Role of Standing Conciliator under the Public Works Contracts in Ireland
In accordance with the Office of Government Procurement and the Capital Works Management Framework, for all contracts carried out using the Irish Public Works Contract Form PW-CF1 to PW-CF4 where the anticipated Contract Sum will be in excess of €10million, a Standing Conciliator must be appointed by the Parties, from the Starting Date until the Parties agree to terminate the Standing Conciliator’s appointment.
For all contracts carried out using Public Works Contract Form PW-CF1 to PW-CF4 where the anticipated Contract Sum will be less than €10million, the Employer will have the option of requiring a Standing Conciliator to be appointed by the Parties, from the Starting Date until the Parties agree to terminate the Standing Conciliator’s appointment. Where a Standing Conciliator is appointed, they shall fulfil the role of the Conciliator in all cases, and the requirement to appoint a conciliator within 10 Working Days of a referral of a dispute to conciliation as set out in sub-clause 13.2 will no longer stand.
The intention behind the introduction of the Standing Conciliator is to promote dispute avoidance and encourage proper engagement between the Parties to assist the Parties in the avoidance of disputes, to assist the Parties in avoidance of costly and lengthy formal dispute resolution procedures, and to assist the Parties to establish agreement upon issues before they crystallise into a dispute.
If a dispute arises, the Standing Conciliator will act as a Conciliator. To ensure the Standing Conciliator can fulfil such a role it is recommended that the Parties should ensure the following:
- the Standing Conciliator shall be issued with a complete set of the Contract Documents upon appointment of the Standing Conciliator.
- the Standing Conciliator shall attend site on regular basis to ensure they have adequate project oversight and to gain standing knowledge of the relationship between the Parties prior to the crystallisation of any disputes
- the Standing Conciliator shall be included on correspondence surrounding clause 4.9, 4.10 and 4.15 from each Party The Parties may agree with the Standing Conciliator to have the Standing Conciliator included on any other correspondence between the Parties under the Contract, or circulated with any amendments to the Works Requirements, Contractor’s Proposals, and or any documents included in the Contract Documents.
The Standing Conciliator should regularly review all correspondence and documentation received from the Parties and confer with the parties where deemed necessary by the Standing Conciliator or requested to do so by the Parties.
Appointment of a Standing Conciliator:
According to the Office of Government Procurement, where a Standing Conciliator is appointed in Ireland on contracts carried out using PWCF1 to PW-CF4, the Standing Conciliator shall take the place of the Conciliator under sub-clause 13.2 of the Contract. In Schedule Part 1N of the Contract, the Employer should confirm that a Standing Conciliator will be required for the Project. This is mandatory on projects with an anticipated Contract Sum in excess of €10million and optional for projects with an anticipated Contract Sum of between €5million and €10million.
Schedule Part 3C of the Contract contains a form field to be in filled with the details of the agreed Standing Conciliator who shall be appointed jointly by the Parties to the Contract prior to the Starting Date. This form field is not to be filled in until after agreement is reached on the appointment of the Standing Conciliator. Schedule Part 1N contains an additional form field to be in filled, prior to the Employer issuing tender documents to all tenderers, with the name of the person or body to appoint the Standing Conciliator where the Parties cannot agree.
Standing Conciliator to act as Conciliator:
According to the CWMF, where a dispute is referred to conciliation under sub-clause 13.2, the Standing Conciliator is to fulfil the role of conciliator under sub-clause 13.2 of the Contract. If the dispute is not resolved by agreement within 42 calendar days after the dispute is referred to conciliation under sub-clause 13.2, or a longer period proposed by the Standing Conciliator and agreed by the Parties, the Standing Conciliator shall give both Parties a written recommendation. The Standing Conciliator shall base the recommendation on the Parties’ rights and obligations under the Contract.
The conciliation process under the Standing Conciliator is to run as per the process defined under sub-clause 13.2 of the Contract with the following exceptions:
- There is no requirement to agree an appointment of a conciliator following referral.
- The conciliation process should commence immediately following referral.
- The Parties may agree to have the Standing Conciliator hold regular interval meetings to hear disputes referred to conciliation in bundles.
Relationship between the Standing Conciliator and the Project Board
The relationship between the Project Board and the Standing Conciliator must be carefully managed by the Parties and the Standing Conciliator, to ensure the most effective resolution of disputes for the benefit of the project. The following is a list of the possible extents of the relationship:
- The Standing Conciliator may, with the agreement of both Parties, chair or be invited to attend the Project Board meetings.
- The Standing Conciliator may, with the agreement of both Parties, either on his/her own initiative or at the request of either Party, informally assist the Parties in resolving any disputes.
- The Standing Conciliator may, with the agreement of both Parties, offer views, either orally or written, and in any case without prejudice, of the likely outcomes of a dispute under consideration for referral to conciliation.
- The Standing Conciliator may, with the agreement of both Parties, hold separate meetings with each Party to the Project Board.