1. Amendments to the Public Works Contracts
7 March 2017

2. Amendments to the PWC’s
Primacy of Bill of Quantities
Specialist Work Packages
New Dispute Management Procedures

3. Bill of Quantities – A return to Primacy
(Guidance Note 1.5.3)

4. The Need for Change Schedule Part 1K17 – No
Errors between Works Requirements and BoQ at Contractor’s risk
Measures and descriptions were inadequate
Accuracy of drawings were not tested at tender stage
Contracts being tendered not fully designed with an under-measured/under-descriptive BoQ
Price certainty?!

5. Making Contracts “With Quantities”
Fully measured BoQ is mandatory for Employer Designed Projects
Employer retains the risk of errors in the BoQ
The BoQ is the primary reference for pricing purposes – no other document is to be included in the Pricing Document

6. Inconsistencies - Cl1.3.4
Inconsistencies between the Works Requirements and the Pricing Document
resolved by an instruction from the ER.
Works Requirements takes precedence and a Compensation Event may arise in accordance with the Schedule, Part 1K(17).

7. Resolution of Inconsistencies Works Item
Works Item described in the Works Requirements but not in BoQ
The Contractor will be required to complete the Works Item, if so directed by the ER, and shall be entitled to an adjustment to the Contract Sum
The ER may direct the Contractor not to complete the Works Item, and there shall be no adjustment to the Contract Sum

8. Resolution of Inconsistencies Works Item
Works Item described in BoQ but not in the Works Requirements
The ER may direct the Contractor to complete the Works Item but the Contractor shall have no entitlement to an adjustment to the Contract Sum
The ER may direct the Contractor not to complete the Works Item, and the ER or Employer shall be entitled to adjust the Contract Sum

9. Resolution of Inconsistencies Quantities
Both the Works Requirements and BoQ include the Works Item but an inconsistency in the quantities exists.
If the ER directs the quantity shown in the Works Requirements to be completed, the Contract Sum may be adjusted
If the ER directs the quantity shown in the BoQ is to be completed, the Contract Sum shall not be adjusted

10. Other Risk Allocation
Overall risk allocation in Schedule 1K must be considered e.g.
‘unforeseeable ground conditions’ is contractor risk
Unforeseen ground encountered resulting in quantities of work increasing or decreasing
K(19) overrules K(17) and a Compensation Event shall not arise
The BoQ Preliminaries Section shall detail the allocation of risks, as per Schedule 1K

11. Related Issues Clause 4.4 – ER Communications
Clause 4.5 – Instructions
Clause 4.11 – Contractor to request instruction
Clause 10.3 – condition precedent remains
Schedule 1K (1), (9), (17) – €500

12. Specialist Works Procurement

13. Specialists and Employer
Appointment subject to varying levels of involvement
Little or no engagement – e.g. tax compliance, i.e. sub contractors not specialists
Sets pre-qualification standards
Direct tendering of specialist works
Successful specialist tenderer → novated to contractor
Naming successful specialist → appointed by contractor as sub-contractor (nomination?)

14. When should named Specialists be considered?
Early engagement is necessary,
Detailed design required for Works Requirements
Specialist required to undertake portion of their works in advance of main contractor agreement
Value of single specialist works exceeds 15% of overall pre-tender estimate for the works
Not possible to accurately define the specialist works enable it to be tendered as part of main contract

15. Types of Specialist Employer designed works:
Reserved Specialist
Novated Specialist
Contractor designed works:
D&B Specialists

16. The Appointment Process for Reserved Specialists

17. Identify successful Reserved Specialist tenderer
specialist candidates
Shortlist main
contract and
Award contract to successful tenderer for main contract
Identify successful Main Contract tenderer
Reserved Specialist tender deadline
Main Contract tender deadline
Main Contract tender 1
Evaluate tender 3
Standstill
Specialist tender 2
Evaluate tender 4
Standstill 5
Contract
admin 6

18. Reserved Specialists Restricted procedure used to pre-qualify both
main contractors; and
specialists
Specialist contract in NN CIF

19. Novation – Specialists
Employer tenders the specialist work
Informs tendering specialists that its intention is to novate
Must provide novation agreement and collateral warranty
Specialist and contractor enter contract
Form of contract dependent on CWMF guidance

20. Novation – Main Contractor
Employer tenders for Main Contractor
Informs Main Contractor of novation
Novation agreement
Identity of specialist
Programme for novated specialist works

21. D&B Specialists Extent of contracting authority’s involvement:
Sets appropriate pre-qualification criteria/standards that proposed specialists must meet
Establishing pre qualification panel of specialists
Novation – where specialist is required in advance of contractor appointment

22. Main Contract Pricing

23. Main Contract Pricing
Schedule Part 1F(iii) sets out the named Specialist Works Packages:
Reserved Sums and Contract Sums (for Novated Specialists) are to be provided in the Pricing Document
Pricing Documents (unpriced) for each of the named Specialist works packages should be provided in the main contract Pricing Document

24. Main Contract Pricing
Pricing Document must include items to allow for the pricing of the following:
General attendances – lump sum items
Special attendances defined as required – lump sum items
Contractor’s management, risk acceptance and indirect overhead costs – lump sum item
Contractor’s profit – percentage of Specialists Reserved/Contract Sum
Lump sum items priced less than zero will be deemed to be zero and negative percentages will be treated as zero per cent

25. New Dispute Management Procedures

26. The Dispute Management Procedure
The Project Board:
Members stated in Schedule Part 1A
1-3 members nominated from each side
Function of Project Board:
review disputes referred to Clause 13.1
and determinations only
No authority to review any other such dispute or may arise
Must have capacity and authority to negotiate binding agreements

27. The Dispute Management Procedure
Project Board must meet at least every 60 days to review disputes referred to it
All binding agreements reached must be signed by the Employer and the Contractor
If no agreement is reached, the Board shall on the next working day, notify the parties of the failure to resolve dispute

28. Standing Conciliator When Contract Value is in excess of €10m
Appointed by the Parties
When Contract Value is below €10m
Employer has option of requiring a Standing Conciliator to be appointed by the Parties
Can chair the Project Board and advise/draft binding agreements
Reserved sum shall be included in the Pricing Document – 50% of fee

29. Questions? Pauric Marray
London
+44 (0)
Dublin
+353 (0)
Belfast
+44 (0)
Jeddah
+966 (0)