3.10.1 In the ordinary course of events, for a well planned procurement exercise no agreements should be needed for the commencement of early works ahead of the parties signing the Contract. Such agreements would generally be considered bad practice for a number of reasons:
• there may be questions as to whether any such early works agreement had been procured in accordance with relevant procurement law and regulation (e.g. is it covered in the relevant OJEU notice and has it been awarded to the winning tenderer);
• in the ordinary course, no payments would be made to the Contractor or any Construction Sub-Contractor prior to completion of the relevant facilities and commencement of the Services (see further Section 3.9 (Capital Contributions));
• in the ordinary course, Authorities should not be under any obligation to make any payments prior to Financial Close;
• negotiations on early works agreements tend to be a distraction for the negotiating teams on the main Contract and obstruct the completion process for the main Contract;
• project integration issues can arise;
• early works agreements can undermine the bargaining position of the Authority and adversely affect the balance of risk on the procurement; and
• to date, early works agreements tend not to have been factored into the original procurement programme and are often a sign that a procurement is in difficulty.
3.10.2 For all these reasons early works agreements are generally to be avoided. However, for certain projects where particular programming issues apply (such as schools who wish to avoid facility handovers occurring in term-time), basic enabling works may be needed prior to Contract signature, and for such projects the following rules should apply:
• the enabling works should be planned well in advance and as part of the overall procurement strategy (and alternatives to it should always be appraised);
• consideration should be given as to whether it is appropriate for the bidder to do such works or whether the Authority should independently commission a third party to do them;
• the works proposal should offer demonstrable savings to the project timetable and be value for money in its own right;59
• SIB should be consulted and approve the proposal;
• the works should only comprise essential early works which the Authority would wish to have done in any event. Examples may include certain surveys, "making safe" works, advanced purchase orders (in unusual markets where a market position is needed for timetable reasons), access roads or other pre-construction "enabling" works;
• the works should be of a general nature, and not specifically related to the specific project solution proposed by the bidder, such that they will be of value to the Authority whether or not the Contract is signed;
• the works completed should not impair the risk allocation in respect of work subsequently done under the Contract; and
• the scale/cost of such works should not be significant and the Authority should ensure it has funding for them.
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59 Although it is not recommended that an Authority make early payment for such works, if any payment is made, there must be a commensurate reduction in the Unitary Charge.