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14th March 14

Public Works Contracts For Minor Works – A Personal Perspective 

The Public Works Contract for Minor Works is recommended for Employer designed contracts with a value between €500k to €5 million. Having worked on a number of road projects using this form, there would seem to be some key differences developing in the relationship between the Contractor and the Engineer / ER. These in my view are due to onerous notification and time constraints in the new forms. This creates a myriad of additional paperwork on both sides with very short deadlines. The relationship between Contractor and ER must by its nature become more formal in comparison to working under the old IEI Form. 

Perhaps the Contractor’s most important correspondence is the Clause 10.3 Notification for claims and adjustments for money or time. 

  • Contractor must issue Clause 10.3 notification to ER within 20 days latest of becoming aware of an entitlement.
  • Full details to be provided to ER within a further 20 days.
  • If Contractor does not comply with above, he will lose any entitlement to extra money or time. 

We also have the ludicrous situation that if the ER fails to take any action within 20 days of receiving the Clause 10.3 claim, he is deemed to have made a determination that the Contractor does not have an entitlement to money or time. In other words the Contractor can be penalised because of a lazy ER. Unless the Contractor refers the claim to Conciliation within a further 28 days, the nil determination is binding. 

Let us look at a hypothetical road contract of value €1.5 million with a 14 week programme. The works are in an urban environment and involve dig out and full road reconstruction, installation of services, kerbing, paths, landscaping. Unchartered services are deemed to be a delay event and compensation event in Schedule 1K. The Contractor and ER have previously worked together on various contracts using the IEI form. Relationships were good and final accounts were settled amicably. 

The Contractor commences works and in the first two weeks the following occurs. 

  • During excavation, unchartered ESB ducting was encountered at chainages 50, 125 and 200. This resulted in slower working and sections of the excavations had to be backfilled with lean mix concrete.
  • During excavation, an unchartered 225mm drainage pipe at chainage 250 had to be removed and relocated.
  • Soft ground was encountered between chainage 270 & 300. The ER instructs an additional 1m depth of excavation & granular fill.
  • The ER instructs the installation of 6no. additional gullies which were not shown on contract drawings.
  • Between chainage 350 & 450, the existing storm drainage running parallel to the road was located under the proposed kerb rather than 2m into the verge as shown on the existing services drawings. The ER instructed to expose the pipe and backfill under the proposed kerbline with lean mix concrete. 

During the first two weeks, the Contractor issues 12no. Clause 10.3 notices in respect of the above events. He has no option because otherwise he will have no entitlement to any claim. The Contractor follows up the Clause 10.3’s with his Clause 10.6 valuations. The Contractor is seeking additional payments of circa €100K and a 10 day Extension of Time. 

The ER is somewhat peeved that, unlike previous contracts, the Contractor has become very contractual and is bombarding him with paperwork. Relationships deteriorate and the ER takes a much harder line than previous contracts on claims for money and time. 

Although the above situation is hypothetical, I believe it is reflective of the scenario occurring in some Public Works Contracts.