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The Code for the Tendering and Performance of Building Work 2016 (the Code) is established under the Building and Construction (Improving Productivity) Act 2016 (the BCIIP Act).The Code sets out the Australian Government’s expected standards for all building industry participants involved in Commonwealth-funded construction projects, and seeks to leverage Commonwealth funding to ensure building work is carried out fairly, efficiently and productively, for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.
When indirectly funding building work, Commonwealth funding entities contractually require funding recipients to ensure a number of aspects of the Code are applied when procuring building work that meets the required financial thresholds. These key aspects include:
- Ensuring EOIs/tenders are conducted in a manner consistent with the Code;
- Ensuring contractors are not subject to an exclusion sanction;
- Requiring EOI/tender respondents to provide certain information; and
- Ensuring that a Workplace Relations Management Plan (WRMP) is provided by contractors to be approved by the ABCC for certain projects.
The ABCC has developed Model Clauses for use by funding recipients in advertising, EOI/tender and contract documentation for Commonwealth funded building work that meets the required financial thresholds. These are provided below:
- Funding Entity and Recipient Model Clauses for Indirectly Commonwealth Funded Building Work (Word - 190K | PDF - 540K)
The Model Clauses are not mandatory, but have been designed to request all information a funding recipient will be required to obtain or confirm during procurement of indirectly Commonwealth funded building work.
On indirectly funded Commonwealth building work funding recipients are required to ensure that contractors seeking to express interest in or tender for Commonwealth funded building work are not subject to an exclusion sanction.
Funding recipients are not required to ensure that the contractor meets the requirements of section 11 of the Code on indirectly funded Commonwealth building work. However, a contractor seeking to express interest in or tender for indirectly Commonwealth funded building work must ensure that it and its related entities meet the requirements of section 11 of the Code.
The ABCC is responsible for monitoring compliance with the Code, and publishes exclusion sanctions on the Notification of sanction page, where funding entities and recipients can confirm the status of relevant respondents in relation to sanctions.
Workplace relations management plans (WRMPs)
Projects requiring a WRMP are those where the Commonwealth’s contribution to the project that contains building work is $5 million or more and this represents at least 50% of the total construction project value, or where the Commonwealth contributes $10 million or more, irrespective of what percentage of the total construction project value that represents.
Where a WRMP is required for a project, funding recipients must do the following:
- ensure the requirement to have a WRMP approved by the ABCC is included in all EOI and tender documents;
- apply to the ABCC to have a WRMP for a particular project approved;
- ensure that an application to the ABCC for approval of a WRMP is made in the manner and form required by the ABC Commissioner and accompanied by any supporting evidence required by the ABCC; and
- obtain and provide additional information to the ABCC when requested, to enable the ABCC to make a decision whether or not to approve the proposed WRMP.
The Model Clauses provide for seeking a WRMP from contractors, and also indicate the requirement for the WRMP to be approved by the ABCC. Funding recipients have no role in assessing WRMPs, but are required to provide the WRMP(s) of only the shortlisted tenderer(s) to the ABCC for approval. WRMPs should be submitted to WRMPAssessments [at] abcc.gov.au in a single email that indicates the tender to which the WRMP(s) relate, and an automated confirmation of receipt will be provided.
It is anticipated that assessments will initially require a one - two week timeframe for review, and the funding recipient will be contacted if further information is required. Once assessment is complete, a WRMP assessment record will be sent to the funding recipient for each WRMP submitted, indicating the approval or non-approval of the WRMP(s) and the reasons why. Where a WRMP is not approved, funding recipients can submit a contractor’s amended WRMP for approval.
Further information on WRMPs, including the ABCC model WRMP and guide can be found on the Workplace relations management plans page.
If you have not had an assessment outcome within two weeks, please contact the ABCC’s Manager of Government Code Compliance at governmentcodeenquiries [at] abcc.gov.au for assistance.
Funding recipients are encouraged to notify the ABCC of certain information set out in the Code when undertaking indirectly Commonwealth funded building work. The notification of this information enables the ABCC to assist funding recipients to apply any Building Code related contractual requirements appropriately. It also assists the ABCC in implementing the compliance requirements of the Code as they relate to building contractors and building industry participants. The matters which funding recipients are encouraged to notify the ABCC of are as follows:
- all EOIs/tenders subject to the Code to enable the ABCC to work with agencies and contractors to ensure compliance. Use the ABCC EOI/Tender Notification form (Word - 75K | PDF - 280K).
- when a tender process is completed and a building contractor or building industry participant has been awarded a contract to undertake Commonwealth-funded building work. Use the ABCC Contract Notification form (Word - 73K) | (PDF - 270K).
- all allegations of breaches of the Code as soon as practicable but no later than 7 days after the funding recipient became aware of the alleged breach. Notifications of this nature can be made by contacting the ABCC’s Manager of Government Code Compliance at governmentcodeenquiries [at] abcc.gov.au for assistance.
The Building Code 2016 took immediate effect from 2 December 2016, meaning any building contractor or building industry participant who submits an EOI or tender for Commonwealth funded building work from this time becomes subject to the Code. For funding recipients, there are a range of possible scenarios that apply based on the timing of procurement processes, and the timing of respondents’ submissions to procurement processes.
For procurements commenced and completed with contracts entered into prior to 2 December 2016, the Building Code 2013 applies to the head contractor for the project.
For procurements commenced from 2 December 2016 onwards, the 2016 Building Code applies to the head contractor for the project.
For procurements commenced prior to 2 December 2016, but completed or due for completion from 2 December onwards, funding entities should contact the ABCC’s Manager of Government Code Compliance at governmentcodeenquiries [at] abcc.gov.au for advice around the Building Code requirements applicable to the specific procurement.
Funding recipients should note that for some projects commenced prior to transition, the head contractor and some or all subcontractors may be subject to different Building Code requirements depending on the date that each submitted a tender for the work (ie the head contractor may be covered by 2013 Building Code on the project, and subcontractors covered by the 2016 Building Code on the same project). This will not impact the requirements extended to funding recipients in relation to the procurement of the head contract for building work, however there will be some existing contractual provisions with the head contractor in relation to the Building Code 2013 that they can no longer enforce down the contractual chain. Funding recipients in this situation should contact the ABCC’s Manager of Government Code Compliance at governmentcodeenquiries [at] abcc.gov.au for further information.
The Model Clauses referred to throughout this article are available at the following:
- Funding Entity and Recipient Model Clauses for Indirectly Commonwealth Funded Building Work (Word - 190K | PDF - 540K). Note that these include Model Clauses for inclusion in funding agreements and grants.
Any questions in relation to the Model Clauses, procurement processes, or any other funding recipient related matter, should be directed to the Manager of Government Code Compliance at governmentcodeenquiries [at] abcc.gov.au.