Project Bank Accounts...Overview of Project Bank Accounts Department of Housing and Public Works 2...

Project Bank AccountsPhase 1 - Government Contracts

August 2018

Information Session for Head Contractors and Consultants

A fairer industry

Department of Housing and Public Works 1

Building Industry Fairness (Security of Payment) Act 2017

Expected Timeline of Reforms

17 Nov 2017 Strengthening QBCC’s powers

1 March 2018 Project Bank Accounts on government projects $1-10M

17 Dec 2018 Progress payments, Adjudication process and Subcontractors’ charges provisions

1 January 2019 Minimum Financial Requirements regulation

Later 2019 Project Bank Accounts - all building projects over $1M

2020 ? Project Bank Accounts - extend to all subcontractors

Overview of Project Bank Accounts


• Project Bank Accounts (Chapter 2) commenced on 1 March 2018

• For each project/contract a new unique PBA is set up

• Three separate 'trust’ accounts for receiving and making progress payments

• Holds ‘cash’ retention and disputed amounts until ready to be paid out

• Head Contractor is responsible for the management of the PBA

• Both Head Contractor and subcontractors are paid only from the PBA

Head Contractors can be Consultants, Project Managers, Managing Consultants, Architects, Engineers, Planners or Inspectors.

How a PBA Works


Principal

PBAHead

Contractor

SC 3 SC 2 SC 1SC 1

retentions

SC 3 Disputed

funds

SC 2 retentions

Overview of Project Bank Accounts


• Same payment process and timeframes apply

• Head contractor still manages subcontractor performance and can withhold payments when obligations have not been met

• Head contractors and subcontractors have same legal rights

A fairer industry


Presentation Overview

Module 1: When is a PBA required

Module 2: Post-Contract Award

Module 3: Payment Process

Module 4: Project Completion and Other Matters


Module 1: When is a PBA required?

Which contracts will require a PBA?

• PBA criteria and exemptions

• Which ‘building work’ captured

• Contract variations and amendments

PBA Criteria – Contracts requiring a PBA


Not all projects will require a PBA

During Phase 1 (from 1 March 2018):

✓State Government is the principal (or a statutory authority who has opted-in)

✓Contract price is $1M to $10M (incl. GST)

✓More than 50% of the contract price is for 'building work'

✓At least one subcontractor

Not required if less than 90 days from start date to practical completion (S23(8))

PBA Criteria – Contracts requiring a PBA


What about future phases?

PBAs Phase 2 (later in 2019)

✓All private sector and public sector projects

✓Contract price is $1M or more (incl. GST)

✓ Including private sector residential construction

PBAs Phase 3 (TBC – after implementation of Phase 2)

✓ All subcontractors (second tier/sub-sub contractors)

Determining ‘building work’


What is ‘Building Work’? (s8)

• Erection, construction, renovation of a building

• Any site works; and provision of lighting, heating, plumbing/drainage, scaffolding and air-conditioning

• Preparation of plans and specifications (including by architects, engineers and surveyors)

• Contract administration for the building work

• Fire protection work, building inspections, investigations and certifications

Determining ‘building work’


What is NOT ‘building work’?

• Civil, engineering and infrastructure projects such as bridges, roads and tunnels

• Public transport infrastructure including busways and railways; and authorised activity for a resource authority (Regs s4)

• 'Residential' construction work (s16) – Except 3 or more 'living units' procured by DHPW

• Maintenance work (s17)

Refer to Guidelines for Head Contractors and the BIF Act for more detail


Attachment 1 in Guidelines

‘Decision Tree’ –

Is a PBA required?

‘Subcontractors’ vs ‘Suppliers’


Subcontractor = Subconsultant

Subcontractor is any party to a subcontract required to carry out subcontracted work

Subcontractors are 'beneficiaries' of the PBA and MUST be paid from the PBA

Suppliers are NOT 'beneficiaries' of the PBA and MUST NOT be paid from the PBA.

Some ‘Suppliers’ are ‘Subcontractors’ under the BIF Act (refer definition at S11)

Contract variation or amendment


• A variation or amendment may cause a PBA to be required even if it wasn't required at the start of the project

e.g. Contract price increase (by 30% or more) or unexpected subcontractor engaged

• No PBA required if less than 90 days remaining to practical completion from date of variation

• A variation or amendment cannot cause a PBA to no longer be required if it had been required at the start of the project.

• Compliance with PBA requirements and payments commence from the point of establishment (i.e. not retrospective)

Pre-tender Considerations


• Process for lodging a tender for project with project bank accounts is the same as normal.

• Standard contract documents updated to reflect PBA requirements.

• Some different and additional contractual obligations not in the Act (Refer to Special Conditions of Contract and Annexure).

• ‘Returnable Tender Schedule’ (new form) must be returned with tender documentation if project within scope of work that might require a PBA

• Tenderers need to determine if a PBA is likely to be required and fully understand the work and costs required to administer PBAs

• Administration costs and overheads may be included in tender price


Module 2Post-Contract Award

What do you need to do after entering a contract?

• Establishing the PBA Accounts

• Principals viewing access

• Engaging subcontractors

Setting up the PBA (ss 23-26)


✓ By the date Specified in the contract (20 Business Days after the Acceptance of Tender); or otherwise 20 business days after entering first subcontract.

✓ Open three, separate accounts at a bank that has an office in Qld (s23) and MUST have word ‘trust’ in the name (s25):▪ General 'Trust’ Account

▪ Retention 'Trust’ Account

▪ Disputed Funds 'Trust’ Account

For example: XYZ Hospital General Trust, XYZ Hospital Retention Trust, and XYZ Hospital Disputed Funds Trust

✓Request the bank provide electronic viewing access for the Principal’s employees or agents (s24)

✓Written notice to the Principal within 10 business days advising the accounts’ opening (s26)

Setting up the PBA


✓ Any bank with an office or branch in Qld✓ Must be able to upload payment instructions✓ Must be able to provide electronic viewing access for third

parties (i.e. principals officers) for duration of contract and DLP

✓ Viewing access must include:▪ All deposits and withdrawals▪ Payment instruction information▪ Account payment reports

✓ Interest earned to HC – withdrawn once every 12 months and on closure of PBA

PBA can take time to set up. See your bank as soon as possible to ensure the PBA is set up within the required timeframe – and in time to receive the first progress payments.

Guidelines for Banking Institutions

Engaging Subcontractors


Before entering into subcontract:

✓Approval from Superintendent to subcontract

✓S49 Notice of PBA to advise subcontractors that a PBA will be used

After entering into subcontract:

✓S50 Notice of Subcontracts advising Principal of subcontractors banking information

Engaging Subcontractors


What is a Related Entity?

• members of the same family (spouse, parent or grandparent, child or grandchild, brother, sister, nephew or niece either by birth or marriage)

• majority shareholder, director or secretary of the corporation or its related body corporate, or has an interest of 50 percent or more in the corporation

• related bodies corporate

After entering into subcontract with Related Entity:

✓S21 Notice of Related Entity to the QBCC and Principal

Related Entities



PBA Establishment Flowchart


Module 3Payments using the PBA

• The payment process – getting paid by the Principal and paying subcontractors

• Making payments – payment instructions and required notices

Payments from and into trust account


Payment Process


Payment Claim

•Head contractor gives payment claim to Principal

Payment Schedule

•Principal will certify work completed

• Issues a payment schedule

Payment into PBA

•Principal pays (electronic transfer) scheduled amount into the PBA

Payment Claim

• Subcontractor gives payment claim to Head Contractor

Payment Schedule

• Head Contractor will certify work completed

• Issue a payment schedule (or pay in full)

Payment Instruction

• Head Contractor pays subcontractors (incl. Retention and Disputed amounts) and pay themselves

Payment Instruction Information

• Copy of Payment Instruction Information provided to Principal and Subcontractors

Making Payments


All payments and withdrawals from the PBA accounts MUST be made using a Payment Instruction

A Payment Instruction is:

• direction to the bank to pay Subcontractors and the Head Contractor from the PBA accounts. Known as ABA or Cemtext files.

• allow for batch transactions to be generated and executed at the same time.

• generated using most accounting software packages and other online/banking applications.

What is a Payment Instruction?

Making Payments


After uploading a Payment Instruction a copy of the information must be given to Principals and Subcontractors

Payment Instruction Information is:

• Copy of certain information from a payment instruction

• Provided in any written format to Principal (within 3 business days) and Subcontractor (as soon as practicable)

• Must include the following information:

What is the Payment Instruction Information?

To the Principal To the Subcontractor

✓ Name of payee✓ Name of account✓ Name of Bank✓ Bank account details✓ Amount paid✓ Date Paid

✓ Name of account✓ Name of Bank✓ Bank account details✓ Amount paid✓ Date Paid

Accounts of the PBA


• Cash retention amounts for subcontractors must be held in the retention trust account for the PBA.

• Must be transferred into retention account using a payment instruction (usually at the same time the progress payment paid to the subcontractor)

• Must be able to identify in the account who each retention amount is being held for.

• In event of variation requiring a PBA, must transfer any retentions withheld before the PBA was established.

• Can only be withdrawn from retention account:

▪ Pay the subcontractor in accordance with subcontract

▪ Pay to head contractor for correction of defects or to secure performance of subcontract

Retention Trust Account

Accounts of the PBA


▪ 'Payment Dispute' occurs when

▪ 'Disputed amount' difference between the scheduled/claimed amount and the amount actually paid.

▪ Must be paid at the time of payment to the subcontractor or on the due date and must be ‘identifiable’ in the account.

▪ Must provide written notice to subcontractor of amount paid into PBA and reasons why

▪ Must remain in the disputed funds account until dispute resolution process has been decided or 60 days after notice given to Subcontractor.

Disputed Funds Trust Account

Making payments


▪ Payments and deposits into the PBA must be made by electronic transfer (not cheque/cash deposits)

▪ No payments for other purposes may be deposited into the PBA

▪ ALL Subcontractors MUST be paid only from the PBA

▪ All payments, withdrawals and transfers from the PBA accounts (including to pay yourself) MUST be made using 'payment instruction'

▪ If there are insufficient funds available in PBA when an amount is due to a SC, the HC must 'top-up' the general account

▪ Head Contractor must pay amounts liable to pay Subcontractors before paying themselves ( i.e. cannot pay itself if insufficient funds left to pay amounts ‘due’ to subcontractors)

Things to remember when using the PBA

Making payments


• May delegate any of its powers under the Act using the S42 Delegation Form, and provide a copy to the Principal and each subcontractor

• Must keep written records of all transactions involving the PBA for minimum 7 years

Things to remember when using the PBA


Module 4Project completion and other matters

• When a PBA can be closed

• Contract termination, insolvency and bankruptcy

• Role of Regulator (QBCC)

Closing the PBA


The PBA may be ‘dissolved’ when:

▪ there are no longer any Subcontractor beneficiaries for the project bank accounts, OR

▪ the only remaining work is maintenance (not including work for which retention amount is withheld).

▪ Provide written notice of ▪ intent to close at least 5 business days before closing the account

with copy of balance report for each account.

▪ confirming closure within 10 business days after account/s have been closed (s26)

▪ With final payment claim or at time Final Certificate issued (if remaining balances in PBA accounts): Retention Balance Report and Disputed Funds Balance Report

Contract termination, insolvency and bankruptcy


▪ Funds in the PBA trust accounts protected from claims from Head Contractors’ creditors and debtors

▪ Principal may step in as 'trustee' of the PBA

▪ Principal as Trustee may pay beneficiaries amounts owing or held in trust on their behalf

▪ Head Contractor remains liable for any act or failure under the Act as trustee

Role of the Regulator


▪ QBCC has strengthened powers to monitor PBA compliance, investigate PBA discrepancies and payment concerns raised by Subcontractors.

▪ The QBCC’s jurisdiction is no longer limited to active building sites.

▪ Significant penalties for non-compliance up to 500 penalty units and imprisonment.

Queensland Building and Construction Commission (QBCC)



PBA Checklist

More information


▪ Guidelines for Head Contractors available on the HPW Website.

▪ A Head Contractor may also wish to seek independent legal advice regarding compliance.

▪ All copies of Forms and Notices available on the QBCC and HPW websites.

Email: [email protected]

Website: www.hpw.qld.gov.au

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