procuring authority should ensure that they possess adequate professional Over the past 18 months there has been some unease among public sector

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1 Circular IPPP 01/04 29 July 2004 AN ROINN COMHSHAOIL, OIDHREACHTA AGUS RIALTAIS ÁITÚIL Professional Indemnity Insurance for Consultants engaged on Construction Projects DEPARTMENT OF THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT Dear Manager National procurement guidelines require that when engaging consultants the procuring authority should ensure that they possess adequate professional indemnity insurance cover. It is a matter for the procuring body to decide what is an adequate level of cover taking into account the circumstances in a TEACH AN CHUSTAIM BAILE ÁTHA CLIATH 1 CUSTOM HOUSE, DUBLIN 1 particular case. Over the past 18 months there has been some unease among public sector clients and professional bodies about the high level of cover being demanded Tel No for some contracts and in relation to some of the conditions attached. LoCall FAX While emphasising that the determination of the appropriate level of professional indemnity insurance under the national procurement guidelines is a matter for the procuring authority concerned, the Department has, in the enclosed document, set out certain key principles that should be taken into account in making such a determination. Yours faithfully Eddie Lewis Eddie Lewis PO : Infrastructure and PPP Section Website:

2 Professional Indemnity Insurance for public sector construction contracts Principles underlying decisions on the appropriate levels of cover and conditions National procurement guidelines issued by the Department of Finance, the Green Book, require that consultants engaged in public sector contracts should have an adequate level of professional indemnity [PI] insurance. It is the responsibility of the procuring body to assess the risk associated with a particular contract for professional services and to determine the level of PI insurance cover required. From the point of view of the client, it should be remembered that PI insurance cover only protects the consultant concerned. What PI Insurance provides for the client is a level of assurance that in the event of a successful claim against the insured arising out of negligent performance or breach of contractual duty that there is some lessening of the risk of insufficient assets being available to meet the claim. As part of the process of engaging a consultant the procuring body should consider the nature and level of risk that the consultant is taking on in deciding the PI Insurance required. The most important risks that a public body needs to be concerned about arise where the professional services involve design or other work relating directly to the construction process itself. Damages could arise as a result of losses arising from increased construction cost, the undertaking of remedial works to damaged and/or dangerous buildings, failures in procurement advice provided or, in some cases, personal accident and/or injury. In assessing the level of risk the following general factors should be taken into account : - the nature of the professional services provided. Services that involve strategic studies, the preparation of business plans, financial modelling or other nonconstruction work, often carried out in the professional s own premises, would generally be considered a lesser risk and the level of PI insurance cover required should reflect this, - the size and complexity of the project,

3 - the method of procurement e.g. traditional contract or PPP. - the extent of high risk activities, - other types of insurance cover in place. The sliding scale set out below provides an indicative guide to the level of PI insurance cover that might be sought for particular contracts. Higher levels of cover should be sought where the procuring body considers that this is reasonable having regard to the nature of the risk involved. PI Insurance cover levels for construction contracts Estimated Construction Cost Value Minimum Professional Indemnity Insurance cover Up to 1m 0.5m Over 1-10 million 1 m Over million 2 m Over million 3 m Over million 4m Over million 5m Over million 6 m Over 60 m 6.5 Certain standard conditions should be included as part of PI insurance cover: - that cover be provided on an each and every claim basis, - aggregate cover may apply in respect of pollution/contamination. It is accepted that it may not be possible to get cover for terrorism or asbestos related risks.

4 - a standard six years cover to be maintained after completion of the construction works in respect of the services provided. A lesser period may be agreed where no design or construction related work is directly involved, This requirement is subject to such cover being remaining available at commercially reasonable rates of premium, - a requirement to be included that the consultant notify the client if at any time within the period for which the cover is to be maintained the cover is terminated, the level of cover reduced or the conditions under which the cover was originally provided altered. Written confirmation that cover is in place should be provided at renewal date each year by the consultant. 1 - it is normal for there to be an excess on the policy below which the consultant would bear the costs. The client should be aware of the level of excess and in the event that it is of an amount that in the reasonable opinion of the client would render the cover ineffective, seek to have it reduced. A normal access level within the industry would be between 1 and 2% of annual turnover for the consultant concerned to apply in respect of each and every claim notified during the period in question. - the conditions under which the PI insurance is provided must provide for claims for breaches of professional duty or civil liability as well as negligence, - legal costs to be provided for in addition to the level of cover, - cover should extend to include specialist advisers engaged as sub-consultants by the consultant or in joint venture arrangements with the insured, as applicable, - cover is required in respect of Joint & Several liability. 1 The Department is working with the professional bodies to try to agree the setting up of a voluntary register which would operate instead of the consultant providing confirmation of continuing cover each year.

5 In the event that a consultant does not have the sufficient level of cover at the time of submitting a proposal, the consultant may provide specific [from a reputable insurance broker or insurance company] confirmation that effecting the requisite cover will be possible and that in the event that the contract is awarded to the consultant that the required level of cover will be provided. Verification Certificate Before entering into any contract for professional services the public sector client should require that the consultant sign a Verification Form along the lines of the sample in Appendix 1.

6 Sample Verification Certificate : Professional Indemnity Insurance Public Sector Client; Name of Project Contract; Insert name Insert name [if applicable] Short description of professional services covered General Name and Address of Insured: Name and Address of Insurer: Policy Number Details of Cover Period of Insurance Cover From To Level of Insurance Cover Excess applied to each claim Main Conditions of Cover Confirm by tick box Cover applies on an each and every claim basis Cover is provided in respect of Joint & Several liability Legal costs are in additional to the level of cover Cover includes for professional advisers engaged as sub-consultants or in joint venture arrangements with the insured.

7 Exemptions List here any special conditions, exemptions or requirements relating to the insurance cover. Duration of Cover The insured hereby confirms that the level of insurance cover, under the conditions pertaining at present, will be maintained in force for [six] years from, subject to the such cover being available at commercially reasonably rates. In the event that there is a significant change in the level of cover or conditions relevant to the project during the period covered by this Certificate, the insured will immediately contact the client and provide details of any such changes. The insured will provide written confirmation to the client each year on [e.g. date of renewal of PI insurance cover] of the continuation of the existing cover. The insured hereby gives authorisation to the client to contact the insurer referred to in this Certificate to confirm the veracity of the information contained in the certificate. Signed : Company / Practice Date:

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