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Defence Estate Quality Management System (DEQMS) Davis Langdon Certification Services

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Medium Works Subcontract (MESC) User Manual

The purpose of this user manual is to provide information to entities lodging a tender for a procurement using the Medium Works Subcontract (MESC) and for entities currently engaged under a MESC.

You can also view a training video on the MESC (under construction). The purpose of this video is to provide a high level overview of the matters discussed in the table below, please see the note below.

Important: The training video, as well as this user manual have been prepared with reference to the template MESC on DEQMS dated 6 July 2020. Both the video and the user manual are intended to provide general information only and are not to be taken as legal advice nor to be relied on as such. The form of the MESC issued to you may differ from the DEQMS template and you should read that document carefully. You should also seek your own independent legal advice as required. No responsibility will be taken by the Commonwealth of Australia or its advisers for the content of the training video or assisting in the preparation of this manual for any such reliance on the guidance provided.

Topic

How is this topic relevant to you?

A. The Managing Contractor Contract (MCC)

i. The MCC Framework (including approach to subcontracting)
ii. Some relevant MCC provisions

The MESC is used by a Managing Contractor to engage a Subcontractor to carry out construction and at times, design work as well.

This section provides some background and context as to where the MESC sits in the overall contracting framework and the role of key parties.

B. Legislation / policies

i. Building Code 2016
ii. WHS Accreditation Scheme
iii. Black Economy Procurement Connected Policy
iv. Indigenous Procurement
v. Local Industry Capability
vi. Workplace Gender Equality

You need to be aware of these requirements imposed by legislation and policies. Depending on the form of the request for tender and contract, some requirements are mandatory if you want to tender for works (or continue to do work) under a MESC.

C. Overview of the MESC structure and Key Terms

This section sets out an overview of the MESC structure as well as some key concepts and terms for the MESC. Suggest that you read this section before reading section D below.

D. Some key provisions

1. Quality
1.1. Workmanship and materials
1.2. Fitness for purpose

2. Completion
2.1. What is Completion?
2.2. What are HOTO requirements?
2.3. Process for reaching Completion
2.4. What happens when Completion is achieved?

3. Time and EoTs
3.1. Key time obligations
3.2. What is an extension of time?
3.3. Entitlements to an extension of time claim
3.4. Written claims
3.5. Contractor grants extension of time
3.6. What happens if Completion is not achieved by the Date for Completion?

4. Payment
4.1. What will the Subcontractor be paid?
4.2. Payment process
4.3. When will the Subcontract Price be adjusted and what other amounts are payable? 

5. Variations
5.1. What is a Variation?
5.2. How is a Variation directed?
5.3. How is a Variation valued?

6. Notices and Time Bars
6.1. Requirement for notices
6.2. Notices for continuing events
6.3. Time bar

If you are in the process of submitting a tender, you need to understand the requirements of the MESC which may impact on how you price your tender. Click on the links on the left to read information on particular key provisions of the MESC.

After you have been engaged under a MESC, it is important that you understand all contractual requirements as well as processes including in relation to notices.

As flagged above, this section sets out general information with reference to the template MESC on DEQMS and is not intended to be taken as legal advice. Make sure you read your own contract carefully as some provisions may be different to the template MESC.

E. Schedule of Collateral Documents

The schedule of collateral documents contains templates intended to be used with the MESC. For example, the template payment claim and Approved Security. These documents can be found here.


A. The Managing Contractor Contract

The diagram below shows the contracting structure and interrelationship between key parties in the managing contractor contract methodology. Some particular points to note are as follows:

  • The Managing Contractor (referred to throughout this manual as the “Contractor”) is engaged by the Commonwealth.
  • The Contract Administrator administers the Managing Contractor Contract on behalf of the Commonwealth. The Contract Administrator is an entity engaged by the Commonwealth under a separate contract, and acts as the agent of the Commonwealth. Under the MESC, this entity is referred to as the MCC Contract Administrator.
  • The stakeholders have an interest in each project. As required under the MCC, the Contractor may need to liaise with the stakeholders to confirm their particular requirement in the Works.
  • The Subcontractor under a MESC will be engaged by the Contractor.

A. The Managing Contractor Contract - Image 1

For completeness, the Managing Contractor Contract is a two phase Contract:

  • In the Planning Phase, the Contractor will (amongst other things) plan, design, cost and program the Works.
  • Subject to achieving Delivery Phase Agreement and Delivery Phase Approval (which, amongst other things, requires a number of deliverables from the Contractor), the Contractor will proceed to the Delivery Phase.
  • In the Delivery Phase, the Contractor will complete the design (to the extent not completed during the Planning Phase), commence, construct, commission, complete and handover the Works.

The MESC is often used by the Contractor in the Delivery Phase to procure subcontractors to construct, or design and construct certain elements of the Works under the Managing Contractor Contract.

Please note that under the Managing Contractor Contract, the Contractor requires prior written approval / consent from the MCC Contract Administrator before it can direct a Variation or grant an extension of time under the MESC (see clauses 8.11 and 10.6 of the MCC Conditions of Contract). For this reason, the Subcontractor may be requested to provide information to the Contractor so that the Contractor could in turn pass this information onto the MCC Contract Administrator.


B. Legislation / policies

The Subcontractor has a range of obligations under the MESC, which are passed through the MCC. Examples include particular requirements as set out in the table below. 

Important: the information in this section B is of a general nature, has been prepared as an example / guide only and is not to be taken as legal advice nor to be relied on as such. You should seek your own independent legal advice as required.

Topic

Requirement the Contractor is required to comply with

What this means for a Subcontractor engaged under a MESC

Building Code 2016

The Contractor must only enter into a subcontract for any of the Commonwealth Funded Building Work that is the subject of the Contract where:

  • the Subcontractor is not subject to an Exclusion Sanction…
  • the Subcontractor is not covered, and does not have Related Entities covered by, an Enterprise Agreement that does not meet the requirements of section 11 of the Building Code 2016
  • the Subcontractor has submitted a declaration of compliance… in the form set out in the Proforma Building Code 2016 Subcontract Provisions (or in such other form as notified in writing by the Commonwealth)…
  • the subcontract contains provisions in the form set out in the Proforma Building Code 2016 Subcontract Provisions (or in such other form as notified in writing by the Commonwealth);

(see clause 19(f) of the MCC Conditions of Contract)

Ensure you understand the requirement under the MESC for Building Code 2016. Submit the required documentation at tender time. Carefully read clause 19 of the MESC Conditions of Subcontract.

See also: abcc.gov.au for more information

WHS Accreditation

The Contractor must… if applicable, maintain accreditation under the WHS Accreditation Scheme at all times whilst carrying out the Contractor's Activities and comply with all conditions of the WHS Accreditation Scheme

(see clause 8.23(d) of the MCC Conditions of Contract)

 

Subcontractors may not need to be accredited but will need to comply with the Managing Contractor’s WHS management system

See also the FSC website: fsc.gov.au

Black Economy Procurement Connected Policy

If a subcontract has an expected value of over $4 million (inclusive of GST), the Contractor is required to obtain a valid and satisfactory Statement of Tax Record (STR) from its subcontractor

(see clause 18.15 of the MCC Conditions of Contract)

Frequently asked questions about STR requirements can be found here: treasury.gov.au

For further information see treasury.gov.au

Indigenous Procurement

The Contractor must use its reasonable endeavours to increase purchasing from Indigenous Enterprises and employment of Indigenous Australians in accordance with the Indigenous Procurement Policy.

The Contractor must comply with its Indigenous Participation Plan. (See clause 18.2 of the MCC Conditions of Contract)

Understand the requirements under the MESC in regards to Indigenous Procurement.

Submit (if required) an Indigenous Participation Plan in accordance with the requirements of the MESC.

For more information, please see: niaa.gov.au

Local Industry Capability

Local industry participation is an expected outcome of Commonwealth expenditure. This expectancy builds on the Commonwealth Procurement Rules, which require procurement practices that do not unfairly discriminate against Small and Medium Enterprises and provide appropriate opportunities for SMEs to compete for Commonwealth funded work.

The Contractor is required to comply with its Local Industry Capability Plan.

The Subcontractor may have particular requirements imposed in regards to facilitating opportunities for local industry or SMEs.

Workplace Gender Equality

The Contractor must …not enter into a subcontract made in connection with the Contract with a subcontractor named by the Workplace Gender Equality Agency as an employer currently not complying with the Workplace Gender Equality Act 2012 (Cth)

(see clause 18.1 of the MCC Conditions of Contract)

Understand and comply with applicable obligations under the Workplace Gender Equality Act 2012 (Cth)

For further information see wgea.gov.au

 


C. Overview of the MESC structure and key terms

The structure of the MESC, along with a high level explanation of each part, is as set out below:

Description

High level explanation

Formal Agreement

The document to be signed by the Subcontractor and the Contractor

Conditions of Subcontract

Sets out the rights and obligations of the Contractor and the Subcontractor under the MESC. Certain key Conditions of Subcontract are discussed here.

Subcontract Particulars

Contains information which links to relevant Conditions of Subcontract and sets out variables relevant for each Subcontract

Annexure 1 (Completion)

Sets out requirements in relation to (amongst other things) “as-constructed” drawings and documents, collateral warranties, operation and maintenance manuals and training requirements. Particular deliverables set out in Annexure 1 are required before Completion.

Annexure 2 (Special Conditions)

Contains additional provisions to the Conditions of Subcontract. May vary from Subcontract to Subcontract depending on the requirements of the particular Subcontract.

Annexure 3 (Design Documents)

This is blank in the template MESC. This annexure will contain the documents describing the specifics of the works, construction and (if applicable) design related obligations under the Subcontract.

Annexure 4 (Indigenous Participation Plan)

This is blank in the template MESC. This annexure is intended to contain (where applicable), the Subcontractor’s Indigenous Participation Plan.

Key Terms

Note: some frequently used key terms from the MESC are extracted below. See clause 26.1 of the Conditions of Subcontract of the MESC for a full list of defined terms.

Date for Completion

In respect of the Subcontract Works or a Section, the period(s) of time specified in the Subcontract Particulars as adjusted under the Subcontract.

Design Documents

Those documents specified in the Subcontract Particulars and further drawings or specifications supplied to the Subcontractor by the Contractor's Representative during the course of the Subcontract.

Section

A section of the Subcontract Works specified in the Subcontract Particulars.

Subcontractor’s Activities

All things or tasks which the Subcontractor is, or may be, required to do to comply with its Subcontract obligations.

Subcontract Works

The physical works which the Subcontractor must complete and hand over to the Contractor.


D. Some Key Provisions

1. Quality

1.1. Workmanship and materials

The Subcontractor is required to comply with obligations in relation to quality under the MESC. These obligations apply to Subcontractor’s Activities (which extends to tasks) and not just Subcontract Works.

When carrying out Subcontractor’s Activities, requirements apply in relation to workmanship and materials:

Quality-Image1

(See clauses 8.1(a) and (b) of the MESC Conditions of Subcontract)

1.2. Fitness for purpose

The Subcontractor warrants that any design it prepares will be fit for its intended purpose.

(See clause 5.3 of the MESC Conditions of Subcontract).

2. Completion

2.1. What is “Completion”?

One of the key requirements under the MESC is for the Subcontractor to “achieve Completion by the Date for Completion” (see clause 9.3 of the MESC Conditions of Subcontract).

Before reading the information below, you may want to read the brief overview on Subcontract Works and Section as set out in the Key Terms section of this user manual.

The requirements for Completion apply to the Subcontract Works. If the MESC specifies Sections, the requirement for reaching Completion will apply separately for each Section.

The checklist below is intended to be a guide as to the requirement for achieving Completion under the template MESC. See also the definition of “Completion” in clause 26.1 of the MESC Conditions of Subcontract.

The Subcontract Works are, or the Section is, complete except for minor omissions and minor defects, which do not prevent them from being reasonably capable of being occupied, used, operated or maintained for the intended purpose

The inspections and tests required by the Subcontract before Completion have been carried out and passed.

The Subcontractor has satisfied all Subcontractor HOTO Obligations which must be satisfied to achieve "Handover/Takeover (HOTO)" in accordance with the HOTO Requirements (see also item 2.2 below).

All documents and other information required for the occupation, use, operation and maintenance have been submitted to the Contractor’s Representative.

The Subcontractor has done everything which the Subcontract requires it to do before Completion, including (where applicable) the following:

 

  • providing a copy of a certificate in the form of the Subcontractor Design Certificate (see clause 5.8(a) of the Subcontract)
  • providing a Subsubcontractor Design Certificate obtained from each sub-subcontractor that performs design work (see clause 5.8(b) of the Subcontract)
  • providing a report containing details including non-conformances, defects and omissions (see clause 8.6(b) of the MESC Conditions of Subcontract)
  • compliance with certain aspects of the Work Health and Safety related requirements, including provision of relevant certificates (see clauses 8.9(r), (v) and (w) of the MESC Conditions of Subcontract)
  • providing cost report (see clause 11.18 of the MESC Conditions of Subcontract)
  • providing written certification from an Accredited Building Surveyor that the Subcontract Works or Section comply with the MFPE and National Construction Code (see clause 17.12(b) of the MESC Conditions of Subcontract)
  • complying with its relevant obligations under Annexure 1 – Estate Information, including provision of as-built documentation, collateral warranties, manuals and training (see Annexure 1 – Estate Information)

2.2. What are HOTO Requirements?

HOTO Requirements are the requirements published on DEQMS website in respect of commissioning, handover and takeover of projects on the Defence Estate. These requirements include:

  • the documents set out at Handover/Takeover (HOTO) Process, and all applicable requirements referred to therein; and
  • any other requirement published on DEQMS expressed as applying to the commissioning, handover and takeover of projects on the Defence Estate, each as updated, superseded or replaced from time to time.

The Design Documents may also set out particular requirements for each Subcontract.

2.3. Process for reaching Completion

The process for reaching Completion is set out in clause 13.1 of the MESC Conditions of Subcontract.

The diagram below sets out a summary of that process:

Completion

If the Contractor’s Representative is not satisfied that the Subcontractor has achieved Completion, the Subcontractor must bring the Subcontract Works or Section to Completion and notify the Contractor’s Representative by written notice to restart the process above.

2.4. What happens when Completion is achieved?

Upon the issue of a Completion certificate stating the date Completion was achieved:

  • The Contractor may take possession of the Subcontract Works or the Section (see clause 13.2 of the MESC Conditions of Subcontract).
  • Security held under the Subcontract for the Subcontract Works or the Section will be released to the Subcontractor as summarised below (see clause 3.2 of the MESC Conditions of Subcontract): Completion
  • 3. If an Incentive regime applies under the Subcontract, and if Completion occurs before the relevant incentive date, the Contractor must pay the Subcontractor the incentive specified in the Subcontract Particulars (see clause 13.7 of the MESC Conditions of Subcontract).

For more information on Completion, see clause 13 of the MESC Conditions of Subcontract.

3. Time and EoTs

3.1. Key time obligations

The Subcontractor’s time obligations under the MESC are outlined below:

Time and EoTs

(See clauses 9.1 and 9.3 of the MESC Conditions of Subcontract)

Consequences of late Completion may result in the Subcontractor being liable for liquidated damages and indemnifying the Contractor against certain costs, losses, expenses or damages (see item 3.6 below - What happens if Completion is not achieved by the Date for Completion?)

3.2. What is an extension of time?

An extension of time, if granted, extends the Date for Completion to a later date.

The process is as follows:

Time and EoTs

3.3. Entitlement to an extension of time claim

The requirements described in this section must be satisfied before the Subcontractor is entitled to claim an extension of time (see clause 9.4 of the MESC Conditions of Subcontract):

 ☐

The Subcontractor gives a written claim within 14 days of the commencement of delay with particular information - see item 3.4 below.

The Subcontractor:

  • prior to the Date for Completion: is or will be delayed in reaching Completion by the Date for Completion; or
  • after the Date for Completion: will be delayed in reaching Completion;

That delay is by:

  • an act or omission (including breach of Subcontract) of the Contractor, Contractor’s Representative, Commonwealth, the MCC Contract Administrator or an employee of the Commonwealth performing duties in the Commonwealth Department of Defence or as a member of the Australian Defence Force;
  • a Variation (except in relation to the correction of a non-conformance by the Subcontractor);
  • Latent Condition
  • proceedings being taken by adjacent or neighbouring owners or occupiers;
  • statewide industrial disputation or other industrial disputation caused by the Commonwealth (which is not caused or contributed by the Subcontractor or its subsubcontractors);
  • inclement weather at Site excluding conditions resulting from inclement weather;
  • delay of any governmental authority in giving any Approval for the Subcontract Works;
  • paragraph (c), (d) or (e) of the definition of Contractor Risk (see clause 26.1 of the MESC Conditions of Subcontract);
  • change in Statutory Requirement after the Award Date;
  • valuable, archaeological or special interest items found on or in the Site;
  • Pandemic Relief Event;
  • Latent Hazardous Substances, Asbestos, ACM or GHS Material (if applicable)

For further information on capitalised terms used in this section, see clause 26.1 of the MESC Conditions of Subcontract.

3.4. Written claims

To claim an extension of time, the Subcontractor must within 14 days of the commencement of the occurrence causing the delay submit a written claim to the Contractor’s Representative:

giving detailed particulars of the delay

stating the number of days extension of time claimed (if possible)

(See clause 9.4 of the MESC Conditions of Subcontract)

3.5. Contractor grants extension of time

If the requirements of clause 9.4 have been satisfied (see item 2 and 3 above), the relevant Date for Completion will be extended by a reasonable period determined by the Contractor’s Representative and notified to the Subcontractor within the later of 14 days of the Subcontractor’s written claim or the end of the effects of the delay (see clause 9.5(a) of the MESC Conditions of Subcontract).

Notes:

  • The period determined cannot exceed the period approved by the MCC Contract Administrator under clause 10.6 of the Managing Contractor Contract.
  • Under the Managing Contractor Contract, the Contractor requires prior written approval from the MCC Contract Administrator before it can grant an extension of time under the MASC. (see clause 10.6 of the MCC Conditions of Contract). For this reason, the Subcontractor may be requested to provide information to the Contractor so that the Contractor could in turn pass this information onto the MCC Contract Administrator

3.6. What happens if Completion is not achieved by the Date for Completion?

If Completion is not achieved by the Date for Completion the Subcontractor must pay liquidated damages at the rate specified in the Subcontract Particulars for every day after the Date for Completion until the Date of Completion or the Subcontract is terminated (see clause 13.5 of the MESC Conditions of Subcontract)

In addition, the Subcontractor must also indemnify the Contractor for particular costs / losses the Contractor pays (or is liable to pay) the Commonwealth under the Managing Contractor Contract or otherwise - to the extent such payment or liability arises out of or in connection with the Date of Completion of the Subcontract Works or a Section not occurring by the relevant Date for Completion. (See clause 13.6 of the MESC Conditions of Subcontract)

4. Payment

4.1. What will the Subcontractor be paid?

The Contractor will pay the Subcontractor

  • the Subcontract Price; and
  • other amounts payable by the Contractor to the Subcontractor under the Subcontract.

Payment

4.2. Payment process

The payment process is set out in clauses 11.2 to 11.5 of the MESC Conditions of Subcontract. The diagram below sets out a summary of the payment process:

Payment

*Note: The Subcontractor is required to comply with certain conditions precedent to be entitled to submit a payment claim. By way of example, some requirements includes the requirement for the Subcontractor to have:

Executed a Subcontractor Deed of Covenant (if requested by the Contractor’s Representative) (see clause 1.2(c) of the MESC Conditions of Subcontract)

Provided the Subcontractor’s monthly report (if required by clause 2.6 of the MESC Conditions of Subcontract)

Provided the Security (as required by clause 3.1 of the MESC Conditions of Subcontract)

Complied with the Subcontractor’s insurance obligations (as required by clause 4.3 of the MESC Conditions of Subcontract)

Complied with the Subcontractor’s work health and safety obligations (as required by clause 8.9 of the MESC Conditions of Subcontract)

Complied with the Subcontractor’s programming obligations (as required by clause 9.2 of the MESC Conditions of Subcontract)

See clause 11.3 of the MESC Conditions of Subcontract for the full list.

4.3. When will the Subcontract Price be adjusted and what other amounts are payable?

The MESC specifies instances when the Subcontract Price may be adjusted (up or down).

Some examples:

Instances where the Subcontract Price may be adjusted

Cross reference to MESC Condition of Subcontract

Delayed site access clause 1.4
Discovery of Latent Conditions clause 6.5
Discovery of valuable, archaeological or special interest items clause 6.8
Changes in Statutory Requirements clause 7.3
Exchange rate fluctuation for imported item clause 7.6
Occurrence of a Pandemic Relief Event clause 7.7
Certain costs of inspections and tests clause 8.3
Direction to correct non-conformance or Defect (if Subcontractor not responsible for non-conformance) Clauses 8.4 and 8.5
Suspension (not due to Subcontractor’s failure to carry obligations under the Subcontract) clause 9.7
Variations clause 10.3
Change to Defence’s Security Alert System level from that specified in the Subcontract Particulars clause 17.3

In addition to the above, other amounts payable under the Contract include agreed damages – amount specified in the Subcontract Particulars payable for each day by which the Date for Completion is extended due to a breach of the Subcontract by the Contractor (see clause 9.6 of the MESC Conditions of Subcontract)

5. Variations

5.1. What is a Variation?

If a Variation is directed under the MESC, the Subcontractor may be entitled to additional cost and an extension to the Date for Completion. It is important to understand what constitutes a Variation, as well as the process by which a Variation could be directed – which is discussed in this section. See also item 3 above on extensions of time.

A “Variation” is any change including omissions (whether or not performed by the Contractor or a third party) to the design or construction of the Subcontract Works within the general scope of the Subcontract (see clause 26.1 of the MESC Conditions of Subcontract).

5.2. How is a Variation directed?

In most instances, a Variation will be initiated by the Contractor. The process for directing a Variation is set out in clauses 10.1 – 10.4 of the MESC Conditions of Subcontract. The diagram below sets out a summary of that process:

Variations

If the Subcontractor believes a direction by the Contractor’s Representative (other than to comply with a statutory requirement or Variation Order) constitutes or involves a Variation, it must give the requisite notice to the Contractor’s Representative (see clause 10.4 of the MESC Conditions of Subcontract and section on Notices and Time Bars).

Please note that under the Managing Contractor Contract, the Contractor requires written consent from the MCC Contract Administrator before it can direct a Variation under the DSSC (see clause 8.11 of the MCC Conditions of Contract). For this reason, the Subcontractor may be requested to provide information to the Contractor so that the Contractor could in turn pass this information onto the MCC Contract Administrator.

5.3. How is a Variation valued?

Adjustments to the Subcontract Price following a Variation Order:

  1. may be agreed between the Contractor and the Subcontractor. This occurs when the Variation Price Request has been issued, and the proposed adjustment to the Subcontract Price as set out in the Subcontractor’s notice is agreed to by the Contractor.
  2. if 1 above is not applicable:
  3. for both 1 and 2 above, the value of the Variation must include the reasonable costs which will be incurred by the Subcontractor as a direct result of the Variation delaying the Subcontractor achieving Completion by the Date for Completion.

6. Notices and time bars

6.1. Requirement for notices

The Subcontract requires the Subcontractor to make a written notices and Claims within a specified time.

If a Claim is not submitted with the required information within the required timeframe:

  • the Contractor will not be liable for that Claim; and
  • the Subcontractor will be absolutely barred from making that Claim against the Contractor.

In light of this, it is important that the Subcontractor understand the time requirement for the submission of notices and Claims.

Type of notice

When to use it?

Timeframe

Notice of Variation

(clause 10.4, 12.1 and 12.2 of the MESC Conditions of Subcontract)

Where the Subcontractor wishes to make a claim against the Contractor arising out of a direction by the Contractor's Representative (which constitutes or involves a Variation but is not a Variation Order).

  1. Variation Notice – written notice within 7 days of receiving the direction and before commencing the relevant work
  2. Notice – written notice within 21 days of the date of the direction upon which the claim is based
  3. Claim – a written claim within 21 days of the above notice with particular details*

Notice of other claims

(clauses 12.1 and 12.2 of the MESC Conditions of Subcontract)

Where the Subcontractor wishes to make a claim against the Contractor in respect of any fact, matter or thing arising out of or in connection with the Subcontractors’ Activities, the Subcontract Works or the Subcontract.

Note: there is a separate regime for claims for an extension of time, payment and Variations.

  1. Notice – written notice within 21 days of the first occurrence of the fact, matter or thing upon which the claim is based
  2. Claim – a written claim within 21 days of the above notice with particular details*

 

*Note: Claim must contain the following details:

detailed particulars of the events on which the claim is based

the legal basis for the claim

the facts relied upon in support of the claim

details of the quantification of the amount claimed in sufficient detail to permit verification

(see clause 12.1(b) of the MESC Conditions of Subcontract)

6.2. Notices for continuing events

Where the events upon which the claim is based, or the consequences of the events are continuing, the Subcontractor is required to provide the Contractor’s Representative the following information every 28 days after the written claim was submitted, until the event or the consequences of the event have ceased:

detailed particulars of the events on which the claim is based

the legal basis for the claim

the facts relied upon in support of the claim

details of the quantification of the amount claimed in sufficient detail to permit verification

(see clauses 12.1(b) and 12.2 of the MESC Conditions of Subcontract)

6.3. Time Bar

Failure to follow the requirements and timeframes outlined in clauses 12.1 and 12.2 of the MESC Conditions of Subcontract will result in:

  • the Subcontract Price will not be adjusted; and
  • the Subcontractor not being entitled to make any claim against the Contractor,

arising out of in connection with the direction, fact matter or thing (see clause 12.3 of the MESC Conditions of Subcontract).