Case Study Questions

Question 1

What is the difference between D&B and Intermediate with Design Portion? Why wasn’t the latter used?

Answer 1

o Client wanted to fully allocate risk to the contractor
o It allows for a single point of responsibility for design and construction, resulting in earlier commencement on site as design can overlap with construction

Question 2

What did you have to consider when utilising Sectional Completion?

Answer 2

o Difficulties with logistics on site when different sections are in possession of different parties
o The protection of completed sections from ongoing works
o The provision of appropriate insurance at all times for all sections
o The adoption of appropriate health and safety measures to deal with risks resulting from occupation of areas adjacent to, or only accessible through ongoing construction works.
o Provision of appropriate security measures

Question 3

What are the consequences of Sectional Completion?

Answer 3

o Half of Retention is released for that section
o The Rectification period begins for that section
o The Contractor’s responsibility for insuring the works (if applicable) ends for that section.
o The Contractor’s liability for liquidated damages ends for that section.
o The employer is now responsible for any damages to the works for that section

Question 4

Did you have damages associated with PC dates? How did you calculate these?

Answer 4

o As per the Contract, Liquidated Damages for Section 1 and 2 were £3000 per week.
o LADs are not penalties, they are pre-determined damages set at the time that a Contract is entered into, based on a calculation of the actual loss the client is likely to incur if the Contractor fails to meet the Sectional Completion dates.
o As LADs are not penalties, they must have been genuine calculation of damages when they were set. If they are not genuine, they may be seen as a penalty by the courts and therefore will be unenforceable.

We would not advise as to what level LADs should be set at however, as our PI would not cover.

Client would factor in, cost of borrowing if dates not met as well as LAD’s owed to the Employer through the AFL.

Question 4

Did you have damages associated with PC dates? How did you calculate these?

Answer 4

o As per the Contract, Liquidated Damages for Section 1 and 2 were £3000 per week.
o LADs are not penalties, they are pre-determined damages set at the time that a Contract is entered into, based on a calculation of the actual loss the client is likely to incur if the Contractor fails to meet the Sectional Completion dates.
o As LADs are not penalties, they must have been genuine calculation of damages when they were set. If they are not genuine, they may be seen as a penalty by the courts and therefore will be unenforceable.

Question 5

What other methods of procurement could you have used in this project?

Answer 5

o Traditional, Construction Management or Management Construction

Question 6

What is the difference between a Greenfield and Brownfield site?

Answer 6

o Brownfield – any site that has been built on
o Greenfield – land that has not yet been developed

Question 7

What surveys were missing from the tender pack? And why did this risk not transfer to the Contractor?

Answer 7

o EAI – Lowering of services & alternative off site drainage – contractor stated within their Qualifications list “excluded any costs associated with incoming statutory disconnections, diversions or new suppliers and metering, there were originally included as a provision but have been removed and administered and paid for by the client”. The Contractor stated they issued their drainage budget quickly as a budget to reflect the drawing within the tender pack. This showed maximum depths around the saddle connection location of less than 2m whereas the actual design received later showed depths between 3.5m-5m. Therefore the drainage budget was so much lower than the quoted cost.
o EAI – Removal of concrete slab – not picked up within tender pack.
o EAI – Additional gas membrane layer – the modular floor was not considered a suitable structural barrier, there decided to install an additional gas membrane layer, to achieve the desired 3 gas protection points

Question 8

What mitigation measures did the Contractor impose to reduce delay?

Answer 8

o Employer may instruct contractor to accelerate the works
o JCT states a contractor is to “use his best endeavours” to prevent delay
o Contractor could re-programme the works
o Engage alternative suppliers
o Replace staff on site who are underperforming
o The duty to mitigate does not require the contractor to expend additional costs or carry out a change in scope any more efficiently than the original scope

Question 9

Where would you find Acceleration in the Contract?

Answer 9

o Contract Particulars
o Supplemental Provision 4 – Acceleration Quotation

Question 10

What is the time period for deciding on receipt of an EOT?

Answer 10

o 12 weeks
o However if completion date is less than 12 weeks away, the CA has to make best endeavours to make a decision before that date

Question 11

What things would you do to communicate to the client on a regular basis

Answer 11

o Regular communication, whether verbal or in writing
o Weekly meetings
o Monthly reports

Question 12

You mentioned you took over this project. How does your company manage date of transfer and how did you bring yourself up to speed on the project?

Answer 12

o Before my ex colleague left, we had regular meetings, to get myself up to speed with the project.
o He showed me where all files are located and what the current status was and any immediate actions that needed to be dealt with were
o He also left formal handover notes that I would be able to refer back to
o Whilst always complying with the ISO9001 Accreditation our firm has recently achieved. Whilst also complying with the General Data Protection Regulations and the Data Protection Act.

Question 13

In terms of client care, how did you communicate the design change of the attenuation tank?

Answer 13

o Early warnings
o Risk register
o Frequent communications

More generally…
QA Procedures
Second set of eyes should never been the clients
Comp check

Question 14

How come the engineer did not get approval for this?

Answer 14

o Anglian Water are not a statutory consultee therefore did not comment on the designs strategy during the planning stage
o The Essex County Council Lead Local Flood Authority (LLFA) who were a statutory consultee, deemed the proposed run off rate as acceptable and that there is no additional flood risk from the development to the receiving system.

Question 15

• When you consider a relevant matter do you also consider a relevant event?

Answer 15

o Depends if there was a delay to the practical completion date
o A relevant event does not necessarily entitle the contractor to claim loss and expense.
o To claim loss and expense, a relevant matter must have occurred
o Relevant matter need not necessarily result in delay to the completion date

Question 16

What were the Relevant Events for the EOT claim?

Answer 16

o Delay in giving the contractor possession of site
o Variations
o Clause 2.26 in the Contract

Question 17

Could the contractor have mitigated this delay?

Answer 17

o No, as aborted works had to be dug up and re-installed.

For an EOT a contractor does however have to make all reasonable endeavours to mitigate delay

Question 18

How would you value the new instruction of the attenuation tank. Once the instruction was issued, how would you assess this in your valuation?

Answer 18

o The contractor provided a quote for the increased tank
o The senior QS on the job reviewed
o In this particular example, the QS noticed an opportunity to achieve a saving through economies of scale, as the original quote was pro rata.
o This variation would then be included in an interim valuation

Question 19

As a PM/EA, how did you assist in the valuations?

Answer 19

o Ensuring deadlines/timelines were met via the Contract.

Question 20

You mention this could of gone to adjudication, is that true or would there be other steps before entering a formal dispute?

Answer 20

o Mediation, Conciliation and Negotiation could have been considered as less formal methods of Alternative Dispute Resolution (ADR).

Question 21

What is the purpose of a performance bond?

Answer 21

o Typically provided by banks or insurance companies
o A tripartite contract between the Employer, the Contractor and the surety.
o Given the employer a guarantee of payment up to a stated amount of money (usually 10% of the contract value, premium for taking out the bond is added to the contract sum) should they suffer as a loss as a result of the contractor’s breach of their contractual obligations
o Employer have to prove that the contractor has defaulted in their obligations under the main contract and that loss has been suffered

Question 22

What are examples of other types of bonds in the construction industry?

Answer 22

o Tender bond – covers the party inviting the tender if the lowest tenderer refuses to enter into a contract with them. Encourages to put in a serious price.
o Usually 1-5% of the tender sum
o Retention Bond – instead of deducting retention from each interim payment
o Should be same as if retention were deducted e.g 3% of the contract sum
o Advance payment bond – to guarantee the reimbursement of the advance to the employer should the contractor default
o Materials off site bond – covers the employer against loss or damage to materials already paid for (via interim valuations) before the materials are delivered to site

Question 23

Due to market conditions how would you advise the client on a performance bond?

Answer 23

o If possible, I would recommend a Parent Company Guarantee
o Although there is less security for the client due to the existing relationship between the 2 companies (banks provide a bond) the PCG would be free of charge, the parent company would have a vested interest in the performance of the subsidiary to ensure its obligations were met, and there would be no limit on its value (bond usually 10%) providing financial security to the Employer.

Question 24

How was health and safety managed on site with the new crane coming in?

Answer 24

o Via the Principle Contractor following the CDM Regulations (2015)
o Principle contractor was appointed due to there being more than one contractor on site.
o A principle designer informed the client of their duties under the regulations, planning, managing and monitoring health and safety in the pre-construction phase. This included identifying and eliminating foreseeable risks.

Question 25

What is typical timeframe under a JCT for deferment of possession of the site?

Answer 25

o 6 weeks unless shorter period was stipulated in the contract
o Deferment must have a material effect on the regular process of the works to be deemed relevant matter.
o I would check clause 2.4 in contract particulars to see if it applies

Question 26

What are examples used in a risk register?

Answer 26

o Probability of it occurring (%)
o Impact if it does occur (%)
o Risk ranking (Probability x impact)
o Examples: BAPA signed, general progress, power on date

Question 27

Was money awarded for the EOT? Does money have to be awarded?

Answer 27

o Yes, as well as a two week delay, £70k was awarded via an Employer’s Instruction.
- Relevant matter
o These costs covered the re-location of the crane and works that needed to be undone and reinstalled.
o CBR testing was also required.
- No, money does not have to be awarded with Relevant event

Question 28

What was included within the tender reports?

Answer 28

o Alongside the senior QS we reviewed the tender sums returned, reviewed the tenderer’s comments and qualifications and then provided the current status of the tender returns to the client.
o I carried out a full arithmetical check on the tenders received
o One excel error was spotted and I made the contractor aware so they could correct.
o The main headings I focused on were, CSA, programme length including lead in times, financial review and assisted the senior QS in comparing submitted costs against market prices. Finally, gave a conclusion.
o The report also highlighted provisional sums, including a £50k totem.

initial tender sums
clarifications
tender queries
revsied tender sums
comparison
tender scoring matrix
client favoured programme so this was weighted heavily
recomendation

Question 29

Why was a competitive single stage tender route chosen? And not two stage?

Answer 29

o Client waned to seek a competitive price
o Due to elements being missed in tender pack, led to adjustments being made later in the contract
o Ensures only capable and approved firms submit tenders. Tenders to reduce the aggregate cost for tendering and client gets a lump sum for the whole works.
o A two stage process would of involved selecting a contractor from the processes for determining the price for the works. The second stage allows for a negotiation process with the selected contractor on the basis of the first stage.
o Two stage tendering would of allowed for early involvement of the contractor. Would of encourage early collaborative working. Potential for earlier start on site and greater client involvement in selecting the supply chain.
o However, cost certainty may not be achieved before construction starts, there would have been additional pre-construction fees for the Contractor and the Contractor could take advantage of second stage negotiation and increase the costs. Potential for partis to not agree on a contract sum – risk – cost of retendering.

Design was not fully developed. Drainage was not fully concluded.

Question 30

Why was the chosen contractor chosen

Answer 30

Having reviewed the Client’s brief/requirements, programme was their main priority

Therefore this was weighted heavily within the scoring matrix

They also had history working with the tenant

Question 31

Why was a negotiated D&B procurement method chosen?

Answer 31

o By using a D&B route it allowed for the main contractor to use their expertise for complex problems and meant the employer did not want to retain control over the design development.

Given the drainage was not fully developed, this seemed a sensible procurement route

o The D&B benefits include a single point of responsibility for design and construction, earlier commencement on site as can over lap design and construction.
o However, the D&B did have its disadvantages, including the client not being able to prepare sufficiently comprehensive brief. It meant there variations from the original brief which were difficult to negotiate and expensive. Harder to compare tenders and to determine if getting value for money.

It was initially competitively procured however other 2 contractors were not close to the initial cost plans. Turned into a stage 1. Had a favoured contractor and negotiated from there.

Did not want to go back and re-tender due to time and high costs aswell as 2022 inflation, so not re-tendering with that.

Question 32

How did you select the contractors for the single stage tender

Answer 32

o I was not involved by this stage, however I imagine they were pre-selected on an National Joint Consultative Committee (NJCC) for building basis; established skill, integrity, responsibility, proven competence/character and size of work.

NJCC publish highly regarded codes of procedures relation to tendering practices

Disbanded and taken over by the Construction Industry Board (CIB)

BUT many clients still adhere to the original codes and JCTs practice notes includes a substantial amount of their material

Question 33

Why did the depth of the attenuation tank have to stay the same?

Answer 33

o Had to tie in with the existing drainage meaning the tank cannot be any lower than the outfall.
o The original design already had a tank as low as possible

Also would mean a pump would be required which is expensive and bottom of the ‘drainage hierarchy’

Question 34

Why was the initial run off rate of 60l/s suggested?

Answer 34

o Civils engineer deemed area as a brownfield site, which gives a run off of 60.4 litres per second and this was therefore used in the drainage strategy

Question 35

Why did AW deem it as a Greenfield?

Answer 35

o All local authorities, want to reduce the flow rate from a site, therefore reducing it to a greenfield run off rate.
o Due to the water going into a sewer which Anglian Water own, they have to deal with the water that comes off the site.
o If they want to restrict it to a greenfield because their modelling says it would benefit them to ease the load, then they can.
o Ultimately because they own the sewer and process the water that goes off site into their sewage treatment. What they say goes and the LLFA should of consulted with them.
o A pre-development enquiry with AW should of occurred

Question 36

Why weren’t soakaways originally considered?

Answer 36

o Ground conditions were not appropriate

Question 37

What is a California Bearing Ratio?

Answer 37

o CBR is the ratio of force required to penetrate a soil mass with a standard circular piston to a specific depth.
o Provides a valuable estimate of soil strength and surface stiffness

Question 38

What are the alternative drainage strategies considered and why weren’t they implemented?

Answer 38

o Soakaways
- A soakaway is a buried drainage feature which seeks to manage surface water on the site and infiltrate into the ground, rather than discharging to an offsite location such as a watercourse or sewer

o Landscaping
- French drains – are perforated underground tubes that are meant to hold on to water and allow it to drain back out slowly, well below the surface.

• Yard drains – Work a lot like a bathrub drain, with an actual drain installed at the lowest point of the site. That drain is attached to a long stretch of underground plumbing, which then discharges the water from the isolated low point to elsewhere on the property that’s even lower.
• Dry well – Similar to Yard drains however instead of discharging externally, the water moves into an underground holding tank.

o Blue Roofs
- A Blue Roof is one that is designed to retain water above the waterproofing membrane. Rather than allowing water to drain off your roof as soon as possible, a blue roof deliberately retains some or all of the water, either temporarily or permanently

o Surface Water Attenuation
- Rather than using Geocellular system use a Large Diameter Pipe Systems.
- This is an alternative form of surface attenuation.
- Rejected as the flexible nature of the Geocellular system was preferred due to site constraints.

Question 39

What Relevant Matter was the attenuation tank?

Answer 39

o 4.21.1 – Changes and any other matters or instructions which under these conditions are to be treated as a change
o 4.21.4 – Delay in receipt of any permission or approval for the purposes of Development Control Requirements necessary for the Works to be carried out or proceed, which delay the Contractor has taken all practicable steps to avoid or reduce

Question 40

In your submission you mention a procurement route was use, however you then state a competitive single stage was used? Does this not contradict itself?

Answer 40

o It initially began as a single stage competitive tender
o However, it turned into a more negotiated procurement route
o There was then one Contractor the client wanted to negotiate with

Question 41

Was the AFL a Contract Doc? If not, how did you manage to bring the requirements from the AFL into the Contract ?

Answer 41

o No it was not a Contract Document
o When assessing LAD’s this was determined by the Section/Practical Completion dates in the Contract and not the longstop dates in the AFL
o When inputting the Sectional/Completion dates we reviewed the longstop dates so they aligned.
o For example, when assessing whether an acceleration agreement was required. We reviewed the longstop dates and felt this was not necessary as there was enough buffer.

Question 42

Who is the S106 Agreement between?

Answer 42

o Employer/developer and the Local Planning Authority

Question 43

If you went ahead with the Acceleration Agreement, would you continue with the EOT?

Answer 43

No, would not require the EOT as the Section 2 Completion Date would stay the same.

Question 44

What were the changes to the car park and why were they necessary?

Answer 44

We had to increase the car parking to satisfy a covenant with a tenant of the retail park.

Had to ensure not less than 387 customer parking spaces on the property

The additional spots were to make up for the spaces taken up by the new restaurant.

Also removed redundant trolley bays as there was no legal requirement to keep them within the car park as the tenants have them in front of the units.

Nothing r.e cycling parking was required planning whys.

Covenants are similar to contract conditions, but the burden they impose may remain enforceable by parties who were not a party to the original arrangement.

Question 45

What is the process of getting an acceleration quotation?

Answer 45

o I would follow the instructions set out in Schedule 2, Supplemental Provision 4

Question 46

What were the most recent updates to the RIBA plan of work updates?

Answer 46

o Published by Royal Institute of British Architects
o RIBA 2020 replaced RIBA 2013
o Developed design was changed to Spatial Coordination
o Construction was changed to Manufacturing and Construction
o Handover and close out was changed to Handover
o Changes have been made in terms of digitalisation of the industry, modern methods of construction, increasing awareness of ethics, the importance of sustainability, the value of aftercare and different approaches to the timing of planning applications and procurement.

Question 47

Who executes a contract?

Answer 47

Employer

Question 48

What examples of Contract Amendments have you seen?

Answer 48

o Timescales for valuations
o Rectification Periods changed (extended)
CA’s are used to change apportionment of risk

Question 49

What is the difference between a CA and an EA?

Answer 49

o CA must remain impartial
o EA is employed by the Client
o A PM engages with all stakeholders whereas although a CA should their duties are specific to the contract

Question 50

What is the legislation for Valuation?

Answer 50

o Housing Grants, Construction and Regeneration Act 1996
o Intended to ensure that payments are made promptly throughout the supply chain and that disputes are resolved swiftly
o The right to be paid in interim, periodic or stage payments.
o The right to be informed of the amount due, or any amounts to be withheld.
o The right to suspend performance for non-payment.
o The right to adjudication.
o Disallowing pay when paid clauses.
o The Act applies to all contracts for ‘construction operations’ (including construction contracts and consultants’ appointments). If contracts fail to comply with the act, then the Scheme for Construction Contracts applies.

Question 51

Are you aware of the 2011 amendments?

Answer 51

o The Act was amended in October 2011 to close loop holes within its provisions
o The act now applies to construction contracts including those that are not in writing. Adjudication clauses must still be in writing, otherwise the scheme for construction contracts applies.
o It is no longer allowable to define within a contract who should bear the cost of adjudication, and adjudicators have the right to correct errors in their decisions within 5 days of delivering that decision.
o The dates for payments must be set out in the contract.
o The client (or specified person) must issue a payment notice within five days of the date for payment, even if no amount is due. Alternatively, if the contract allows, the contractor may make an application for payment, which is treated as if it is the payment notice.

Question 52

What is an Agreement for Lease?

Answer 52

An agreement between two (or more parties) to enter into a lease

Question 53

What is a ‘negotiated’ procurement route?

Answer 53

o Clarify, as initially competitively procured however 2 contractors were not close to initial cost plans.
o Turned into a stage 1
o Negotiated from there

Question 54

What did you as a ‘Project Manager’ assess within the tender returns?

Answer 54

o Programme
o Budget

Question 55

What dispute resolution did you assist with?

Answer 55

o EOT claim

Question 56

Whats a base date?

Answer 56

o Reference date from which changes in conditions can be met

Question 57

What actual advise did you give in Key Issue 2

Answer 57

o Managing the contract, when the tenant whom was not party to the contract caused the delay