This Practice Note sets out the reporting requirements to both the Client and the Department and the Department’s requirements for Post Contract Cost Control (in conjunction with the DTP-2012 Cost Control Procedures).
It also gives guidance on the administration of the Contract. Where a conflict exists between this guidance and the conditions of Contract, the conditions of contract take first precedence
1.2Public Works Contracts
The applicable contracts are:
PW-CF1 – Public Works Contract for Building Works designed by the Employer
PW-CF2 – Public Works Contract for Building Works designed by the Contractor (Design & Build)
PW-CF5 – Contract for Minor Building & Civil Engineering works designed by the Employer
PW-CF6 – Public Works Short Form of Contract
In all the above contracts the Works Requirements set out the building requirements and, in conjunction with the Contract, are the building requirements agreed between the Client and the Design Team. Change Orders should only be required for exceptional reasons (i.e. unforeseeable circumstances).
The Design Team objective for Stage 4 (Construction) is to administer the Contract effectively so as to achieve a high quality of construction and bring the project to substantial completion on time and within budget all in accordance with the conditions of contract and the Works Requirements.
All members of the Design Team are individually and collectively responsible for contract administration, post contract cost control, and complying with the reporting requirements set out in this document. Regular communication and information exchange between all members of the Design Team and with the Client is essential.
The Design Team Leader’s duties include overall Management /Coordination of the Construction Stage including ensuring that any information, communications documentation and/or reports are channelled through the Design Team Leader. In addition the Design Team Leader must also ensure effective communications between the relevant DT disciplines, and where such communications or responses are not effective implement corrective action including Client notification (if required)
1.5Construction Cost Control
Cost control during the construction stage is a continuous process, dictated in part by the quality and completeness of the design and tender documentation, and in part by the capacity of the Design Team and in particular the Employer’s Representative to minimise change and to anticipate any Contractual requirements for information.
Overall cost control during construction should be co-ordinated by the Design Team’s Quantity Surveyor in consultation with the other members of the Design Team and in particular the Employer’s Representative (usually the Architect). The Quantity Surveyor is responsible for the preparation of the Progress Reviews, Interim Valuations, cost review and recommendation on Change Orders, and Final Accounts.
The Consultant Mechanical and Electrical Engineer must provide information and advice (including relevant cost data) to the Employer’s Representative and Quantity Surveyor with respect to the mechanical and electrical services, including for the purposes of preparing Progress Reviews, Interim Valuations cost review and recommendation on Change Orders, and the Final Account for these works.
The Design Team (individually and collectively) are required to comply with the Post-Contract Cost Control procedures set out in DTP-2012 Cost Control Procedures (available at www.education.ie).
Client requested changes are not permitted (whether within the ER’s authority or not) without prior Department authorisation.
No changes are allowed which would affect the Schedule of Accommodation, Room Layouts, or materially change the Works Requirements unless previously discussed and agreed with the Department.
The Employer’s Representative [ER] does not have any discretion to authorise any change order (whether within the ER’s authority or not) for non-essential works or works which could have been reasonably foreseen
The ER must obtain both Client and Department authorisation (in writing) for any change outside the ER’s authority. The procedure for Department Communications (See Design Team Procedures 2012 4th Edition) must be followed.
While Department officials (either Administrative or Technical) may communicate with the client, Design Team and/or individual members of the design team and may provide advice and/or make suggestions, such advice and/or suggestions do not constitute authorisation or approval for additional funding
Requests for additional funding must be on the Department’s DTP-2012 Request for Additional Funding form (Available at www.education.ie) sent into the appropriate Department Officer in hard copy or in case of urgency by e-mail with a signed hard copy to follow by post.
Adequate time must be allowed for a considered response from the Client and Department. All authorisations for Additional Funding must come in writing from the appropriate Department Officer
The Design Team (individually and collectively) are responsible for any change orders arising from incomplete design and/or inadequate detailing (the standard required is that of reasonable skill and care) which either generate a compensation event and/or cause delays (whether within the 1st or 2nd threshold for delays or not).
Where the standard of reasonable skill and care was not applied, the Client reserves the right to recoup such costs (including consequential costs arising from such delays) from the Design Team and/or their Professional Indemnity insurance. Refer also to Design Team Procedures 2012 4th Edition - Performance Assessment.
2.1Discussion/meetings with Contractor
The ER and the Design Team are not permitted to enter any post-tender negotiations with the Contractor which have the effect of changing the Tender Sum or scope of works.
EXTRACT FROM GUIDANCE NOTE 2.3 (May 2011) (www.Constructionprocurement.gov.ie )
If a Contracting Authority seeks agreement at the pre-award stage of a contract with the winning tenderer on the value of the omission of non-essential work which would be deducted by means of a change order post contract award and that agreement is included in the contract, it would amount to negotiation post tender which is not permitted under the EU procurement rules and therefore such an agreement is not permitted.
The Design Team may however meet with the Contractor to discuss the project and matters relating thereto. (Refer to DTP-2012 Tender Action Stage 3)
Care should be taken to ensure that nothing in the listed post-tender clarifications constitutes post-tender negotiations. In particular there should be no change to the Contract Sum or scope of work. Proposed post-award change orders must not be included as clarification (Refer to DTP-2012 Tender Action Stage 3)
3.Employer’s Representative [ER]
The Design Team Leader (usually the Architect) will normally, but not necessarily, be the Employer’s Representative [ER]. The ER is identified in Schedule Part 1A of the works requirements
The limitations on the authority of the Employer’s Representative to perform its functions or powers under the Contract are as stated in the Conditions of Engagement for that consultant.
Unless otherwise stated, the maximum adjustment to the Contract Sum for a single Change Order must not exceed €2,000, and the maximum cumulative value over whole contract of adjustments to the Contract Sum for Change Orders in any 3 month period must not exceed 0.25% of the Contract Sum.
Likewise (Schedule Part 1A) the ER is not permitted to issue a change order causing or contributing to a reduction in safety, quality, usefulness, of the Project; or to waive any of the Client’s rights or the Contractor’s obligations under a Project construction contract without limitation to notice periods such as those set out in sub-clause 10.3 of the Public Works Contracts (PW-CF1 to PW-CF5).
The above limits to the ER’s authority are stated in the contract for the Contractor’s information only. (Under Clause 4.3.2 the Contractor must comply with any ER’s instruction whether within the limits or not.)
If the Employer’s Representative deliberately exceeds these limits (specified in the COE schedule) it is a breach of their Conditions of Engagement and the ER may be liable for costs arising there-from
The Employer’s Representative may delegate in writing to named representatives any functions or powers under the Contract and revoke any delegation. For example the Employer’s Representative may delegate limited powers to the Building Services Engineer to liaise with the Contractor in connection with the Mechanical and Electrical Installation.
However the Employer’s Representative may not delegate the power to issue instructions or change orders.
Again, for example where the Building Services Engineer has discussed and agreed in principle a recommend course of action with the Contractor, the Building Services Engineer must report to the Employer’s Representative who, if he/she deems fit (within his/her limitations), may issue the requisite instruction or change order.
Under Clause 4.5 the Employer’s Representative may give the contractor instructions, (in writing), which the Contractor must comply with, up to the date the Defects Certificate is issued. Instructions can be in the form of:
a direction (in accordance with the contract), or
a change order (changing the works requirements)
Instructions of the Employer’s Representative must be given in writing (Clause 4.5.5) except when there is imminent danger to safety or health or of damage to property, in which case the Employer’s Representative may give oral instructions, and shall confirm them in writing as soon as practicable.
It is very important to be clear as to the difference between a direction, a proposal and change order. A direction is an instruction within the contract (i.e. not changing the works requirements). A direction does not trigger a compensation event or a delay event.
If the ER gives an instruction and calls it a direction, but the Contractor considers that it is a Change Order, the Contractor must give notice (under sub-clause 10.3) before implementing the instruction, or otherwise (under the contract) it will be taken to be a direction.
If the ER gives an instruction that changes the Works Requirements, it is a Change Order.
The Employer’s Representative is not allowed give a Change Order under the contract (Clause 4.5.3) after Substantial Completion has been certified, except concerning defects or work to be done after Substantial Completion.
3.3ER requested Proposals
The ER may direct the Contractor to make proposals for a proposed instruction (Clause 10.4). It is important to do this in writing and to make it clear that this is not an instruction and that the Contractor has no authority to carry out the works (being the subject of the proposal) at that time.
It is important to make sure that the ER gives the Contractor adequate time to make the proposal and for the ER to consider those proposals without causing a delay to the project (if implemented).
It is also important to consider Contractor Submissions (arising from such requests for proposals) promptly. If the ER fails to respond within 10 days (Clause 4.7 - see below), the Contractor may take the view that there is no objection to the proposal and proceed to implement the submission whether agreed on not (Clause 4.7.7).
The Department’s authorisation for increased funding is required for all Change Orders outside the Employer’s Representative’s authority. This includes change orders arising from Contractor Claims and Employer Claims. Such authorisation must be sought in a timely manner to allow the Department to give a considered response.
Where (due to a failure to act with due diligence) a request for authorisation for increased funding is presented too late for a considered response or after the event the Design Team may be held responsible for costs arising there-from including costs consequential to the delay caused
Any such requests for authorisation must be presented on the Department’s Request for funding for proposed Change Order Form. The reason for the Change Order must be fully explained and justified with comment from the relevant Design Team member appended as appropriate. In particular, the Design Team must state whether the Change Order arises from a Client Requested change, a contractor claim, an employer claim (a credit), unforeseeable circumstances, a Design Team mistake, or the inadequacy of the Works Requirements.
Other than in exceptional circumstances, a change order arising from a Client Requested change will not be authorised (unless fully funded by the Client). Such circumstances may include Department authorised Brief changes. Work which could reasonable have been foreseen and included in the Tender Documents will not be authorised.
Where the change order arises from a contractor claim, the circumstances must be explained.
It must also be stated whether the amount requested is based on a final adjustment to the Contract Sum and Date for Substantial Completion of the Works (and any affected Section) or whether the amount is a determination by the ER in the absence of such agreement (Clause 10.6.3).
It is also necessary to state whether the claim arises from a Client Requested change, unforeseeable circumstances, a Design Team mistake, or the inadequacy of the Works Requirements.
Where the change order arises from unforeseeable circumstances the nature of those circumstances must be explained and why they could not have been foreseen.
In the case of Employer’s Claims, the reason why the work is not required should be stated.
It should also be confirmed that the omission of that work will not materially cause or contribute to a reduction in safety, quality, usefulness, of the Project (Schedule Part 1A); or have the effect of waiving any of the Client’s rights or the Contractor’s obligations under the contract
Where the change order arises from a Design Team mistake or the inadequacy of the Works Requirements the circumstances in which this arose must be explained.
In the absence of a clear indication of fault the cause will be attributed equally between all the design team members.
The agreement of all the Design Team members to the explanation should be confirmed.
The Employer’s Representative (as provided for in the Letter of Intent, and in Clause 4.9 of the Contract) should receive from the Contractor, before the Starting Date, a detailed programme, in the form set down in the Contract, that will permit effective monitoring of the works. The programme must allow reasonable periods of time for the Employer and the Employer’s Personnel to comply with their obligations under the Contract (the ER should check this prior to issuing a Letter of Acceptance).
Even if the Contractor proposes a reduced time for completion, the ER should not permit the Contract Period to be reduced (see DTP-2012 Tender Action)
If directed by the Employer’s Representative, the Contractor must submit a revised programme showing actual progress, and progress projected by the Contractor. Failure by the Contractor to submit the requested revised programme within 15 working days of being requested to do so will entitle the Employer to withhold from the Contractor 15% of any payment to be made to the Contractor until the revised programme is submitted (Clause 4.9.3).
As a general principle, the ER should think carefully before seeking a revised programme. Once the revised programme has been accepted (or noted) the ER and the Design Team are subject to the revised time-lines for the provision of Information. The revised programme might also contain certain proposals for recouping lost time (such as overtime or week-end working) which may result in a contractor claim against the Employer. The ER cannot reject a programme but may (Clause 4.9.3) require the Contractor to revise the programme to reflect actual or reasonably projected progress.
Detailed, up-to date, chronological contract records are vital. In particular, each request for a proposal (Clause 10.4), direction and change order (Clause 4.5) should be recorded. It is equally important to record actions, objections, Contractor claims, and client change orders reducing the Contract sum, all as soon a practicable.
It should be possible (in the event of a dispute) for the ER to consult the sequential Contract Records and verify as to whether a direction, change order or request for a proposal was issued, track whether an objection was made and determine unequivocally whether the action was authorised under the Contract or not.
4.3Contractor Progress reports
The Contractor is obliged to submit to the Employer’s Representative monthly progress reports, in the form set down in the Contract, within 7 days after the end of the month.
Each progress report (Clause 4.10.2) shall include (in particular but not limited to):
A detailed description of progress against the Contractor’s current programme
Details of when any instructions to be given by the Employer’s Representative will be required, and any that are outstanding
Details of when any Works Items or other things to be given by the Employer will be required, and any that are outstanding
Details of any Delay Events and Compensation Events that have occurred during the period, or are unresolved
Details of any accidents, injuries, hazardous incidents, environmental incidents, labour relations problems and public relations problems concerning or affecting the Works
Details of anything that might have an adverse effect on the execution of the Works, the steps the Contractor is taking or proposes to take to reduce those risks, and any steps that the Contractor proposes that the Employer or the Employer’s Personnel take to reduce those risks
Anything else relevant to a progress report that the Employer’s Representative directs.
Under anything else relevant the ER may request a statement showing the amount of wages and other payments due at the date of the request to and in respect of each worker, or, in respect of workers not employed by or otherwise working for the Contractor, ensure that their employer or the person for whom they are working does the same (Refer to Clause 5.3.4)
It’s a good idea to synchronise these reports with the site meetings and to use the information therein to record instructions, proposals and claims (including where such instructions, proposals or claims did not occur). See also Site Meetings below
The Employer’s Representative must schedule regular meetings attended by the Contractor’s Representative and the Employer’s Representative and attended by the Employer’s and Contractor’s personnel, as required. Within 5 working days after each meeting the Employer’s Representative shall issue minutes of the meeting to the Employer and the Contractor.
Where the Department is the Client copies of the minutes should issue to the Department also.
It is a matter for the ER (in co-operation with the other Design Team members) as to how site minutes and other contract records are kept. However the Design Team are reminded that the minutes of a site meeting are de facto a chronological record and that the opportunity exists to expand the meeting discussions (and records) to record each instruction (whether a direction or a change order), each proposal (whether Value Engineering or ER requested), each Contractor request for information, and each Contractor claim; and to track the progress of each item until mutually resolved. Equally it should be possible to confirm that because it was not recorded at the subsequent meeting.
Lastly the minutes must record the names of those in attendance (both Contractor and Design Team personnel)
5.1Value Engineering Proposals
The Contractor may give the Employer’s Representative a written Value Engineering proposal (Clause 4.8) that will, if adopted, either:
Reduce the contract sum
Accelerate the execution of the works, or otherwise be of benefit to the Employer, with no increase to the Contract Sum
The ER should make it clear to the Contractor (e.g. at 1st site minutes or as a post-tender clarification) that any Value Engineering proposal must be labelled as such. The cost of Value Engineering proposals should include design costs (by the Design Team), consequential costs and liability for delay.
There is no onus on the ER to accept any such proposal (or any proposal) whether there is a financial benefit or not.
The ER must, however, as soon as practicable, notify the Contractor whether the Employer agrees to or rejects a proposal. No proposal should be accepted which reduces the standard of construction from that specified in the Works Requirements.
If the proposal is rejected this shall be conclusive (i.e. the Contractor cannot re-submit it for re-consideration).
The ER (at his/her discretion) may indicate (in advance) that no value engineering proposals will be accepted and that the Contractor is required to build the project fully in accordance with the Works requirements. This course of action should only be taken if the Design Team is satisfied that the project as designed and described in the Works Requirements represents the best value for the client.
5.2Required Contractor Submissions
Under Clause 4.7, objections may be made by the Employer’s Representative to Contractor submissions within 10 working days of receipt of sufficient information to make a purposeful review of the matter. The Employer’s Representative may alter or withdraw an objection. The Employer’s Representative may make an objection on the grounds that to proceed:
would not comply with the contract
would have an adverse effect on the Employer or the public interest
would impose an obligation on the Employer that the Contract does not require the Employer to bear
would be contrary to a Legal Requirement
would have an adverse effect on the Contractors ability to comply with the contract
any other ground stated in the contract
The above grounds are very wide and should be used to the full to ensure that proposals (whether ER requested or not) are rejected if they would cause a reduction in the standard or cause additional costs whether directly or indirectly (e.g. consequential delays)
The Contract does not expressly provide for Contractor Proposals (other than Value Engineering Proposals and responses to the ER’s requests for proposals). Equally it does not exclude them.
As with Value Engineering Proposals there is no onus on the ER to accept any proposal, but it is still important to keep a record of such proposals and the date they were accepted or rejected. As with Value Engineering Proposals, the ER (at his/her discretion) may indicate (in advance) that no contractor proposals will be accepted and that the Contractor is required to build the project fully in accordance with the Works requirements.
The word substitution does not appear in the Contract and it would therefore seem that contractually it does not exist. (If a material complies with the Works Requirements, it’s not a substitution. If a material does not comply with the Works Requirements it’s a proposal which will, if implemented, give rise to a Change Order).
The issue of substitutions arises because of the way some specifications are written:
If the consultant states the name of a manufacturer’s product in the specification and adds the words “or equal approved”, he/she are inviting requests for approval of alternative products meeting the specification and must respond in a timely manner as with requests for information.
If the consultant states the output requirements of a material only or names of a manufacturer’s product in the specification and adds the words “or equivalent”, he/she is in effect stating to the Contractor that an equivalent manufacturer’s product (i.e. meeting the specification in all respects) is acceptable (without prior approval) and that the onus is on the Contractor to ensure that the material meets the standard required.
Such output requirements might include a requirement for a test or Agrément Certificate or Insurance backed guarantee or other means of proof of compliance.
For example an Engineer specifies the quality of concrete used in terms of the output of compressive strength and provides for a cube test to measure this output. He does not state a manufacturer’s name or the words “or equivalent”. He also specifies other restrictions e.g. working temperature, constituent materials and a methodology for verifying same.
See also DTP-2012 Preparation of Tender Documents
Where specifications are performance based (as above) the issue of substitutions and “approvals” does not arise. If the material complies with the specification in the Works Requirements, approval isn’t necessary (and should not be given).
As long as the Design Team is confident that the specification is clear and robust (and in accordance with the EU Directive on Technical Specifications), the ER may wish to respond to all contractor proposals (which are in effect substitutions) as follows:
the Contractor is required to construct the project in accordance with the Works Requirements
The Contractor must use materials that comply with the specification in all respect.
The ER will not issue “approvals” for proprietary materials or construction methods. A proprietary material or construction method in accordance with the Works Requirements does not need an approval.
Where the Contractor installs a proprietary material not in accordance with the Works Requirement (including not passing the specified test or not having the required certification and/or guarantee) the ER may issue a Direction to the Contractor to remove the defective material and/or work and to reinstate the relevant element with a material and method of construction in accordance with the Works Requirement at the Contractor’s expense
However where the ER fails to respond, or responds as above to a genuine request for information, or where (due to an inadequate specification) the consequences of such a response has the effect of reducing the standard, safety, quality, or usefulness of the Project, the ER shall be responsible for any consequential cost or delay arising there-from. The applicable standard for the Employer’s Representative is that of reasonable skill and care
5.5Requests for Information
The Works Requirements should provide sufficient information to the Contractor to construct the building without requests for additional information. However there is no requirement to furnish full detailed drawings for every part of the building particularly where the method of construction is self-evident. The Contractor and the Contractor’s Representative are expected to be competent and experienced in constructing buildings (They were pre-qualified or met the minimum suitability standard on that basis).
Requests for information should be presented in a timely manner (Clause 4.1.2.(4)). It is reasonable to refer to the detailed programme provided by the Contract, and from that determine whether a reasonable period of time has been allowed for the Employer and the Employer’s Personnel to comply with their obligations. It is also reasonable to note that in certain cases the latest reasonable time for delivery of the necessary information is later that stated by the Contractor.
The Contract states:
4.11.1 The Contractor shall give the Employer’s Representative at least 10 working days advance notice of the date by which the Contractor requires any instructions that the Employer’s Representative is to give, or Works Items or other things that the Employer is to give.
4.11.2 The latest date for the Employer’s Representative to give required instructions, or the Employer to give the Contractor any required Works Item or other thing shall be the latest of the following:
the date stated in the Contract, if any
the date shown in the Contractor’s current programme
the date for which the Contractor first notifies the Employer’s Representative under this sub-clause that it is required
the date the Contractor requires the instruction,
Where a request for information is justified (i.e. the information is needed to carry out the work) and the time provided for the Employer and the Employer’s Personnel to comply with their obligations is reasonable, the ER must respond in a timely manner.
Where the information is already available in the Works Requirements), the (prompt) response should be limited to stating that the information is already in the Works Requirements. Where a request for information is justified but the time provided is too short, (i.e. the Contractor asked for the information/instruction too late) the Contractor should be informed of the earliest reasonable date by which the information can be provided and every effort made to achieve that date. Any subsequent claims for delays/compensation events should have reference to the timing of the original request.
In all cases it is important to record such requests and such judgements (see Site Meetings) as well as the basis for any such decisions
Under the contract (Clause 4.1) the Employer, and his personnel, and the Contractor are obliged to support reciprocal cooperation for the contract purposes in respect of all aspects of the contract but particularly to any of the following:
The Contractor (Clause 8.3) shall ensure that the Employer’s Representative, and anyone authorised by the Employer’s Representative, is able at all reasonable times to have access to all places where the Works are being executed [whether or not at the Site] and any place where any Works Items are produced, stored, extracted or prepared, or any other obligation of the Contractor under the Contract is being performed, and are able there to inspect, test, observe and examine all such items and activities.
6.3Pay and Conditions
Clause 5.3 places an onus on the Contractor to comply with the REA rates of pay and conditions of employment. The ER has a number of resultant duties (both under the contract and as part of their duties under these Design Team Procedures) including withholding payment where the Contractor has failed to provide a certificate showing that the Contractor has fully complied with Clause 5.3 (Clause 11.4.4).
These are described further in DTP-2012 Pay and Conditions of Employment available at www.education.ie
The ER should also note Clause 5.3.9 setting out the Contractor’s duties to engage constructively with trade union officials party to a registered employment agreement affecting workers having concerns in relation to the Contractors or Contractor’s Personnel’s compliance with the agreement and Clause 5.7 requiring the Contractor to give the ER weekly a list of the name of each worker who worked the previous week and details of the category of and hours worked by each worker on the list
The Employer’s Representative may direct the Contractor to search for a Defect or suspected Defect or its cause (Clause 8.5.1). This may include uncovering, dismantling, re-covering and re-erecting work, providing facilities for tests, testing and inspecting. If, through searching or otherwise, the Contractor discovers a Defect, the Contractor shall notify the Employer’s Representative as soon as practicable.
If the Employer’s Representative notifies the Contractor that the Employer will not accept a Defect, this shall be conclusive.
The Employer’s Representative may direct the removal from site of any Contractor’s personnel (Clause 5.6) because of negligence or incompetence, or on the basis that the Contractor’s Personnel’s presence on the Site is not conducive to safety, health or good order. See also DTP-2012 Preparation of Tender Documents.
At the beginning of each week the Contractor shall give the Employer’s Representative a list of the name of each worker who worked the week ending the previous Sunday and details of the category of and hours worked by each worker on the list (Clause 5.7).
The Employer’s Representative may at any time direct the Contractor to suspend all or part of the work under the Contract (Clause 9.2). The Contractor shall comply with the direction and, during suspension, shall protect, store and secure the affected Works Items against deterioration, loss and damage and maintain the Insurances.
After a suspension, the Contractor shall resume work when so directed by the Employer’s Representative. When a direction to resume is given, the Contractor and the Employer’s Representative shall jointly examine the Works and Works Items, affected by the suspension.
If the Contractor is entitled to an adjustment of the Contract Sum or an extension of time because of the suspension, the Contractor’s cost of rectifying any deterioration in or loss of the Works or Work Items that the Contractor could not have avoided shall be included in the determination of the adjustment, and any resulting delay shall be taken into account in determining the extension.
7.Payments and Claims
Interim Certificates, based on the interim recommendations prepared by the Quantity Surveyor, must be prepared and issued by the Employer’s Representative to the Contractor and then submitted by the Contractor, through the Client, to the Department for processing and payment. (The Department will forward the certificate to the Building Unit Financial Section.)
Original Certificates only, signed by the Employer’s Representative, must be presented to the Client for payment. Photocopies, fax copies or copies in electronic format will not be accepted.
There is no provision for the separate identification of the amount due to Sub-Contractors as all sub-contractors (including novated, employer named and Contractor named) are domestic.
At the discretion of the Employer’s Representative, but only when so provided in the Schedule, part 1L, interim payments may include any amount, not exceeding the percentage of value stated in the Schedule, part 1L, the Employer’s Representative considers proper for each of the following:
The Contract value of any Works Items delivered to site, to the satisfaction off the Employer’s Representative,
The Contract value of any Work Items not delivered to the Site, to the satisfaction of the Employer’s Representative
The Contract value of a Works Item means a portion of the Contract Sum the Employer’s Representative determines is for supplying of the Works Item, having regard to the Pricing Document. The ER cannot pay for unfixed works items not listed under the Schedule, part 1L.
If the contractor does not give the Rates of Pay and Conditions of Employment Certificate, required by Clause 5.3.7 with an interim statement, there shall be no payment due under Sub-clause 11.4 for the relevant work until the certificate is given.
If the Contractor considers that under the Contract there should be an extension of time or an adjustment to the Contract Sum, or that it has any other entitlement under or in connection with the Contract, notice must be given under Clauses 9.3 or 10.3 as appropriate.
Under Clause 9.3 notice it must be as soon as practicable after the Contractor becomes aware of delay with full details of the delay and its effect on progress being provided not later than forty days after the Contractor become aware of the delay.
Under sub-clause 10.3 of the Contract notice must be given within 20 working days) with all relevant facts provided within a further 20 working days
The ER must manage Contractor Claims and co-operate with the Contractor (Clause 4.1) in ensuring that valid claims are submitted and processed within the time periods specified by the Contract.
While the ER does not have the discretion to relax the time periods stated, he/she should make the Contractor aware in writing of the limitations imposed by this clause at the start of the Contract, and at each site meeting remind the Contractor to submit any valid claims within the time allowed. All new claims should be recorded at each site meeting (see Site Meetings) as well as the current status of existing claims and the ER’s determination of same.
If the cause of the claim has a continuing effect, the Contractor shall update the information at monthly intervals
stating the extension of time and adjustment to the Contract Sum claimed for delay and cost already incurred, and
so far as practicable, proposing a final adjustment to the Contract Sum and Date for Substantial Completion of the Works and any affected Section, and
providing any other information the Employer’s Representative reasonably requires
If the Contractor has made a claim under sub-clauses 10.3 or (proposal under 10.4), the Employer’s Representative must, within 20 working days of receiving it, do one of the following:
direct the Contractor to give additional information or revised proposals, in which case the Contractor shall do so within 10 working days and the Employer’s Representative shall reply in accordance with this sub-clause within a further 10 working days, but that reply must not require the Contractor to give additional information or a revised proposal
notify the Contractor and the Employer that the Contractor’s proposals are agreed and make any resulting adjustments to the Contract Sum, use of the programme contingency referred to in sub-clause 9.4 or extension to the Date for Substantial Completion of the Works and any affected Section
make a determination of any adjustments to the Contract Sum, use of the programme contingency referred to in sub-clause 9.4 or extension to the Date for Substantial Completion of the Works and any affected Section, and notify the Contractor and the Employer
in response to a proposal under sub-clause 10.4, notify the Contractor that the proposed instruction will not be given.
The Employer’s Representative must process any claims within the permitted time limits in accordance with Clause 10.5 of the Contract. Contractual claims arising from the failure of the Employer’s Representative to comply with Clause 10.4 (exercising reasonable skill and care) shall be deemed to be a breach of Contract between the Employer’s Representative and the Client.
Under Clause 10.9 Employer’s Claims, if the Employer or the Employer’s Representative considers that, under the Contract, there should be a reduction of the Contract Sum, or that any amount is due to the Employer from the Contractor under the Contract, the Employer or the Employer’s Representative shall, as soon as practicable, give notice and particulars of the event or circumstances to the other, and to the Contractor.
This covers Adjustments to the Contract Sum for a Compensation Event for the value of any additional, substituted, and omitted work required as a result of the Compensation Event
The Department recommends that the risk of Event 17 (schedule PART 1 K), a difference between the Contract value of the Works according to the Pricing Document and the Contract value of the Works described in the Works Requirements should always be a compensation event.
This has the effect of permitting either a Contractor Claim or an Employer Claim where the Pricing Document, when compared with the Works Requirements:
includes an incorrect quantity or
includes an item that should not have been included or
excludes an item that should have been included or
gives an incorrect item description
AND the difference for an item in, or that should have been in, the Pricing Document is more than €500.
The notice to the Contractor must include:
details of the event or circumstances giving rise to the notice, and all relevant facts and
a calculation, and a proposal based on that calculation, of any adjustment to be made to the Contract Sum or any amount due by the Contractor to the Employer.
The procedure in this Sub-clause 10.9 applies until either the Defects Certificate or the certificates required following termination have been issued, but this does not limit the Employer’s rights after then.
While the Contract does not specify the timing for Employer’s claims arising from a difference in the Bill of Quantities, when compared with the Works Requirements, the Contract does state that there shall be support for reciprocal co-operation which includes efficient order and timing of information provided for in the Contract.
It is reasonable therefore that the ER should give notice under 10.9 of Employer’s claims arising from a difference in the Bill of Quantities (when compared with the Works Requirements) as soon as is practicable after the ER becomes aware of the nature and extent of that difference. It is not reasonable to defer such claims to the end of the Contract (The Contractor is obliged to make his claims within 20 days).
If the Works do not reach Substantial Completion by the due date, liquidated damages at the rate stated in the Schedule, part 1G, become due for the period from the Date for Substantial Completion of the Works to the date of actual substantial completion of the Works.
Just as the Contractor is entitled to recompense for a valid Contractor Claim, the Employer is entitled to recoup the cost of Liquidated Damages when the project is not completed on time.
The Contractor should be made aware (at the beginning of the works) that Liquidated Damages may be applied (at the discretion of the Employer) in accordance with the Contract for all delays to the date for Substantial Completion (as adjusted in accordance with the Contract)
Clause 12.1 Termination on Contractor Default states that the Employer may terminate the Contractor’s obligation to complete the Works by notice to the Contractor if (inter alia) the Contractor (if an individual) dies, becomes insolvent or fails to comply with its obligations under the Contract:
Any communications in relation to Clause 12 must be sent by the Employer and not the ER.
A Project Review report must be prepared by the Employer’s Representative and Quantity Surveyor jointly on the Template Progress Report Letter/Form (available at www.education.ie) and submitted to the Client monthly i.e. together with each Interim Certificate. An electronic copy of same must also be sent (by the ER) to both the Client and to the appropriate Department Officer.
Each Progress Report Letter must be completed in full and must contain all Change Orders since the previous certificate.
Where any change orders outside the Employer’s Representative’s limitations of Authority were authorised by the Employer’s Representative without approval a full explanation must be submitted. (Refer also to Change Orders)
The Employer’s Representative must report on any critical delays in the Contract Programme and the causes of any such delays, implications for the Client i.e. alternative temporary accommodation requirements, and what actions have been/are being taken under the contract to mitigate such delays. It should (where appropriate) include brief statements from the Civil/Structural Engineer and Services Engineer, comparing progress to date with the agreed Contract Programme.
The Quantity Surveyor must comment in the Progress Report Letter/Form on actual cash-flow and compare it to the forecast/programmed cash flow. Any significant variance between actual cash flow and forecast cash flow, and its relationship with works progress relative to the Contract Programme must be fully explained
The Client must in turn send a hardcopy of that Progress Report Letter directly to the Department with the original certificate.