The facilities provided under waste PFI/PPP contracts involve highly sophisticated engineering. Good maintenance is therefore critical in ensuring that the services are provided over the course of the Contract and that the asset is still in good condition when the Contract expires.
The Contractor is responsible for maintaining the facilities at all times in accordance with the contractual requirements. In the WIDP Contract these are contained within the Authority's Requirements in Schedule 2. The Contract may also include a specific schedule of programmed maintenance.
Poor maintenance of the facility by the Contractor may be the underlying cause of poor performance by the Contractor. The Authority's usual remedy in this scenario is through the Payment Mechanism. However there may be provisions in the Authority's Contract that allow the Authority to perform specific maintenance tasks in certain specified scenarios.
Under the WIDP Contract (Clause 26) the Authority can commission an independent Survey if it reasonably believes that the Contractor has not been fulfilling its obligations in relation to maintenance, although this right cannot be exercised more than once every two years. The Authority bears the cost of the Survey and is obliged to liaise with the Contractor so as minimise disruption. If the Survey confirms the Contractor has not been fulfilling its obligations then the Contractor is obliged to reimburse the Authority for the cost of the Survey and to rectify the situation within a specified period. If the Contractor then fails to do this within the specified period the Authority is entitled to remedy the situation and re-claim its costs from the Contractor. The Authority is obliged to follow Good Industry Practice when undertaking the work.
The Contract Management Manual should highlight the existence of any provisions in the Contract allowing the Authority to directly rectify any under maintenance of the facility and where they sit in the contract. Using these contractual rights involves certain risks for the Authority and the Contract Manager should always seek advice from the Authority's Legal Department before invoking such rights. Any opportunities for resolving the underlying issue through discussions with the Contractor should also be explored as far as possible before any direct intervention by the Authority. A decision to intervene is sufficiently significant that it should be approved by the Contract Management Board.