated public works contracts, the OGP has also today published amended Forms of Tender and Schedules (FTS1-5) and guidance notes, one new Model Form (MF 1.31, Site Closure Costs Supplement), and one new guidance note (GN 1.5.4, Covid-19 and the Public Works Contracts) in order to fully implement the Covid-19 clause. The new guidance note, GN 1.5.4, may be referred to for a full introduction and guide to the operation of the clause.

Click here for full list of amendments 

On 30 March 2021, the Government announced the phased easing of the public health measures first introduced in January 2021. Amongst other measures, these regulations require the continued closure of all non-essential construction sites until 4 May 2021. Certain categories of construction project will, however, be permitted to re-start works from 12 April 2021.

In consideration of the financial burden this further period of site closure will place on Contractors, the OGP has today published a note recommending that Employers consider extending the ex gratia relief previously proposed by the OGP until 4 May 2021 (or, if earlier, the permitted date of site re-opening).

This note is the fourth in a sequence of notes supplementing guidance first published by the OGP on 12 February 2021 and provides guidance for all contracts entered into either before, on, or after 14 April 2020. The note is available for download below.

Supplementary Note 4 – January 2021 Public Health Measures 

On 5 March 2021, the government extended the public health measures first introduced in January 2021 until 5 April 2021. Amongst other measures, these regulations require the closure of all non-essential construction sites.

In consideration of the continuing financial burden this additional period of site closure will place on Contractors, the OGP has today published a note recommending that Employers consider extending the ex gratia payments previously proposed by the OGP until 5 April 2021.

This note is the third in a sequence of notes supplementing guidance first published by the OGP on 12 February 2021 and provides guidance for all contracts entered into either before, on, or after 14 April 2020. The Note is available for download below.

Supplementary Note 3 – January Public Health Measures

Today, the OGP has published model forms of the Covid-19 Site Closure Supplemental Agreement, which are compatible for use with standards forms of PW-CF6 and PW-CF7 respectively. These should be used in conjunction with the supplementary guidance notes (as appropriate to the date that PW-CF6 or PW-CF7 contract was made) and the Covid Costs Notices published by the OGP on 26 February 2021.

For PW-CF6 and PW-CF7 contracts made before 14 April 2020, the following model forms should be used: 

• Covid-19 Site Closure Supplementary Agreement  for PW-CF6 contracts made before 14 April 2020
• Covid-19 Site Closure Supplementary Agreement  for PW-CF7 contracts made before 14 April 2020

For PW-CF6 and PW-CF7 contracts entered into on or after 14 April 2020, the following model forms should be used:

• Covid-19 Site Closure Supplementary Agreement for PW-CF6 contracts made on or after 14 April 2020
• Covid-19 Site Closure Supplementary Agreement  for PW-CF7 contracts made on or after 14 April 2020

On 12 February 2021, the OGP published guidance to Contracting Authorities party to the standard forms of Public Works Contract regarding the public health measures introduced on 8 January 2021. Amongst other measures, this guidance recommended these Contracting Authorities consider a scheme of ex gratia payments be made to Contractors affected by site closures under the public health measures. Today, the OGP has published a series of supplementary guidance documents and model forms of Supplemental Agreements in order to give effect to this proposed ex gratia scheme. 

For standard forms of PW-CF1 to PW-CF5 Public Works Contracts entered into before 14 April 2020, and for which the Covid Co-operation Framework published on 9 July 2020 is available, the following three documents should be used:

• Supplementary Note 1 – Guidance for ex gratia payments for Contracts made before 14 April 2020
• Covid-19 Site Closure Supplemental Agreement for PW-CF1-5 Contracts made before 14 April 2020
• Covid Closure Costs Notice  for Contracts made before 14 April 2020

For standard forms of PW-CF1 to PW-CF5 Public Works Contracts entered into on or after 14 April 2020, the following three documents should be used:

• Supplementary Note 2 – Guidance for ex-gratia payments for Contracts made on or after 14 April 2020
• Covid-19 Site Closure Supplemental Agreement for PW-CF 1-5 Contracts made on or after 14 April 2020
• Covid Closure Costs Notice for Contracts made on or after 14 April 2020

On 6 January 2021, the Government announced public health measures aimed at limiting the spread of the Covid-19 pandemic (the “closure order”).  Inter alia, the public health measures required non-essential construction sites to close between 6pm on 8 January 2021 and 31 January 2021.  On 26 January 2021, the closure order was extended to apply  until 5 March 2021. 

The OGP has today published a Note on Public Works Contracts and January 2021 Public Health Measures that:

1. Outlines the provision for delay and cost in the standard forms of public works contracts (“Public Works Contracts”) arising from the current circumstances for those sites impacted by the closure order (“affected pwc construction sites”);
2. Sets out recommendations for ex gratia payments by Employers to Contractors in relation to affected pwc construction sites where the works were procured using Public Works Contracts*; and
3. Provides advance notice of a forthcoming amendment to the  Public Works Contracts for future contracts.

*Supplementary guidance and other material will be published separately.

As in its Covid related 2020 publications, the Office of Government Procurement (OGP) continues to encourage Employers and Contractors to take a collaborative approach to dealing with the impacts of the closure order on public works contracts.

In consideration of the impact the measures required by the Return to Work Safely Protocol (the ‘Protocol’), published on 9 May 2020, may have on works programmes, the OGP has today published a Note: Guidance on Protocol Measures in Live and Future Tenders providing guidance for Contracting Authorities regarding both ongoing and future works and works-related services tenders. This Note provides guidance for three scenarios: 

1. 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.
2. Where the tender process was initiated before publication of the Protocol and the deadline for receipt of Tenders has not yet passed.

Where the tender process has not yet commenced.

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 (PW-CF1 to PW-CF7) 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.

Letter Agreement 

• Letter Agreement for use with PW-CF1-5 – v1.0
• Letter Agreement for use with PW-CF6 – v1.0
• Letter Agreement for use with PW-CF7 – v1.0

Covid Notice 

This is an editable version of the Covid Co-operation Framework Covid Notice, which is appended to the Letter Agreement. Note that this Covid Notice is compatible with all three Letter Agreements provided above. 

Further guidance on the use of the Covid Co-operation Framework can be found in the Note: Covid Co-operation Framework – 24/06/2020 published previously.

The OGP has also published today an Addendum to 24 June 2020 Note Covid Co-operation Framework – 09/07/2020 providing guidance on the use of the Covid Co-operation Framework in conjunction with PW-CF6 and PW-CF7.

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.

24 June 2020 Note: Covid Co-operation Framework 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.

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 Office of Government Procurement (OGP) has today published a short note: Note and Template for Engagement between ER and Contractor – 14/05/2020, which includes a template pre-start checklist for use by Employer’s Representatives (ER) operating under the standard conditions of various forms of public works contract.

This is an editable version of the Pre-start Checklist for Engagement between ER and Contractor- 14/05/2020, which is appended to the Note. 

On 1 May 2020, the Government further extended the Public Health Measures (and the Regulations) from 5 May 2020 until midnight of 17 May 2020.

The OGP has today published two documents:

• Update 2 to Note on procurement and contractual matters associated with the Covid-19 Response Measures 

This is a further update to the Covid-19 procurement note originally published on 19 March and subsequently updated on 14 April (“Update 1”). The latest update to this note, 08 May 2020 – Update 2 to Note on procurement and contractual matters associated with the Covid-19 Response Measures, replaces the note of 14 April 2020. 

• Form of Letter Agreement for Applicable Period 2 

Model Form of Supplemental Letter Covid19 Agreement (Applicable Period 2) is the form of letter agreement referenced in the updated note, above.

Following the publication on 14 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 Supplemental Letter Agreement Covid-19 – v1.0 to be used for a Covid-19 Ex Gratia payment by the Employer.

 Following the announcement by the Government that the Public Health Measures (originally announced on 27 March 2020) are to continue until May 5 2020, the OGP published Update 1 to Note on Covid19 – 14/04/20, which is an update to Note on procurement and contractual matters associated with the Covid-19 Response Measures.

This Note replaces the note previously published by the OGP on 19 March 2020 in response to the public health measures announced by the Government on 12 March 2020.

The purpose of 19 March 2020 – Note on procurement and contractual matters associated with the Covid-19 Response Measures 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.