The purpose of this paper, writes Ciaran Fahy, is to consider the role of the Standing Conciliator under the Public Works Contract (PWC) as used by the Irish public sector for building and civil engineering projects since 2007.

In dealing with the topic, I want to firstly discuss the process of conciliation as used in Ireland and trace its evolution over the past 30 years or so. I then want to deal with the PWC form of contract, introduced in 2007, with particular emphasis on the dispute resolution provisions and the way in which they have been amended since 2016 with the introduction of a Standing Conciliator and project board.

Finally, I want to deal in some detail with the Standing Conciliator and project board and how the engagement of the two together might minimise or avoid disputes.

Conciliation

Traditionally, disputes in the construction industry tended to get referred to and resolved at arbitration but this started to change in about the 1980s with the introduction of a further process prior to arbitration.

For example, in 1987 the FIDIC Fourth Edition Red Book introduced amicable settlement prior to arbitration and, in the following year, the Institution of Civil Engineers (ICE) published a conciliation procedure for minor works and followed up with the revisions of this procedure in 1994 and 1999.

In 1994, the Institution of Engineers of Ireland (IEI), now renamed as Engineers Ireland, published a conciliation procedure; IEI has long enjoyed a close relationship with ICE and this 1994 conciliation procedure was based on the corresponding ICE documents.

In 1996, the Royal Institute of the Architects of Ireland (RIAI) together with the Society of Chartered Surveyors (SCS) and the Construction Industry Federation (CIF) published a conciliation procedure for use with the RIAI form of contract.

In 2000, Engineers Ireland revised and issued its procedure as Conciliation Procedure 2000 and this was subsequently reissued in electronic version in 2011(1). This procedure is still widely used with significant success and is essentially mediation with provision for a recommendation by the conciliator where there is no resolution of the dispute by agreement. 

The Conciliation Procedure 2000 states:

"The conciliator’s recommendation shall state his opinion as to how the parties can best dispose of the dispute between them and need not necessarily be based on any principles of common law or equity"(2).

The procedure provides that either party may reject the recommendation within a set period of two weeks; in the absence of such a rejection, the recommendation becomes final and binding. Where the recommendation is rejected it has no status.

Any conciliation taking place under the Conciliation Procedure 2000 takes place on a confidential and without prejudice basis and it affords maximum flexibility in terms of procedure. For example, the guide to the procedure states as follows: "The Engineers Ireland Procedure permits the conciliator to communicate privately and separately with each party and, unless specifically authorised, the conciliator will not subsequently reveal to any other party what he has been told; this is a procedure which is not available to an arbitrator or judge."(3)

Public Works Contract

The Public Works form of contract (PWC) is a sophisticated and well-drafted suite of documents introduced in 2007 for use by the Irish public sector in building and civil engineering work. 

The primary concern of the PWC is to achieve cost certainty and it has a high level of risk transfer to the contractor. Since its introduction, the PWC has displaced the IEI and RIAI/GDLA forms of contract which were previously used for civil engineering and building work respectively(4). 

There are 11 different forms of contract in the PWC suite but the four main ones cover building and civil engineering works separately where the design is provided either by the employer or the contractor. They are as follows:

• PW-CF1 building works designed by the employer;
• PW-CF2 building works designed by the contractor;
• PW-CF3 civil engineering works designed by the employer;
• PW-CF4 civil engineering works designed by the contractor.

The four forms of contract listed above are very similar both in terms of the structure, layout and, indeed, the wording of particular provisions. This paper is concerned with these four forms of contract and where reference is made to clauses or subclauses, it may be taken they are the same in all four forms.  Obviously, in any particular case, reference must be made to the particular form of contract as well as the version in use.

The PWC forms of contract listed above use a tiered form of dispute resolution with arbitration preceded by mandatory conciliation which is similar to the early version of conciliation as in the EI Conciliation Procedure 2000 with two important changes:

• Any recommendation is to be based on: "the parties’ rights and obligations under the contract"(5);
• Where the payment of money is recommended this is payable, even where the recommendation is rejected, but only against a 100% bond.

A significant review of the PWC was completed in December 2014 and, following this, a dispute management procedure, which provided for a project board and also a Standing Conciliator, was introduced in 2016. Since then, the Office of Government Procurement (OGP) has commissioned a review of the dispute management procedure by Indecon in 2021; that report has been received and is currently under consideration. 

The process of PWC conciliation is set out in subclause 13.2 of the contract and, specifically, in 12 subclauses, 13.2.1 to 13.2.12. Subclause 13.2.5, covered in greater detail later in this paper, gives the conciliator control of the process and allows for separate meetings with the parties and also for the consideration of documents from one party which are not shown to the other. The same subclause specifically says: "The conciliator shall consult with the parties in an attempt to resolve the dispute by agreement."

If the dispute is not resolved by agreement within 42 days, subclause 13.2.8 requires the conciliator to issue a written recommendation based "on the parties’ rights and obligations under the contract".

Subclause 13.2.9 provides that either party may issue a notice of dissatisfaction within 42 days while subclause 13.2.10 says that if there is no such notice of dissatisfaction the recommendation becomes "conclusive and binding on the parties". 

Subclause 13.2.11 provides that, even if there is a notice of dissatisfaction, any sum of money recommended is payable provided that the party receiving payment refers the dispute to arbitration and also provides a 100% bond against the amount recommended.

The PWC form of conciliation is unchanged since 2007 and it is also amplified in the Engineers Ireland Conciliation Procedure 2013 which is intended to be used alongside clause 13 of the PWC(6).

The PWC form of conciliation is accepted as being very successful, particularly for employer/main contractor disputes. This process of conciliation, as it has evolved in Ireland, seems to be unique in the manner in which it combines the conciliator’s procedural freedom with the provision of a document recommending how the dispute might be resolved. 

Claims and disputes under PWC

The PWC sets out clear provisions to deal with claims. It is a lump sum form of contract with entitlement to additional time or money only where the contract provides; such entitlement arises from a list of delay and compensation events set out in Part 1K of the schedule which is included in the PWC suite of documents that is completed by the parties for each individual project. 

Where a contractor feels there is an entitlement, a claim must be made under subclause 10.3 of the contract. This sets out strict time limits and if these are not complied with any entitlement is lost.

Any claim made must be assessed and determined by the employer’s representative (ER) under subclause 10.5 and such a determination becomes final and binding, under subclause 10.5.4, unless a notice disputing the determination is issued by either party within 28 days. At that point the dispute may be referred either to the project board under subclause 13.1 or to conciliation under subclause 13.2.

Dispute is not a defined term in the PWC but, that said, it is clear what is intended since the word dispute is not used before subclause 10.5 and is widely used afterwards in clause 13. In the PWC, a dispute generally arises as the result of three separate stages:

1. A claim under subclause 10.3;
2. An ER determination which rejects the claim either partially or fully;
3. A rejection of the ER determination.

The time limits provided in clause 10 and the consequences associated with them, particularly for the contractor, tend to push the parties along the route from a claim to a dispute. In other words, the intention of the contract is that issues which arise and form the basis for a claim are dealt with as and when they arise. 

PWC – dispute management procedure

Significant changes were introduced into the dispute resolution provisions of the PWC in 2016 with the introduction of the dispute management procedure based on a project board, while, at the same time, conciliation was altered by the introduction of a Standing Conciliator. These changes were brought about by the modification of clause 13 of the PWC and, in particular, by the introduction of a new subclause 13.1 under the title dispute management procedure(7). 

The new subclause 13.1 provides that when a dispute arises under subclause 10.5 of the contract (in other words a disputed ER determination) either party may, but is not obliged to, refer it to the project board.

The board is made up of between one and three members from both the contractor and employer organisations with such persons drawn from senior management without day to day involvement in the project in question. A project board is mandatory on all projects under the PWC where the contract sum is greater than €5m.

A Standing Conciliator is mandatory on all projects with a contract sum greater than €10m; however, a Standing Conciliator may be appointed for lower value projects at the discretion of the employer as provided in paragraph 2.8 of Guidance Note (GN) 3.1.1. The Standing Conciliator is appointed for the duration of the project with this appointment normally being made using Form MF1.18, Appointment of Standing Conciliator(8).

The Standing Conciliator is similar in concept to dispute boards in use in the US from the 1960s and the approach adopted in FIDIC from the 1985 Orange Book and continued through the 1999 Rainbow Suite into the latest 2017 Conditions of Contract. Up to 2016, the tendency in the PWC form of contract was to appoint a conciliator, often different ones, for each dispute arising under the contract.

PWC – the project board

The operation of the project board is set out in subclause 13.1 and also in paragraphs 1.2 to 1.6 of GN 3.1.1. This includes:

• Generally, the project board is to meet at least every 60 days (13.1.2(1));
• The project board communications/operates on a without prejudice basis (13.1.2(3));
• The project board has full discretion on how to conduct its business and relate to the Standing Conciliator (paragraph 1.5 of GN 3.1.1); and
• Disputes referred to the project board are to be dealt with at the next meeting of the project board: "Where no agreement is reached by the project board to resolve a dispute referred to it by the end of the first project board meeting after the date of referral, the board shall no longer review or discuss the dispute.(9)"

The role of the project board is set out in paragraph 1.4 of GN 3.1.1 which says:

"The sole function of the project board is to review disputed employer representative determinations issued under subclause 10.5.4 and 10.5.5 of the conditions of contract and referred to the dispute management procedure under subclause 13.1 of the contract, with an intent to negotiate a resolution without the need to formally refer the dispute to conciliation."

It will be seen that the role envisaged for the project board is quite a narrow one and is restricted to dealing with disputes which have arisen under the contract. This point is emphasised in paragraph 1.4 of GN 3.1.1 which goes on to say:

"The project board shall not review disputes arising under any other clause or subclause of the contract or any dispute arising from the contact or any dispute outside the contract."

Thus, the project board has no role in dispute avoidance and, furthermore, is required to deal expeditiously with any disputes referred to it; there is no provision for disputes to be deferred or carried forward from one project meeting to the next. In fact, the parties are to be informed of the outcome on the day following the project board meeting which considered the dispute.

In a sense, the introduction of the project board really only formalises good management practice where the senior management, or principals, from the employer and contractor, should engage informally to ensure the smooth running of a project and to deal with any issues as they arise. 

PWC – the Standing Conciliator

The role of the Standing Conciliator is set out in subclause 13.2 of the conditions of contact and also in paragraph 2.8 of GN 3.1.1. The Standing Conciliator is not a member of the project board and is to be appointed from the starting date of the contract until: "… the parties agree to terminate the Standing Conciliator’s appointment". 

The parties may, by agreement, terminate the Standing Conciliator’s appointment at any point but normally the appointment will run until the achievement of substantial completion and, indeed, could extend beyond that.

The Standing Conciliator is required to:

• Act as conciliator in all disputes referred to conciliation(10);
• Become and remain familiar with the project. As part of this, the conciliator is to be provided with a wide range of documentation(11);
• Confer with the parties as necessary/requested(12).

In addition, the Standing Conciliator may:

• Attend/chair meetings of the project board if invited(13);
• Provide advice/opinion if requested(14);
• Assist the parties in resolving any dispute(15).

Subclause 13.2.5 of the PWC obliges the Standing Conciliator to attempt to resolve any dispute by agreement. In addition, the same subclause gives the Standing Conciliator extensive procedural flexibility to do the following:

1. "Meet the parties separately from each other or together and consider documents from one party not sent or shown to the other
2. Conduct investigations in the absence of the parties
3. Make use of specialist knowledge
4. Obtain technical or legal advice
5. Establish the procedures to be followed in the conciliation."

It is clear from paragraph 2.8 of GN 3.1.1 that the role envisaged for the Standing Conciliator is a broad one since it says: "The intention behind the introduction of the Standing Conciliator is to 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 crystalise into a dispute."

It is clear from the above that, while the Standing Conciliator has responsibility for dispute resolution by way of conciliation, there is also a responsibility to assist the parties to avoid disputes. This is much broader than the remit of the project board. 

Author: Ciaran Fahy is an arbitrator, conciliator, adjudicator and mediator based in Dublin.

References

1) Available at: www.engineersireland.ie/listings/resource/321.