Department of Defence - Medium Works Contract (MW-2 2004) Contract Manual - Volume 5

Department of Defence - Medium Works Contract (MW-2 2004) Contract Manual - Volume 5

MEDIUM WORKS CONTRACT (MW-2 2004)

CONTRACT MANUAL

VOLUME 5:

PROFORMA NOTICES

[LAST AMENDED: 26MAY 2011]

DISCLAIMER:

This Manual has been prepared solely for the purpose of providing internal guidance to Defence personnel. Any use by non-Defence personnel is unauthorised. No responsibility will be taken by the Commonwealth of Australia or the advisers assisting in the preparation of the Manual, for any such use, including any purported reliance on the guidance provided by the Manual. The Manual is not intended to be a substitute for legal advice, and unless expressly agreed in writing by the Commonwealth of Australia, nothing in the Manual will alter or affect the respective rights, obligations and liabilities of the parties under any contract.

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Department of Defence - Medium Works Contract (MW-2 2004) Contract Manual - Volume 5

1.General information about the Manual

1.1General

The Department of Defence Medium Works Contract (MW-2 2004) Contract Manual (Manual) comprises sixvolumes, being:

(a)Volume 1: Introduction to MW-2 2004;

(b)Volume 2: Completing the Tender and Contract Documents;

(c)Volume 3: Clause-by-clause Guidance (for the Conditions of Contract);

(d)Volume 4: Flowcharts (for the Conditions of Contract);

(e)Volume 5: ProformaNotices (for the Conditions of Contract); and

(f)Volume 6: Clause-by-clause Guidance for the Special Conditions.

This Volume 5 provides proforma notices to be used by all parties in fulfilling their notification obligations under the Contract.

This Manual has been prepared solely for the purpose of providing internal guidance to Defence personnel. Any use by non-Defence personnel is unauthorised. No responsibility will be taken by the Commonwealth of Australia or the advisers assisting in the preparation of the Manual, for any such use, including any purported reliance on the guidance provided by the Manual. The Manual is not intended to be a substitute for legal advice, and unless expressly agreed in writing by the Commonwealth of Australia, nothing in the Manual will alter or affect the respective rights, obligations and liabilities of the parties under any contract.

This Manual is structured as an on-line reference tool located on the Defence Infrastructure Management website (see A printable version of each volume of the Manual is also available on the Defence Infrastructure Management website. However, it is anticipated that the Manual will be updated and supplemented from time to time. For this reason, if personnel have printed a version of the Manual, they should refer regularly to the Defence Infrastructure Management website to ensure that they are referring to the latest release. The release reference is printed on the front page of each volume of the Manual. Personnel should also be aware that legal and policy changes will impact on the content of this Manual from time to time. Personnel are responsible for ensuring that they understand how such changes may impact on their project.

The Contract identifies defined terms (generally, these are defined in clause 21.1 of the Conditions of Contract) by using a capital letter – eg. "Completion", "Commonwealth Risks" etc. The Manual follows this convention.

1.2No substitute for reading the Contract

The Manual does not attempt to discuss all aspects of tender and contract administration in detail, so it is no substitute for reading the Contract and – if necessary – obtaining policy, legal or other specialist guidance.

Further, the Manual does not provide detailed advice in relation to matters not expected to arise in the day-to-day administration of the Contract, such as termination of the Contract or dealing with disputes. The need to seek specialist advice in extraordinary circumstances such as these is flagged throughout the Manual. If such circumstances arise, Defence and the Contract Administrator will need to seek specialist advice. If in doubt, contact the Directorate of Construction Contracts.

2.background to Notices

The Conditions of Contract refer to notices or instructions required in certain circumstances, including the occurrence of an event or for the making of a request. This Volume 5 contains proforma notices to assist the parties in complying with the formal notification requirements of the Conditions of Contract. The proforma notices indicate from and to whom particular notices or instructions must be sent and set out the information which must be contained in the notice to fulfil the requirements of the particular provision of the Conditions of Contract.

Text in italics and square brackets are instructions to the persons preparing the notice, indicating information that should be provided and/or completed.

Where more than one option is provided, the person preparing the notice should carefully consider the terms and delete those which are not applicable.

Additional instructions are provided at the bottom of the notice in bold italics. These should be considered and then deleted before the notice is issued.

Legal advice should always be sought before issuing any notices under clauses 14 and 15which is why they have not been included in this Volume 5.

3.index to notices

This index provides a list of all clauses in relation to which proforma notices have been prepared. Notices are contained in this Volume 5 in the order in which they appear in this index.

Clause Number / Title of Notice
2.3 / Request to replace Key Person
2.3 / Response to request to replace Key Person
2.4 / Removal of Person
4.3(c) / Request to produce evidence of currency
4.3(d)(iii) / Requestto [cancel an insurance policy/allow an insurance policy to lapse]
4.3(d)(iii) / Response torequest to [cancel an insurance policy/allow an insurance policy to lapse]
4.3(d)(iv) / Notice of event in relation to insurance policy
5.2 / [Rejection of /Permission to use] design
5.7 / Request for access to premises and Project Documents
5.9(b) / [Rejection of / Permission to use] Samples
6.5 / Notice of Latent Condition
6.5 / Response to notice regarding Latent Condition
6.6 / Direction as to safety
6.9 / Notice of valuable object found on Site
6.9(c) / Direction as to valuable object found on Site
6.10 / Notice regarding the Environment
6.12(b) / Request for approval of layout of project signboards
6.12(b) / Response to request for approval of layout of project signboards
7.2 / Notice of [ambiguities/discrepancies/inconsistencies] in documents which make up the Contract
7.2 / Response to notice regarding[ambiguities/discrepancies/inconsistencies]
7.3 / Notice of change in authorityrequirements
7.3 / Instruction in response to change in authorityrequirement
7.4(a) / Request to subcontract
7.4(a) / Response to notice regarding request to subcontract
7.4(e) / Request for evidence of [registration/licensing/training]
7.4(f) / Request for [Subcontractor Deed of Covenant/Consultant Deed of Covenant]
7.5(a) / Instruction to invite tenders for Provisional Sum Work
7.5(c) / Instruction to enter into subcontract for Provisional Sum Work
8.3 / Direction to carry out tests
8.4 / Instructions relating to Non-Complying Activities before Completion
8.5 / Instructions relating to [defects/omission] in the [Works/Section]
8.6(b)(iii) / Defects Liability Period report
8.7(a)(ii) / Project Plans
8.7(a)(ii) / Rejection of [draft/resubmitted] Project Plans
8.10(b) / Notice of occupational health and safety matters
9.4 / Claim for anextension of time
9.5(a) / Determination of extension of time claim
9.5(b) / Unilateral extension of time
9.7 / Instruction to suspend
9.7 / Instruction to re-commence
10.1 / Variation Order
10.3 / Notice of Variation
11.2(f)(ii) / Request for documentation or information
11.3(c)(vi) / Identification of particular informationnot provided pursuant to clause 11.2(f)
11.14 / Statutory Declaration in relation to payment of workers and subcontractors
11.16(a)(ii) / Revocation of appointment of Contract Administrator as the Commonwealth's agent under Security of Payment Legislation
11.16(e) / Request for consent to divulge information in relation to a Security of Payment Legislation adjudication application
11.16(e) / Response to request for consent to divulge information in relation to a Security of Payment Legislation adjudication application
12.1(a) / Initial Notice of claim
12.1(b) / Notice of claim
12.2 / Notice of continuing events
13.1 / Notice of anticipated Completion
13.1 / Completion certificate
13.1 / Notice advising that Completion has not been achieved
13.3 / Notice of intention touse part of the Works or a Section
17.5(c) / Notice of breach of Privacy Principles
17.10 / Request to [furnish information/issue document or other material]
17.10 / Response to request to [furnish information/issue document or other material]
17.11 / Request for approval to disclose Classified Information
17.11 / [Approval/Rejection] of disclosure of Classified Information
17.12 / Request to change access hours
17.12 / Response to request to change access hours
18.3 / Report regarding effect on compliance with National Code and Guidelines

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To: [Insert name of Contract Administrator]

[Insert name/description of Contract](Contract)

REQUEST TO REPLACE KEY PERSON

Clause 2.3

In accordance with clause 2.3 of the Contract, the Contractor requests the Contract Administrator's approval to replace the following key person:

Position:

[Insert position that key person is to fill].

Current key person:

[Insert details].

Replacement key person:

[Insert details].

Reason for replacement:

[Insert reason].

[Signature]

Contractor

[Insert date]

To: [Insert name and ABN of Contractor]

[Insert name/description of Contract](Contract)

Response toREQUEST TO REPLACE KEY PERSON

Clause 2.3

The Contract Administrator refers to the Contractor's requestunder clause 2.3 of the Contract dated [insert date of notice] to replace the following key person:

[Insert details of key person to be replaced].

[Option 1]The Contract Administrator approves the replacement and instructsthe Contractor,under clause 2.3 of the Contract, to replace the relevant key person in accordance with its request.

[OR]

[Option 2]The Contract Administrator does not approve the replacement. If the Contractor nevertheless intends to proceed to replace the key person, it must provide details of an alternative replacement person for thewritten approval or rejection (as the case may be) of the Contract Administrator.

[Signature]

Contract Administrator

[Insert date]

[Instructionsto Contract Administrator:

Delete the Option which is inapplicable.]

To: [Insert name and ABN of Contractor]

[Insert name/description of Contract](Contract)

REMOVAL OF PERSON

Clause 2.4

In accordance with clause 2.4 of the Contract, the Contract Administrator directsthe Contractor to remove [insert name of person] from

[Option 1]the Site[./;and]

[AND/OR]

[Option 2] the following activities connected with the Contractor's Activities [insert details of activities].

The Contractor must ensure that [insert name of person] is not again employed in the Contractor's Activities.

[Signature]

Contract Administrator

[Insert date]

[Instructions toContract Administrator:

Delete the Option which is inapplicable. The Contract Administrator is not required to provide any further details.]

To: [Insert name and ABN of Contractor]

[Insert name/description of Contract](Contract)

REQUEST TO PRODUCE EVIDENCE OF CURRENCY

Clause 4.3(c)

In accordance with clause 4.3(c) of the Contract, the Contract Administrator requests that the Contractor provide evidence satisfactory to the Contract Administrator that the Contractor's[insert coverage/type of insurance,i.e. public liability insurance/workers' compensation insurance/professional indemnity insurance/construction risks insurance/any other type of insurance] insurance policy is current,within 14 days of this request.

[Signature]

Contract Administrator

[Insert date]

[Instructions to Contract Administrator:

The Contract Administrator is entitled to request the Contractor to provide evidence satisfactory to the Contract Administrator that a required insurance policy is current at any time during the term of the Contract. The 14 day period referred to above is a guide only.]

To: [Insert name of Contract Administrator]

[Insert name/description of Contract](Contract)

REQUEST TO [CANCEL AN INSURANCE POLICY/ALLOW AN INSURANCE POLICY TO LAPSE]

Clause 4.3(d)(iii)

In accordance with clause 4.3(d)(iii) of the Contract, the Contractor requests the Contract Administrator's written consent to

[Option 1]cancel the following insurance policy:

[OR]

[Option 2]allow the following insurance policy to lapse:

[Insert details of the relevant insurance policy and reason for proposed cancellation/lapse].

[Signature]

Contractor

[Insert date]

[Instructions to Contractor:

Delete the Option whichisinapplicable.]

To: [Insert name and ABN of Contractor]

[Insert name/description of Contract](Contract)

RESPONSE TO REQUEST TO [CANCEL AN INSURANCE POLICY/ALLOW AN INSURANCE POLICY TO LAPSE]

Clause 4.3(d)(iii)

The Contract Administrator refers to the Contractor's request under clause 4.3(d)(iii)of the Contract dated [insert date of request].

In accordance with clause 4.3(d)(iii) of the Contract, the Contract Administrator

[Option 1]consents to the request.

[OR]

[Option 2]rejects the request.

[Signature]

Contract Administrator

[Insert date]

[Instructions to Contract Administrator:

Delete the Option whichisinapplicable.]

To: [Insert name of Contract Administrator]

[Insert name/description of Contract](Contract)

NOTICE OF EVENT IN RELATION TO INSURANCE POLICY

Clause4.3(d)(iv)

In accordance with clause4.3(d)(iv)of the Contract, the Contractor notifies the Contract Administrator that an event has occurred which may result in the [lapsing/cancellation/rescission] of the following insurance policy:

[Insert details of insurance policy].

The event and [reason/reasons] why the policy may [lapse/be cancelled/be rescinded][is/are] as follows:

[Insert details of event and reason/reasons why lapse/cancellation/rescission is anticipated].

[Signature]

Contractor

[Insert date]

To: [Insert name and ABN of Contractor]

[Insert name/description of Contract](Contract)

[REJECTION OF /PERMISSION TO USE] DESIGN

Clause 5.2

The Contract Administrator refers to thedesign submitted or resubmitted by the Contractor on [insert date]as follows:

[Insert description of design].

In accordance with clause 5.2 of the Contract, the Contract Administrator

[Option1]permits

[OR]

[Option 2]does not permit

the Contractor to use such design.

[Signature]

Contract Administrator

[Insert date]

[Instructions to Contract Administrator:

Delete the Option which is inapplicable.]

To: [Insert name and ABN of Contractor]

[Insert name/description of Contract] (Contract)

REQUEST FOR ACCESS TO PREMISES AND PROJECT DOCUMENTS

Clause 5.7

In accordance with clause 5.7 of the Contract, the Contract Administrator requests that the Contractor

[Option 1]provide access to its premises at [insert location of Contractor's premises] and make the following Project Documents available for inspection and copying by [insert name of nominated person and/or the Contract Administrator]:

[insert description of relevant Project Documents].

[OR]

[Option 2]provide to the Contract Administrator [insert number] copies of the following Project Documents:

[insert description of relevant Project Documents];

as required by [insert name of nominated person and/or Contract Administrator].

[OR]

[Option 3]provide the following facilities and assistance to, and answers to,the following questions by [insert name of nominated person and/or the Contract Administrator] in accordance with clause 5.7(a)(iii) of the Contract:

[insert description of relevant facilities, assistance or questions].

[OR]

[Option 4]make available the following officers, employees, agents or subcontractors for interviews with [insert name of nominated person and/or the Contract Administrator]:

[insert names of required interviewees].

[Signature]

Contract Administrator

[insert date]

[Instructions to Contract Administrator:

Delete the Options which are inapplicable. ContractAdministrator may make this request at any time during the execution of the Contractor's Activities andfor aperiod of 10 years following the expiration of the last Defects Liability Period.]

To: [Insert name and ABN of Contractor]

[Insert name/description of Contract](Contract)

[rejection of / permission to use] sampleS

Clause 5.9(b)

The Contract Administrator refers to the [sample/range of samples] submitted by the Contractor on [insert date]as follows:

[Insert description of sample/range of samples].

In accordance with clause 5.9(b) of the Contract, the Contract Administrator

[Option 1]permits

[OR]

[Option 2]does not permit

the Contractor to use such [sample/range of samples].

[Signature]

Contract Administrator

[Insert date]

[Instructions to Contract Administrator:

Delete the Option which is inapplicable. This notice must be served in the Contractor within 14 days of submission of the sample by the Contractor.]

To: [Insert name of Contract Administrator]

[Insert name/description of Contract](Contract)

NOTICE OF LATENT CONDITION

Clause6.5

In accordance with clause 6.5 of the Contract, the Contractor notifies the Contract Administrator that it considers that a Latent Condition has been encountered or found. The nature of the Latent Condition considered to be encountered or found and its location are as follows:

[Insert details of Latent Condition].

[Signature]

Contractor

[Insert date]

[Instructions to Contract Administrator:

The Contractor must give notice to the Contract Administrator that it has encountered or found a Latent Condition immediately. The Contract Administrator may need to seek further details from the Contractor.]

To: [Insert name and ABN of Contractor] and the Commonwealth

[Insert name/description of Contract](Contract)

RESPONSE TO NOTICE REGARDING LATENT CONDITION

Clause6.5

The Contract Administrator refers to the Contractor's notice under clause 6.5 of the Contract dated [insert date of notice].

In accordance with clause 6.5 of the Contract, the Contract Administrator has determined that

[Option 1]no Latent Condition has been encountered or found.

[OR]

[Option 2]the following Latent Condition has been encountered or found:

[Insert description of Latent Condition].

[Signature]

Contract Administrator

[Insert date]

[Instructions to Contract Administrator:

Delete the Option which is inapplicable. This notice must be given within 14 days of making the determination of whether or not a Latent Conditions has been encountered. The Contractor is entitled to claim an extension of time to any relevant Date for Completion and to be paid by the Commonwealth any extra costs incurred by the Contractor after the date of the Contractor's notice, valued as a Variation.]

To: [Insert name and ABN of Contractor]

[Insert name/description of Contract](Contract)

DIRECTION AS TO SAFETY

Clause 6.6

The Contract Administrator considers that, by reason of the manner in which the Contractor is carrying out the Contractor's Activities, there is a risk of the following [injury to people/damage to property]:

[Insert details].

In accordance with clause 6.6 of the Contract, the Contract Administrator directs the Contractor to change its [manner of working/cease working], as follows:

[Insert details of changes required/work which must be ceased].

[Signature]

Contract Administrator

[Insert date]

To: [Insert name of Contract Administrator]

[Insert name/description of Contract](Contract)

NOTICE OF VALUABLE OBJECT FOUND ON SITE

Clause 6.9

In accordance with clause 6.9 of the Contract, the Contractor notifies the Contract Administrator that the following item/items of value or archaeological or special interest [has/have] beenfound on or in the Site:

Location of item:

[Insert location whereitem/items found and any current location if item moved].