Strategic Alliance
Agreement Framework
PSP
Early Conditional Appointment
Volume 3
September 2013
Version 1.0
Document Structure
Early Conditional Appointment
Schedule 1 - ECA Details
Schedule 2 - Pre-Construction Phase Services
Schedule 3 - Partnering Timetable
Schedule 4 - Risk Register
Schedule 5 - Site Information
Schedule 6 - Works Information
Schedule 7 - Activity Schedule
Schedule 8 - Form of Pre-Construction Agreement (NEC)
Schedule 9 - Form of Commencement Agreement
Schedule 10 - NEC Conditions
Schedule 11 - Shared Savings Scheme
The structure of the document set is as above. This document sets out the early
conditional clauses which would be applicable to the NEC model form contract to deliver
Construction Works and Services for either the National or Regional requirements.
Scope
This section details the draft terms and conditions applicable to the Pre-Commencement
Phase Services. It should be read with the Requirements for other aspects of the
Product and Service and particularly the NEC contract documents and Strategic Alliance
within Volume 3.
The structure of the tender
documents is as indicated below.
This is “The Strategic Alliancing
Agreement” Volume 3
An outline of the Ministry of Justice its aims
objectives and the challenges that face it and the
role of its Estate Directorate.
Describes the procurement strategy, its structure,
objectives and implementation.
Gives the basis for pricing tenders
including the approach to profit,
overheads and risk.
Volume 5:
Volume 1:
Pricing document
Introduction to the
Ministry of Justice
Volume 4:
The RFP
documents
Model Project Brief
Together these documents describe the
Model Projects that form the basis for the
tender and give the information upon which
Proposals shall be based
Volume 3:
Strategic Alliancing
Agreement
Volume 2:
Constructor Request for
Proposals
Provides the instructions for Bidding including
restrictions, conditions and a statement of the
Information to be returned
Detailed content of the
Strategic Alliancing Agreement
PPC 2000
NEC 3
Model Form contract
Special Terms
Z Clauses
Project Partnering
Agreement
Early Contractor
Involvement
Joining Agreement
Joint Supply
chain
Provides a model copy of the agreement that
will underpin the contractual basis of the
procurement strategy. The Client retains the
option for PPC2000 or NEC3 model terms.
Amendments to both are included. The PPC
2000 two stage approach to building up to an
Agreed Maximum Price is replicated in an Early
Contractor Involvement for NEC3.
Documents sitting outside the main constructors
agreement. Joining agreement provides the
terms under which other clients utilise the
Strategic Alliance Agreement. Joint Supply
Chain documentation provides terms should a
joint supply chain be implemented.
dated [
]
[Ministry of Justice]
and
[
● Contractor
]
[Based on the NEC3 Engineering and Construction Contract June
2005 Option A: Priced contract with activity schedule, subject to
amendment as required if the Ministry of Justice or relevant Additional
Client elects to use Option C: Target contract with activity schedule]
Early Conditional Appointment
for [ ●
]
in relation to a Strategic Alliance Agreement concluded by the Ministry of
Justice
Early Conditional Appointment (ECA)
An Early Conditional Appointment is made (as a deed) the [
] day of [
IN RELATION TO [
] (the Site)
] (the Works) at [
]
BETWEEN
(1)
Ministry of Justice of [
(2)
[
] (the Employer); and
] (registration number [ ]) whose registered office is at [
] (the Contractor)
WHO AGREE
Working in mutual cooperation to fulfil their agreed roles and responsibilities and applied their agreed
expertise in relation to the Works in accordance with and subject to the terms of this Early
Conditional Appointment (ECA) and the other Contract Documents described in or created pursuant
to this ECA and that subject to amendment in accordance with this ECA:
1
Definitions and interpretation
1.1
In this ECA defined words and expressions in the NEC Conditions shall have the same
meanings unless otherwise stated in this clause 1 and the following words and
expressions shall have the following meanings:
Activity Schedule – the Activity Schedule set out in Schedule 7 subject to development in
accordance with this ECA;
Best Value – [
];
Budget - the maximum Prices in relation to the Works forming the basis for the selection
of the Contractor and the conclusion of this ECA and also known as the IPP;
Business Case - a business case proposed by the Contractor pursuant to clause 7.2 of
this ECA comprising prices and proposals seeking to justify Employer approval of a Direct
Labour Package or a Preferred Specialist without market testing;
Commencement Agreement – an agreement governing commencement of the Works on
Site, signed pursuant to clause 11 and based on the form set out in Schedule 9;
Consultation – such consultation as shall be reasonable without delaying the PreConstruction Services and without delaying any necessary action of any of the Employer,
the Project Manager or Contractor for the benefit of the Works;
Contract Documents – the Contract Documents forming part of this ECA and set out in
the schedules to this ECA as amended and developed pursuant to this ECA;
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Core Group – the individuals identified in this ECA as Core Group members, subject only
in each case to replacement in accordance with the NEC Conditions, and so that
references shall apply to each and all Core Group members;
Defined Cost – the components of Defined Cost as set out in the Shorter Schedule of
Cost Components forming part of the NEC Conditions;
Direct Labour Package – any part of the Works undertaken by the Contractor using its
own direct labour;
ECA – this Early Conditional Appointment;
Environment – all and any land, water and air including air within any natural or
manmade structure above or below ground;
Fee – the fee as stated in Schedule 1 payable to the Contractor in the event that the
Works proceed in accordance with the Commencement Agreement ;
NEC Conditions – the Core Clauses, W Clauses, X Clauses, Y Clauses, Z Clauses and
Shorter Schedule of Cost Components forming part of the NEC3 Engineering and
Construction Contract of June 2005, Option A Priced Contract with Activity Schedule
amended as set out in Schedule 10;
Open-book – involving the declaration of all price components including the Fee and
Defined Cost and the costs of materials, goods, equipment, works and services, with all
and any relevant books of account, correspondence, agreements, orders, invoices,
receipts and other relevant documents available for inspection;
Operation – use, occupation, operation, maintenance, repair, alteration and demolition;
Partnering Adviser – any partnering adviser named in Schedule 1 subject only to
replacement in accordance with the NEC Conditions;
Partnering Timetable – the Partnering Timetable as set out in Schedule 4;
Pre-Commencement Phase – all activities in relation to the Works up to and including the
date of the Commencement Agreement;
Pre-Commencement Phase Fee – the Pre-Commencement Phase Fee as stated in
Schedule 1 payable to the Contractor for performance of the Pre-Commencement Phase
Services ;
Pre-Commencement Phase Services - the services required to be performed by the
Contractor under this ECA as set out below in Schedule 2.
Pre-Construction Activities – any activities, other than Pre-Commencement Phase
Services, forming part of the Works and undertaken by the Contractor on or off Site prior
to the date of the Commencement Agreement;
Pre-Construction Agreement – any agreement governing Pre-Construction Activities
signed pursuant to clause 9.6 of this ECA and based on the form set out in Schedule 8;
Preferred Specialist – a Specialist proposed by the Contractor in a Business Case;
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Prices – as defined and stated in the developed Activity Schedule forming part of the
Commencement Agreement;
Project Manager – the Project Manager identified in Schedule 1 subject to replacement in
accordance with the NEC Conditions;
Risk Management - a structured approach to ensure that risks are identified at the
inception of the Works, that their potential impacts are allowed for and that where possible
such risks or their impacts are minimised;
Risk Register – the Risk Register set out in Schedule 4.
Shared Savings Scheme – the Shared Savings Scheme set out in Schedule 11;
Site – the Site as described in the Site Information;
Site Information – the Site Information set out in Schedule 5 as developed in accordance
with this ECA;
Specialist – any party providing to the Contractor works or services or supplies of goods,
materials or equipment forming part of the Works;
Sustainability - measures intended to achieve reduced carbon emissions, reduced use
of energy and of natural and manmade resources, improved waste management,
improved employment and training opportunities, and any other measures intended to
protect or improve the condition of the Environment or the wellbeing of people;
Value Engineering - a structured system for the review of the design, supply and
construction process to identify options and scope for improvement, including reduced
capital and/or whole life costs, improved buildability and improved functionality;
Value Management – a flexible but structured management approach aimed at achieving
a solution that meets the Employer's needs while achieving best value;
Working Day – Monday to Friday inclusive but not including any public holiday;
Works – the Works as described in the Works Information;
Works Information - the Works Information set out in Schedule 6 subject to development
in accordance with this ECA;
2
Pre-Commencement Phase Services and Core Group
2.1
The Contractor shall carry out the Pre-Commencement Phase Services subject to and in
accordance with this ECA and the NEC Conditions.
2.2
The Core Group, whose members are identified in Schedule 1, shall fulfil the functions
stated in this ECA in accordance with the governance arrangements stated in the NEC
Conditions.
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3
Project Manager and Partnering Adviser
3.1
The Project Manager shall fulfil its functions as described in this ECA and the other
Contract Documents exercising any discretion fairly and constructively and shall facilitate
and integrate the processes described in this ECA in accordance with the Contract
Documents and with the support of the Employer and the Contractor as stated in the
Contract Documents.
3.2
The Project Manager shall organise and monitor the contributions of the Employer and
Contractor to Value Engineering, Value Management and Risk Management exercises in
relation to the Works (to which the Employer and Contractor shall contribute if so
requested), as stated in this ECA and as otherwise agreed by the Core Group, and the
Contractor shall submit to the Employer and the Core Group proposals for approval based
on the results of these exercises and in the best interests of the Works.
3.3
In all matters relating to the operation of this ECA the Employer, the Contractor and the
Project Manager may together or individually utilise the advice and support of the
Partnering Adviser subject to prior agreement of costs and the Partnering Adviser's duty of
care including:
3.3.1
Team-building, review of the developed Contract Documents and review of
Specialist Contracts for consistency with the Contract Documents;
3.3.2
Preparation
Agreement;
3.3.3
Provision of fair and constructive advice as to processes, the development of
relationships and the operation of the Contract;
3.3.4
Attendance at such meetings of the Core Group as its members consider
appropriate;
3.3.5
Assistance in the solving of problems and the avoidance or resolution of
disputes in accordance with the NEC Conditions.
of
any
Pre-Construction
Agreement
and
Commencement
4
Partnering Timetable and Accepted Programme/Key Dates
4.1
Subject to alteration in accordance with this ECA, the Contractor shall adhere to the dates
set out in the Partnering Timetable in the performance of the Pre-Commencement Phase
Services, and the Employer, the Project Manager and the Contractor shall undertake their
other agreed activities in relation to the Works during the period prior to the date of the
Commencement Agreement regularly and diligently in accordance with the Partnering
Timetable.
4.2
The proposed programme, comprising the starting date(s), access date(s), Date(s) for
Completion, Key Dates and other detailed arrangements as to timing for implementation of
the Works with effect from the date of the Commencement Agreement, shall be submitted
to the Project Manager by the Contractor with supporting method statements and
procedures by the date or dates stated in the Partnering Timetable, shall be reviewed by
the Core Group and shall be subject to approval by the Employer to create the Accepted
Programme and Key Dates.
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5
NEC Conditions
5.1
The NEC Conditions shall apply to this ECA, but in the event of any conflict or discrepancy
between the NEC Conditions and this ECA, then this ECA shall take precedence.
6
Design Development
6.1
Best Value
The Contractor shall develop the designs of the Works, in accordance with this clause 6,
with the objective of achieving Best Value for the Employer.
6.2
Design liability
The Contractor shall be solely responsible for the design of the Works and shall undertake
the development of an integrated design, supply and construction process for the Works in
accordance with this ECA.
6.3
Design process
Based on the drawings and specifications set out in the Works Information, the designs for
the Works shall be developed as follows within the periods stated in the Partnering
Timetable:
6.3.1
the Contractor shall prepare and submit to the Employer and the Core Group
outline designs for the Works including such alternative solutions for the
integrated design, supply and construction of the Works and any part of it as
are required by the Works Information or as are otherwise appropriate;
6.3.2
the Contractor shall present for Core Group consideration and Employer
approval the designs prepared in accordance with clause 6.3.1 and
comparisons between any alternative solutions by reference to the Works
Information;
6.3.3
following Employer approval, after Core Group Consultation, of outline designs
and choice of any alternative solution or solutions pursuant to clause 6.3.1, the
Contractor shall develop designs for the Works based on such outline designs
and solution or solutions and shall submit these to the Employer and the Core
Group, developed to the level of detail stated in the Partnering Timetable and
sufficient to comprise the basis for an application for full planning permission for
the Works;
6.3.4
the Contractor shall obtain the maximum input to design development under
clauses 6.3.1 to 6.3.3 from Specialists as is required by the Works Information
or as is otherwise appropriate during the course of or after their selection in
accordance with clause 7 of this ECA;
6.3.5
following Employer approval, after Core Group Consultation, of designs
developed pursuant to clause 6.3.3, the Contractor shall submit in the name of
the Employer an application for full planning permission for the Works and shall
further develop and submit to the Employer and Core Group designs for the
Works, in the sequence and to the level of detail stated in the Partnering
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Timetable, for Employer approval after Core Group Consultation and for the
selection of Specialists, the development of the Prices and Activity Schedule
and the satisfaction of any planning conditions and other pre-commencement
regulatory approvals.
6.4
Site surveys and investigations
The Contractor shall commission or undertake, and shall coordinate and monitor, any Site
surveys and investigations stated in Schedule 1 and the Partnering Timetable. The
Contractor shall review the results of such surveys and investigations and advise the
Employer and the Core Group as to their effect on the integrated design, supply and
construction of the Works, and shall amend designs as required as a consequence, for
Employer approval after Core Group Consultation.
6.5
Regulatory approvals
The Contractor shall apply for and diligently pursue, in accordance with the Partnering
Timetable, all regulatory approvals stated in Schedule 1 and otherwise required for
commencement of the Works on Site, and shall report to the Employer and the Core
Group on progress and results with recommendations to overcome any problems.
6.6
Budget
At each stage of design development the Contractor shall take into account the Budget
and shall provide, with all design submissions, updated cost estimates reconciled with
such Budget.
6.7
Value Engineering
At each stage of design development the Contractor shall amend designs as necessary to
adopt the results of Value Engineering exercises undertaken in accordance with clause
3.2, where such results are approved by the Employer after Core Group Consultation.
6.8
CDM Coordinator
At each state of design development the Contractor shall provide to the CDM Co-ordinator
copies of all designs submitted pursuant to this clause 6, together with related information
in accordance with Regulation 11(6) of the CDM Regulations and the CDM Co-ordinator
shall provide within five (5) Working Days from the date of provision of such copies (or
within any other period stated in the Partnering Timetable) advice to the Employer and
Project Manager as to the health and safety implications of such designs and related
information.
6.9
CDM compliance
The Employer and the Contractor shall fulfil their respective responsibilities under the
CDM Regulations, including without limitation the preparation, collation and circulation of
the Pre-Construction Information by the Employer or the CDM Co-ordinator as appropriate
and the preparation of the Construction Phase Plan by the Contractor in compliance with
the CDM Regulations as preconditions to implementation of the Works on Site.
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6.10
Design approvals
No approval or comment by the Employer or the Project Manager in respect of any design
submitted in relation to the Works shall in any way relieve or affect the responsibility for
that design of the Contractor.
6.11
Designs and Works Information
All designs approved by the Employer in accordance with this clause 6 shall become
Works Information, and any subsequent proposed change to any such approved design
shall be subject to change only in accordance with the NEC Conditions.
7
Specialists
7.1
Specialist relationships
The Employer and the Contractor shall implement the procedures in this clause 7 in
accordance with the Partnering Timetable in order to establish Specialist relationships in
relation to all aspects of the Works that:
7.2
7.1.1
are Open-book to the maximum achievable extent;
7.1.2
clearly reflect the agreed requirements of the Employer, the interests of the
Employer and the Contractor, and the needs of the Works;
7.1.3
secure the best available Specialist warranties and support and maximise the
potential for Specialist innovation and other contributions to the Works;
7.1.4
establish and demonstrate Best Value to the Employer;
7.1.5
establish, wherever possible, relationships complementary to those described in
this ECA and the NEC Conditions.
Business Cases
The Contractor shall submit to the Employer its Business Case for each and any part of
the Works that it wishes to undertake either as a Direct Labour Package or through the
appointment of any Preferred Specialist, and such Business Case shall be developed and
presented on an Open-book basis by reference to the Works Information including
relevant designs approved under clause 6 of this ECA.
7.3
Best Value
The Employer and the Core Group shall be entitled to analyse each Business Case
submitted pursuant to clause 7.2 of this ECA and to request reasonable further information
from the Contractor, and in each Business Case it shall be the Contractor's responsibility
to demonstrate Best Value to the Employer.
7.4
Market testing
If the Employer, after Core Group Consultation, is not satisfied with any aspect of a
Business Case submitted pursuant to clause 7.2 of this ECA, then it may reject that
Business Case, and the Contractor shall test that Business Case against the prices and
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proposals of comparable prospective Specialists on an Open-book basis in accordance
with clauses 7.5 and 7.6 of this ECA.
7.5
Specialist tenders
With the exception of each Direct Labour Package and Preferred Specialist in respect of
which a Business Case submitted pursuant to clause 7.2 of this ECA is approved by the
Employer, the Contractor shall invite tenders from prospective Specialists approved by the
Employer and the Contractor, and shall select those Specialists who are approved by the
Employer after Core Group Consultation on the basis of prices and other proposals which
offer Best Value to the Employer in a manner consistent with this ECA and of benefit to the
Works.
7.6
Selection documentation
In the course of the development of the Business Case for a Direct Labour Package or a
Preferred Specialist and in the course of tendering to other prospective Specialists, all
documentation prepared and issued by or for the Contractor, all tender returns and
proposals submitted by prospective Specialists and all related correspondence with
prospective Specialists shall be copied by the Contractor to the Project Manager upon
their issue or receipt by the Contractor. The Employer and the Contractor shall treat all
such documentation as confidential. The Project Manager shall be invited and entitled to
attend all interviews and other meetings organised by the Contractor with prospective
Specialists.
7.7
Maximum Specialist contributions
All documents relating to the selection of Specialists shall encourage their maximum
contribution to and participation in an integrated design, supply and construction process
for the Works. All designs prepared by Specialists and approved in accordance with
clause 6 shall form part of the Works Information.
7.8
Specialist Contracts
Each proposed form of Specialist Contract shall be prepared by the Contractor and
approved by the Employer prior to its issue to any Specialist and shall not conflict with this
ECA or the NEC Conditions.
7.9
Responsibility for Specialists
The Contractor shall be responsible for all aspects of the performance by each Specialist
of its responsibilities in relation to the Works and no approval or other involvement by the
Employer or the Project Manager in the selection of any Specialist shall in any way affect
that responsibility.
7.10
Termination of Specialist Contracts
The Contractor shall not terminate any Specialist Contract without prior Consultation with
the Employer. If any Specialist Contract is so terminated, the Contractor shall replace that
Specialist with any alternative Specialist of comparable expertise subject to compliance
with this clause 7 and subject to approval by the Employer after Core Group Consultation.
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7.11
Instructions to Specialists
Only the Contractor shall have authority to issue instructions to any Specialist.
8
Prices
8.1
In respect of the Pre-Commencement Phase Services performed during the period prior to
the date of the Commencement Agreement, the Employer shall pay the Contractor the
Pre-Commencement Phase Fee set out in Schedule 1 in accordance with the payment
provisions set out in the NEC Conditions.
8.2
In respect of Pre-Construction Activities under any Pre-Construction Agreement entered
into pursuant to clause 9.3, the Employer shall pay the Contractor those amounts stated in
such Pre-Construction Agreement .
8.3
Prices for all aspects of the Works shall be developed and agreed in accordance with this
clause 8 by reference to the Budget and the information supporting the Budget, by
reference to the Activity Schedule and the other Contract Documents, to establish Prices
within the Budget and otherwise as low as is achievable consistent with Best Value and in
compliance with the Contract Documents.
8.4
The Fee shall be fixed at the agreed amount set out in the Schedule 1 subject only to such
variations as the Employer and the Contractor may agree.
8.5
Those Prices attributable to each of the Contractor's proposed Direct Labour Packages
and Preferred Specialists shall be developed by the Contractor, in conjunction with each
relevant Preferred Specialist, and shall form part of each Business Case submitted
pursuant to clause 7.2.
8.6
If the Employer approves the Prices proposed by the Contractor as part of the Business
Case for any proposed Direct Labour Package or Preferred Specialist, then those Prices
shall be incorporated in the Activity Schedule.
8.7
Where a Specialist is selected by tender in accordance with clause 7.5, then the Prices of
the selected Specialist shall be incorporated in the Activity Schedule.
8.8
No discounts or other benefits shall be payable by any Specialist to the Contractor for
prompt payment or otherwise unless agreed pursuant to this clause 8.8 or clause 9.2 of
this ECA.
8.9
All and any proposed risk contingencies shall be notified by the Contractor to the
Employer, but shall only be incorporated in the Activity Schedule and form part of the
Prices if and to the extent that any such risk contingency has been approved by the
Employer after the Contractor has first reviewed each relevant risk in accordance with
clause 12 and has submitted proposals for Core Group review and Employer approval as
to how the relevant risk should or could be eliminated, reduced, insured, shared or
apportioned and as to the extent to which the risk contingency can be removed or reduced
and subject to such Employer approval have taken appropriate actions including those
stated in the Risk Register.
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8.10
The Core Group shall investigate the potential for cost savings against the Budget and
Prices and for added value in the design, supply, construction and Operation of the Works,
and shall make recommendations for approval by the Employer,
9
Incentives and Pre-Construction Activities
9.1
The Employer, the Project Manager and the Contractor shall operate the Shared Savings
Scheme set out in Schedule 11.
9.2
The Contractor shall notify the Employer of any payment or benefit offered or received by
it in relation to the Works other than pursuant to the Contract and any such payment or
benefit shall be subject to the Employer's prior approval.
9.3
The Employer and the Contractor may agree that the Contractor shall undertake and be
paid for Pre-Construction Activities forming part of the Works in accordance with the terms
of a Pre-Construction Agreement based on the form set out in Schedule 8 which the
Project Manager shall [arrange for the Partnering Adviser to] prepare and which shall be
signed by the Employer and the Contractor.
9.4
In relation to all Pre-Construction Activities (except only as stated in the Pre-Construction
Agreement):
9.4.1
Intellectual Property Rights, insurance obligations, risk, responsibility and
ownership shall be governed by the NEC Conditions;
9.4.2
Timing shall be governed by the Partnering Timetable;
9.4.3
The only payment shall be the amount or amounts stated in the PreConstruction Agreement payable under the payment provisions set out in the
NEC Conditions;
9.4.4
Problem-solving and avoidance or resolution of disputes shall be governed by
the NEC Conditions;
9.4.5
The Pre-Construction Agreement shall not create any other obligations on any
party;
9.4.6
All Pre-Construction Activities shall form part of the Works;
9.4.7
The Contractor shall cease all Pre-Construction Activities and vacate the Site if
and so requested by the Project Manager.
10
Pre-Conditions to Start on Site
10.1
Implementation of the Works on Site shall commence subject to satisfaction of the
following pre-conditions, either completely or to such lesser extent as is agreed by the
Employer, the Project Manager and the Contractor:
10.1.1
agreement of the Accepted Programme and Key Dates in accordance with
clause 4.2 of this ECA;
10.1.2
completion and distribution of the Pre-Construction Information and the
Construction Phase Plan in accordance with clause 6.9 of this ECA and
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confirmation that the Employer is satisfied that the requirements of Regulation
22(1)(c) of the CDM Regulations have been met;
10.1.3
completion of pre-commencement Site
accordance with clause 6.4 of this ECA;
surveys
and
investigations in
10.1.4
grant of planning permission satisfactory to the Employer and of other precommencement regulatory approvals in accordance with clause 6.5 of this
ECA;
10.1.5
development on an integrated design, supply and construction process in
accordance with clause 6 of this ECA;
10.1.6
selection and full involvement of Specialists in accordance with clause 7 of this
ECA;
10.1.7
finalisation of the Price(s) supported by the Activity Schedule in accordance
with clause 8 of this ECA;
10.1.8
evidence of all insurances required in accordance with the NEC Conditions;
10.1.9
satisfactory progress against KPIs and Targets in accordance with the NEC
Conditions;
10.1.10
completion by the Employer of any required Site acquisition or funding and
satisfaction of any other pre-conditions stated in the Works Information;
10.1.11
signature by the Employer and the Contractor of the Commencement
Agreement;
10.1.12
agreement to all remaining Works details for inclusion in the Contract Data –
Part 1, Contract Data – Part 2, Site Information, Works Information and Activity
Schedule forming part of the Commencement Agreement.
10.2
The Employer and the Contractor shall use reasonable skill and care appropriate to their
agreed roles, expertise and responsibilities as stated in this ECA to pursue diligently and
satisfy the pre-conditions described in clause 10.1 of this ECA, and shall notify each other
as soon as they are aware that such pre-conditions have been satisfied.
11
Works on Site
As soon as the pre-conditions described in clause 10 have been satisfied, the Project
Manager shall [arrange for the Partnering Adviser to] prepare a Commencement
Agreement, based on the form set out in Schedule 9, completed as to all agreed Works
details and developed Contract Documents listed in the Commencement Agreement, and
shall provide copies to the Employer and the Contractor allowing not less than ten (10)
Working Days for their comments. Subject to its amendment after Consultation to reflect
such comments as are necessary for compliance with this ECA and the NEC Conditions,
the Employer and the Contractor shall sign the Commencement Agreement.
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12
Risk Management
12.1
The Employer and the Contractor recognise the risks involved in the design, supply and
construction of the Works, and the costs associated with those risks. The Employer and
the Contractor shall work together and individually, through Risk Management exercises in
accordance with this ECA, including through the actions described in the Risk Register
within the periods and/or deadlines stated in such Risk Register and in the Partnering
Timetable, to analyse and manage risks in the most effective ways including:
13
12.1.1
identifying risks and their likely costs;
12.1.2
eliminating or reducing risks and their costs;
12.1.3
insuring risks wherever affordable and appropriate;
12.1.4
sharing or apportioning risks according to which one or more of the Employer
and the Contractor are most able to manage such risks.
Termination
The Employer may terminate the appointment of the Contractor if, due to non-achievement
of any of the pre-conditions set out in clause 10 of this ECA or for any other reason not
reasonably foreseeable by the Employer arising at any time prior to the date of the
Commencement Agreement, it no longer wishes to proceed with the Works. In such
circumstances the Employer shall give the Contractor not less than twenty (20) Working
Days prior notice terminating its appointment under this ECA, within which period the
Contractor shall cease all activities under this ECA in an orderly manner. Upon expiry of
that period the Project Manager shall issue a valuation to the Contractor pursuant to the
payment provisions set out in the NEC Conditions. The Employer shall pay in accordance
with the NEC Conditions the amounts stated in such valuation and notices, but shall not be
liable to pay any other amount. No notice may be given under this clause 13 after the date
of the Commencement Agreement.
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Schedule 1
ECA Details

Core Group members (clause 2.2)
For the Employer:[
]
For the Contractor: [
]
For the Project Manager: [
]
For the Supervisor: [
]
For the Cost Consultant: [
]
For the CDM Co-ordinator: [
[For the Technical Assessor: [

] acting by [
]
] acting by [
]
Partnering Adviser (clause 3.3)
The Partnering Advisor is [

]]
Project Manager (clause 3.1)
The Project Manager is [

]
Required surveys and investigations (clause 6.4)
[As set out in the relevant Mini-invitation or (in the context of direct award) specified by
the Ministry of Justice]

Pre-Commencement Phase Fees (clause 8.1)
[As set out in the relevant Mini-invitation or (in the context of direct award) specified by
the Ministry of Justice]

Fee (clause 8.4)
[As set out in the relevant Mini-invitation or (in the context of direct award) specified by
the Ministry of Justice]
[direct fee percentage]
[subcontracted fee percentage]
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Schedule 2
Pre-Construction Phase Services
(clause 2.1)
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Schedule 3
Partnering Timetable
(clause 4.1)
Description of
Activity/Requirement
Clause of ECA
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name.
Party Responsible for Activity
Period/Deadline for Activity
Additional Comments
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Schedule 4
Risk Register
(clause 12.1)
Risk
Likelihood of
Risk
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name.
Impact of Risk on
Project
Party responsible for Risk
Management
Risk Management
Action
Action
Period/Deadline
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Schedule 5
Site Information
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Schedule 6
Works Information
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Schedule 7
Activity Schedule
[Breakdown and components of Budget/IPP by reference to Defined Cost]
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Schedule 8
Form of Pre-Construction Agreement (NEC)
The Employer and the Contractor in accordance with and subject to the terms of an Early
Conditional Appointment dated [ 
] (the "ECA") entered into between them in relation to:
Project:
[
]
Site:
[
]
Agree under this Pre-Construction Agreement that:
1
Words and expressions used in this Pre-Construction Agreement shall have the same
meanings as in the ECA.
2
The Contractor shall undertake the following Pre-Construction Activities:
3
The dates for completion of such Pre-Construction Activities are:
4
The Employer shall pay the Contractor the following amounts for such Pre-Construction
Activities:
5
[Other terms as required]
Signed for and on behalf of [
by [
] (the Employer)
…………………………………………….
Dated
Signed for and on behalf of [
by [
……………………………………………
]
] (the Contractor) …………………………………………….
]
Dated
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…………………………………………….
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Schedule 9
Form of Commencement Agreement
The Employer and the Contractor in accordance with and subject to the terms of an Early
Conditional Appointment dated [ 
] (the "ECA") entered into between them in relation to:
Project:
[
]
Site:
[
]
Agree under this Commencement Agreement that:
1
Words and expressions used in this Commencement Agreement shall have the same
meanings as in the ECA.
2
To the best of their knowledge the Works are ready to commence on Site.
3
The parties to the Commencement Agreement shall be bound by the terms of the Contract
Documents subject to and in accordance with this Commencement Agreement.
4
The following detail shall apply by reference to the listed clauses of the NEC Conditions:

Contract Data Part 1 – Data provided by the Employer.

Contract Data Part 2 – Data provided by the Contractor:

Site Information:

Works Information:

Prices:

Activity Schedule:

Z clauses (if any) additional to those set out in or attached to the NEC Conditions:
Signed for and on behalf of [
by [
] (the Employer)
…………………………………………….
Dated
Signed for and on behalf of [
by [
……………………………………………
]
] (the Contractor) …………………………………………….
]
Dated
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…………………………………………….
26Error! Unknown document property name..Error! Unknown document propert
Schedule 10
NEC Conditions
Please note that these Z clauses have been produced before NEC has published amendments
to reflect the changes made to the Housing Grants Construction and Regeneration Act 1996
by the Local Democracy, Economic Development and Construction Act 1996. Accordingly, the
MoJ reserves the right to update these amendments to reflect the approach taken by NEC.
Z.1
Identified and defined terms
(31)
Confidential Information means the Client's Confidential Information and/or the
Contractor's Confidential Information as further defined in clause Z.5.
(32)
Contractor's Personnel means all employees,
Subcontractors/sub-consultants of the Contractor.
(33)
Crown means the Government of the United Kingdom (including the Northern Ireland
Executive Committee and the Northern Ireland Departments, the Scottish Executive and
the National Assembly for Wales) including but not limited to government ministers,
government departments, government in particular bodies and government agencies;
(34)
Employer Data means:
(a)
agents,
consultants
and
the Data, text, drawings, diagrams, images or sounds (together with any
database made up of any of these) which are embodied in any electronic,
magnetic, optical or tangible media, and which are:
(i)
supplied to the Contractor by or on behalf of the Employer; or
(ii)
which the Contractor is required to generate, process, store or
transmit pursuant to the Contract; or
(b) any Personal Data for which the Employer is the Data Controller.
(35)
Final Account means the account produced by the Project Manager for agreement pursuant
to clause 50.7 showing the final balance of the amount due between the Employer and
the Contractor.
(36)
Fraud means/is any offence under the law creating offences in respect of fraudulent acts
or at common law in respect of fraudulent acts in relation to the Crown or defrauding or
attempting to defraud or conspiring to defraud the Crown.
(37)
Intellectual Property Rights means:
(a)
copyright, rights related to or affording protection similar to copyright, rights in
databases, patents and rights in inventions, semi-conductor topography rights,
trade marks, rights in Internet domain names and website addresses and other
rights in trade names, designs including BIM, know-how, trade secrets and
other rights in Confidential Information;
(b)
applications for registration, and the right to apply for registration, for any of the
rights listed at (a) that are capable of being registered in any country or
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jurisdiction; and
(c) all other rights having equivalent or similar effect in any country or jurisdiction
(38)
Know-how means all ideas, concepts, schemes, information, knowledge, techniques,
methodology, and anything else in the nature of know how relating to the Services but
excluding know how already in the possession of the Employer or Contractor before the
date of this Contract;
(39)
Personnel means all employees, agents, consultants and subcontractors of either party.
(40)
Strategic Alliancing Agreement means the Strategic Alliancing Agreement between the
Employer, the Contractor and others
Z.2
Health and Safety
Amend clause 27 (Other responsibilities) as follows:
27.4
The Contractor promptly notifies the Employer of any Health and Safety hazards which
may arise in connection with the performance of the Contract. The Employer promptly
notifies the Contractor of any Health and Safety hazards which may exist or arise at the
Site and which may affect the Contractor in the performance of the Contract.
Supplement clause 27 as follows:
27.5
While on the Site, the Contractor complies with any Health and Safety measures
implemented by the Employer in respect of Contractor's Personnel and other persons
working on the Site.
27.6
The Contractor notifies the Employer immediately in the event of any incident occurring in
the performance of the Contract on the Site where that incident causes any personal injury
or damage to property which could give rise to personal injury.
27.7 The Contractor ensures that its Health and Safety policy statement (as required by the Health
and Safety at Work etc. Act 1974) is made available to the Employer on request.
Z.3
Security and Vetting
In this clause Z.3:
Contractor's Personnel Vetting Procedure means the Employer's procedures for the vetting of
Contractor's Personnel, as advised to the Contractor by the Employer.
Employer's Personnel means all employees, agents, consultants and subcontractors of the
Employer.
Independent Safeguarding Authority is a non-departmental public body sponsored by the Home
Office set up under the provisions of the Safeguarding Vulnerable Groups Act 2006 and which is
responsible for the decision-making and maintenance of two lists covering the children's and
vulnerable adults' sectors.
Relevant Conviction means a conviction that is relevant to the provision of the works or as listed by
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the Employer and/or relevant work of the Employer.
The Vetting and Barring Scheme means the scheme set up under the provisions of the
Safeguarding Vulnerable Groups Act 2006.
Z.3.1
Where the Contractor's Personnel are required to have a pass for admission to the Site
the Employer, subject to satisfactory completion of approval procedures, arranges for
passed to be issued. Contractor's Personnel who cannot produce a proper pass when
required to do so by any of the Employer's Personnel, or who contravene any conditions
on the basis of which a pass was issued, may be refused admission to the Site or required
to leave the Site if already there.
Z.3.2
The Contractor promptly returns any pass if at any time the Employer so requires or if the
person to whom the pass was issued ceases to be involved in the performance of the
Contract. The Contractor promptly returns all passes on completion or earlier termination
of the Contract.
Z.3.3
Contractor's Personnel attending the Site may be subject to a search at any time. Strip
searches are only conducted on the specific authority of the Employer under the same
rules and conditions applying to the Employer's Personnel. The Contractor is referred to
the Prison Rules 1999 Part III and the Prison (Amendment) Rules 2005 and the Young
Offender Institute Rules 2000 Part III and the Young Offender Institute (Amendment)
Rules 2008.
Z.3.4
The Employer, whose decision is final and conclusive, reserves the right under the
Contract to refuse to admit to, or to withdraw permission to remain on, the Site or any
premises occupied by or on behalf of the Employer:
●
any member of the Contractor's Personnel or
●
any person employed or engaged by a Sub-contractor, agent or servant of the
Contractor
whose admission or continued presence is, in the opinion of the Employer, undesirable.
Z.3.5
If and when directed by the Employer, the Contractor provides a list of the names and
addresses, National Insurance numbers, periods of employment, immigration status and
tax exemption certificates of all persons who it is expected may require admission in
connection with the Contract to the Site or any premises occupied by or on behalf of the
Employer, specifying the capacities in which they are concerned with the Contract and
giving such other particulars as the Employer may reasonably desire.
Z.3.6
The Contractor's Personnel, engaged within the boundaries of a Government
establishment, comply with rules, regulations and requirements (including those relating to
security arrangements) as may be in force from time to time for the conduct of Contractor's
Personnel when at that establishment and when outside that establishment.
Z.3.7
If the Contractor fails to comply with Z.3.2 and Z.3.5 the Employer, (whose decision is final
and conclusive) may decide that such failure is prejudicial to the interests of the Crown;
and if the Contractor does not comply with the Employer's reasonable requests within 2
months of the date of a written notice from the Employer so to do, then the Employer may
terminate the Contract, provided that such termination does not prejudice or affect any
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right of action or remedy which has accrued or thereafter accrues to the Employer.
Z.3.8
The Contractor bears the cost of complying with the requirements notices, instructions or
decisions received from the Employer in relation to the Contractor's obligations in respect
of information relating to individuals.
Z.3.9
The Contractor does not employ any person where the Contractor knows, or by reason of
the circumstances which might reasonably be expected to know, that the person
concerned is involved in any unlawful procurement of Social Security benefits or tax
exemptions in connection with his employment by the Contractor. The Contractor does
not make, facilitate or participate in the procurement of any unlawful payments to any
person employed by the Contractor, whether in the nature of Social Security fraud,
evasion of tax or otherwise.
Z.3.10
The Contractor complies with the Employer's procedures for the vetting of Contractor's
Personnel in respect of all persons to be employed or engaged to Provide the Works. The
Contractor confirms that all persons employed or engaged by the Contractor or that will be
employed or engaged by the Contractor in relation to this Contract are vetted and recruited
on a basis that is equivalent to and no less strict than the Contractor's Personnel Vetting
Procedures.
Z.3.11
The Employer may require the Contractor to ensure that any person employed to Provide
the Works has undertaken a Criminal Records Bureau check as per the Contractor's
Personnel Vetting Procedures or any other security check as may be required by the
Employer from time to time. The Contractor ensures that no person who discloses that
he/she has a Relevant Conviction, or is found by the Contractor to have a Relevant
Conviction (whether as a result of a police check or through the Criminal Records Bureau
check or otherwise), is employed or engaged to Provide the Works.
Z.3.12
Individuals, including those held in lawful custody or on probation are regarded as
vulnerable persons under the Safeguarding Vulnerable Groups Act 2006. Where the
Employer deems it necessary, the Contractor provides a list of Personnel who Provide the
Works that are vetted by the Independent Safeguarding Authority. The Employer may in its
sole discretion refuse access to the Site by any member of the Contractor's Personnel
who do not successfully complete the vetting procedures under the Vetting and Barring
Scheme.
Z.3.13
Whilst on the Site the Contractor's Personnel comply with all security measures
implemented by the Employer in respect of staff and other persons attending the Site. The
Employer provides copies of its written security procedure to the Contractor on request.
The Contractor and all members of the Contractor's Personnel are prohibited from taking
any photographs on the Site unless the Employer has given prior written consent and an
Employer representative is present so as to have full control over the subject matter of
each photograph to be taken.
Z.3.14
The Contractor takes measures needed to prevent its Personnel from taking, publishing or
otherwise circulating such photographs.
Z.3.15
The Employer has the fight to carry out any search of Contractor's Personnel or of
vehicles used by the Contractor at the Site.
Z.3.16
The Contractor co-operates with any investigation relating to security which is carried out
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by the Employer or by any person who is responsible to the Employer for security matters,
and when required by the Employer:
Z.4
●
takes all reasonable measures to make any Contractor's Personnel identified by
the Employer available to be interviewed by the Employer, or by a person who is
responsible to the Employer for security matters, for the purposes of the
investigation. Contractor's Personnel have the right to be accompanied by and to
be advised or represented to the other person whose attendance at the interview is
acceptable to the Employer; and
●
subject to any legal restriction on their disclosure, provides all documents, records
or other material of any kind which may reasonable be required by the Employer or
by a person who is responsible to the Employer for security matters, for the
purposes of the investigation, so long as the provision of that material does not
prevent the Contractor from performing the Contract. The Employer has the right
to retain any such material for use in connection with the investigation and, so far
as possible, provides the Contractor with a copy of any material retained.
Information Security
[Using additional defined terms as they appear in the Strategic Alliancing Agreement:]
Z.4.1
The Contractor:
●
identifies, keeps and discloses to the Employer upon request a record of those
members of the Contractor's Personnel and any Sub-contractors with access to or
who are involved in handling Employer Data (users) and
●
provides to the Employer details of its policy for reporting, managing and
recovering from information risk incidents, including losses of protected Personal
Data and ICT security incidents and its procedures for reducing risk and raising
awareness; and
●
immediately reports information security incidents to the Employer. Significant
actual or potential losses of Personal Data may be shared with the Information
Commissioner and the Cabinet Office by the Employer.
Z.4.2
The Contractor protects Employer Data whose release or loss could cause harm or
distress to individuals. The Contractor handles all such Employer Data as if it were
confidential while it is processed or stored by the Contractor or its Sub-contractors,
applying the measures set out in clauses Z.4.1 to Z.4.9 (inclusive).
Z.4.3
When Employer Data is held on paper it is kept secure at all times, locked away when not
in use or the premises on which it is held secured. If Employer Data held on paper is
transferred it must be by an approved secure form of transfer with confirmation of receipt.
When Employer Data is held and accessed on ICT systems on secure premises, the
Contractor applies the minimum protections for information set out in the Works
Information, or equivalent measures, as well as any additional protections as needed as a
result of the Employer's risk assessment. Where in exceptional circumstances equivalent
measures are adopted by the Contractor obtains the Employer's prior approval in writing.
Z.4.4
Wherever possible, Employer Data should be held and accessed on paper or ICT systems
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on secure premises protected as above. The Contractor does not use removable media
(including laptops, removable discs, CD-ROMs, USB memory sticks, PDAs and media
card formats) for storage or access to such Data where possible. Where the Employer
agrees that this is not possible, the Contractor works to the following hierarchy, recording
the reasons for a particular approach not being adopted in a particular case or a particular
business area:
Z.4.5
●
best option; hold and access data on ICT systems on secure premises;
●
second best option:; secure remote access, so that Data can be viewed or
amended without being permanently stored on the remote computer. This is
possible for Employer Data over the internet using products meeting the FIPS 1402 standard or equivalent, unless otherwise agreed with the Employer; and
●
third best option: secured transfer of Employer Data to a remote computer on a
secure site on which it will be permanently stored. Both the Employer Data at rest
and the link should be protected at least to the FIPS 140-2 standard or equivalent.
Protectively marked Employer Data must not be stored on privately owned
computers unless they are protected in this way;
●
in all cases the remote computer should be password protected, configured so that
its functionality is minimised to its intended business use only, and have up to date
software patches and anti-virus software.
Where the Employer agrees that it is not possible to avoid the use of removable media,
the Contractor applies all of the following conditions:
●
the Employer Data transferred to the removal media should be the minimum
necessary to achieve the business purposes, both in terms of the numbers of
people covered by the Employer Data and the Works Information of Employer
Data held. Where possible only anonymised Employer Data should be held;
●
the removal media should be encrypted to a standard of at least FPIS 140-2 or
equivalent in addition to being protected by an authentication mechanism, such as
a password;
●
user rights to transfer Employer Data to removable media should be carefully
considered and strictly limited to ensure that this is only provided where absolutely
necessary for business purposes and subject to monitoring by the Contractor and
the Employer; and
●
the individual responsible for the removable media should handle it – themselves,
or if they entrust it to others – as if it were the equivalent of a large amount of their
own cash.
Z.4.6
Where the Employer agrees that the second condition of encryption cannot be applied due
to business continuity and disaster recovery considerations, such unprotected Employer
Data should only be recorded, moved, stored and monitored with strong controls.
Z.4.7
All material that has been used for confidential Employer Data should be subject to
controlled disposal. The Contractor must:
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●
destroy paper records containing protected Personal Data by incineration, pulping
or shredding so that reconstruction is unlikely and
●
dispose of electronic media that has been used for protected Personal Data
through secure destruction, overwriting, erasure or degaussing for re-use.
Z.4.8
The Contractor has appropriate mechanisms in place in order to comply with the
Employer's requirements as set out in this clause including adequate training in handling
confidential Data for the Contractor's Personnel.
Z.4.9
The Contractor:
●
puts in place arrangements to log activity of Data users in respect of electronically
held protected personal information and for managers to check the arrangements
are being properly conducted, with a particular focus on those working remotely
and those with higher levels of functionality. Summary records of managers'
activity must be shared with the Employer and be available for inspection by the
Information Commissioner's office on request;
●
minimises the number of users with access to the Employer Data.
Z.5
Confidentiality
Z.5
In this clause Z.5:
Z.5.1
●
Commercially Sensitive Information means the information listed in Appendix 1
(Commercially Sensitive Information).
●
Contractor's Confidential Information means any information, however it is
conveyed, that relates to the business affairs, developments, trade secrets, knowhow, Contractor's Personnel and suppliers of the Contractor, including Intellectual
Property Rights, together with all information derived from the above and any other
information clearly designated as being confidential (whether or not it is marked as
"confidential") or which ought reasonably to be considered to be confidential
including the Commercially Sensitive Information.
●
Employer's Confidential Information means all Personal Data and any
information, however it is conveyed, that relates to the business affairs,
developments, trade secrets, know-how, personnel and suppliers of the Employer,
including all Intellectual Property Rights, together with all information derived from
any of the above and any other information clearly designated as being
confidential (whether or not it is marked "confidential") or which ought reasonably
to be considered to be confidential.
Except where disclosure is expressly permitted elsewhere in this Contract, each Party:
●
treats the other Party's Confidential Information as confidential and safeguard it
accordingly and
●
does not disclose to the other Party's Confidential Information to any other person
without the owner's prior written consent.
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Z.5.2
The Parties' obligations in relation to Confidential Information do not apply to the extent
that:
●
the disclosure is a requirement of Law placed upon the Party making the
disclosure, including any requirements for disclosure under the Freedom of
Information Act, Code of Practice on Access to Government Information or the
Environmental Information Regulations;
●
the information was in the possession of the Party making the disclosure without
obligation of confidentiality prior to its disclosure by the information owner;
●
the information was obtained from a third party without obligation of confidentiality;
●
the information was already in the public domain at the time of disclosure
otherwise than by a breach of the Contract; or
●
it is independently developed without access to the other Party's Confidential
Information.
Z.5.3
The Contractor only discloses the Employer's Confidential Information to the Contractor's
Personnel who are directly involved in the provision of the works any of the Employer's
Confidential Information and need to know, and ensures that the Contractor's Personnel
are aware of and comply with their obligations in respect of Confidential Information.
Z.5.4
The Contractor does not, and procures that the Contractor's Personnel do not, use of any
of the Employer's Confidential Information received otherwise than for the purposes of the
Contract.
Z.5.5
At the written request of the Employer, the Contractor procures that members of the
Contractor's Personnel identified in the Employer's notice sign a confidentiality undertaking
on similar terms to the Contract prior to commencing any work in accordance with the
Contract.
Z.5.6
Nothing in the Contract prevents the Employer from disclosing the Contractor's
Confidential Information:
Z.5.7
●
to any Crown body or any other Contracting Authority on the understanding that
they are entitled to further disclose the Confidential Information to other Crown
bodies or other Contracting Authorities on the basis that the information is
confidential and is not to be disclosed to a third party which is not part of any
Crown body or any Contracting Authority;
●
to any contractor, consultant or other person engaged by the Employer or any
person conducting an Office of Government Commerce gateway review;
●
for the purpose of the examination and certification of the Employer's accounts, or
●
for any examination pursuant to Section 6(1) of the National Audit Act 1983 of
the economy, efficiency and effectiveness with which the Employer has used its
resources.
The Employer uses its reasonable endeavours to ensure that any government department,
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Contracting Authority, employee, third party or Sub-contractor to whom the Contractor's
Confidential Information is disclosed is made aware of the Employer's obligations of
confidentiality.
Z.5.8
Nothing prevents either Party from using any techniques, ideas or know-how gained
during the performance of the Contract in the course of its normal business to the extent
that this use does not result in a disclosure of the other Party's Confidential Information or
an infringement of IPR.
Z.5.9
The parties acknowledge that, subject to the foregoing provisions regarding the
Contractor's confidential information, the content of this contract is not Confidential
Information. Notwithstanding any other term of this Contract, the Contractor hereby gives
consent for the Employer to publish the Contract in its entirety, including from time to time
agreed changes to the contract, to the general public. Prior to the publication the
Employer may, at his sole discretion, in whole or in part, redact information for one or
more of the following grounds:
(a)
(b)
(c)
(e)
(f)
(g)
national security;
personal data;
information protected by intellectual property law;
(d)
information which is not in the public interest to disclose (under a
Freedom of Information Act analysis);
third party confidential information;
IT security; or
prevention of fraud.
Z.6
Fraud and Prevention of Corruption
Z.6.1
The Contractor takes all reasonable steps to prevent Fraud.
Z.6.2
Z.7
The Contractor notifies the Employer immediately if it has reason to suspect that any
Fraud has occurred or is occurring or is likely to occur.
CDM Regulations and SWMP Regulations
Z.7.1
The Principal Contractor for the purposes of both the Construction (Design and
Management) Regulations 2007 (the CDM Regulations) and the Site Waste Management
Plans Regulations 2008 (the SWMP Regulations) is the Contractor or, if he ceases to be
the Principal Contractor, such other contractor as the Employer will appoint pursuant to
regulation 14(2) of the CDM Regulations and regulation 4(1) of the SWMP Regulations.
Z.7.2
The CDM Co-ordinator for the purposes of the CDM Regulations is the Project Manager
or, if he ceases to be the CDM Co-ordinator, such other person as the Employer will
appoint pursuant to regulation 14(1) of the CDM Regulations.
Z.8
Employment and Skills
Z.8.1
The following new definitions shall be added to Core Clause 11:
"11.20
The Employment and Skills Strategy is the Employer's Employment and
Skills Strategy forming part of the Works Information;
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11.21
The ESP is the works-specific Employment and Skills Plan produced by the
Contractor and forming part of the Works Information to be complied with and
implemented by the Contractor in order to execute the Employment and Skills
Strategy;
11.22
The Method Statement is the works-specific method statement produced by
the Contractor and forming part of the Works Information which sets out in
detail how the Contractor shall implement the ESP;".
Z.8.2
The Contractor complies with and implements the ESP and Method Statement in
accordance with the Employment and Skills Strategy.
Z.8.3
The Contractor nominates an individual to liaise with the Project Manager and provides the
Project Manager with information as required to demonstrate the Contractor's compliance
with the ESP and Method Statement.
Z.8.4
The Project Manager provides to the Contractor information it has available to enable the
Contractor to comply with and implement the ESP and Method Statement, including the
details listed in the Employment and Skills Strategy.
Z.8.5
The Contractor provides to the Project Manager on a monthly basis, in accordance with
the relevant Key Dates, a report outlining the achievements during the previous month
against the ESP and Method Statement and the employment and skills Key Performance
Indicator contained in the [Schedule of Partners][Incentive Schedule], and provides details
of the various employment and skills activities delivered in the month. The Project
Manager is responsible for monitoring the Contractor's compliance with and
implementation of the ESP and Method Statement, and such monitoring forms part of the
Employer's assessment of the employment and skills Key Performance Indicator.
Z.8.6
The Contractor and the Project Manager attend a meeting (convened by the Project
Manager) after Completion to review the completed works and the Contractor's
performance against the Key Performance Indicators (including performance against the
employment and skills Key Performance Indicator), and its compliance with and
implementation of the ESP and Method Statement, and to consider the scope for further
improvement on future projects.
Z.8.7
Any and all costs relating to compliance with and implementation of the ESP and Method
Statement by the Contractor are included in the Activity Schedule.
Z.7.8
Where a compensation event set out in clause 60.1 and agreed or established in
accordance with clauses 60 to 65 substantially increases or decreases the Price, the
Contractor may propose a corresponding and proportionate amendment to the
employment and skills output figures contained in the ESP, the Method Statement and any
relevant Key Performance Indicators. The Employer and the Project Manager consider
any such proposal made by the Contractor and seek to agree any amendments with the
Contractor.
Z.9
Z.9.1
Priority Clause
The Contract Documents shall be treated as complementary and it is the duty of the
Contractor to warn the Employer and the Project Manager of any error, omission or
discrepancy of which it becomes aware and (within the scope of its agreed role, expertise
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and responsibilities) to put forward proposals to resolve any such error, omission or
discrepancy fairly and constructively without adversely affecting the agreed cost or time for
completion or quality of the Works. Any proposal pursuant to this clause Z.9.1 is subject
to prior approval by the Employer after Core Group consultation.
Z.9.2
Z.10
In the event that any discrepancy cannot be resolved in accordance with clause Z.9.1 and
except where a different priority is agreed by the Employer, the Project Manager and the
Contractor, the priority between the Contract Documents shall be as follows in descending
order:
i
The Commencement Agreement;
ii
The Early Conditional Appointment;
iii
The NEC Conditions;
iv
The Accepted Programme;
v
The Partnering Timetable;
vi
Those parts of the Works Information and Site Information provided by
the Employer;
vii
Those parts of the Works Information and Site Information provided by
the Contractor;
viii
The Activity Schedule;
ix
Any Risk Register;
x
Any other Contract Documents.
Payment
Delete clauses 50 and 51 and replace with the following:
50
Assessing the amount due
50.1 The first assessment date is decided by the Contractor to suit the procedures of the Parties
and is not later than the assessment interval after the starting date. Later
assessment
dates
occur
(i)
at the end of each assessment interval until four weeks after the Supervisor
issues the Defects Certificate
(ii)
at Completion of the whole of the works.
50.2
The date on which a payment becomes due is seven days after the assessment date.
50.3
The amount due is
(i)
the price for Work Done to Date,
(ii)
plus other amounts to be paid to the Contractor,
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(iii)
less amounts to be paid by or retained from the Contractor.
Any tax which the law requires the Employer to pay to the Contractor is included in the
amount due.
50.5
In assessing the amount due, the Project Manager considers any application for payment
the Contractor has submitted on or before the payment due date.
50.5
If no programme is identified in the Contract Data, one quarter of the Price for Work Done
to Date is retained in assessments of the amount due until the Contractor has submitted a
first programme to the Project Manager for acceptance showing the information which this
contract requires.
50.6
The Project Manager corrects any wrongly assessed amounts due in a later payment
certificate.
50.7
The following procedures shall apply in relation to the Final Account:
(i)
The Project Manager prepares and issues to the Employer and the Contractor a
Final Account (calculated in accordance with clauses 50.3 – 50.6 taking into
account any adjustment provided for in accordance with this contract (including
without limitation any adjustment required under clause 45) and reflecting
amounts previously paid under this contract) within twenty (20) Working Days
following issue by the Supervisor of the Defects Certificate under clause 43.3.
(ii)
The Employer or the Contractor (as the case may be) makes an application for
payment stating the sum the Employer or the Contractor considers to be due to
it and the basis on which that sum is calculated in reference to the Final
Account and which shall be supported by such further information as the other
party may reasonably require. The application is made on or after forty (40)
Working Days from the issue by the Supervisor of the Defects Certificate under
clause 43.3 (or any revised period agreed between the Employer and the
Contractor). The due date for payment in respect of the application is the date
of receipt by the payer of such application.
(iii)
The payer or the Project Manager issues to the payee a payment notice setting
out the sum the payer considers to have been due on the due date for payment
and the basis on which that sum is calculated within five (5) days from the due
date for payment. The final date for payment is the later of twenty (20) Working
Days from the due date for payment and fifteen (15) Working Days from the
date of receipt by the payer of any required VAT invoice in the same sum as the
payment notice.
(iv)
(v)
If a payment notice is not issued in accordance with clause 50.7(iii) the application
for payment pursuant to clause 50.7(ii) shall be treated as the payment notice.
Subject to any notice issued in accordance with clause 51.4 the payer pays the
sum stated as due in the payment notice or the application for payment by the
final date for payment calculated in accordance with clause 51.5.
The Final Account, when agreed, shall be conclusive evidence as to the balance
of the amount due between the Employer and the Contractor.
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51
Payment
51.1
The Project Manager certifies payment by issuing a payment notice within five days of the
payment due date which sets out the sum the Project Manager considers to be due on the
payment due date and the basis on which that sum is calculated. The first payment is the
amount due. Other payments are the change in the amount due since the last payment
certificate. A payment is made by the Contractor to the Employer if the change reduces
the amount due. Other payments are made by the Employer to the Contractor. Payments
are in the currency of this contract unless otherwise stated in this contract.
51.2
If the Project Manager fails to issue the Project Manager's certificate correctly or on time
(i)
long
due
(ii)
the Contractor's application for payment (if any) is the notice of payment as
as it specifies the sum the Contractor considers to be due on the payment
date and the basis on which that sum is calculated, or
the Contractor issues a payment notice specifying the sum the Contractor
considers to have been due on the payment due date and the basis on which
that sum is calculated.
51.3
The notified sum in the Project Manager's certificate or the Contractor's application for
payment or payment notice (as the case may be) must be paid by the final date for
payment, unless a Party has notified his intention to pay less as required by this Contract.
51.4
If either Party intends to pay less than the amount stated in the Project Manager's
certificate or the Contractor's payment notice, he notifies the other Party not later than
seven days before the final date for payment by stating the sum that Party considers to be
due on the date the notice is served and the basis on which that sum is calculated. For
the avoidance of doubt, the Project Manager may serve a pay less notice on behalf of the
Employer.
51.5
The final date for payment for each payment is
(i)
14 days from the payment due date or,
(ii)
if a different period is stated in the Contract Data, within the period stated.
If the Contractor issues a Contractor payment notice, then the final date for payment will
be postponed by the same number of days after the date that the Project Manager's
payment notice should have been served in accordance with clause 51.1.
If a certified payment is late interest is paid on the late payment. Interest is assessed from
the date by which the late payment should have been made until the date when the late
payment is made, and is included in the first assessment after the late payment is made.
This clause does not exclude the Contractor's rights following non-payment set out in
other clauses of this Contract or at law.
51.6
If an amount due is corrected in a later certificate either
(i)
by the Project Manager in relation to a mistake or a compensation event or
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(ii)
following a decision of the Adjudicator or the tribunal,
interest on the correcting amount is paid. Interest is assessed from the date when the
incorrect amount was certified until the date when the correcting amount is certified and is
included in the assessment which includes the correcting amount.
51.7
Z.11
Interest is calculated on a daily basis at the interest rate and is compounded annually.
Termination
Amend clauses as follows:
Insert clause 90.1A (termination at any time)
90.1A.1
Notwithstanding any other provision of this Contract, the Employer may terminate this
Contract at any time. In such circumstances the Employer gives the Contractor not less
than twenty (20) Working Days prior notice, within which period the Contractor ceases all
activities under the Contract in an orderly manner.
90.1A.2
Upon expiry of that period the Project Manager complies with the provisions of clause 50
(payment) and clauses 92 and 93.1 (procedure on termination, payment on termination).
Amend clause 93.1 by inserting at the end of the clause:
"provided that the Employer need not pay this sum and/or any sum that has already become due
insofar as the Employer has given or gives a pay less notice in accordance with this Contract"
Amend clause 93 by inserting new sub clause as follows:
"93.3
Z.12
No sum is payable in respect of any sum due under this Contract, if the Contractor suffers
an event of insolvency as defined in section 113(2) to (5) of the Housing Grants
Construction and Regeneration Act 1996 (as amended) after the date on which the pay
less notice is due in accordance with clause 51.4."
Core Group
Insert new clause 16A as follows:
16A.1 Core Group and members
The Employer, Contractor and Project Manager establish a Core Group which meets
regularly to review and stimulate the progress of the Works and to fulfil their other
functions as described in this Contract. Members of the Core Group shall comprise the
individuals listed in the Early Conditional Appointment subject to replacement only with the
prior consent of the current Core Group members. The Employer ensures that the Project
Manager's appointment contains terms providing that the Project Manager is a member of
the Core Group and equivalent terms to this Z clause 16A.
16A.2 Responsibility for Core Group members
Each of the Employer, Contractor and Project Manager ensures that any of its employees
who are Core Group members attend Core Group meetings and fulfil the agreed functions
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of a Core Group member in accordance with the contract.
16A.3 Core Group meetings
A meeting of the Core Group members is convened by the Project Manager at the request
of any Core Group member and otherwise as required by the Contract, at not less than
five (5) Working Days notice unless all Core Group members agree a shorted period, to all
Core Group members (copied to all who are entitled to attend) stating its agenda. Each
such meeting is chaired by an individual to be agreed at that meeting and deals only with
the matters listed in its agenda (unless all Core Group members agree otherwise).
16A.4 Core Group decisions
Decisions of the Core Group are by consensus (unanimous agreement following reasoned
discussion) of all Core Group members present at that meeting. The Employer,
Contractor and Project Manager comply with any decision of the Core Group made within
the scope of its agreed functions.
Z.13
Partnering Adviser
Insert new Core Clause 16B as follows:
16.B.1 Partnering Adviser
In all matters relating to the Contract relationships and the operation of the Contract, the
Employer, Contractor, Project Manager and Supervisor may together or individually utilise
the advice and support of the Partnering Adviser identified in the Early Conditional
Appointment, subject to prior agreement of costs and the Partnering Adviser's duty of
care, including:
(i)
team-building, review of the Contract Documents and review of Sub-Contracts
and Professional Services Contracts for consistency with the Contract ;
(ii)
preparation of the Contract Documents;
(iii)
provision of fair and constructive advice as to the Contract processes and the
operation of the Contract;
(v)
attendance at such meetings of the Core Group as their members consider
appropriate;
(vi)
assistance in the solving of problems and the avoidance or resolution of dispute
in accordance with clause W.1.
16B.2 Replacement Partnering Adviser
The Partnering Adviser may be replaced at any time by a decision of the Core Group.
Z.14
Early Warning
Insert new Core Clause 16.5 to read:
16.5
Without limitation to the remainder of this clause 16, the Employer, Contractor, Project
Manager and Supervisor each notifies the others as soon as it is aware of any matter
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adversely affecting or threatening the Works or their performance under the contract or
their Professional Services Contract as the case may be, and (within the scope of its
agreed role, expertise and responsibilities) includes in such notification proposals for
avoiding or remedying such matter. The Project Manager convenes a meeting of the Core
Group within five (5) Working Days from the date of any such notification to agree an
appropriate course of action unless all Core Group members agree such course of action
without a meeting.
Z.15
Risk Management
Insert as new 16.6:
The Employer, Contractor, Project Manager, Supervisor and appointed Consultants recognise the
risks involved in the design, supply and construction of the Works, and the costs associated with
those risks. The Employer, Contractor, Project Manager, Supervisor and appointed Consultants
work together and individually, through Risk Management exercises in accordance with this clause
16, and otherwise in accordance with the Contract, including through the actions described in any
Risk Register within the periods and/or deadlines stated in such Risk Register, to analyse and
manage risks in the most effective ways including:
(i)
identifying risks and their likely costs;
(ii)
eliminating or reducing risks and their costs;
(iii)
insuring risks wherever affordable and appropriate;
(iv)
Z.16
sharing or apportioning risks according to which one or more Partnering Team
members are most able to manage such risks.
Insurance and security
Professional Indemnity Insurance
Insert new Core Clause 85.5
Professional indemnity insurance and/or product liability insurance is taken out by the Contractor as
stated in the Insurance Table and is maintained for a period expiring no early than 12 years after the
date of Completion and notwithstanding termination for any reason of the Contractor's engagement
under the contract unless such cover is no longer generally available in the market-place on
reasonable terms and at reasonable premiums.
Amend the Insurance Table to add as follows:
INSURANCE TABLE
Insurance against
Minimum amount of cover or minimum level
of indemnity
Professional indemnity insurance
The amount stated in the Contract Data for any
one event [which amount shall not in any event
be less than [£xm]]
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Z.17
Limitations
Insert new Core Clause 12.5
Notwithstanding the method of executing the Contract, the limitation period for all and any claims and
proceedings arising under or out of or in connection with the Contract or the Works is twelve (12)
years from the Completion Date. This limitation period shall not prevent claims and proceedings prior
to the Completion Date or the conclusion of proceedings commenced prior to the expiry of such
limitation period
Z.18
Possession
All parts of the Site are in the exclusive possession of the Contractor until the period immediately
prior to the Completion Date when the Employer may need access to agreed areas of the Site in
order to commence installation of agreed fixtures and fittings. The arrangements for any period of
non-exclusive possession will be set out in the Contract.
Z.19
Asbestos
Notwithstanding any other provisions of the Contract, the risk of loss or damage to the Works and the
Site occasioned by asbestos remains with the Employer provided always that, in the event that the
Contractor discovers any asbestos the Contractor takes all steps that would be expected of a
reasonable Contractor and, if the asbestos is to be removed, appoints and adequately supervises
any subcontractors involved in the removal of the same.
Z.20
Employees
Delete Core Clause 24.2 and insert as follows:
“The Employer is entitled to require any of the Contractor's employees to be replaced if in the
reasonable opinion of the Employer that person’s performance is unsatisfactory and/or that person
has breached the Security Requirements of the Employer set out in the Works Information. Such
person is replaced with a person of at least the same experience and expertise at the expense of the
Contractor and subject to the Employer’s approval (such approval not to be unreasonably withheld or
delayed).”
Z.21
Intellectual Property Rights
Insert new Core Clause 22.2:
The Intellectual Property Rights in all designs and other documents prepared by or on behalf of the
Contractor in relation to the Works and the work executed from them are the property of and vested
in the Employer who reserves the right to replace such designs and/or documents or to execute or to
have executed works in accordance with such designs and/or documents as may be required by the
Employer and the Intellectual Property Rights extends to any and all future projects implemented by
the Employer.
The Employer grants to the Contractor an irrevocable non-exclusive, royalty free licence (carrying the
right to grant sub-licences) to use for the duration of the Works only and only for purposes directly
relating to completion of the Works any Intellectual Property Rights relating to the works which are or
become vested in or are licensed to the Employer.
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Z.22
Z.23
Inspection of financial records
(1)
The Contractor allows the Project Manager (or other representative of the
Employer) to visit its offices and to inspect its financial records in relation to the
Works at any time subject to reasonable prior notice;
(2)
The Contractor uses reasonable endeavours to ensure that a clause Is inserted
into any Subcontracts specifically stating that the Project Manager (or other
representative of the Employer) is entitled to visit the Subcontractor’s offices and
to inspect its financial records in relation to the Works at any time subject to
reasonable prior notice.
Exclusion of Fee from Compensation Events
Notwithstanding any other provision of this Contract, any quotation and payment for Compensation
Events other than a Compensation Event under Core Clause 60.1(1), shall exclude any claim for an
increased or additional Fee.
Z.24
Problem Solving and Dispute Avoidance or Resolution: Option W1
Delete Option W1 and replace as follows:
W1.1
Notice of difference or dispute
As soon as it aware of any difference or dispute arising under or out of or in connection
with the Contract or the Works (a "difference or dispute"), the Contractor or the Employer
as the case may be gives notice to the other copied to the Project Manager.
W1.2
Problem-Solving Hierarchy
Upon receipt of notice in accordance with clause W1.1 the parties involved in a difference
or dispute, guided as necessary by the Partnering Adviser, apply the Problem-Solving
Hierarchy set out in Appendix [ ] and use reasonable skill and care to ensure that their
employees named in the Problem-Solving Hierarchy express their views and propose their
solutions within its stated timetable in seeking to achieve an agreed solution to the notified
difference or dispute.
W1.3
Core Group review
Where application of the Problem-Solving Hierarchy does not achieve, within its stated
timetable, a solution acceptable to all the Parties involved in a difference or dispute, then
the Project Manager convenes a meeting of the Core Group at no more ten (10) Working
Days' notice, notifying them of all available information regarding the difference or dispute
and inviting all involved and the Partnering Adviser, who attends the meeting and makes
constructive proposals in seeking to achieve an agreed solution to the notified difference
or dispute.
W1.4
Conciliation, mediation or other alternative dispute resolution
If any difference or dispute is not resolved in accordance with clauses W1.2 and W1.3, and
provided that no Party has by reason of that difference or dispute exercised a right of
termination, then any Party involved in such difference or dispute may refer it to
conciliation in accordance with the procedure referred to in Appendix [ ], or to mediation
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or any other form of alternative dispute resolution recommended by the Partnering Adviser
in accordance with such procedure as the Partnering Adviser may recommend or organise
and as the Parties involved in such different or dispute may agree.
W1.5
Adjudication
The procedures under clauses W1.1, W1.2, W1.3 and W1.4 are without prejudice to the
rights of the Parties involved in a difference or dispute to refer it to adjudication, and any
such reference shall be in accordance with the procedure referred to in Appendix [ ].
W1.6
Litigation
Any difference or dispute that is not resolved by adjudication in accordance with clause
W1.5 may be referred by any Party involved in such difference or dispute either to the
courts of England and Wales.
Z.25 Dispute resolution (Option W2)
Delete clause W2.3(12) and insert:
"The Adjudicator may correct his decision so as to remove a clerical or typographical error arising by
accident or omission within five days of communicating his decision to the Parties."
Insert new clause W2.5 as follows:
"References to the Housing Grants, Construction and Regeneration Act 1996 in this schedule are to
that Act (as amended)."
Z.26 The Housing Grants, Construction and Regeneration Act 1996 (Option Y(UK) 2)
Delete this clause and insert "Not used."
Z.27 Compensation events
Amend clause 60.1 by including new sub clause as follows:
"(20)
Z.28
The Contractor exercising its right to suspend any or all of his obligations under this Contract
pursuant to the Housing Grants Construction and Regeneration Act 1996 (as amended);"
Collateral warranties
Insert a new core clause 26.4:
26.4 The Contractor procures the following collateral warranties:
(i)
in favour of the Employer from any Subcontractor with material design responsibility within ten
(10) Working Days of the Project Manager's request or ten (10) Working Days of that Subcontractor's
appointment in connection with the Works in the form set out at Appendix 1 to this contract; and
(ii)
in favour of the Employer from the any sub-contractor or sub-consultant of a Subcontractor
with material design responsibility within fourteen days of the Project Manager's request or ten (10)
Working Days of that sub-contractor or sub-consultant's appointment in connection with the Works in
the form set out at Appendix 2 to this contract.
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Appendix 1
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Appendix 2
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Schedule 11
Shared Savings Scheme
(clause 9.1)
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