News Archive – 2014

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:

transposition_of_the_new_public_procurement_directives_-_consultation_document.pdf

summary_document.pdf

7 October 2014 – Term Maintenance and Refurbishment Works Contract Form of Tender and Schedule (FTS12 v1.2 07/10/2014)
Page 2 of the Term Maintenance and Refurbishment Contract Form of Tender and Schedule has been amended to read ‘Term Maintenance and Refurbishment Works Contract’, which corrects a previous reference to ‘Short Public Works Contract’.

Version 1.1 dated 12 December 2013 has been archived.

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

19 August 2014 – Revisions to Supplements 3.4.2 to Suitability Assessment Questionnaires for Works Contractors QW1 and QW3 (dated 27 January 2014)
The reference to Appendix G in QW1 3.4.2a (ii) and 3.4.2b (ii); and QW3 3.4.2b (HS) (ii) have been amended to Appendix H.

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.

QW3 Appendix C1 dated 27 January 2014 has been revised to refer to Specialists/Specialist as PSCS Appointments and not to Contractor or PSCS Appointments.

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’.

9 May 2014 – Performance of Public Works Contracts Questionnaire

1 May 2014 – Removal of Model Forms Compendium (MF 1.0 v1.1 31/3/2010):
Model Forms Compendium (MF1.0 v1.1 31/3/2010) has been removed from ‘Pillar 1- Model Forms’ and has been archived under ‘Archives – Pillar 1’ on the website

6 March 2014: Building Control (Amendment) Regulations 2014 – Procurement Implications for Contracting AuthoritiesThe Building Control (Amendment) Regulations 2014 (the Regulations) apply to all buildings and works for which a Commencement Notice is submitted after 1 March 2014. The Regulations have implications for contracting authorities when procuring service providers and works contractors for public works projects. Guidance note GN 1.1.1, published today, is drafted to provide advice to contracting authorities in procuring the new roles set out in the Regulations for projects that have yet to go to tender and for those where the design team and Contractor may already be appointed but the Commencement Notice is not yet lodged. Amendments to the template documents published under the Capital Works Management Framework will follow shortly and in the interim contracting authorities are asked to read the guidance and incorporate the suggested procedures into existing and future tender competitions.

Link To: GN 1.1.1 v1.0 06/03/2014

27 January 2014 – Revisions to Public Works Contract Documents to reference the Safety, Health and Welfare at Work (Construction) Regulations 2013.
The following documents for Public Works Contracts (Pillar 1) have been revised to reference the Safety, Health and Welfare at Work (Construction) Regulations 2013. The link to the HSA website in Appendices C1 and C2 have also been updated.

Contracts:
PW-CF1
PW-CF2
PW-CF3
PW-CF4
PW-CF5
PW-CF6 and PW-CF 6 Appointment of Project Supervisor
PW-CF 7 Appointment of Project Supervisor
PW-CF 8 Appointment of Project Supervisor
PW-CF10

Model Forms:
MF10

Instructions to Tenderers:
ITTW1
ITTW2
ITTW3
ITTW4
ITTW5

Pillar 3 Questionnaires:
QW1 and Supplements 3.4.1 to 3.4.4
QW2 and Supplements 3.4.1 to 3.4.4
QW3 and Supplements 3.4.1 to 3.4.2
Appendices C1 (QW1-QW3)
Appendices C2 (QW1 and QW2)

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

The Arbitration Rules for use with Public Works and Construction Services Contracts (AR1) have been comprehensively revised in line with the Arbitration Act 2010. The revised rules must be used with all applicable contracts awarded subsequent to a tender deadline date of Friday, 24 January 2014. They may be used on contracts awarded prior to that date subject to the agreement of both parties. Some notable changes include:

• The Department of Public Expenditure and Reform reserves the right to publish the details of arbitration awards for disputes referred under the conditions of the public works contracts.
• The introduction of a three person arbitral tribunal by agreement between parties; or where the amount in a dispute exceeds €10m.
• Defined time periods for parties to submit a statement of case and statement of defence where appropriate.
• References have been included in the Rules to Sections of the Arbitration Act 2010 and Articles of the UNCITRAL Model Law.

The following documents have been revised.

Pillar 1 – Contracts:

PW-CF1 Schedule dated 1/05/2013
PW-CF2 Schedule dated 1/05/2013
PW-CF3 Schedule dated 1/05/2013
PW-CF4 Schedule dated 1/05/2013
PW-CF5 Schedule dated 18/07/2013
PW-CF7 Schedule dated 1/05/2013
PW-CF10 Schedule dated 29/08/2011

Pillar 1 – Forms of Tender and Schedules:

FTS1v1.6 dated 1/05/2013
FTS2v1.6 dated 1/05/2013
FTS3 v1.7 dated 1/05/2013
FTS4 v1.7 dated 1/05/2013
FTS5 v1.7 dated 18/07/2013
FTS7 v1.3 dated 1/05/2013
FTS11 v1.1 dated 1/06/2012

Pillar 1 – Arbitration Rules:

AR1.0 v1.0 dated 28/07/2009

Pillar 2 – Standard Conditions of Engagement:

COE1 Schedule dated 18/03/2011
COE2 Schedule dated 26/02/2013

Pillar 2 – Forms of Tender and Schedules:

FTS9 v1.3 dated 18/03/2011
FTS10 v1.2 26/02/2013

Pillar 2 – Arbitration Rules:

AR1.0 v1.0 dated 28/07/2009

The following CWMF Guidance Notes will be updated shortly to reflect the revisions.

• GN 1.0
• GN 1.5
• GN 1.7
• GN 3.1
• GL 1.0

2 January 2014 – Revision of Public Procurement Directives’ thresholds with effect from 1 January 2014:The EU Commission has revised the Public Procurement Directive’s thresholds resulting in an increase in the thresholds for advertising in the Official Journal of the EU which comes into effect on 1 January 2014.

Regulation (EU) No 1336/2013, revising the EU thresholds for the next two years, was adopted on 13 December 2013.

The thresholds will apply from 1 January 2014. The details are set out in the attached table. EU Thresholds for advertising in the Official Journal of the EU applicable from 1 January 2014.

The following CWMF Guidance Notes will be updated shortly to reflect the EU thresholds which are effective from 1 January 2014 to 31 December 2015:

• GN 1.4 – Procurement Process for Works Contractors (v 1.1 – 17/01/2012

• GN 1.5 – Public Works Contract (v1.4 – 01/05/2013)

• GN 1.6 – Procurement Process for Consultancy Services (Technical) (v1.2 – 17/01/2012)

• GN 1.6.1 – Suitability Assessment of Service Providers, Restricted Procedure (v1.1 – 17/01/2012)

• GN 1.6.2 – Suitability Assessment of Service Providers, Open Procedure (v1.2 – 17/01/2012)

• GN 1.6.3 – Suitability Assessment of Construction Service Providers – Minimum Standards for Suitability Criteria

• GN 2.3 – Procurement Process for Works Contractors (v 1.2 – 17/01/2012)

• GN 2.3.1 – Suitability Assessment of Works Contractors, Restricted Procedure (v1.1 – 17/01/2012)

• GN 2.3.2 – Suitability Assessment of Service Providers, Open Procedure (v1.1 – 17/01/2012)