The Public Works Contracts: What now?
The Office of Government Procurement published its Report on the Review of the Performance of the Public Works Contract (the “Report”) on 11 December 2014, setting out its conclusions following the long-awaited review, commenced in 2013.
The Report is a breath of fresh air, but it will remain to be seen whether it sounds of a whisper or a scream.
Background:
In 2006, the then Department of Finance launched its reform of public sector contracting with the publication of the new suite of public works contracts for use on the appointment of all construction professionals and building contractors undertaking building and engineering works in the public sector. The key driver behind the reform was the perceived need to ‘provide for optimal risk transfer supported by good quality information to help achieve greater cost certainty, better value for money and timely and more efficient delivery of projects’. The initial introduction of Standard Conditions of Engagement for Construction Professionals, from January 2007, and five new forms of contract for traditional and design and build contracts for both building and civil engineering works was followed, during the next 7 years, with an ever expanding suite of documents, and numerous iterations of the same. As at June 2014, there had been 14 iterations of the Standard Conditions of Engagement (as well as the introduction of further forms for specific projects and services), and 9 iterations of the principal forms of building contract – indeed, one of the most frustrating features of the new contracts in the early years, was the constant changes and amendments which were introduced, through revised versions, often with very little information provided as to which provisions were being amended and in what manner. A series of model forms and ancillary documents were also produced. As if this was not enough, a raft of guidance notes was produced, running to several hundred pages, to assist parties, and principally contracting authorities, in choosing the most appropriate contract form for each project, and navigating their way through the documents. The public works contract created a vast body of documentation but they also introduced consistency in contracting, with the same or similar provisions and contract structures running through all the contract forms. The public works contracts presented a challenge to all, but surely they could assist in meeting the underlying objectives of this initiative?
