Under the WIDP Contract (Clause 13) the Contractor is responsible (through its Construction Sub-Contractor) for a series of obligations in relation to the carrying out of the Works, including design, construction, completion, commissioning and testing. The Contract will include provisions relating to the management of the Construction Sub-Contract, placing certain obligations on the Contractor.
Clause 13.1 lists various obligations relating to the carrying out of the Works, for example compliance with all relevant contractual requirements, using appropriate materials and goods, ensuring the suitability of employees carrying out the Works and arrangements for their supervision, and safeguarding and securing the Works and Sites.
Under Clause 2.1 of the WIDP Contract, the parties agree how to resolve issues that may arise if there are inconsistencies between different parts of the Contract. If there is an inconsistency between the front end of the Contract (for the WIDP Contract, this means Clauses 1 to 100) and the Schedules, the front end takes precedence. If the Authority's Requirements and the Contractor's Proposals are inconsistent, the Authority's Requirements prevail.
This order of precedence is reinforced at Clause 13.2 of the WIDP Contract. That clause also highlights that the Contractor cannot justify non-compliance with the Contractor's Proposals on the basis it has met the Authority's Requirements, and vice versa. The obligations at Clause 13.1 are independent of each other.
Clause 13.3 stipulates various requirements in respect of the Site, including their use or occupation, what may be deposited or manufactured on the Site, disposing of surplus materials, ensuring the cleanliness of vehicles leaving the Site and the use of site accommodation and signs or trade boards.
There are also special provisions relating to services or utilities that are needed in relation to the Works.
The WIDP Contract (Clause 13.5) sets out the Authority's remedies if the facility is not ready to receive waste by the Planned Readiness Date, or if the Contractor is not in a position to provide the Services by the Planned Services Commencement Date, or if there is a failure to use reasonable endeavours to comply with the Construction Programme. The Contract Manager should involve its Legal Department if such a situation should arise.
The WIDP Contract (Clause 16) requires the Contractor to ensure that meetings with the Sub-Contractor are properly minuted by the Contractor. The Authority's Representative has a right to attend programmed monthly site meetings. WIDP recommend that this right is exercised and this should be addressed in the Contract Management Manual.
A frequent cause of delay to the progress of the Works arises in the context of Site Conditions. Under the WIDP Contract (Clause 11), the Contractor takes responsibility for the Site Conditions on the assumption that the Contractor can make all necessary investigations. This is subject to any exceptions that the Authority may have agreed with the Contractor on a project specific basis, for example if unforeseen conditions relating to the Site arise in areas that the Contractor could not investigate. If issues relating to ground conditions do arise on the Site, for example Contamination, the Contractor may approach the Authority for relief from its obligations, The Contract Manager should work with the Authority's Legal Department to check the extent of the Contractor's responsibility under the Contract before granting any such relief.
If the progress on the Works falls behind the Construction Programme the Contractor is obliged to provide a report on the causes of the delay and if requested provide a revised Construction Programme showing how the delay might be made up or reduced.
With waste projects there is a risk that opponents of the project might take direct action by occupying the Site. It is therefore important that the Site is kept secure right from the outset. The Contract will stipulate which party is responsible for keeping the Site secure at the various stages of the Contract, and the Contract Management Manual should also make this clear.
Under the WIDP Contract (Clause 42), there are specific provisions for Protestor Action. If events falling within the definition of Protestor Action do occur the Contractor remains fully responsible for any financial consequences including the impact of any delay to the commencement of the Services. However such events do fall within the definition of Relief Events (see Section 8.8.2) so the Contract Manager should be aware that Protester Action can impact on the date on which the Authority would otherwise have been able to terminate the Contract for Contractor Default. The Contract Management Manual should set out the process by which the impact of Relief Events on contractual deadlines are agreed with the Contractor and recorded.