GC21 Edition 2

29 May 2023

General

• Formatting corrections carried out.
• Suggestions for improvements and feedback on changes are encouraged.

Conditions of tendering

• Clause 3.1. Guidance reworded for references to investigation reports.
• Clause 8.1. Following legal advice, guidance provided on considering unsigned tenders.
• Clause 8.2. Following legal advice, guidance provided with regard to accepting tenders.

Tender schedules

• Schedule 1 (Tender Form). Following legal advice, option included to allow for execution (signing) of tender by deed poll.
• Schedule 10 (Schedule of Program Information). Schedule amended to require Tenderer to declare that any dates shown in the program are for illustrative purposes only.
• Schedule 10 (Schedule of Program Information). Schedule further amended to include option for program to be for information purposes only.

General conditions of contract

• Formatting of Contract Information items modified for consistency.
• Clause 7.5. Clause amended to include option to sign by electronic means. Also a reference included in Notes to refer to sample ‘Formal Instrument of Agreement’ in Schedule 15.
• Clause 20. Reference included to new Contract Information item 14A dealing with application of long service levy and payment obligation.
• Clause 29.5. New sub-clause added to restrict Contractor from terminating a Preferred Subcontract or a Novated Contract without notice or reasonable cause.
• Clause 40.4. New clause added to clarify process where Contractor requires a change to its design.
• Clause 79. Definition of Principal’s Documents amended to note that novation may affect which documents are included.
• Contract Information Item 14A. New item added to allow selection of  payment obligation for long service levy.
• Contract Information Item 20. Guide note amended to include risk of insurance implications where proportionate liability is excluded.
• Contract Information Item 33A. Note amended to clarify application of Contractor Prequalification and Best Practice Accreditation Scheme.
• Contract Information Item 38. Guide note amended to promote identification of aspects of incomplete design to assist tenderers in pricing tenders.
• Contract Information Item 38. Items 38A.1 and 38A.2 amended to reinforce Contractor’s design obligations under clause 39.1 and reworded to reinforce default where no particular items or components have been selected. Item 38A.3 amended for consistency.
• Schedule 1 (Subcontractor’s Warranty). Options and guidance for electronic signing included. Following legal advice, signature blocks revised and simplified to comply with amendments to the Corporations Act 2001 (Cth).
• Schedule 6 (Supporting Statement and Subcontractor’s Statement). Note and link included for a pdf version of the Supporting statement from Fair Trading with fillable form fields.
• Schedule 15 (Contract Deed and Formal Instrument of Agreement). Major revision of notes and guidance following legal advice. Signature blocks revised for Deed of Contract Agreement. Inclusion of option for a Formal Instrument of Agreement.

Preliminaries

• Clause 1.3. Amended guide note and clause to include application of DBP Act to construction of new class 3 and 9c buildings from 3 July 2023.
• Clause 4.2.  The ‘Office of the Registrar of Indigenous Corporations’ added to organisations that recognize aboriginal businesses.
• Clause 4.1. Waste Management Progress Report added to list of Conformance Records.

1 September 2023

General

• Formatting adjustments and minor corrections carried out.
• Suggestions for improvements and feedback on changes are encouraged.

Conditions of tendering

• Clause 2.3. Clause and guidance dealing with Australian Government WHS Accreditation Scheme for Commonwealth Government funded projects updated.
• Clause 4.7. Clause and note dealing with the Commonwealth Building Code deleted due to the repeal of applicable Commonwealth legislation in December 2022.
• Clause 4.8. Guidance reworded following issue of PBD 2023-01 Skills, training and diversity in construction.

Tender schedules

• Schedule 23 (Schedule of Skills, Training, and Diversity in Construction) amended following the issue of PBD 2023-01. Additional reporting required.
• Schedule 27 (Schedule of Compliance with the Code for the Tendering and Performance of Building Work 2016) deleted due to the repeal of applicable Commonwealth legislation.

General conditions of contract

• Clause 13.6. Clause and note dealing with Commonwealth Building Code deleted due to repeal of applicable Commonwealth legislation.
• Clause 16. Reference to contract information item 16A replaced with reference to contract information item 16.
• Clause 17. Clause dealing with Australian Government WHS Accreditation Scheme for Commonwealth Government funded projects updated.
• Contract information item 15E (Skills, Training and Diversity in Construction) amended to include reporting of the number of women employed following the issue of PBD 2023-01.
• Contract information item 16. Contract information item 16A and relevant guidance related to the Commonwealth Building Code deleted. Item 16 rearranged.
• Schedule 12 (Compliance with Building Code 2016 (as amended) (Commonwealth)) deleted.
• Schedules 13 – 17 renumbered due to the deletion of Schedule 12. References to the renumbered Schedules amended to suit.

Preliminaries

• Clause 4.3.  Clause and guidance amended following issue of PBD 2023-01. Clarification included the information required in quarterly reports.
• Clause 1.3. Clause and guidance for selection of Designers and Building Practitioners amended for clarity following further legal advice.
• Clause 1.7. Clause and guidance for Certification of Building Works amended for clarity following further legal advice. Due to the length of the clause, the text for option 2 transferred to the new Schedule 8.3.
• Clause 5.6. Clause and guidance dealing with Australian Government WHS Accreditation Scheme for Commonwealth Government funded projects simplified to avoid repetition of General Conditions clause 17.
• Schedule 8.3. New Schedule for application of comprehensive certification of compliance with building and fire regulations created to include option 2 from Clause 1.7

02 January 2024

General

• Formatting adjustments and minor corrections were carried out. 'Shall' is replaced with 'will' for clarity and consistency.
• Suggestions for improvements and feedback on changes are encouraged.

General conditions of contract

• Clause 1.1.1. Reference to 'construct only' in note amended to 'developed design (construct only)' for consistency with buy.nsw site.
• Clause 38. The reference to 'construct only' in the note was changed to 'developed design' for consistency.
• Clause 39.1.2. The term 'preliminary' in 'preliminary design' was deleted for clarity. The term is open to interpretation and not required for the clause.
• Contact information Item 38A. Following review, contract information items A1-A3, notes, and guidance were amended to improve clarity and avoid inadvertent consequences where input is unclear.

Preliminaries

• Clause 1.3. An extra hyperlink for further information on obligations under the DBP Act was added.
• Clause 4.1. Subclause and guidance dealing with certification of compliance with steel and steel work standards introduced to apply requirements of PBD-2016-03: 'Construction standards and conformance'. Applicable conformance record added.
• Clause 7.1. Subclause dealing with compliance with construction standards introduced to apply requirements of PBD-2016-03.
• Clause 7.5. Clause amended to clarify Principal's consideration of alternatives to proprietary items.

Sample letters

• 07 letter of award and attached letter on administrative matters. Administrative matters letter amended to include identification of survey marks and option for deletion of LSL evidence.

8 April 2024

General 

• Formatting adjustments and minor corrections carried out.
• User guidance amended for all sections to correct method to remove all hidden text.
• Suggestions for improvements and feedback on changes are encouraged.

Conditions of Tendering

• Clause 3.1. References to Site information clarified. Clause guidance expanded to remind documenters that reports and investigations included in the RFT should be listed in the Title Page section.
• Clause 4.5. Sub-clause 'Dealing with Modern Slavery' deleted.
• Clause 4.9. New clause; 'Dealing with Modern Slavery' added following release (in Feb. 2024) of Guidance on Reasonable Steps (GRS) by NSW Anti-slavery Commissioner with revised model tendering clauses.
• Clause 7.3. Clause dealing with Tendering amended due to introduction of 'buy.nsw Opportunities Hub' and 'Supplier Hub' for tenderer registration and tender responses.
• Clause 7.3. File format for reading etc. electronic tenders updated to Microsoft Word 2021.
• Clause 8.1. Options included for evaluating tender submissions for 'Dealing with Modern Slavery'.

Tender Schedules

• Schedule 26. 'Schedule of Compliance for Dealing with Modern Slavery' replaced with revised requirements based on the release of GRS by NSW Anti-slavery Commissioner.

General conditions of contract 

• Clause 13.5 and Contract Information item 15B. References to 'Schedule 16 (Modern Slavery)' replaced by ‘Schedule 16 (Dealing with Modern Slavery)’ due to change of name of Schedule 16.
• Clause 36.1. Note reworded to clarify the information concerning the Site that is part of the Contract.
• Clause 71. Following recent court cases and a legal review, revision of some clauses and clarification of conditions under which a party can litigate.
• Clause 79. Definition of 'Contractor's Default' updated to include revised grounds for termination under Schedule 16 - Dealing with Modern Slavery.
• Contract Information Item 36. Guide notes expanded to include an example of a document where only a section of the document forms part of the contract.
• Contract Information Item 38A. Contract Information Items A1 & A2 amended to improve clarity and avoid inadvertent consequences in the absence of elements requiring design being listed by the documenter.
• Schedule 6. Anomaly in Supporting Statement form from Office of Fair Trading referenced in notes and corrected.
• Schedule 16. Schedule; 'Dealing with Modern Slavery' replaced following release of GRS by NSW Anti-slavery Commissioner with revised model contract clauses.

Preliminaries 

• Clause 1.3.  Guidance updated for application of the DBP Act as start dates have now been superseded.
• Clause 3.2.  Guidance expanded with an additional example - for a tendered rate for extra-over for rock excavation.
• Clause 5.2.  Guidance expanded with the inclusion of activities on Site that may affect access to, and use of, the Site.

12 August 2024

General

• Formatting adjustments and minor corrections carried out.
• Suggestions for improvements and feedback on changes are encouraged.

Conditions of tendering

• Note published version dated 17 July 2024 refers.
• Clause 7.3. Clause heading changed to ‘Tenders submitted electronically’.
• Clause 7.3. Guidance and text updated to conform with ‘buy.nsw Opportunities Hub’ and ‘Supplier Hub’ for tenderer registration and tender responses.
• Clause 7.3. Reference to PBD 2024-1 included in guidance mandating use of buy.nsw Opportunities Hub by NSW Government agencies from 31 December 2024.
• Clause 7.3. Application of NSW Government ‘Global terms and conditions’ to RFT explained and terms clarified.

Preliminaries

• Clause 2.3. Option added to require work as executed information for underground services to meet AS 5488.1:2022- classification of subsurface utility information (quality level A). This includes a survey reference to an independent spatial coordinate system.
• Clause 3.1. Guidance expanded to include methods of measurement.
• Clause 5.4. Option added to subclause ‘locating existing services’ requiring information for underground services to meet Quality Level A of AS 5488.1:2022- classification of subsurface utility Information where possible.
• Clause 5.4. Before you dig Australia (BYDA) site link inserted. Note BYDA replaces ‘dial before you dig’ service.

1 October 2024

General

• Formatting adjustments and corrections carried out.
• Suggestions for improvements and feedback on changes are encouraged.

General conditions of contract

• Clause 42.3. Clause rewritten to clarify responsibilities for dealing with errors in level, dimensions or alignment of the Works.
• Clause 58.7. New clause 58.7.5 added requiring the Principal’s security interest in unincorporated materials to be registered on the Personal Property Securities Register.
• Clause 61.5. Clause dealing with Final Payment Schedule amended to exclude any Claim not barred.
• Clause 62. Clause dealing with interest on late payments amended to allow the Contractor a discretion in making a claim for interest but requiring any such claim to be made in a Payments Claim.
• Clause 71.10. Clause dealing with right to litigate after Expert Determination amended to avoid inadvertent opportunity arising due to SoPA overpayments.
• Clause 74.3. Clause dealing with Contractor’ removal of materials from site amended to clarify that it cannot remove any materials (including materials referenced in clause 74.4.2) for which payment is due and is required to leave temporary work that the Principal requires.
• Clause 74.4.4. Clause dealing with compensation for termination amended to remove potential ambiguity in calculation of the unpaid portion of the Contract Price.
• Clause 74.6. Clause dealing with Termination Notices amended to ensure receipt of delivery can be obtained and to remove a potential timing issue with emailing a copy of the notice. Also a note added linking the clause with clause 11 which deals with notices generally and also the relevant contract information items.
• Contract Information Item 53.  Address details updated.
• Schedule 7. Hyperlink for ABS website updated and formatting of formula for ‘adjustment factor’ improved.
• Schedules 1, 4, 5, 8 & 12. Number formatting amended and corrected for consistency and to remove anomalies.

25 February 2025

General

• Suggestions for improvements and feedback on changes are encouraged.

GC21 Clause Commentary

• Commentary for Clause 1.3. Commentary amended to suit revised Sample letter 01 – General Instruction.
• Commentary for Clause 37.3. Commentary amended to correct and clarify application of term ‘materially differs’ where Rate items apply to an adverse Site Condition.

GC21 Sample Letters

• Sample letter 01.  Sample letter corrected and amended to manage the circumstances where Contractor considers the instruction may result in entitlements for the Contractor.
• Sample letter 07.  Minor amendments to improve clarity.
• Sample letter 69B.  Correction of title wording

16 June 2025

General

• Formatting adjustments and corrections carried out.
• Suggestions for improvements and feedback on changes are encouraged.

GC21 Sample Letters

• Sample letters 47A, 47B, 47C, 47D and 47E.  
  • Sample letters for Clause 47 amended and updated. An extra option is provided for sample letter 47E.
  • The numbering of the letters has been changed to follow the steps in applying the clause:
    • Sl 47A replaces Sl 47d
    • Sl 47B replaces Sl 47e
    • Sl 47C replaces Sl 47a
    • Sl 47D replaces Sl 47b
    • Sl 47E replaces Sl 47c
    • The Clause commentary has not yet been updated.
• Sample letters 48A, 48B, 48C, 48D, 48E and 48F.
  • Sample letters for Clause 48 amended and updated. Extra options included for sample letters 48B, 48E and 48F.

1 December 2025

General

• Hidden text guidance revised in all documents to simplify selection of applicable clauses and options. Additional general guidance provided.
• Formatting adjustments and corrections carried out.
• Suggestions for improvements and feedback on changes are encouraged.

Conditions of tendering

• Clauses 2.2, 2.3, 2.4, 2.6, 4.5 and 4.8. Guideline/ policy/ scheme details and links updated.
• Clause 3.7. Clause and guidenotes amended for insurance to complement changes in General Conditions and to allow different parties to take out Works and Public Liability Insurance.
• Clause 3.9. Clause amended to clarify that related schedules are not required if Preferred Subcontractors are to carry out all design.
• Clause 4.1. Clause amended to emphasise that tenderers must comply with the Code and Guidelines in the preparation of their tenders.
• Clause 4.6. Clause amended to include more appropriate listing of organisations that can provide Undertakings and link updated.
• Clause 4.7. Guidance amended to include reference to extra evaluation criteria for major projects.
• Clause 6.1. Clause amended to emphasise that Principal has sole discretion in considering alternative tenders.
• Clause 7.6. Late Tenders Clause replaced to reflect current NSW Government Procurement Policy.
• Clause 8.1. Guidance amended to include advice on dealing with optional works and mandatory alternative tenders.
• Clause 8.1. General evaluation criteria rearranged and ‘sustainability’ added. Reference to ‘working with Government’ added.

Tender schedules

• Schedule of Prices - Lump Sum. Rate Items section amended to:
  • explain the use of Rate Items;
  • direct documenters to MW21 for additional provisional rates; and
  • require the inclusion of work covered by Rate Items in the Contract Program.
• Schedule of Rates. Requirements to complete the Schedule rearranged. Obligation for tenderer to allocate overhead costs and profit (as it considers appropriate) to rates and amounts stated.
• Schedule of Program Information. Require the inclusion of work covered by Rate Items in the Contract Program
• Schedule of Proposed Subcontractors and Consultants, Schedule of Internal Designers and Schedule of External Designers. Declaration included to deal with circumstance where Tenderer/ Contractor later proposes or attempts to use an alternative resource.
• Schedule of Quality Management Information. Guideline reference updated.
• Schedule of Workplace Relations Information. Link updated.
• Schedule of Work Health and Safety. Term hazardous materials replaced with hazardous substances for consistency. Links and guidance updated.
• Schedule of Skills, Training and Diversity in Construction. Guidance and Schedule text amended to  include extra evaluation criteria for projects over $100m as per P & C Directive M2014-11 Additional Evaluation Criteria for Procurement of Major Projects Valued above $100 million.
• Schedule of Compliance with NSW Supplier Code and Industrial Relations Guidelines: Building and Construction Procurement. ‘Building and Construction Procurement’ added to title for consistency with related clause. Declaration included for tenderer to confirm no collusion in the preparation of its tender.

General conditions of contract

• Government Codes and Guidelines (page 3). Guideline/ policy/ scheme details and links updated.
• Clause 11.1. Clause amended and note added for clarity.
• Clause 11.3. New clause added to provide conditions for notices issued using a cloud based or other electronic document transfer and communication system.
• Clause 11.4. New clause added to clarify that a party does not have to accept a non-complying notice.
• Clause 15.1. Guideline details updated.
• Clause 27.9. Clause 27.3.4 dealing with 3rd party property motor vehicle insurance added to policies requiring identification of the parties and inclusion of a cross-liability clause.
• Clause 33.2. Deletion of superfluous ‘Unconditional’ from reference to Undertakings. Undertakings are defined as unconditional.
• Clause 37.1. Reference to deleted Clause 39.7 removed.
• Clause 37.1. Requirement for additional notice removed.
• Clause 37.3. Notification time for adverse Site Conditions reduced from 7 days to 3 Business Days
• Clause 37.3. Notification requirement amended to include any proposed work and the estimated cost of ‘direct’ unavoidable additional costs;
• Clause 37.3, Note amended to refer Contractor to associated Clause 50.3 notification requirements.
• Clause 37.6.2. Entitlement to additional costs restricted to unavoidable additional costs that are a ‘direct’ result of the Site Condition.
• Clause 39.5. Reference to deleted Clause 39.7 removed.
• Clause 39.7. Clause allowing Contractor to carry out design and design development of elements referenced in Contract Information item 38A.3 deleted. The provision has created more problems than it has provided benefits.
• Clause 47. Introductory note added to clarify purpose of clause and emphasize benefits of obtaining agreement on Claim adjustments.
• Clause 47.1. Note added to highlight that using a Valuer reduces likelihood of escalation.
• Clause 47.3. Clause amended to ensure the principal always has the opportunity to assess the Claim when a Valuer is not used. Note also added to encourage prompt notice where the parties do not intend to use a Valuer.
• Clause 47.9. Clause amended to require any valuation agreements to be promptly confirmed in writing to avoid uncertainty.
• Clause 48.2.2.1. Clause amended to allow applicable Rate Items to be used in pricing a proposed Variation.
• Clause 48.3. Note added to confirm that the principal is not obliged to accept an unreasonable rate in a proposed Variation.
• Clause 48.7. Note added to confirm that the Contractor commits a breach of contract if it fails to notify the principal of a possible Variation within the specified time period.
• Clause 48.8. Clause amended to remove incorrect reference to Clause 68.
• Clause 50.2. Clause amended to reinforce need for Contractor to promptly notify possible delays.
• Clause 50.2. Note added to confirm that the Contractor commits a breach of contract if it fails to notify the principal of a possible delay.
• Clause 55.4. Clause amended to clarify process for dealing with a Provisional Sum.
• Clause 59.1.3. Clause amended to expressly allow the principal to use an estimated percentage of the Claimed Amount to calculate amounts withheld in progress payments.
• Clause 68.1. Note added to clarify timing of Claim submissions where an event extends beyond 28 days.
• Clause 68.7. Note added to inform parties that they can extend the time for resolution to delay a Claim becoming an Unresolved Claim.
• Clause 70.2. Clause amended to increase the time allowed for a party to refer an Issue to Expert Determination from 28 to 42 days after giving notice of an Issue.
• Clause 70.2. Clause amended to allow the principal to increase the time allowed for the Contractor to remedy its Default.
• Clause 77.1. Clause amended to include Clause 26 in the list of clauses that survive termination.
• Clauses 78.5 & 78.6. Meanings added to clarify references to guidelines etc and to legislation.
• Clause 79. Definition of Statutory Requirements amended to clarify that it includes lawful requirements of any Australian authority.
• Contract Information item 4. Guidance on naming the Principal for NSW Government agencies amended as per legal advice.
• Contract Information items 6, 7, 10 and 11. Notes amended to provide clarity with regard to notices.
• Contract Information items 21 & 22. Guidenotes for items amended to clarify that Principal Arranged Insurance (PAI) can be arranged through iCare or another broker selected by the principal.
• Contract Information item 26. Guidenotes amended to clarify that the Principal’s Documents includes documents included or referenced in the RFT and these documents do not need to be separately listed.
• Contract Information item 29. Option provided to amend the value threshold for subcontracts requiring inclusion of the Schedule 9 provisions.
• Contract Information item 38A.3. Item and relevant guidenote deleted.
• Schedule 2. Note amended to include more appropriate listing of organisations that can provide Undertakings and link updated.
• Schedule 3. Note amended to clarify that the Payment Claim Worksheet is not used for SoR contracts.
• Schedule 6. Notes and link amended to include references that the Building Commission NSW (BC) has taken on the role of regulator of the building and construction industry in NSW, including SoPA. Revision date included for Supporting Statement.
• Schedule 10. Title and text amended to clarify that Schedule 10 only deals with PAI through iCare. Guidenote amended to:
  • reduce duplication with general guidenote for insurance before Contract Information items 21 – 25A; and
  • recommend that a discussion of insurance options (including CAI) be held for non-standard and high value projects.
• Schedule 13. Address and link for notification and guidance updated for dealing with retention monies held in trusts.
• Attachment 1. Link for start-up workshop guidance updated. Agenda amended to include on-line communications and rules for notices.
• Attachment 2. ‘Information and Data management’ added to Quality topic.

Preliminaries

• Clauses 1.3, 1.7 and 8.3.  Links updated and guidance amended to include reference that the Building Commission NSW (BC) has taken over regulation of the DBP Act and the EP&A Act with regard to certifications.
• Clause 2.1. New clause added to provide options to deal with terms ‘Not for Construction’, ‘For Construction’ or ‘Submit for Approval’ where included in the Principal’s documents.
• Clause 2.4. Option and guidance provided for WAE to only be provided digitally. Error in spatial positioning tolerance corrected.
• Clause 2.5. text for the format of electronic O & M manuals amended. Guide notes amended to delete hard copy manual if not required and to utilize ‘Asset Data Capture’ clause in MW21 Preliminaries where Asset management is required. Additional guidance provided on the benefits of electronic O & M manuals.
• Clause 3.1. Clause amended to clarify that no additional payment for overheads and profit applies to Schedule of Rate items.
• Clause 3.2. Guidenotes for Application of Tendered Rates revised and clarified.
• Clause 4.1 (Quality management). Update details for location and description of guidelines and include additional guidance (as per PBD-2016-03) on providing assurance for construction materials where the risk of non-conforming product etc. needs to be managed.
• Clauses 4.3 (Skills, training etc.), 5.6 (WHS management) and 6.1 (Environmental management). Update details for location and description of guidelines.
• Clause 5.2. Heavy vehicle limitations added to guidance for Site Access. Note included for compliance with the Heavy Vehicle National Law for vehicles over 4.5 tonnes GVM.
• Clause 5.4. Error in spatial positioning tolerance corrected.