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

Legislation - Building Code 2016

The Code for the Tendering and Performance of Building Work 2016 (Building Code 2016) is established under the Building and Construction (Improving Productivity) Act 2016. As the Code is legislation, it must be complied with, and takes precedence over Defence policies and procedures. Building Code 2016 is administered by the Australian Building and Construction Commission (ABCC).

How does Building Code 2016 apply?

Building Code 2016 applies to all Registrations of Interest and Tenders received by Defence on or after 2 December 2016 for Commonwealth Funded Building Work. Subject to limited exemptions, Tenderers must meet the eligibility requirements in section 23 of the Building Code 2016 - this is a condition of participation.
Timing Building Code Requirements
  • ITR/RFT issued prior to 2/12/16
  • tenders received prior to 2/12/16
  • contract signed before 2/12/16
BUILDING CODE 2013
  • ITR/RFT issued prior to 2/12/16
  • tenders received on or after 2/12/16
  • contract signed on or after 2/12/16
BUILDING CODE 2016; no Workplace Relations Management Plan (WRMP) required, regardless of project value
  • ITR/RFT issued on or after 2/12/16
  • tenders received on or after 2/12/16
  • contract signed on or after 2/12/16
BUILDING CODE 2016; WRMP required if project value ≥$5m) [RFT only]
Note: Before releasing a tender, ensure you are using the correct, updated tender documents, as they contain the Building Code 2016 requirements.

Preparing tender documents (post 2 December 2016)

  1. Click here to familiarise yourself with the Building Code 2016 process.
  2. For CFI Projects - Make sure you use the updated tender documents found on DEQMS, as they contain the Building Code 2016 requirements.
  3. For non-CFI Projects - please email cfi.programassurance@defence.gov.au for the required clauses.
  4. The tenderers will need to provide a WRMP with their response if:
    • the Commonwealth's contribution to the project is at least $5 million and represents at least 50% of the total construction project value proportion of the project; OR
    • if the Commonwealth's contribution to the project is at least $10 million (irrespective of its proportion of the total construction project value).

Once tender released

  1. Notify the ABCC of the released tender, using the ABCC EOI/Tender Notification form under the ‘Should I notify the ABCC about EOI/Tenders?’ heading.
  2. Completed forms should be sent to projectnotifications@abcc.gov.au

Note: Section Seven of the ABCC EOI/Tender Notification form requests extracts demonstrating inclusion of the Model Clauses. You will not need to provide the extracts, instead enter: Model Clauses used as per inclusion in Defence Suite of Contracts.

After tender submissions received

For CFI projects only:


Building Code 2016 schedules

  1. Upon receipt of the submitted Building Code 2016 schedules, ensure that they are forwarded (ITR or RFP) to your legal services provider immediately for review and assessment.
  2. In reviewing the Building Code 2016 schedules, your legal service provider must refer to the below mentioned Answer Guide, as available under ‘Building Code 2016 Schedule - Answer Guide.
  3. If your legal services provider requires clarification of any aspect of the schedule response, it will be the Tender Administrator’s responsibility to seek this clarification from the tenderers.

WRMPs

  1. Upon receipt of the submitted WRMPs (if required), your legal provider will be required to forward a copy of the submitted WRMPs (if required) to WRMPAssessments@abcc.gov.au.
  2. If the ABCC requires further information, they will notify the legal provider who submitted the WRMPs. At this point, the assessment containing that narrative needs to be provided back to the Tender Administrator– this may the PMCA or the Defence nominated person. Upon request for further information, it will be the Tender Administrator’s responsibility to forward this request for further information to the tenderers. The legal advisors cannot contact the Tenderer directly to obtain clarification.

Note that contracts cannot be awarded until WRMPs have been approved by ABCC.

For non CFI Projects:
  1. Upon receipt of the submitted Building Code 2016 schedules (ITR or RFP) and WRMPs (if required), you or your legal provider will be required to review the completed Building Code 2016 Schedule (ITR or RFP) and forward a copy of the submitted WRMP s(if required) to WRMPAssessments@abcc.gov.au.
  2. In reviewing the Building Code 2016 schedules, you must refer to the below mentioned Answer Guide, as available under ‘Building Code 2016 Schedule – Answer Guide.
  3. If the ABCC requires further information, they will notify the party who submitted the WRMPs for assessment.

Note that contracts cannot be awarded until WRMPs have been approved by ABCC.

Building Code 2016 Schedule - Answer Guide

  1. In reviewing the submitted Building Code 2016 schedules, you must refer to the Answer Guide – Building Code 2016 Schedules - Declaration of Compliance. This document contains the necessary level of information to be provided in order to ensure compliance.
  2. For further guidance, please email CFI.ProgramAssurance@defence.gov.au. Note - Reviewers are not to contact the ABCC for guidance.

Eligibility to tender and be awarded a contract

  1. Tenderers must provide either a Self-Declaration A or Letter of Compliance to confirm their eligibility to express interest/tender and/or be awarded a contract. This eligibility is in relation to whether the tenderer and its related entities are covered by an Enterprise Agreement that is compliant with Building Code 2016.
  2. A company can be covered either by a Modern Award, an EA or both. The evidence they will provide in each case is as set out in the below table:
  3. Type of arrangement Proof of eligibility
    Modern Award Self-declaration A (can express interest/tender and be awarded contract)
    EA made/varied on or after 25 April 2014 Tenderer & related entities must not be covered by EA that doesn’t meet s.11, BC2016 requirements: Letter of Compliance for each EA covering tenderer and related entities (can express interest/tender and be awarded contract)
    EA made before 25 April 2014 Self-declaration A (can express interest/tender and be awarded contract)
    Modern Award and EA made/varied on or after 25 April 2014 Self-declaration A (for Modern Award) and Letter of Compliance (for each EA covering tenderer and related entities)
  4. If tenderers cannot provide this information at the time of ITR or tender, their tender submission can be excluded from assessment. Alternatively, the necessary documentation may be sought as a point of clarification, noting that this is a legislative requirement.

Note: Defence should not advise tenderers on eligibility – tenderers should confirm their eligibility directly with ABCC.

Once contract awarded

  1. Do your usual reporting on AusTender.
  2. Notify ABCC of contract awarded, using the ABCC Contract Notification form under the found under the 'Should I notify the ABCC when I appoint a head contractor?' heading. Completed forms should be sent to projectnotifications@abcc.gov.au

Note: Question 4.2 in Section 4 of the form (i.e. the Declaration of Compliance including Attachment A - Mandatory Information), relates to information that has been reproduced in Building Code 2016 Schedule of the tender proposal.

Note: Section Six of the ABCC Contract Notification form requests extracts demonstrating inclusion of the Model Clauses. You will not need to provide the extracts, instead enter: Model Clauses used as per inclusion in Defence Suite of Contracts.

Application of Building Code 2016 to subcontractors and subsubcontractors

  1. Contractors are to consult with ABCC directly regarding the application of the Building 2013 or 2016 to their subcontractors and subsubcontractors.
  2. If subcontractors (and subsubcontractors) submit tenders or EOIs after 2 December 2016, Building Code 2016 will apply to them. If the head contractor is not subject to Building Code 2016, the head contractor will not need to monitor compliance of the subcontractor subject to Building Code 2016, as ABCC will do so in this case.
  3. Where a contractor is subject to Building Code 2013 and its subcontractors are subject to Building Code 2016, the contractor is to supply the ABCC Information Statement (available on ABCC website) to its subcontractors. They are also required to use the relevant advertisement wording regarding Building Code 2016 compliance - "By submitting an expression of interest in, or tender for, this project, you will become subject to the Code for the Tendering and Performance of Building Work 2016". In this case, ABCC will monitor the subcontractor/subsubcontractor's compliance with Building Code 2016.
  4. If the head contractor is subject to Building Code 2016, logically, all subcontractors and subsubcontractors will also be subject to Building Code 2016.

Enterprise Agreements

The type of Enterprise Agreement under which a tenderer and their related entities are covered determines their eligibility to express interest, tender for, and be awarded a contract for construction work funded by the Commonwealth.

All tenderers must be eligible to express interest/tender for Commonwealth funded building work, to be able to make a submission. They must demonstrate this eligibility by providing either a Letter of Compliance or the Self-declaration A with their submission, at the ITR and RFT stage. If the tenderer does not provide this with their submission, Defence may exclude the submission from assessment. Alternatively, the necessary documentation may be sought via clarification mechanisms. Please speak to DPA if you encounter this in your project.

A two-stage process has been developed which enables building industry participants to undertake a preliminary review of their enterprise agreement before submitting it to ABCC for consideration. ABCC has also published guidance material in the form of an extensive list of clauses from enterprise agreements that have been submitted for assessment to ABCC. The list contains advice about whether the clauses meet the requirements of section 11 of Building Code 2016.

Industry Briefings

As the obligations imposed under Building Code 2016 are complex, industry briefing slides containing the key points have been developed for mandatory use at all future industry briefings (Industry Briefings page). The page also contains slides on other topics that must be discussed at an industry briefing.

Click here for feedback provided by ABCC in relation to WRMPs submitted for a CFI project. The feedback can be used at industry briefings to give tenderers an idea of what ABCC is looking for in the WRMPs. Please refer to the Model WRMP on the ABCC website for further guidance.

It is important to inform tenderers however, that industry briefings are conducted for information purposes only.

Contact Us

For further assistance and guidance in relation to Building Code 2016 matters, please email CFI.ProgramAssurance@defence.gov.au.