chartered institute of building - launch of complex projects contract 2013 - ascot - 23 april 2013

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An Introduction to the Complex Projects Contract 2013 23 April 2013

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Page 1: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

An Introduction to the Complex Projects Contract 2013

23 April 2013

Page 2: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Introduction

Adam Constable Q.C., Keating Chambers

Page 3: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

CIOB Research, background to CPC2013 and

availability

Keith Pickavance, Executive Consultant, Hill International, Past President

CIOB

Page 4: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Project suitability and procurement strategy Francis Ho

Senior Associate, Olswang LLP

Page 5: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Where should CPC2013 be used?

Suitable for: Less suitable for:

Works of high value or complexity ✓

Simpler works or those of short duration ✗

Major real estate projects ✓

Construction management/EPCM without amendment ✗

Engineering and infrastructure projects ✓

Inexperienced clients/contractors ✗

www.olswang.com 5

Page 6: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

International Usage

Contract England and Wales International

CPC2013

JCT

NEC3

FIDIC

www.olswang.com 6

Page 7: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Procurement Routes

✓ Turnkey/EPC ✓ Works-only

Bankable

Control over quality

Time and cost certainty

Time and cost certainty

Single-point responsibility

Longer programme

More expensive

More client involvement

Contractor design input

Less contractor design input

www.olswang.com 7

Page 8: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Time and Risk Management Provisions, and

Contrast with other Standard Forms

Keith Pickavance, Executive Consultant, Hill International, Past President

CIOB

Page 9: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Cost and Risk Management Provisions, and

Contrast with other Standard Forms

Roy Pickavance, Director, DAQS Ltd.

Page 10: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

To Review

• The Role of the Valuer

• Contractor’s Pricing Document

• The Method of Measurement

• Pricing of Time Contingencies

• Event Pricing and Valuation of Variations

• Compensation for Delay and/or Disruption

• BIM

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Page 11: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

THE ROLE of the VALUER • Listed Person – Appendix B

• Appendix definition - The person identified as such in the Contract Agreement or, on ceasing to be the Valuer such other person as the Employer shall appoint and confirm to the Contractor and Contract Administrator, or, if none is appointed, the Contract Administrator

• Clause 5.2 - …exercise its discretion independently and fairly

• User Guide – Roles and Responsibilities - The Valuer is appointed by the Employer to advise the Employer, Contract Administrator and Listed Persons on

– the CONTENT of the CONTRACTOR’S PRICING DOCUMENT and the VALUATION OF ACTIVITIES in the WORKING SCHEDULE (Clause 28),

– the MEASUREMENT AND VALUATION OF VARIATIONS (Clause 24),

– the PREDICTED OUT-TURN COST OF THE WORKS (Clause 53) and

– for PAYMENT PURPOSES THE CURRENT VALUE OF THE WORKS, from time to time (Clause 54).

• Flow charts are provided- e.g.FC2 – Working Scheduled; FC7 – Extension of Time and Compensation; FC10 - Payment

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Page 12: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

CONTRACTOR’S PRICING DOCUMENT • Clause 28 - The document setting out the work which the

Contractor identifies as being necessary to satisfy the Conditions of Contract, any applicable Model, Bill of Quantities, and/or Specification and Drawings together with any conditions, resources, materials or goods which the Contractor requires to be made available to it, and the detailed method of pricing the financial reward which the Contractor requires for carrying out the Works

• The importance of the Valuer’s Role – Active rather than passive

– Integration into the Working Schedule- Activity Based (Clause 28 and Appendix D)

– Utilisation of updated Working Schedule ( Clause 33) to determine the value of work completed (Current Value - Clause 54) and the Predicted Cost ( Clause 53)

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Page 13: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

THE METHOD OF MEASUREMENT • Where quantities are provided to determine the scope

of part of or the whole of the Works, or where a schedule of descriptions is provided for pricing to be used in the valuations of variations, it is essential to specify the rules by which the quantities will be or have been measured. – Definition - Appendix A; – Defined - Appendix B -Default NRM2; User Guide – see

MOM and BOQ – BIM generated quantities

• Whatever form the measurement takes, if priced, it needs to be aligned to the working Schedule

23/04/2013 13

Page 14: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

PRICING OF TIME CONTINGENCIES • Clause 27; Appendix Definitions; Included in Appendix D Working Schedule • Where Contractor’s Time Contingency periods are on the Critical Path to a

Relevant Completion Date, and hence included in the Contract duration, the effect of those time contingencies in the priced Working Schedule is to require the Contractor to pre-price (by virtue of its tender or bid) the prolongation costs it is likely to suffer as a result of those contingency periods later being absorbed by Contractor’s risks.

• Where Employer’s Time Contingency periods are on the Critical Path to a Relevant Completion Date, and hence included in the Contract duration, the effect of those time contingencies in the priced Working Schedule is to require the Contractor to pre-price (through its tender or bid) the prolongation costs it is likely to suffer as a result of those contingency periods later being absorbed by Events. If the Employer does not use its critical contingencies then, all other things being equal, there will be a reduction in the duration of the Works, an earlier Substantial Completion date and hence a reduction in the Contract price, to the Employer’s benefit.

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Page 15: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

EVENT PRICING and VALUATION of VARIATIONS • Event - An occurrence which is an Employer’s

Cost Risk Event or an Employer’s Time Risk Event – Defined in Appendix F – brought into the Working Schedule – Calculation of the effect of Event on Time

• Dealt with by KAP

– Calculation of the effect of Event on Cost – Clause 39 • Direct Cost - Activity costed - Clause 24 Variations

• Indirect Cost – Level of Effort costed using the updated Working Schedule (Clause 38)

• Loss and/or Expense – Clause 28

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Page 16: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

COMPENSATION FOR DELAY AND/OR DISRUPTION

23/04/2013 16

Page 17: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Compensation for Prolongation • Clause 28.5 - If no rate for Preliminaries and/or Overheads and

Profit is indicated in the Contractor’s Pricing Document, it shall be deemed to be agreed that the Contractor is not entitled to recover such Preliminaries and/or Overheads and Profit as a part of the loss and/or expense incurred as a result of any Employer’s Cost Risk Event.

• The Contractor is required to identify its Preliminaries (Clause 28.4.1 ) and Overheads and Profit (Clause 28.4.2) by Level of Effort durations logically linked to the Activities to which they relate.

• Provided that the information required has been incorporated in the Working Schedule (Clause 28.5), prolongation costs can be estimated during the course of the Works based upon the extent by which any Level of Effort durations are adjusted from time to time by the impact of Employer’s Cost Risk Events on the Working Schedule (Clauses 39.1 and 53.2.3).

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Page 18: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Compensation for Disruption • PROGRESS RECORDS - Although the Working Schedule cannot be accurately

updated without Progress Records(Clause 33.1) and they are thus the essential informational resource for managing time and for determining the extent to which an Event has caused delay or disruption, the Contract is unique amongst standard form contracts in requiring the Contractor to maintain any Progress Records other than those in support of a claim.(Appendix B)

• Loss and/or Expense is Quantified under Clause 39.2.4 arising from an Employer’s Cost Risk Event, and

• The Predicted Cost is to include for any change in a Level of Effort and any other loss and/or expense (Clause 53.2.3)

• If the Contractor fails to provide the information required to enable the Valuer to calculate the amount of the Contractor’s entitlement to compensation for disruption and/or prolongation, the amount shall be calculated after Substantial Completion using – 39.3.1 the progress records and schedules produced under Clause 25.2, or (if none) – such records and schedules as, in its absolute discretion, the Valuer adopts for the purpose of

this Clause 39.3.

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Page 19: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

BIM

• Under CPC will the QS’s roll differ in Complex Contracts?

a) In a current procurement environment (e.g. Traditional, Design and Build etc. )

b) In a BIM environment

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Page 20: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Nick Lane

Partner and Head of Construction, Olswang LLP

Dispute resolution provisions and

procedures

Page 21: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Questions…?

Adam Constable Q.C., Keating Chambers

Page 22: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Contact us…

Francis Ho

Senior Associate

Olswang LLP

T +44 20 7067 3505

E [email protected]

Nick Lane

Partner

Olswang LLP

T +44 20 7067 3548

E [email protected]

Adam Constable QC

Keating Chambers

T +44 20 7544 2600

E [email protected]

Page 23: Chartered Institute of Building - Launch of Complex Projects Contract 2013 - Ascot -  23 April 2013

Contact us…

Roy Pickavance

Director, DAQS Ltd BSc, FRICS, FCIOB,

FCIArb

T +44 (0) 1949 829287

E [email protected]

Keith Pickavance

Executive Consultant Hill International

T +44 (0) 207 618 1200

E [email protected]