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Guide to Ministerial Direction No 2 – Contractual provisions for public construction 4
1.4Order of precedence 4
1.5Definitions and interpretation 4
2.Approved forms of contract 5
2.1Minor Works Contracts 5
2.2Major form of contract 6
2.3Forms of subcontracts 6
2.4Special conditions of contract 7
2.5Contracts consistent with Victorian government policies 7
3.Alternative forms of contract 7
3.1Use of alternative contracts for exceptional projects 7
5.Construction Contracts Advisory Panel 9
5.1Establishment of the CCAP 9
5.2Terms of Reference 9
Guide to Ministerial Direction No 2 – Contractual provisions for public construction
This Guide is issued by the Secretary under the delegation of the Minister for Finance in Ministerial Direction No 2 issued pursuant to the Act.
This issue no. 5 of the Guide is effective from 1 December 2016 and supersedes issue no 4, effective from 1 June 2000, which is repealed and replaced from the effective date of this Direction.
This Guide applies to public construction as defined in the Act.
1.4Order of precedence
This Guide is incorporated into and must be read in conjunction with Ministerial Direction No 2 issued by the Minister under the Act.
(a)In this Guide, terms defined in Ministerial Direction No 2 shall have the same meaning in this Guide, and
means the Construction Contracts Advisory Panel established under paragraph 5 of this Guide.
means the person occupying the position nominated by the Secretary as having the responsibilities under paragraph 5 of this Guide.
means this Guide to Ministerial Direction No 2.
Ministerial Direction No 1
means Ministerial Direction No 1: Tendering Provisions for Public Construction issued under the Act.
Ministerial Direction No 2
means Ministerial Direction No 2: Contractual Provisions for Public Construction issued under the Act.
Victorian Alliancing Policy
means the Victorian government policy with respect to alliance contracting, as amended, restated or replaced from time to time, being, as at the date of this Guide, the National Alliance Contracting Policy Principles (September 2015).
Victorian PPP Policy
means the Victorian government policy with respect to public private partnerships, as amended, restated or replaced from time to time, being, as at the date of this Guide, the Partnerships Victoria Requirements 2016.
relevant Accountable Officer
means the Accountable Officer of the Agency undertaking the building and construction works or related construction services or on whose behalf such works or services are undertaken.
(b)For the purposes of this Guide, a reference to an Act or subordinate instrument is a reference to that Act or subordinate instrument as amended from time to time.
Where a subcontract value exceeds $50,000 (including GST), the form of subcontract must be either:
(a)the relevant Australian Standard form of sub-contract (AS2545-1993 in the case of AS2124-1992, or AS4303-1995 in the case of AS4300-1995) unamended, except to match conditions in the head contract; or
(b)an alternative form of subcontract that is compatible with the conditions of the head contract and consistent with the principles of risk allocation and security of payment set out in Ministerial Direction 2.
2.4Special conditions of contract
Special conditions of contract approved for use include –
(a)Victorian Public Sector Annexure Part B to AS2124-1992;
(b)Victorian Public Sector Annexure Part B to AS4300-1995;
(c)Other special conditions as approved by the CCAP from time to time for use generally in the public sector or by a particular Agency.
2.5Contracts consistent with Victorian government policies
Forms of contract consistent with the requirements the Victorian PPP Policy or the Victorian Alliancing Policy are approved forms of contract for the purposes of this Guide, provided that the relevant Agency has complied with the requirements of the applicable policy, including obtaining all necessary approvals.
3.Alternative forms of contract
3.1Use of alternative contracts for exceptional projects
(a)On exceptional projects, as identified and agreed between the Secretary and the relevant Accountable Officer the use of alternative forms of contract or amended approved forms of contract is acceptable provided:
(i)approved forms of contract are inappropriate for the project;
(ii)in the case of amendments to an approved form of contract, the amendments are limited to those necessary to address the inappropriateness of the approved form;
(iii)the alternative or amended form of contract is consistent with the principles of risk allocation and security of payment raised in Ministerial Direction 2; and
(iv)the Agency has received appropriate legal advice in respect of the proposed alternative or amended form of contract, including that it complies with the requirements of this paragraph (a).
(b)The relevant Accountable Officer may approve the use of an alternative form of contract or amended form of an approved contract without agreement of the Secretary where special circumstances exist, provided:
(i)the relevant Accountable Officer certifies in writing that the special circumstances exist;
(ii)in the case of amendments to an approved form of contract, the amendments are limited to those necessary to address the special circumstances;
(iii)the Accountable Officer is satisfied that the alternative or amended form of contract is consistent with the requirements in paragraphs (a)(iii) and (iv) above; and
(iv)details of the special circumstances and a copy of the form of contract approved by the Accountable Officer are provided to the Secretary or his/her delegate promptly following contract award.
(i)a contract for works to be carried out in or services related to leased premises or third party property where the form of contract is required to be approved by the lessor or such third party, for example, relocation of utilities;
(ii)the forms of contract approved under this Guide are not appropriate for the type of works being procured, including building maintenance, landscaping, or dredging; or
(iii)amendments are required to the approved forms of contract to address interface issues where there are multiple contractors working on a site or where the works are undertaken on a live site, for example rail infrastructure works.
(d)To avoid doubt, where a contract approved by the relevant Accountable Officer pursuant to paragraph (b) includes amendments beyond what is necessary to address the ‘special circumstances’, approval should be sought as set out in paragraph (a).
The relevant Accountable Officer may delegate a power or responsibility under this Direction, in which case:
(k)Any other person, agency or entity approved by the Director.
The CCAP will be administered on the following basis:
(a)executive support will be provided by the Department
(b)the CCAP will operate by consensus
(c)frequency of meetings will be determined by the CCAP
(d)in relation to specific matters or projects requiring urgent consideration a subset of the CCAP may be established and would include a representative from each of the affected Agency, the Department, and another Agency represented on the CCAP.