The Contract will include a wide range of obligations for the Contractor in relation to the delivery of the Services. It is important that the Contract Manager is aware of the full range even if some obligations do not have great significance on day to day basis. These obligations may be too extensive to incorporate in full in the Contract Management Manual. However the Contract Management Manual should at least provide signposts to all the relevant sections of the Contract.
Under the WIDP Contract (Clause 22) the Contractor is obliged to provide the Services in accordance with:
a) the Contract;
b) the Service Requirements (defined in the Authority's Requirements (Schedule 2));
c) the Service Method Statements;
e) legislation;
f) the terms and requirements of any Consents; and
g) the terms of any Lease or Underlease on the Sites.
In addition in the WIDP Contract (Clause 27) the Contractor is obliged, at all times, to comply with its duty of care under Section 34 of the EPA and has a duty to inform the Authority if any person for whom the Authority is responsible or any third party associated with the project breaches that duty of care. The Contractor is also responsible for procuring sufficient qualified staff to perform the Services (Clause 31).
Whilst a failure to comply with the most important service standards will be dealt with through the Payment Mechanism (Schedule 4) there are clearly too many individual obligations to cover comprehensively through the Payment Mechanism including performance framework. The fact that there may be no remedy through the Payment Mechanism should not deter the Contract Management Team from monitoring the performance of an obligation if it is important to the Authority. If it detects that a service obligation is not being met the Contract Manager can decide whether to raise the issue with the Contractor either informally or formally through the Liaison Committee. In some cases the Contractor may be able to rectify the issue easily with no cost to the Authority. In other cases resolution may be more difficult and the lack of financial remedy may come to be seen within the Authority as a defect in the Contract. However it should be remembered that such issues were originally excluded from the Payment Mechanism because they were judged to be insufficiently important to be included. If the issue is now of sufficient importance to the Authority the contractual solutions available include the implementation of an Authority Change (Clause 43) (see Section 5.2.1) or Termination for Persistent Breach (Clause 67) (see Section 4.5.9).
Whilst the Contract will define the services there may well be grey areas where the requirement is ambiguous or the Performance Measurement System is not fully specified. With experience it might be possible for the parties to agree how to clarify these grey areas. It is important that the Contract Manager considers the need for legal advice before agreeing any such clarifications as there may be unintended consequences arising from what might appear to be a simple operational matter. Once advice has been sought and there is an agreed position this should be fully and formally documented and procedures put in place so that a reader of the original signed Contract document is alerted to the fact that there has been a subsequent clarification of the meaning of the Contract.