1. Tim Ahern Consultancy Ltd. tim. ahern2@gmail.com Tel; 0872445462
-PWC Contracts- Project Boards & Standing Conciliator Practical experience
Tim Ahern
Tim Ahern Consultancy Ltd tim Tel;

2. Background to use of Conciliation in Ireland
1995 FCI proposal to draft a bespoke “Irish FIDIC” Form
1995 First IEI Conciliation Procedure published
Draft “Irish FIDIC” as published has Conciliation rather than Cl. 20 DAB
2000 “Irish FIDIC” used by NRA with a Standing Conciliator
2006 Use of PWC Forms mandatory ( DB Forms introduced)
PWC Forms have Clause 13 Conciliation
NRA use PWC DB Forms but with Conciliator appointed at outset
2016 Standing Conciliator & Project Board in PWC

3. Engineers Ireland CONCILIATION PROCEDURES
All EI Procedures have a primary objective of settlement by agreement
Recommendation only if agreement not achieved
2000 Recommendation may be rejected by either Party
2002 Parts A (traditional) & B ( Irish FIDIC)
Procedures- EI Mediation; Conciliation; Adjudication
2007 Conciliation Procedure for use with PWC
2013 Conciliation Procedure
2016 Standing Conciliator- ???

4. PWC 2016 Project Board mandatory on projects over €5m
Standing Conciliator mandatory on projects over €10m
Standing Conciliator discretionary between €5m & €10m

5. Schedules to form of tender
1A: ( Completed by Employer before Tender) Number of Project Board Members specified
1N: SC shall be named in 3C and appointed prior to the Starting Date
1N ; Amount for SC fees in Pricing Document may be adjusted prior to the issue of the Letter of Intent
1N: Appointment of SC “ should be executed using Model Form MF1.18”
3A: Names and details of ALL PB Members must be entered prior to issue of Letter of Acceptance (Contract Date)
3A : Format & procedures to be agreed at meeting held “prior to the Starting Date”

6. PWC Contract 4.15.4 PB Members identified in Schedule 3A
Either Party may refer dispute to Project Board
13.1.2(1) PB meets at least every 60 days
13.1.2(2) “unresolved disputes” must be notified to Parties by next Working Day--> 14 days to refer to Conciliation
13.3 If dispute referred to Adjudication then procedure “adjourns”
( if determined under adjudication then procedure “terminated”)

7. Disagreements v disputes
ICC 2015 Rules
‘Disagreement’ means any difference between the Parties arising out of or in connection with the Contract that has not yet become a Dispute, including Disagreements that are subject to avoidance under Article 16 of the Rules or informal assistance under Article 17 of the Rules.
‘Dispute’ means any Disagreement that is formally referred to a Dispute Board for a Conclusion under the terms of the Contract and pursuant to Article 18 of the Rules.

8. Possible pwc route
Event that might lead to a claim = POTENTIAL DISAGREMENT
Contractor ‘considers’ he may have a Cl. 10 Claim = DISAGREEMENT. This Disagreement should be discussed with SC before any Cl. 10 Notices issue
SC may be asked to give his opinion on the Disagreement
Contractor submits his 10.3 Notice ( but not before the issue has been discussed with SC)
Clause 10 time limits now apply
Contractors claim is rejected (ER Determination) and ER Determination rejected = DISPUTE
DISPUTE referred to STANDING CONCILIATOR now acting as Cl. 13 CONCILIATOR

9. Standing Conciliator PWC –”intent”
GN 3.1.1
The intention behind the introduction of the SC is to encourage proper engagement between the Parties to assist the Parties in the avoidance of disputes, to assist the Parties in avoidance of costly and lengthy formal dispute resolution procedures, and to assist the Parties to establish agreement upon issues before they crystallise into a dispute. If a dispute arises, the SC will act as conciliator as set out in of this guidance.

10. Standing Conciliator under the contract
Read the detailed programme submitted before the Starting Date (4.9.1)
Read revised programmes directed by the ER (4.9.3)
Read monthly progress reports (4.10.1)
Familiarise itself with the monthly progress report elements listed in
Read minutes ,and objections thereto, of meetings (4.15.2)
Communicate on a “without prejudice’ basis with the Project Board (13.1.2(3))
May assist in drafting agreements (13.1.2(15)
May attend or chair Project Board meetings ( (6))
May give advice or opinion on disputes referred ( (7))
Take the place of the conciliator under Clause (13.2)

11. Standing Conciliator under GN 3.1.1
Shall be issued a complete set of the Contract Documents
Shall attend site on a regular basis to ensure adequate project oversight and gain a standing knowledge of the relationship between the parties prior to the crystallisation of any disputes.
Shall be included on correspondence surrounding clause 4.9 (Programme); 4.10 (Progress Reports) & 4.15 (Meetings) from each Party.
May be included in any other correspondence , circulated with amendments to Works Requirements, Contractor’s Proposals and/or any documents in the Contract Documents.
Shall regularly review all correspondence and documents received from the Parties and confer with the Parties where he deems it necessary or is requested to so do.
Shall take the place of the conciliator under sub-clause 13.2
May, with the agreement of both Parties, chair or be invited to attend Project Board meetings.
May, with the agreement of both Parties, informally assist in resolving any disputes.
May, with the agreement of both Parties ,offer views, without prejudice, on the likely outcome of a dispute under consideration for referral to conciliation.
May , with the agreement of both Parties, hold separate meetings with each Party to the Project Board.

12. Standing CONCILIATOR & Project board
Both Read the detailed programme submitted before the Starting Date (4.9.1)
Both Read revised programmes directed by the ER (4.9.3)
Both Read monthly progress reports (4.10.1)
Both Familiarise itself with the monthly progress report elements listed in
Both Read minutes ,and objections thereto, of meetings (4.15.2)
SC Communicate on a “without prejudice’ basis with the Project Board (13.1.2(3))
SC May assist in drafting agreements (13.1.2(15)
SC May attend or chair Project Board meetings ( (6))
SC May give advice or opinion on disputes referred ( (7))
SC Take the place of the conciliator under Clause (13.2)

13. Project Board membership
Minimum of 1 max. of 3 from each Party
Neither ER nor Contractor’s Rep. may be a member
All members must have authority to negotiate binding agreements
Sanctioning (funding authority) may be represented
Standing Conciliator may chair but is NOT a member

14. Project Board GN 3.1.1
“ The sole function of the Project Board is to review disputed ER Determinations issued under Sub-Clause and of the Conditions of Contract……….."
“The Project Board shall not review disputes arising under any other clause or sub-clause in the Contract or any dispute arising from the Contract or any dispute outside the Contract.”
shall not review disputes arising under any other clause or sub-clause in the Contract or any dispute arising from the Contract or any dispute outside the Contract.”

15. Project Board under Contract
….The Project Board shall only review disputes, formally referred to the Project Board, arising from sub-clauses and of the Contract. (4.15.3)

16. Practical impacts of sc arrival on site
Monthly visit by SC and Senior Management from both sides assists site level decision making.
Meetings between SC and Parties facilitates the assessment of alternative solutions
Arrival on Site of SC & PB generates activity/probem solving !
Early ‘opinion’ by SC as to how a future Claim might be determined by him acting as Conciliator can be helpful.
In the event of a Dispute the time scale is reduced ( no time required for ‘appointment’ and SC is familiar with project)
Late claims not discussed at the time lack credibility if introduced later

17. Options for standing conciliator
SC not a member of PB , but his Site visits should coincide with PB Meetings that he may be invited to attend.
SC should feel free to discuss issues with either Party alone or together ( these contacts may be PB Members)
SC should aim to be a catalyst for problem solving
Focus of all should be on efficient delivery of the project in the most cost effective manner and not on ‘dispute management.’

18. Summary of sc DUTIES Under the Contract
Be familiar with progress of the Works
Be familiar with Programme & Progress Reports
Review correspondence between Parties
But should he also ?
Asist in the avoidance of (potential) Disagreements
Assist in the avoidance of Disputes
Assist in resolution of Disputes
Act as Clause 13 Conciliator

19. Contradiction ? Project Board receives ; monthly Progress Reports
Details of Compensation & Delay Events
Programme updates
Selected correspondence
Also regularly visits site and meets Standing Conciliator (who may chair Project Board meetings)
BUT
Is discourage from discussing the information itself or with the Standing Conciliator.

20. APPROACHES ?
SC does not have any relationship with the PB other than attending PB Meetings ,if invited, when 10.5 Referrals are being discussed .
SC Chairs PB Meetings but terminates Meeting once “ Referrals” item on Agenda is over and then discusses “Disagreements” with the Parties (who may or may not be PB Members)
SC attends, when invited, part of PB Meetings to discuss;
10.5 Referrals
Potential “Disagreements”
All artificial but can be made work.

21. Summary
Definitions of ‘dispute’ & ‘disagreement’ similar to ICC Rules would be useful.
PB rules as they stand work for the Contracts below €10m where there is no SC.
SC does not replace ER’s decision making role.
SC will not solve your problems but may assist the Parties in arriving as sensible engineering solutions to engineering problems.
PB/SC must understand THEIR roles/relationship asap

22. Personal suggestions
SC SHOULD not BE a member of PB , but his Site visits should coincide with PB Meetings that he can be invited to attend.
SC should feel free to discuss issues with either Party alone
SC should aim to be a catalyst for problem solving
Focus of all should be on efficient delivery of the project in the most cost effective manner and not on ‘dispute management.’

23. conclusion
SC is a catalyst for more efficient delivery of the project.
BP encourages senior management overview of project
The primary aim is to identify & resolve issues before they have a negative impact on the progress of the Works.
The process have a proven track record
In my experience the presence on site of the SC/PB on a monthly basis has had a significant impact on the performance of the works.
Tim Ahern Tel. ( 087)

24. Tim Ahern consultancy Ltd.
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