More than 4 years after the introduction of the Public Works Contracts ("the Contracts"), parties are now familiar with their provisions. But are parties aware of the various amendments that are made to these
Contracts1 on a regular basis?
This update considers some of the recent changes published by the Department of Finance on the Construction Procurement Reform website on 28 July 2011. This most recent version of the Contracts was accompanied by a note summarising the changes, describing them as "minor". No point of reference was provided as to where the listed changes actually appear in the Contracts and their description as "minor" should be viewed with a degree of caution. It may also be unwise to assume that no further changes have been made to the Contracts other than those highlighted in the summary note of the changes.
Key Changes made in July 2011
An entirely new clause has been inserted at clause 1.10 of the Contracts entitled "Background Information". The clause is very broad in scope and seeks to absolve the employer from any responsibility for the newly defined 'Background Information' which may be provided to the contractor. "Background Information", as defined, will include information made available to the contractor before, on or after the Contract Date and includes any information "stated to be Background Information". The definition makes clear that it is intended to deal only with information which is not included within the Contract. Thus, information included within the Works Requirements is dealt with elsewhere in the Contract. Site surveys provided at tender will now be described as Background Information and cannot be relied upon, even in circumstances where there is no opportunity for the contractor to carry out its own testing. While this is not a dramatic shift in the usual allocation of risk, it does make clear beyond any doubt that no claim will lie against the employer if such information transpires to be incorrect or misleading.
What if an Employer's Representative fails to make any determination under Clause 10?
A significant change now introduced is that where an Employer's Representative ("ER") simply fails to take any action within the prescribed time-limits in determining a claim submitted by the contractor under Clause 10.3 or in respect of a contractor proposal pursuant to clause 10.4, then the ER will be deemed to have made a determination of no adjustment to the Contract Sum...