GC21 Workshop 11 December 2017
Agenda – GC2 C21 Work rkshop December r 2017 • Introduction (HI Delivery & HI Legal) • Rundown of the HI’s GC21 contract suite • Key elements of GC21 and HI’s Special Conditions • Recent GC21 updates and changes • Key learnings, messaging and tips • Questions & answers
In Intr troductio ion: : H HI I Le Legal • What can HI Legal do for you? Steven Kouris – General Counsel: steven.kouris@health.nsw.gov.au 1. Weiping Lu – Legal Counsel: weiping.lu@health.nsw.gov.au 2. • When does HI Legal get involved with your Project? – Procurement stages – Contract finalisation and execution – Ongoing contract issues and queries – Disputes We are here to help & facilitate you achieving Project deliverables & outcomes
GC21 contracts ts – ju just t anoth ther standard government t contr tract? t? • HI’s GC21 contract suite – Preliminaries – General Conditions – HI Special Conditions • With or without Full Payment Trust Account model – GC21 Construction Management ( incorporating HI Special Conditions ) • With or without fit-out mechanism • Do I need to attach the Special Conditions to the GC21 CM contract? No HI’s GC21 is significantly developed and tailored for HI’s operations – GC21 CM contract incorporates the HI apart from populating, don’t change Special Conditions (You do not need to without consulting with senior PDs attach the Special Conditions to the CM) and Delivery executive
GC2 C21 contr tracts – where is is it? it? • Where can you find GC21 contracts? The Portal Obtain your GC21 contract templates from the Portal
GC2 C21 contr tracts – CA CAPM • Contract Administration & Procedures Manual • Did you know …. ? A GC21 Contract Administration and Procedures Manual ( CAPM ) is available on the Portal. • Includes flowcharts, notes & template notices. • The CAPM can be used for the Project Team’s information – however it should always be subject to : • Being tailored to suit the circumstances; and • Obtaining advice (as necessary) from your Project Director, Director / Executive Director, HI Legal etc.
Key GC2 C21 elem lements – what makes up th the Co Contract? • Clause 7.1 The Contract The Contract is made up solely of the Contract Documents which supersede all understandings, representations and communications made between the parties before the Date of Contract in relation to the subject matter of the Contract. The Contract Documents are … – these GC21 General Conditions of Contract; – the Contract Information; – the annexed Schedules; – the Principal’s Documents as at the Date of Contract; and – the other Contract Documents listed in Contract Information item 26 .
Key GC2 C21 elem lements – what makes up th the Co Contract? • Clause 7.1 The Contract (continued) – Contract Information – Why it is important to get this right? Tips for completing the Contract Information: – Are you being clear enough in your responses so that there is no ambiguity? – Are you changing a default position? Have you consulted with anyone? – Have you read the internal hidden notes in the Contract (shown by using button)? – “Principal’s Document Always provide enough detail in Register” / Allocation of referencing your Contract development consent Documents e.g. versions, dates, conditions author etc.
Key GC2 C21 elem lements – LOA (a (and LOI) I) • The Letter of Award (“LOA”) is a key contract document in awarding and forming the Contract. – The Contract is formed by and when the LOA is issued. The Date of Contract is dependent on Contract Information item 12 and defaulted to the date of the Letter of Award. – The LOA has flexibility in confirming additional Contract Documents. – If a parent guarantee deed is required, a version of the LOA is available on the Portal. i.e. where a Company Performance Guarantee deed is required for guaranteeing the Contractor’s performance by the parent company. • HI has a Letter of Intent (“ LOI ”) – used for instructing on Initial Works ahead of award of the Contract (i.e. in the event of awaiting planning approval – remember to consult and speak to your PD and HI Legal).
Key GC2 C21 elem lements – LOA So you just issued your LOA … • Contractor submits its Contract Program within 14 days after Date of Contract (unless HI instructs that the tender program will be the Contract Program). • Contractor (before starting work) effects insurance under the Contract and gives proof of all insurances policies required under the Contract. • Contractor gives its security (completion undertaking and post-completion undertaking) within 14 days after the Date of Contract. i. Must be in the form specified in Schedule 2. ii. The amount of the security must be in accordance with Contract Information Item 33 (security percentages are fixed and not to be changed unless approved from the Executive Director Delivery).
Key GC2 C21 elem lements – Prin rincip ipal l Arr rranged In Insurances • Unique to Government - Principal arranges [Contract] Works and Public / Product liability cover • Through NSW Self Insurance Corporation / icare • Agreed terms – attached at Schedule 10 • Covers Principal and contractors • Unless Principal otherwise instructs, Contractor obliged to make and manage all insurance claims – what if the Contractor is responsible? Principal may need to step in and closely engage with icare – HI legal has a good relationship with icare, and can manage this • The Contractor must meet the costs of all excesses or deductibles • Note Public Liability now has environmental cover • Procurement triggers PAI (Project) insurance cover – so please liaise with them
Key GC2 C21 elem lements – th the clau lause 1.3 .3 ins instructio ion The Principal may give instructions to the Contractor concerning the Works and anything connected with the Works, and the Contractor must comply at its own cost unless the Contract expressly provides otherwise This is one of the strongest mechanisms in GC21 allowing the Principal to proactively manage the Contractor’s performance; however, this cannot cut across other parts of the Contract dealing with specific issues, such as EOTs / delay costs and site conditions
Key GC2 C21 elem lements – prin rincip ipal l contr tractor • Principal Contractor “PC” – Clause 16 / Contract Information Item 17 – Unless otherwise stated, the Contractor is appointed and engaged as PC for the construction project. • construction project means project involving construction work with cost of $250,000 or more. – The Contractor is authorised to have: • management and control of the workplace; • discharge the duties of the PC (under the WHS regulations). HI cannot and must not be the principal contractor
Key GC2 C21 elem lements – prin rincip ipal l contr tractor • Principal Contractor “PC” (continued) – A construction project can only have one PC at any specific time. [However, there may be cases where the project has early and main works components, or is carried out in stages, with the relevant contractor being the PC.] • Special Condition 8 (the Separate Contractor) – The Contractor’s engagement as the PC extends to Separate Contractors. – Separate Contractor undertaking Separate Contractor Work must execute the Separate Contractor Deed Poll at Schedule 1 of the Special Conditions (to cover the risk of the Separate Contractor not being subject to the PC’s control). • Special Condition 15 (Occupier & Management or Control) – HI is a specialist procurement agency, and does not occupy, manage, or control the Site in any capacity. Fundamental and needs to keep being reinforced, esp to regulators. – Only the Contractor occupies and has From the Date of Contract - management or control over the Site
GC21 updates – what you need to know Key GC2 C21 elem lements – th the Sit Site • Site Conditions Contract Information Item 36 – What to include? • e.g. geotechnical / hazardous material reports – Why is this important? Address Adverse Site Conditions risk – being conditions differing materially from those that should reasonably have been expected at close of tenders Contract Information Item 37 – ‘Yes’: the Contractor bears the full risk in dealing with adverse Site Conditions – “‘No’ and further wording”: only on approval from Director Delivery / Executive Director Delivery. However the Contractor bears this risk to the extent identified or reasonably inferable from the Site Information documents, or expected at close of tender
Key GC2 C21 elem lements – th the Sit Site • Site Access (clause 34) – The Principal must give Contractor sufficient access to the Site to allow the Contractor to comply with Contract requirements and in accordance with Contract Information item 13 . e.g. Site Access isn’t given and the Contractor makes a claim .... – Item 49A1 – NIL delay costs for initial Site access. – EOT (under clause 50) can be granted.
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