Care should be taken in extending the Independent Reviewer's role on the Project as conflicts of interest, actual or perceived, can arise. Also, the State prefers to have other independent parties having roles in the project (such as the Financier's certifier) to increase the likelihood that if an issue is missed by one person, it will be picked up by another.
The State considers that there is an inherent conflict in the Independent Reviewer certifying Acceptance and also certifying progress payments payable to the D&C Contractor under the D&C Contract. For example, it would be difficult for an Independent Reviewer to have certified all progress claims as payable to the D&C Contractor during the Development Phase and then to determine that Acceptance has not been or cannot be achieved on time. Accordingly, the State will not typically allow the Independent Reviewer to undertake payment certification and certification of Acceptance.
The State will consent to the Independent Reviewer acting as Sub-Independent Reviewer under the D&C Contract provided the necessary separation arrangements are put in place.
To avoid the inefficiencies associated with any double up of the role of Independent Reviewer and Sub-Independent Reviewer, the State will usually accept the D&C Contractor having a direct deed or collateral warranty from the Independent Reviewer where the role to be performed under both the Project Deed and the D&C Contract is the same. However, the D&C Contractor must agree to the paramountcy of the role and determinations under the Project Deed in those circumstances.
To ensure that the independence of the Independent Reviewer is maintained during the period of appointment, neither the State nor Project Co may appoint the Independent Reviewer in respect of any role in the Project without the consent of the other party.