Minor Works MW21

General conditions of contract

• Clause 13.9. Amended references to times for the Principal to make the final payment.
• Clause 16.5. Amended the name of the organisation to nominate an expert if the parties are unable to agree, from ‘Australian Commercial Disputes Centre’ to ‘Australian Disputes Centre’ and added a contact number.
• Combined Subcontractor’s Statement and Supporting Statement: corrected reference to clause 19 in the Building and Construction Industry Security of Payment Regulation 2008.

Conditions of tendering

• Condition 7.1A. Addition of “Effect of Tender” condition.

General conditions of contract

• Clause 11.1. Addition of Force Majeure Event definition.
• Clause 20. Addition of Force Majeure Events clause.

General conditions of contract

• Clause 11.1. Removal of Force Majeure Event definition.
• Clause 20. Removal of Force Majeure Events clause.

General conditions of contract

• Contract Information Item 5. Updated NSW Procurement Service Centre email address.
• Contract Information Item 9. Removed reference to ProcurePoint and added reference to buy.nsw website.
• Schedule 2. Updated reference to SafeWork NSW from WorkCover.

Conditions of tendering

• Clause 2.2, 2.3, 2.4, 2.5, 4.3. Removed reference to ProcurePoint and added reference to buy.nsw website.
• Clause 3.2. Updated icare portal detail and email.
• Clause 4.3. Guide notes and text amended to comply with revised Aboriginal Procurement Policy applying from 1 January 2021 (optional for MW21 contracts).
• Clause 7.2. Updated NSW Procurement Service Centre email address.

Tender schedules

• Updated reference to the current Work Health and Safety, Environmental and Quality management guidelines in the relevant schedules.
• Schedule 14. Guide notes and text amended to comply with revised Aboriginal Procurement Policy applying from 1 January 2021 (optional for MW21 contracts).

Preliminaries

• Clause 1.5, 1.6, 4.1, 4.4, 5.7, 6.1. Removed reference to ProcurePoint and added reference to buy.nsw website.
• Clause 4.4. Guide notes and text amended to comply with revised Aboriginal Procurement Policy applying from 1 January 2021 (optional for MW21 contracts).
• Clause 5.7. Added reference to WHS Guidelines Edition 6 and updated references to SafeWork NSW from WorkCover.
• Clause 6.3. Removed reference to WRAPP Report and added reference to NSW EPA Construction and demolition waste toolkit.

General

• User guidance pages reformatted and expanded for consistency for sections amended below. Instructions provided to auto-fill contract name and contract number in footer for each page.
• Typographical, grammatical and formatting errors and inconsistencies corrected (where identified).
• References, names and links for guidelines and policy documents updated.
• Note the Title page document has not been reviewed or updated.

Conditions of tendering

• Clause 1.2. Clause deleted. Industrial Relations requirements moved to Preliminaries clause 1.6 and Schedule 8.1 and new Conditions of Tendering clause 4.2.
• Clause 2.3. Guide note updated and rewritten for clarity.
• Clause 3.1. References to Provisional Allowances deleted. Clause amended to deal only with Provisional Sums and to align with the use of tendered ‘Rate Items’ as per GC21.
• Clause 3.2. New clause added to deal with Provisional Rate Amounts.
• Clause 3.3. Guide note references to icare updated.
• Clause 4.2. New clause:  Procurement Policy Framework, Supplier Code and Industrial Relations Guidelines added to provide information on applicable NSW Gov. policies and revised IR Tender Schedule.
• Clause 4.4. Clause dealing with superseded Aboriginal Participation policy deleted.
• Clause 6.1. ‘Nominated Alternative Tenders’ replaced with ‘Mandatory Alternative Tenders’ to align with similar GC21 clause.
• Clause 6.4. Guide note expanded to suggest ‘Weighted Non-Price Evaluation’ Schedule can also be used for other Non-Price Evaluations.
• Clause 7.1. Document list updated to suit Tender Schedule changes. Guide note amended for clarity.
• Clause 7.2. Option for facsimile tenders moved to hidden text guidance as it is no longer commonly used.
• Clause 7.3. Reference changed to Supplier Code of Conduct.
• Clause 8.1. Guide note added with reference to buy.nsw site for tender evaluation guidance.
• Clause 8.2. Clause amended to include right by Principal not to accept an unreasonable rate for a provisional rate item.

Tender schedules

• Tender Form. Tenderers Offer options 1 and 2 amended to align (in part) with GC21 and remove references to Provisional Allowances.
• Schedule of Prices – Lump Sum. Provisional Rate Amounts section amended. New ‘Rate Items’ section similar to GC21 added. Guide note expanded for clarity and to reinforce use of associated Preliminaries clause for rate items.
• Schedule of Rates. Guide note and text expanded for clarity and to align with GC21. References to Provisional allowances removed. Provisional Rate Amounts option added.
• Schedule of Provisional Sums (was included in deleted Schedule of Provisional Allowances). Guide note and text amended to delete references to Provisional Allowances and Provisional Rate Amounts.
• Schedule of Provisional Rate Amounts added (was included in deleted Schedule of Provisional Allowances). Guide note and text amended to clarify application and conditions of use.
• Schedule of Mandatory Alternative Tenders (was Schedule of Nominated Alternative Tenders). Amended to suit change in Schedule name.
• Schedule of Compliance with NSW Supplier Code and Industrial Relations Guidelines: Building and Construction Procurement (was Schedule of Compliance with NSW Government’s Implementation Guidelines to the NSW Government Code of Practice for Procurement). Schedule updated due to new policies. Clarification of application of policies added.

General conditions of contract

• Preface added similar to GC21 with application extended to $2m for non-complex projects.
• General:
  • Guide notes (not hidden) with references to applicable.
  • Preliminaries clauses added for clauses 2, 3, 4, 6, 7, 8, 9, 11 and 13.
  • Clauses renumbered where new clauses added.
  • ‘Provisional Allowances’ term deleted. Provisional Sums and Provisional Rates Amounts dealt with separately.
  • References to and calculations of ‘days’ changed to ‘Business Days’ unless not applicable. Time periods reviewed and adjusted as considered appropriate. Some periods also amended further (mainly clauses 13 and 16).
• Clause 1.1. Title changed to ‘Definitions and interpretations’.
• Clause 1.3. Definition of Completion amended to include being free from ‘omissions’.
• Clause 1.4. Definition of Contract amended to include: ‘Unless otherwise stated, the Contract commences on the date of acceptance of the tender.
• Clause 1.8. Definitions of Day expanded for clarity and to align with GC21.Counting of days and Business Days clarified.
• Clause 1.11. Definition of ‘Final Payment Summary’ added.
• Clause 1.12. Definition of ‘Margin’ added.
• Clause 1.17. Definition of ‘Provisional Rate Amount’ amended.
• Clause 1.22. Definition of  Security of Payment Act (‘SoPA’) added.
  Clause 1.23. Definition of ‘Statutory Requirements’ added.
• Clause 1.24. Supply of required items added to definition of Works.
• Deleted Definitions. Definition of ‘Provisional Allowance’ deleted as no longer applicable.
• Clause 1A. NSW Code of Practice for Procurement and Implementation Guidelines deleted. Updated guideline added in Prelims Schedule 8.1.
• Clause 2.2. New clause dealing with inconsistency, discrepancy, or ambiguity similar to GC21 Faults clause added.
• Clause 2.3 (old 2.2). Clause amended to apply only to errors.
• Clause 2.4 (old 2.3). Clause amended to require written confirmation of instructions.
• Clause 2.5 . New clause dealing with notices added.
• Clause 2.8. New clause dealing with Statutory Requirements added.
• Clause 2.10. New clause advising time limits can be changed by written agreement.
• Clause 3.9. Clause amended to remove subjective term ‘minor’.
• Clause 7.1. New clause to require Contractor to warrant it has inspected Site, similar to Site Information clause in GC21 added.
• Clause 7.2 (old 7.1). Clause amended to require prompt notification and a reduced time period specified.
• Clause 7.3. New clause to require Principal to consider Contractor’s Site Conditions claim similar to Site Conditions clause in GC21 added.
• Clause 7.4 (old 7.2). Clause amended to require Contractor to inform the Principal if it takes action to deal with a Site Condition.
• Clause 7.5 (old 7.3). Clause amended for clarity.
• Clause 8.1. Clause amended. BCA replaced with NCC. Compliance with Standards expanded with text from old Prelims clause 7.1.
• Clause 9.4. Clause amended to require use of provisional rate items that reasonably apply.
• Clause 9.8. Clause amended to require claim after completion of Variation and to require parties to try to reach agreement.
• Clauses 9.9 and 9.10 and note. Clauses amended to focus on trying to reach agreement.
• Clause 9.10. Clause split into Clause 9.10, new Clause 9.11 and new Clause 9.12 for clarity.
• Clause 9.11. Clause amended to require use of provisional rate items that reasonably apply.
• Clause 10.3. Clause amended to provide for entitlement based on recommended formula for delay costs rather than stated rate in Contract Information item 13. This avoids inadequate compensation where a low rate has been set.
• Clause 11.2. Clause amended to include reference to new Schedule 3 for notification by the Contractor that work is complete.
• Clause 12.1. Clause amended for clarity.
• Clause 12.3. Clause amended and split into Clause 12.3 and new Clause 12.4 for clarity. Contractor’s obligation to minimize delay included.
• Clause 12.5 (old 12.4). Clause amended to link to Clause 15 (Claims) and require substantiation with claim.
• Clause 12.6 (old 12.5). Clause amended to require parties to try to reach agreement.
• Clause 12.7 (old 12.6). Clause amended for clarity on the commencement of the LD liability.
• Clause 13.1. Clause split into Clause 13.1 and new Clause 13.2 for clarity. Contact and address details added for submission of payment claims.
• Clause 13.2. Reference to Combined Subcontractor’s Statement and Supporting Statement changed to Supporting Statement and Subcontractor’s Statement.
• Clause 13.4 (old 13.3). Clause amended to delete right to hold payment where a Subcontractor’s Statement is not supplied and include the right to reduce payment. This is required for compliance with SoPA. Reference to ‘Combined Subcontractor’s Statement and Supporting Statement’ changed to ‘Subcontractor’s Statement (in Schedule 2)’.
• Clause 13.5 (old 13.4). Clause amended to delete right to hold payment if EFT details are not provided. This is required for compliance with SoPA.
• Clause 13.8 (old 13.7). Cause amended due to deletion of Provisional Allowance term. Provisional Sum and Provisional Rate Amounts dealt with separately.
• Clause 13.9 (old 13.8). Clause amended to allow for a retention undertaking to be specified and include reference to new Contract Information item 16.
• Clause 13.10 (old 13.9). Clause amended and split into Clause 13.10 and new Clause 13.11 for clarity (hopefully). Amendments include:
  • Change from ‘final payment schedule’ to ‘Final Payment Summary’ as a Payment Schedule refers to a Schedule issued after a payment claim under SoPA
  • requirement for parties to try to reach agreement
  • requirement for Contractor to submit a payment claim
  • consequence of not submitting a Subcontractor’s Statement.
• Clause 15.1. Clause amended for clarity.
• Clause 15.2. Clause amended to require time and cost claims to be submitted together – similar to GC21.
• Clause 15.3. Clause amended for clarity– similar to GC21.
• Clause 15.4. Clause amended to make any bar subject to law. Compliance with SoPA may, but not necessarily, affect the bar.
• Clause 16.1. Clause amended for clarity and to allow for period to resolve a claim under clauses 10.13 and 15.3.
• Clause 16.2. Clause amended for consistency.
• Clause 16.4. Clause amended to reinforce option to increase time for resolution and consider alternatives to ADR.
• Clause 16.6. Clause amended to increase initial security amount.
• Clause 16.8. Clause amended to remove possible implied obligation for other party to provide more security.
• Clause 16.13. Clause amended to increase threshold amount for litigation and to align with similar GC21 clause.
• Clause 17.3. Clause amended to make any action due to an insolvency subject to the Corporations Act.
• Clause 18.1. Clause amended for clarity on the commencement of the effect of a termination notice.
  Clause 19. Title changed from ‘Termination for the Principal’s Default’ to ‘Suspension and Termination for the Principal’s Default’.
• Clause 19.1. New clause to include Contractor rights under SoPA. This aligns with similar rights for suspension under GC21.
• Clause 19.2 (old 19.1). Clause amended to avoid Contractor action for a ‘trivial’ amount and also to require the Contractor to state alleged breach.
• Contract Information Item 2. Title, guide note and selections amended to include description of the Works.
• Contract Information Item 4. Guide note, and text amended for clarity and consistency.
• Contract Information Item 5. Guide note amended for clarity.
• Contract Information Item 8. Guide note amended for clarity and consistency.
• Contract Information Item 11. Guide note amended for clarity and consistency.
• Contract Information Item 12. Guide note, and text amended for clarity.
• Contract Information Item 13. Guide notes amended for clarity and avoid unnecessary risk.
• Contract Information Item 14. Guide note amended for clarity.
• Contract Information Item 15. Guide note, and text amended for clarity. Options to pay at completion of milestones deleted as this is no longer supported by SoPA.
• Contract Information Item 16. New item to allow an undertaking to be required at commencement of Contract.
• Schedule 2. Supporting Statement and Subcontractor’s Statement – Combined Subcontractor’s Statement and Supporting Statement relaced with separate Supporting Statement (from Fair Trading website) and Subcontractor’s Statement and notes amended for clarity.
• Schedule 3. Contractor Notification of Completion – new Schedule for notification by the Contractor that work is complete.

Preliminaries

• General:
  • Expressions in clauses amended for consistency, that is: ‘Ensure….’ rather than ‘The Contractor shall ensure.’
  • References to and calculations of ‘days’ changed to ‘Business Days’ unless not applicable.
• Clause 1.2. Title, guide note, and clause amended to explain current application of Design and Building Practitioners Act and clause amended to remove requirement for registration under the Design and Building Practitioners Act.
• Clause 1.4. New optional clause dealing with ‘Certification of Compliance with Building and Fire Regulations’ added.
• Clause 1.6 (old 1.5). Clause amended to include application of Procurement Policy Framework, Supplier Code of Conduct and Industrial Relations Guidelines.
• Clause 1.7 (old 1.6). Clause amended to avoid the requirement that the Principal must carry out performance reporting.
• Clause 2.1. guide note amended for clarity with reference to similar GC21 guide note.
• Clause 2.2. Clause amended for clarity and to require a monthly program update.
• Clause 2.3. Clause amended for clarity and to require work as executed (WAE) drawings, progressively and independently of payment claims.
• Clause 2.6. guide note amended to include reference to Council asset data capture activities and deleted Prelims. Schedule 8.3 if not required.
• Clause 3.1. Clause amended for clarity with regard to the issue of tax invoices.
  Clause 3.2. Clause rewritten to clarify timing of transfer of ownership for the Works.
• Clause 3.3. Clause amended, expanded and re-arranged for clarity and to promote a consistent approach to detailing scope, measurement and conditions for Schedule of Rates (SoR) items.
• Clause 3.4. New optional clause added dealing with ‘Application of Tendered Rates’, where a Schedule of Prices - Lump Sum is used. The approach to detailing scope, measurement and conditions for rate items is as per clause 3.3.
• Clause 3.5. New optional clause added dealing with ‘Application of Provisional Rate Amounts’ which may be used for Variations. The approach to detailing scope, measurement and conditions for rate items is as per clause 3.3.
• Clause 3.6. New optional clause added dealing with ‘Provisional Sums’.
• Clause 3.7 (old 3.4). Guide note amended to require contact details for preferred subcontractors be listed and to highlight risk where only one preferred subcontractor is listed.
• Clause 4.1. Clause amended for clarity with regard to submission of conformance records independent of payment claims.
• Clause 4.4. Guide note amended for clarity with regard to Aboriginal Participation.
• Clause 4.5. Guide note amended for clarity with regard to ‘Protection of Children and Other Vulnerable People’. Requirement for a written declaration to a Disqualifying Offence made optional.
• Clause 4.6. New clause to require Contractor Representatives to be nominated and advised.
• Clause 5.1. Guide note amended for clarity with regard to order of work.
• Clause 5.3. Guide note amended for clarity with regard to site access.
• Clause 5.5. Guide note amended for clarity with regard to working times.
• Clause 5.6. Clause amended for clarity with regard to locating and dealing with existing services.
• Clause 5.7. Clause and guide notes amended:
  • optional clause requiring a Work Health and Safety Management System deleted. Clause text relocated into guide note with explanation that use is primarily for contracts above $3 million in value.
  • reference to relevant Australian Standard included for tagging leads and power tools.
  • requirement for Certificate of Compliance – Electrical Work (CCEW) to be provided as a condition of Completion reinforced.
  • formwork (including certification) section amended to suit revised guidelines.
• Clause 5.8. Clause amended to include updated definition of ‘Hazardous Substances’. Tighter notification requirements specified and clarification of entitlements provided.
• Clause 5.9. Clause amended with updated code and guideline references.
• Clause 6.1. Clause amended with submission of report independent of payment claims.
• Clause 6.2. Clause and guide note amended for Ecologically Sustainable Development requirements in accordance with current policy.
• Clause 6.3. Clause amended for waste management in accordance with current policy.
• Clause 7.1. Standards clause deleted and text relocated to of General Conditions Clause 8.
• Clause 7.4 (old 7.5). Guide note amended for Proprietary Items for clarity. Option for ‘mandatory proprietary items’ added similar to GC21.
• Clause 7.6 (old 7.7). Guide note and clause amended for Items Supplied by the Principal for clarity.
• Schedule 8.1. Compliance with NSW Procurement Policy Framework, Supplier Code of Conduct and Building and Construction Guidelines – new Schedule relocated from General Conditions clause 1A and amended to include application of NSW Government Procurement Policy Framework.

General conditions of contract

• Clause 1.12. Definition of ‘Margin’ amended to include any additional supervision required.
• Clause 3.6. Ambiguity in Contractor responsibility for its design in the second paragraph removed and omission in the first paragraph corrected.
• Schedule 2. Supporting Statement and Subcontractor’s Statement – Subcontractor Statement formatting amended.

General conditions of contract

• Clause 4.2. Removed the reference "Part 4 of the Civil Liability Act 2002 (NSW) does not apply to this Contract".

General

• Corrections and clarifications were carried out. It is noted that formatting still needs improvement for consistency.
• Suggestions for improvements and feedback on changes are encouraged.

General conditions of contract

• Guide note (not hidden) referring to applicable Preliminaries clause dealing with Personal Property Securities added for clause 17.

Preliminaries

• Clause 3.2. Clause amended to include application of Personal Property Securities.
• Schedule 2. Personal Property Securities added. Other schedules were renumbered.

General

• Corrections and clarifications carried out. Formatting improved for consistency.
• Suggestions for improvements and feedback on changes are encouraged.

Conditions of tendering

• Clause 4.5. New optional clause dealing with modern slavery added.

General conditions of contract

• Clause 12.4. Entitlement to costs of delay clarified.
• Clause 13.11. Return of undertaking clarified.
• Schedule 2. Clarified notes and adjusted formatting for subcontractor's statement.
• Contract information 16. Guide note expanded with example where 2 undertakings are required.

Preliminaries

• Clause 1.1. New clause added to clarify application of preliminaries.
• Clause 4.1. 'Failure to comply' section amended to allow principal to make deductions where contractor has not carried out its quality management obligations.
• Clause 4.7. New optional clause dealing with modern slavery added.
• Clause 5.6. Clause amended to include protection of survey marks.
• Clause 7.1. Clause amended to include removal of contractor's equipment when 'cleaning up'.

General

• Corrections and clarifications carried out. Formatting improved for consistency.
• Suggestions for improvements and feedback on changes are encouraged.

General conditions of contract

• Clause 1.12 definition for 'margin' clarified
• Clause 2.2 consequence of non-compliance with specified time limit where a variation applies reworded for clarity
• Clause 7.1 contractor warranty obligations for site conditions simplified
• Clause 9.4 variation proposal requirements reworded for clarity
• Clause 9.11 variation valuation principles reworded for clarity
• Clause 13.8 clause dealing with work under a provisional sum or provisional rate amount reworded for clarity.

General

• Corrections and clarifications carried out. Formatting improved for consistency.
• Suggestions for improvements and feedback on changes are encouraged.

General conditions of contract

• Clause 5.7. Insurance term 'any deductibles' replaced by 'all excesses and any deductibles' for consistency with other contract forms and construction works insurance policies.

Preliminaries

• Clause 1.6. Guide note amended. Threshold for long service levy increased from $25,000 to $250,000 (including GST).

General

• Corrections and clarifications carried out. Formatting improved for consistency.
• Suggestions for improvements and feedback on changes are encouraged.

Conditions of tendering

• Clause 1.1. Clause renamed as requests for information and clarifications and expanded to include option to use an on-line portal for tender queries and their management.
• Clause 3.3. Insurance options re-arranged to allow for works and public liability insurances to be arranged by different parties.
• Clause 5.3. Option to request tenderers to confirm attendance at a pre-tender meeting added.
• Clause 8.1. Guide note provided on considering unsigned tenders.
• Clause 8.2. Guide note expanded to include dealing with qualifications.

Tender schedules

• Schedule 8. Guide note expanded to utilise the schedule for non-weighted evaluations.

General conditions of contract

• Preface amended to clarify that the MW21 contract can be used for higher value contract that include repetitive works.
• Clauses 5.2 & 5.3. Clauses amended to allow for arrangement of works and public liability insurances by different parties.
• Clause 13. General guide note (not hidden) referring to preliminaries clause dealing with responsibility of tax invoices amended.
• Contract information item 9. Item rearranged to allow for works and public liability insurances to be arranged by different parties.
• Schedule 2. Note and link included for a pdf version of the supporting statement from Fair Trading with fillable form fields.

Preliminaries

• Clause 1.3. Guide note and text amended to include new requirements under the Design and Building Practitioners Act 2020 (NSW).
• Clause 1.6. Options provided to allow selection of  payment obligation for long service levy.
• Clause 2.2. Clause renamed contract program. Guide note and text amended to explain benefits of a contract program and to clarify submission requirements.
• Clause 3.1. Guide note and text amended to provide option for contractor to issue tax invoice for payment immediately after payment schedule is issued.
• Clause 4.1. Waste management progress reports added to list of conformance records.
• Clause 5.6. Requirement included for contractor to submit WHS checklists with its WHS management plan.

General

• Corrections and clarifications carried out. Formatting improved for consistency.
• Suggestions for improvements and feedback on changes are encouraged.

General conditions of contract

• Clause 2.2. Clause redrafted to suit changes to clause 9.
• Clause 9.4. Clause simplified to remove duplication of clause 9.11.
• Clause 9.11. Clause redrafted for clarity and to remove ambiguity.
• Clause 13.8. Application of provisional rates clarified.

General

• Corrections and clarifications carried out. Use of term 'shall' replaced with 'will'.
• Formatting improved for consistency.
• Suggestions for improvements and feedback on changes are encouraged.
• General conditions of contract
• Clause 2.11. Statement that the contract commences on the date of acceptance of the tender moved from definition of contract for consistency.
• Clause 13.10. Express condition included that the final Post-Completion Period (if any) must end prior to the issue of the Final Payment Summary. This condition was previously only implied.

Preliminaries

• Clause 1.3. Clause amended to expressly include declarations under the Design and Building Practitioners Act 2020 and for consistency with GC21 preliminaries.
• Clause 1.5. Clause amended with respect to certification requirements under EPA&A Act for consistency with GC21 preliminaries.
• Clause 2.2. Guide note for clause amended to reinforce benefits of the contractor being required to prepare and update a program.
• Clause 4.6. Guide note for clause amended to reinforce benefits of dealing with named contractor representatives.
• Clause 4.6. Clause amended for clarity and consistency with GC21 with:
  • Contractor Representative and Senior Contractor Representative renamed as Contractor's Authorised Person
  • Contractor's Senior Executive respectively
  • Contractor's Authorised Person and Contractor’s Senior Executive to be separate persons.
• Clause 7.5. Consideration of alternatives to identified proprietary items clarified.