Wording to be included as Annex A to Section 1 of the GPFAA (see paragraph 1.57 of Appendix D of the Report on the 2013 General Review)
ANNEX A to SECTION 1: Principles for a reference to the Review Board
1. The general jurisdiction of the Review Board to accept a reference should be framed in clear and concise terms to ensure that time is not wasted in establishing whether or not the Review Board has the power to review and give rulings on any particular reference.
2. The general terms of reference of the Review Board should be defined clearly so all parties understand what the Review Board is required to do and how it will reach its decision.
3. The following principles should apply to a contract reference to the Review Board for Government Contracts:
(a) The Review Board will be making a determination acting as an expert, not acting as an arbitrator, and the provisions of the Arbitration Act 1996 will not apply. The Review Board’s expert determination will be final and conclusive and will be enforceable between the parties as a contract term.
(b) Once a contract reference has been established following due process (in accordance with paragraph 1.44 of the GPFAA Section 1), the party seeking the reference should submit to the Review Board, in writing, a clear summary of its case identifying any relevant information, setting out the remedy sought and explaining how the matter is within the jurisdiction of the Review Board.
(c) The Review Board is free to establish procedures and a timetable for each reference, within the framework for references included at paragraph 1.51 of the GPFAA Section 1, according to the individual circumstances. The procedures adopted should enable the Review Board to give its determination on a timely basis, whilst ensuring all parties to the reference have the opportunity to present their case.
(d) The approach of the Review Board will be inquisitorial. It may make its own enquiries on matters relating to or arising out of the reference and is not restricted to arguments put forward, in whatever form, by the parties.
(e) The parties should not seek to rely on external legal representation to present their case except in very exceptional circumstances. Ultimately it is for the Review Board to determine whether legal representation will be allowed.
(f) The parties should provide the Review Board with an agreed set of facts. If the parties are unable to agree a joint set of facts, or if it appears to the Review Board that the agreed set of facts is not complete, the Review Board may ask its secretariat to carry out an exercise to establish the facts necessary, in the opinion of the Review Board, to enable the Review Board to reach its determination. In asking the secretariat to undertake such an exercise the Review Board will take into account the views of the parties and the expected costs and benefits of the exercise.
(g) Once a party has formally notified the other in writing of its intention to put forward a contract reference, the parties to the reference should preserve all the information relevant to the reference, whether supporting or adverse to their case, which is in their possession, custody or control.
(h) The parties to the reference should disclose all relevant information to enable the Review Board to reach its determination, at the outset of the reference, or as requested from time to time by the Review Board.
(i) The Review Board should be free to call on those witnesses it considers appropriate to explain the facts of the reference. The parties should be obliged to use all reasonable endeavours to make those witnesses available.
(j) The parties should be encouraged to reach a settlement during a reference and the Review Board’s expert determination should be a remedy of last resort.
(k) Costs incurred by Government departments, by contractors or by sub-contractors arising from reference of individual contracts or sub-contracts to the Review Board, shall lie where they fall.
(l) The Review Board shall publish, in its Annual Report, details of its decisions on all individual cases referred to it, together with an assessment of the general considerations which led to these decisions. This publication need not contain the names of the contractors or sub-contractors concerned but if they are named the Review Board shall inform them prior to publication. Other than the published decision, the Review Board will not release information on anything said, done or produced in or in relation to the reference process, unless all parties to the reference concur or if the Review Board is required to do so to comply with a statutory or judicial obligation. Where a case has been settled between the parties the Review Board’s Annual Report will include the fact that a reference has been settled but will not include details of the case.
4. The same principles in paragraph 3 above will apply to pre-contract references except that the Review Board decision will be on an advisory basis only, unless the parties agree otherwise.
GPFAA Appendix E APPENDIX E
THE GOVERNMENT PROFIT FORMULA AND ITS ASSOCIATED ARRANGEMENTS