1.4.1 The guidance continues to use a range of approaches to issues from explanatory text to specific drafting. Significant parts of the standard drafting are now sufficiently well established to be included in transaction documents without amendment. The Clauses specified in the following Sections should not be amended (except as envisaged by its accompanying footnotes and guidance notes): 1.8.1, 1.8.2, 2.2.4, 5.2.1.2, 5.2.3.9, 5.3.2.1, 5.3.3.5, 5.4.1.2, 6.3.3, 11.1.4, 11.5.2, 12.4.1, 12.4.2, 12.4.3, 14.3, 14.6.1, 14.6.2, 14.8.10, 17.3.2, 21.1.2.1, 21.1.2.4, 21.1.3.9, 21.2.2.1, 21.2.3.3, 21.2.4.1, 21.2.7.6, 21.2.8.9, 21.2.9.11, 21.3.1.1, 21.3.2.2, 21.3.3, 21.4.1.3, 21.4.2.3, 21.4.3.4, 21.5.3.3, 21.6.2.2, 22.3.8, 22.4.1, 22.5.3.3, 22.5.4, 22.7.2, 23.5, 25.6.4, 25.7.4, 25.9.15, 25.10.3, 25.10.5, 25.10.9, 25.11.3, 26.2, 26.9.4, 28.5.3, 29.2, 29.3.3, 29.4.4, 29.6.2, 31.6, 32.3.1, 34.8.1.
1.4.2 This guidance applies to all PFI contracts in Northern Ireland but does not apply to IT projects, for which separate guidance is available (see ICT Model Services Agreement and Guidance published for OGC on the PUK website). The PFI is not suitable for Projects with a capital value of less than £20 million.
1.4.3 Where the Authority entering into the Contract is a local public body, some additional considerations apply. It is important that, in entering into any Contract, a local public body is not fettering itself in the performance of its normal public duties. Equally however, the Contractor will want to know that if the Authority expressly agrees to do something in the Contract and fails to do it, then (without seeking to fetter the local public body in the exercise of its public duties) the Contractor should enjoy his contractual rights and remedies (which may be by way of relief or compensation). The obligations of the Authority in any Contract should be limited (normally being confined to payment and perhaps some access and co-operation provisions) and clearly stated in any event. If there is any doubt around the relationship of any of these provisions with any statutory duty, the position should be clarified in the Contract. On any local public body project the Authority should always ensure that it does not undertake any obligations in the Contract which could conflict with its statutory duties and powers. SoPC4 contains useful guidance for where PFI Contracts are executed by local public bodies. However, the powers that local public bodies in England operate under and the powers that Northern Ireland local public bodies operate under are substantially different. Therefore, SIB has made reference throughout SoPCNI 3 to where SoPC4 gives local guidance as it will often still be of general help to relevant parties, even if some of the specific references are not appropriate.
1.4.4 In addition, SoPCNI 3 contains Northern Ireland specific guidance in relation to the following primary areas:
• equality and employment legislation and issues (Chapter 16);
• criminal damage and terrorism insurance (Chapter 25 and Annex 1); and
• property law issues and planning issues (Chapter 19).
1.4.5 In certain circumstances (e.g. on large, complex or novel deals or sector specific considerations (such as the exclusion of the transfer of cleaners to the private sector in schools projects, Authorities will still need to consider making changes to standard drafting, in order to address project specific issues. In such circumstances, which should be limited, SIB can offer advice.