Contract Administration Flashcards
What is phased completion?
Construction works can be planned as a series of stages or phases, rather than as one continuous process.
This can be useful for clients where a complex sequence of events needs to be followed (such as on densely occupied or complex site), or where there are a number of distinct components to the works, particularly for clients who are seeking to maintain some level of business operation during construction and so wish to minimise disruption.
In such cases, the project works can be divided into a series of smaller projects, spaced out over a period of months or even years.
What is sectional completion ?
Sectional completion refers to a provision within construction contracts allowing different completion dates for different sections of the works. This is common on large projects that are completed in sections, allowing the client to take possession of the completed parts whilst construction continues on others.
What are the risk associated with a client paying for items direct and outside of the contract ?
They would not be included within the contract, contract administrators inspection and have limited protection.
Can you please expand on what the role of a Contract Administrator is ?
A contract administrator manages contracts made between building contractors, employers, and clients. Their responsibility is to administer construction contracts, whereby they may act as project managers, engineers, consultants and client representatives
Can you expand on your knowledge of the JCT Intermediate contract ?
A JCT contract that allows for a number of addition in comparison to JCT MW including, clerk of works, sectional completion, partial possession, sectional completion and use of bonds
Can you expand on your knowledge of the JCT Standard Building Contract
The JCT SBC allows for, in addition to the intermediate contract such as:
Employers representative, listed sub contractors (for specialist works), retention bonds, variation and acceleration quotations, third party rights.
What JCT contracts allow for a clerk of works ?
- JCT standard Building contract
- JCT Intermediate Contract
- Not JCT MW
What contract allows for sectional completion and named sub contractors?
Intermediate and standard building contract
Can you talk me through the EOT timeline ?
Can you explain the interim payment procedure under JCT MW ?
When can a employer claim for liquidated damages (JCT MW) ?
What are liquidated damages?
Liquidated damages are a well established method to collect compensation for a specific breach of a contractual obligation. If the breach is considered a relevant
What is the ‘Guide to select the appropriate JCT Main Contract ‘?
Does JCT MW allow for clerk of works ? What contracts do allow for this ?
No it does not however, both intermediate and standard building contracts do allow for this.
What are the main types of tendering ?
- Open
- Selective
- negotiated
-Serial
-Framework
What are the main updates from JCT MW contract ?
JCT MW 2016 updates include:
- Amendments to reflect CDM 2015
- Increased Flexibility regarding insurance and ‘insured by other means’
- Simplified payment provision including the interim payment provision under the Housing Grant, Construction and Regeneration Act 1996
What is a traditional lump sum contract ?
A lump sum contract is the traditional means of procuring construction and involves a single ‘lump sum’ price for all the works being agreed before the works begin. This means that the contractor is able to accurately price the works they are being asked to carry out.
What is the role of the contract administrator ?
To administer the conditions/works under the terms of the contract. Acting impartially.
What is a contract variation ?
A change made to the terms or conditions of an existing contract. This could be altering the scope, price or deadlines ect. They can occur for a variety of reasons; unforeseen circumstances, changes in project requirement, or mutual agreement between parties.
What is traditional Procurement?
The traditional procurement route involves separating design from construction. The client first appoints consultants to design the project in detail and to ensure cost control and inspect the construction works as they proceed. Contractors are then invited to submit tenders for the construction of the project on a single-stage competitive basis.
Included in the contractor’s responsibilities are workmanship, materials and work undertaken by suppliers and subcontractors. The contractor is not responsible for the design (other than temporary works), although some traditional contracts may provide for the contractor to design specific parts of the works (see key criteria below).
Traditional procurement is typically undertaken under a lump sum contract. A single ‘lump sum’ price for all the works is agreed before the works begin, then stage payments are made as the works proceed. This is appropriate where the project is well defined when tenders are sought, and significant changes to requirements are unlikely. This allows the contractor to accurately price the works they are being asked to carry out.
What is single stage tender?
The most common type of tendering strategy is the
single-stage competitive tender for obtaining a price for
the whole of the construction works. Invitation to
tender documents are issued to a number of
competing contractors who are all given the chance to
bid for the project based on identical tender
documentation
What is procurement?
The overall act of obtaining goods and services from external sources and, includes deciding the strategy on how those goods are to be acquired by reviewing the clients requirements
What is tendering ?
An important phase in the procurement strategy. The bidding process, to obtain a price and how a contractor is appointed.
What s two-stage tendering ?
Two-stage tendering has become more common in
recent years and is often used where time is
constrained (as it enables design and tendering to
overlap). It is also used if the design process would
benefit from the technical input of a contractor in the
later design stages. In this sense it is used to obtain
the early appointment of a contractor.
The process involves first-stage tender enquiry
documentation being issued to bidding contractors at
RIBA Stage 2 or 3. Rather than requesting a bid for
constructing the entire project (which is still in the
process of being designed), the preferred contractor is
chosen on the basis of the quality of their bid, the
quality of their team and their preliminaries price and
overhead and profits allowances. The preferred
contractor then joins the design team on a consultancy
basis using a pre-construction services agreement
(PCSA). The preferred contractor then works with the
professional team to complete the design, usually to
RIBA Stage 4, before presenting a bid for the works at
this stage. There are benefits and disadvantages of this
route which are discussed in subsection 3.2
What is a Negotiated Tender ?
A negotiated tender is effectively a single-stage tender
with a single contractor who returns with an initial
price. This is then negotiated with the client’s
professional team (usually the professional quantity
surveyor (PQS)).
The benefit of this route is the speed with which a
price can be obtained for the works. However, the
competitive advantage of a formal bidding process is
compromised. Also, many public bodies and
government departments will not allow negotiated
Tendering strategies
tenders except in exceptional circumstances as it is
difficult to prove that value for money in the current
market has been achieved.
What are the main types of procurement routes ?
Traditional Procurement
Design and Build
Management Contracting
Construction Management
What contracts are typically used for traditional procurement ?
JCT Standard Building Contract, Intermediate Building Contract and Minor Works Building Contract are most typically used.
What are the advantages and disadvantages of traditional procurement ?
Advantages:
- Early cost certainty
- Programme certainty at award of the contract
- Design led, quality can be ensured
- established procedure
Disadvantages:
- Contractor’s expertise not used in the design/planning process
- Overall procurement time is slower
- Design must be complete before tendering can take place
- Dual point of responsibility, design team and contractor for construction
What is Design and build procurement ?
The contractor is responsible for the design, planning, organisation and construction of the works, with reference to the employer’s requirements.
Emphasis on Time and Cost.
JCT Design and Build Contract 2016 will be typically used.
Collateral Warranties are usually put in place to extend duty of care to client.
What are the advantages and disadvantages if D&B?
Advantages:
Single point of responsibility for design and construction
Earlier commencement on site
Early cost certainty
Contractor’s expertise is harnessed during design
Disadvantages:
Client relinquishes control over design, and quality may suffer
Variations are often difficult to arrange and can be expensive
Employer’s requirements must be very clear
Client must commit to a concept design early on
What’s is management contracting procurement route ?
A management contractor is employed to contribute their expertise to the design and to manage the construction. They are paid a fee for doing so.
The management contractor has responsibility for the construction works without actually undertaking them.
Design and construction overlap all the way through the project.
Emphasis on time, typically used when time is critical.
JCT Management Building Contract is typically used.
What are some advantages and disadvantages of management contracting ?
Advantages:
Quicker construction process due to overlapping of design and construction
Each sub-contract is tendered separately, ensuring competitiveness
Management contractor’s and sub-contractors experience is used in design
Changes can be accommodated in packages not yet let, if they have no further impact
Disadvantages:
Costs are not fixed at the outset
There is little incentive for the management contractor to reduce costs
Client interaction is high, and they need to be informed and pro active
What is construction management procurement route ?
The employer places a direct contract with each of the trade contractors. The construction manager supervises the construction process and coordinates the design team.
The construction manager does not have any contractual links with the trade or design teams.
Design and construction overlap all the way through the project.
Emphasis on time, typically used when time is critical.
JCT Construction Management Appointment (CM/A) and Construction Management Trade Contract (CM/TC) are used.
What are some advantages and disadvantages of construction management ?
The employer places a direct contract with each of the trade contractors. The construction manager supervises the construction process and coordinates the design team.
The construction manager does not have any contractual links with the trade or design teams.
Design and construction overlap all the way through the project.
Emphasis on time, typically used when time is critical.
JCT Construction Management Appointment (CM/A) and Construction Management Trade Contract (CM/TC) are used.
What are the main types of tendering ?
Single stage tendering
Two stage tendering
Negotiated tender
What is single stage tendering ?
Type of tendering whereby a price is obtained for the entirety of the construction works.
Invitation to tender documents are issued to contractors who are given the opportunity to bid.
Contractors are given a period of time to respond, following this the tenders are analysed in terms of cost and quality.
A contractor is appointed and enters into a building contract with the client.
Typically occurs at RIBA stage 4.
Good fit for Traditional Procurement.
What is two stage tendering ?
Often used when time is constrained as it enables design and tendering to overlap. Also used if the design would benefit from the technical input of the contractor.
Rather than pricing for the entire project, the contractor is selected on the quality of their bid
Contractor joins the design team once appointed on a consultancy basis. Pre-construction services agreement (PCSA) will be used.
Typically occurs between RIBA Stages 2-3.
Preferred contractor works with design team until RIBA stage 4 before presenting a bid for the works at this stage.
Good fit for Management Contracting, Construction Management and Design and Build projects.
What is negotiated tendering ?
Effectively a single stage tender with a single contractor.
The contractor returns an initial price, and this is negotiated with the client’s professional team.
The benefit of this route is the speed at which a price can be obtained for the works.
Many public bodies and government departments will not allow negotiated tenders.
What is novation ?
A new contract that transfers the rights and obligations of one contractual party to a new third party ie. the design rights and obligations of architect transferred to the contractor
- If the design team is novated, what should the client put in place?
A collateral warranty to the design team to give them remedies for breach of contract
- What is the difference between management contracting and construction management?
Under construction management the client is in direct contractual relationships with each of the trade contractors and the construction manager isnt
- Under the management contracting, the MC is in direct contractual relationships with the trade contractors and the client is in contract with the MC only
What are the main methods of choosing a contractor?
- Open tendering
- Selective tendering - single or two stage
- Nomination/negotiation
- Serial
- Joint Ventures
What is open tendering ?
- Indiscriminate request for tenders
- Advert placed in local paper/technical press inviting contractors to apply for tender docs
- Gives characteristics of the work
- Deposit usually required to discourage frivolous applications
What are the advantages of open tendering?
a) No charge of favouritism
b) Gives opportunities for capable firms you might not have put on a list
c) Should secure max benefit from competition
What are the disadvantages?
a) Danger lowest tender is inexperienced or has made lots of errors
b) No guarantee the lowest is capable or financially stable
c) Total cost of tendering is increased
What is selective tendering?
-Restricts the number of tenderers by pre-selecting a limited number of contractors to tender for the work
What are the two types of selective tendering?
- Single stage
- Two stage
What is single stage tendering?
- A structured process of receiving competitive tenders from a number of pre selected capable contractors, who provide a lump sum for the works
- Contractors pre-selected on say NJCC basis:
1. Established skill
2. Integrity
3. Responsibility
4. Proven competence and character
5. Size of work - No more than 6 on list. If pre-selection is done beforehand then tenders can be selected on price alone.
- Good contractors have the following: Recent experience, necessary skills, good management and organisational structure, spare capacity, good financial standing.
What are the advantages of single stage tendering?
- Ensures only capable and approved firms submit tenders
- Tends to reduce the aggregate cost of tendering
- Client gets a lump sum for the whole works
What is two stage tendering?
- Separates the processes involved with selecting a contractor from the processes for determining the price for the works
- Used when it is desired to obtain the benefits of competition and have the advantage of bringing a contractor into the planning of the project and gain an earlier commencement
What is the purpose of the first stage of a two stage tender?
-To select a suitable contractor by means of limited competition
What is the purpose of the Second stage of a two stage tender?
A negotiation process with the selected contractor on the basis of the first stage
How do you identify the client requirements before recommending a procurement route?
Through detailed discussions with the client and design team to identify their priorities in terms of cost, time, quality, risk, control requirements and experience
If the client wishes to start on site ASAP what procurement route would you recommend?
- Depends on their other requirements – such as cost and quality
- If time was their overriding priority then CM or MC as they offer the fastest start on site
- This is because start on site is not dependent upon a long tender period
- BUT has consequential disadvantages in terms of cost certainty
What procurement route would you recommend if the client wanted an early start but also cost certainty
- Then design and build might be the most appropriate
- Allows design and construction to be overlapped rather than being sequential
- Tenders are based on the provision of all services so the client gets a lump sum price
What is GMP?
Guaranteed maximum price
What would you suggest if the client wants guaranteed maximum price?
- A lump sum contract under which there is no adjustment of tender price unless the SCOPE required by the client changes
- The contractor includes the additional risks involved in the design development process in his tender price
What are the advantages?
- Greater price certainty – contractor takes risk of design development and unforeseen occurrences
- Greater control of overspending – contractor’s interests to alert the team to expensive items of design development
- Quicker settlement of final account
What are the disadvantages?
- The client may pay too much – contractor’s risk allowance may be higher than in reality
- Scope changes are likely to be very expensive
- Can be adversarial – trying to decide whether changes are design development or scope changes
What is PFI?
- Private Finance Initiative;
- A government programme launched in 1992 to bring private sector project management and expertise into the public sector;
- The private sector is granted a concession to finance, design & build and operate major public projects such as schools and hospitals.
What are the three types of PFI projects?
- Financially free standing Project undertaken and costs recovered by charging users e.g. toll roads and bridges;
- Joint Venture Public and private sectors contribute but the private sector has overall control. Contributions and allocation of risk are clearly defined; and
- Services Sold A significant part of the project is capital expenditure by the private sector and then sold back to the public sector. The public sector requires clear demonstration that this provides better value for money than option 1) and 2).
- What is tendering?
- Tendering is a method of obtaining the resources necessary to carry out the required work
What are the main methods of choosing a contractor?
a) Open tendering
b) Selective tendering – single or two stage
c) Nomination / negotiation
d) Serial
e) Joint ventures
What is open tendering?
- Indiscriminate request for tenders
- Advert placed in local paper/technical press inviting contractors to apply for tender docs
- Gives characteristics of the work
- Deposit usually required to discourage frivolous applications
What are the advantages of open tendering?
a) No charge of favouritism
b) Gives opportunities for capable firms you might not have put on a list
c) Should secure max benefit from competition
What are the disadvantages open tendering?
a) Danger lowest tender is inexperienced or has made lots of errors
b) No guarantee the lowest is capable or financially stable
c) Total cost of tendering is increased
What do tenderers return as part of the first stage of a two stage tender?
a) Detailed build up of prices for the preliminaries items
b) Percentage additions for profit and overheads
c) A construction programme
d) Proposed sub letting of the works
Are there any precautions you should take before entering the 2nd stage process of a two stage tender?
Define procedure for either party to withdraw should 2nd stage negotiations prove abortive, what payments become due.
What are the advantages of two stage tendering?
a) Early involvement of the contractor
b) Encourages collaborative working
c) Potential for earlier start on site
d) Greater client involvement in selecting the supply chain
e) Contractor can help identify and manage risk
What are the disadvantages of two stage tendering?
a) Cost certainty may not be achieved before construction starts
b) Additional pre-construction fees for the contractor
c) Contractor could take advantage of second stage negotiation – increase costs
d) Potential for parties to not agree contract sum – risk – cost of retendering
Why should you use 2 stage tendering?
- Building is complex
- Magnitude of work is unknown at time of contractor selection
- Early completion is required
- Design team would like to make use of contractor’s expertise on buildability issues.
What is negotiation / nomination?
-Where the client has a preference for a particular firm
When might negotiation / nomination be used?
- Possibly when the contractor has done satisfactory work for him before
How does negotiation / nomination work?
- There is no competition – likely to lead to a higher price
- BUT client may think it is worth it for a quicker or better quality job
- The contract sum is arrived at by a process of negotiation
- One party usually prices a schedule of rates / bill which is used as a basis
What is serial tendering?
- Effectively strategic partnering
- Contractors are asked to bid for a project on the basis that if they build this one satisfactorily, others of a similar type will follow and the same bill rates will be used
What is a framework agreement?
- A list of contractors selected by the client after a formal tendering procedure to work over a long period of time
- The contractor may have to wait his turn for a contract or tender repeatedly with the same group of contractors
What is a joint venture?
- Used on large complex projects when 2 or more companies take on a joint and several liability for design and execution of the project.
- Would normally be backed up with PCG, Performance Bonds.
- What is OJEU?
-Official Journal of the European Union
What is Official Journal of the European Union used for?
- Public sector tendering
- All contracts from the public sector above a certain financial threshold have to be advertised across the EU
- Also contracts that are say 49% private funded and 51% public must be published.
- Use Open, Restricted and Negotiated, (Open, Selective and Nomination)
What are the thresholds?
- Works - £3.497m
- Services - £90, 319 or £139,893 (depending on gov body)
What could selecting the wrong contractor lead to?
a) A bad client / contractor relationship
b) A dissatisfied client
c) An insolvent contractor
What is NJCC?
- National Joint Consultative Council for Building
- They published highly regarded codes of procedures relating to tendering practices
- Disbanded and taken over by the Construction Industry Board (CIB)
- BUT many clients still adhere to the original codes and JCT’s practice note includes a substantial amount of their material
How would you put together a set of tender documents?
i. ITT (Invitation to tender letter)
ii. Instruction to tenderers: Date and time for return, to whom, site visits, programme, visit to architect to see drawings, errors, discrepancies, NJCC alternative 1,2. Scoring matrix (quality/ price), confirmation of receipt
iii. Conditions of proposed contract
iv. Prelims, Pricing doc (SOR, BOQ)
v. Specification
vi. Drawings
vii. ERs
viii. CPs
ix. Pre-construction H&S information
x. Form of tender
xi. Submission of bona fide tender
xii. Return envelope
What information would the instructions to tenders contain?
a) Date for return
b) Address to return to
c) Site visit details
d) Programme length
e) Confirmation of receipt of documents
f) How tender should be submitted
What is the form of tender?
- A pre printed formal statement in which the tenderer fills in the blank spaces
- He provides his name, address and the sum of money for which he offers to carry out the works
What are the employer’s requirements?
- Sets out the client’s requirements e.g. function, size, accommodation, quality
- Level of detail depends on how much design has been done prior to tender
- Normally includes current state of planning permission
- Should detail the level of design, structure and spec info to be provided by the tenderers
What are the contractor’s proposals?
- The contractor’s response to the ERs
- They are the key document for the client to consider at the tender review
- Often includes plans, elevations, sections and typical details
- Layout drawings and specification for materials and workmanship
How did you decide which contractors to go out to?
- Preliminary inquiries based on design team recommendations.
- Issue a pre-qualification questionnaire to interested and suitable contractors.
- Based on responses, a decision can be made to go out to a reasonable number of tenderers, taking into account financial situation, relevant experience, health and safety records.
What is a preliminary enquiry letter and what would you include?
- 1 month before tendering, send out tender enquiry letter to ascertain whether firms are willing to submit a bona fida tender. (avoids contractor submitting cover price)
- Sufficient info given to contractor should allow them to make a decision.
- Inform of any other requirements: CWs, Bonds, PCG.
What would you include in the pre-qualification questionnaire?
a) Details of contract particulars, in accordance with practice note 6
b) Turnover
c) Previous relevant experience and references
d) Company accounts
e) Personnel
f) Management and organizational structure
g) Health and safety records
h) Quality systems and environmental policy
i) Provision of bonds / warranties / PCG
- This is done through questionnaire and interview process with scoring matrix.
What is electronic tendering?
- All the forms, documents and drawings are uploaded onto a server
- Tenderers are provided with all the info necessary to access and download
- Safeguards have to be built in to prevent unauthorised amendment of the data
- There must be a clear system of notifying parties of changes
- How do you carry out a tender evaluation?
- Need a breakdown of the tenders, check them to ensure they have been priced in accordance, that there are no errors, qualifications or exclusions
- Follow NJCC procedure if errors are found
- Compare against the pre-tender estimate to check rates are not unusually high/low
- Ensure all amendments made during the tender period have been incorporated
- Prepare the tender report giving a summary of the actions, costs and recommendation
What is included within a tender report?
a) List of tenders received
b) Initial tender return totals
c) Any qualifications identified
d) Post-tender adjustments
e) Revised tender sum
f) Issues to be resolved
g) Comparison of tender returns
h) Comparison with pre-tender estimate
i) Recommendation
What are the others available JCT Contracts ?
Standard Building Contract;
Design & Build;
Intermediate Contract;
Intermediate Contract with Design;
Minor Works;
Minor Works with Design;
Major Projects (MP)
Framework, non-binding and binding;
Add in types of payments
What is a letter of intent ?
A letter of intent is a document outlining the understanding between two or more parties which they intend to formalise in a legally binding contract. The concept is similar to a heads of agreement, term sheet or memorandum of understanding
What does the Housing, Grants Construction and Regeneration Act 1996 allow for within the contract ?
The right to stage payments
The right to notice of the amount to be paid
The right to suspend work for non payment
The right to take any dispute arising out of the contract to adjudication
Does the HGRCA apply to residential occupier ?
No, the HGCRA does not apply to residential occupiers. This is a ‘Section 106 - Residential Occupier’
What are the types of specifications ?
specifications describe the products, materials, and work required by a construction contract. They do not include cost, quantity, or drawn information, and so need to be read alongside other information such as quantities, schedules, and drawings.
Specifications vary considerably depending on the stage to which the design has been developed, ranging from performance specifications (open specifications) that require further design work to be carried out, to prescriptive specifications (closed specifications) where the design is already complete.
Prescriptive specifications give the client much more certainty about the end product when making investment decisions (such as when they appoint the contractor), and place a greater burden on the designer to ensure proper installation rather than the contractor.
Typically, performance specifications are written on projects that are straight-forward, standard building types, whereas prescriptive specifications are written for more complex buildings, or buildings where the client has requirements that might not be familiar to contractors and where certainty regarding the exact nature of the completed development is more important to the client.”
What are the types of procurement ?
Traditional contract 86%
Single-stage design and build 41%
Two-stage design and build 39%
Management contract 18%
PFI 10%
Contract management
Under JCT MW does the programme form part of the contract ?
No however the contract promotes the use of one for reference generally
Under JCT what are included within the contract documents ?
- Drawings
- Specification
- Work schedules
What is the base date ?
The base date in construction contracts is generally used as a mechanism for the allocation of risk between the client and contractor for changes that might occur in the period between the contractor pricing the tender and the signing of the contract. This period can be very long and changes that occur may have a significant impact on the costs of the works.
the base date is usually set at around the time of return of tenders
The base date sets the reference date from which the conditions under which the tender was prepared are considered to have been known by the contractor and so are properly reflected in their price. If specified conditions change before the contract is implemented, then the contract may be adjusted to reflect this.
Who normally retains the contract ?
The contract administrator
Does JCT MW make reference to a possession date ?
MW16 does not refer to the contractor being given ‘possession’ of the site, but states simply that ‘The Works may be commenced’ on the date stated in the contract
What are the ground for termination from the client under JCT?
Insolvency
CDM breaches
Corruption of the contractor
Contractor failing to proceed regally and diligently
Employer failing to pay amounts
Either party can terminate is the works are suspended for a period of more than one month due to neutral events
What are the grounds for termination from the contractor under JCT?
Insolvency
CDM breaches
Corruption of the contractor
Contractor failing to proceed regally and diligently
Employer failing to pay amounts
Either party can terminate is the works are suspended for a period of more than one month due to neutral events
Does JCT MW require a contract programme ?
MW16 does not require the contractor to produce a programme, although there would be nothing to prevent such a requirement being included in the specification; a programme might be very useful to the contract administrator, particularly when monitoring progress and assessing extensions of time.
Why is it important to define a completion date ?
The significance of having a completion date is that it provides a fixed point from which damages may be payable in the event of non-completion. Generally in construction contracts the damages are ‘liquidated’, and usually expressed as a rate per week of overrun.
What is the reason for an extension of time ?
One important reason for an extension of time clause is to preserve the employers right to LD in the event that the contractor fails to complete on time due wholly or in part to some action for which the employer is responsible
What is ‘time at large’ ?
The phrase ‘time at large’ describes the situation where there is no date for completion, or where the date for completion has become invalid. The contractor is then no longer bound by the obligation to complete the works by a certain date.
When the contractor has not fulfilled the obligations of the contract to meet practical completion but a certificate of non completion has not been issued.
Therefore there is no set completion date and the contractor must complete works only in a ‘reasonable time’.
Liquidated damages cannot be claimed
When must a contractor give written notice regarding an extension of time ?
Under MW16 the contractor must give written notice to the contract administrator ‘If it becomes apparent that the Works will not be completed by the Date for Completion’ (cl 2.7, or 2.8 in MWD16). The notice must be given regardless of the reason for the delay, i.e. whether it is caused by the employer, by a neutral event (such as bad weather) or by the contractor itself.
When would you issue a certificate of non completion ?
If the completion date is not achieved, under JCT MW the certificate is not required but this failure should be recorded and circulated to all.
Does JCT MW state a list of relevant events ?
For guidance on what might be considered to be beyond the contractor’s control, the contract administrator might have regard to those matters listed as ‘Relevant Events’ under SBC16, for example exceptionally adverse weather, the ‘Specified Perils’, strikes, failure to supply information, site access and indeed any difficulty in movement on or around site.
When should the CA respond to a contractor EOT claim ?
There are no time limits on when the contract administrator must respond to the contractor’s notice, but it is suggested that this should be done as soon as possible, in order to preserve the employer’s right to liquidated damages. The contract administrator should either fix a new completion date or notify the contractor that no extension of time is due. The contract administrator might call for information if this is necessary to make a fair and reasonable assessment, but this must never be considered as a delaying tactic.
Can an EOT be reduced following initial confirmation ?
The second limitation is that there appear to be no provisions whereby the contract administrator may reduce a previous extension of time by fixing an earlier completion date where work has been omitted. Nevertheless, it is suggested that if work has been omitted, the contract administrator could take this into account when deciding what might be a reasonable extension in response to some further notice by the contractor.
Does MW allow for occupation of the site prior to completion ?
MW16 makes no provision for the employer to use or occupy the site or the works or any
part prior to practical completion. If arrangements for phased occupation have not been agreed in the contract documents, a situation may arise where the contractor has not completed by the date for completion but part of the works are complete or sufficiently complete to allow the employer to have beneficial use of those parts and the employer is anxious to occupy them. There is nothing in the contract that allows for this; therefore, a separate ad hoc agreement would have to be made.
What triggers practical completion ?
Under clause 2.9 (2.10 in MWD16) the contract administrator is obliged to certify the date at which, in the contract administrator’s opinion, works have reached practical completion and the contractor has complied sufficiently with clause 3.9 (its CDM obligations, for example the supply of information required for the health and safety file) and, in the case of MWD16, clause 2.1.3 (supply of CDP drawings). The date certified is the date when the last condition is fulfilled.
it is implied that it will be a fair and reasonable exercise of professional judgment.
However, it has been held that the contract administrator has a discretion to certify practical completion where there are very minor items of work left incomplete, on de minimis principles
What does practical completion trigger ?
- Start of the rectification period
- Release of half of the retention
- Employer takes responsibility of the site
- Liability for liquidated damages
How and where would you process liquidated damages ?
May deduct damages from the amount due under the next certificate or reclaim the sum as a debt Under MW16 the contract administrator is not required to certify non-completion, but it may be prudent to record the failure in a letter to both the employer and the contractor. Once the date for completion has passed, the contractor is said to be in ‘culpable delay’.
The liquidated damages may either be recovered from the contractor as a debt or deducted from monies due (cl 2.8.2, or 2.9.2 in MW16). In both cases the following preconditions must have been met:
* the contractor must have failed to complete the works by the completion date (cl 2.8.1,or 2.9.1 in MWD16);
* the contract administrator must have fulfilled all duties with respect to the award of extensions of time.
What is culpable delay ?
Culpable delay (sometimes referred to as ‘contractor delay’) on the other hand is a delay that is entirely the fault of the contractor. Where the contractor is culpable for a delay, they have no entitlement to an extension of time or loss and expense.
Do liquidated damages need to be proven or estimated for a claim ?
t is no longer considered essential that the amount is calculated on the basis of a genuine pre-estimate of the loss likely to be suffered. Provided that the amount is not ‘out of all proportion’ to the likely losses, the damages will be recoverable without the need to prove the actual loss suffered, irrespective of whether the actual loss is significantly less or more than the recoverable sum. In other words, once the rate has been agreed, both parties are bound by it. Of course, for practical reasons, the rate should always be discussed with the employer before inclusion in the tender documents, and an amount that will provide adequate compensation included to cover, among other things, any additional professional fees that may be charged during this period. If ‘nil’ is inserted then this may preclude the employer from claiming any damages at all , whereas if the clause is left blank then the employer may still be able to claim general damages.
Liquidated damages can be beneficial for the client, as they remove their obligation to prove actual losses in the event of delay occurring. They can also be beneficial to the contractor as they limit their liability to a known amount in the event of delay.
What notice would you need to submit if you are planning to recoup liquidated damages form a payment ?
a pay less notice
What is the process for issuing an extension of time if liquidated damages have been claimed ?
If an extension of time is given following the date for completion, the employer must
immediately repay any liquidated damages recovered for the period up to the new
completion date.
What are the key powers of the contract administrator JCT MW
- Agree variations
- Issue a pay less notice in behalf of the client
- issue certificates
- Certify practical completion making good defects
How should a main contractor appoint sub contractors ?
MW16 stipulates that ‘Where considered appropriate, the Contractor shall engage the sub-contractor using the JCT Short Form of Sub-Contract’
At what point can you no longer issue variations under the contract ?
following practical completion/ final account
Does the contractor have a right to access the site during the rectification period ?
Yes, but cannot force access. Although the right to return to site ceases at the end of the three-month period, the contractor’s liability for defective materials or workmanship continues throughout the statutory limitation period.
How long does the contract administrator have to notify the contractor of the existence defects ?
MW16 requires the contract administrator to notify the contractor of the existence of defects within 14 days of the end of the rectification period.
Unlike SBC16, the form does not state that the contract administrator must issue a schedule of defects. It is suggested that it would be sufficient for the contract administrator to write to the contractor to inform it that defects had appeared, and of their general nature.
The onus would then be on the contractor to identify and make good all defective work. If
the contract administrator prefers to issue a schedule, it might be wise to state that it is
not intended to be a comprehensive list, and that the contractor should make its own
inspection. It would also be sensible to make the employer aware that the contractor must
be allowed access, as to prevent this might result in the employer being unable to claim
for the costs of remedying the defective work
Can the employer accept the defect’s and suggest deduction from the retention fund ?
If the employer would prefer to accept the defects rather than require them to be corrected,
then an appropriate deduction is made from the contract sum (cl 2.11). As noted above
(see paragraph 5.31), care should be taken to establish the full extent of the problem and
negotiate a deduction before such a course of action is taken as it is unlikely that the
employer would thereafter be able to claim for consequential problems or further remedial
work
What are prolongation costs ?
Prolongation costs are the additional costs that a contractor has incurred as a result of the completion of the works begin delayed by an event that is the responsibility of the other party (usually the employer). Such events might include; failing to give the contractor possession of the site on the date specified in the contract; delays in giving instruction, and so on.
Does JCT MW allow for advanced payments ?
No the contract would have to be amended to suite
What does a valuation include ?
The value of the work properly executed and the value of materials and goods properly brought onto site.
Can you allow for defective work to remain ?
The contract administrator should obtain both parties’ agreement, and ensure that its proposed adjustment to the contract price is agreed and confirmed in writing. The rates and prices for that work as set out in the contract can be used as a starting point for negotiation, but are not the only matters to be taken into consideration (see Mul v Hutton Construction Limited ). The contractor may prefer to correct the work, especially if the proposed reduction in the contract price is significant, and in general it cannot be denied the opportunity to do so.
What risks are attached with including materials on site within interim payments ?
The employer may be at risk. Where materials have not been built in. Even where the materials have been certified and paid for, as the contractor might not actually own them because of a retention of title clause in the sale of materials contract
What is a payment notice ?
When the CA has not produced a payment certificate the contractor can produce a payment notice
What happens if the employer fails to pay the contractor under JCT?
- interest of 5% above the official bank rate of the bank of England
- Right of suspension of work and obligation
JCT
Clause 4.6.1 makes provision for simple interest on late
payment of interim and final certificates. This is set at 5 per cent above the official bank rate of the Bank of England (cl 1.1), and the interest accrues from the final date for payment until the amount is paid.
The contractor is also given a ‘right of suspension’ under clause 4.7. This right is required by the HGCRA 1996 (as amended). If the employer fails to pay the contractor by the final date for payment, the contractor has a right to suspend performance of all its obligations under the contract, which would not only include the carrying out of the work, but could also, for example, extend to any insurance obligations
What are the insurance options under JCT MW ?
Clause 5.4A is for use with new buildings, and is taken out by the contractor
5.4B is for use with existing buildings where the policy will cover the
new works and existing structure, and is taken out by the employer, 5.4C is used where neither of these options is appropriate and the parties agree their own insurance arrangements (these are to be set out in the contract particulars).
How long should does each party have to provide evidence of there insurance in place ?
Both parties must be able to provide reasonable evidence within seven days of a request
If a contractor submitted an obvious error in there submission what would you do with a JCT contract ?
Alternative 1 = Details provided and the contractor has the choice to confirm or withdraw submission with no amendments
Alternative 2 - Details provided and opportunity to confirm or amend to correct the error.
Source - JCT Practice note - Tendering”
Give me some examples of the requirements of the Housing Grants and Construction Regeneration Act 1996 .
The right to be paid in interim, periodic or stage payments
The right to be informed of the amount due, or any amounts to be withheld
The right to suspend performance for non-payment
The right to adjudication
What 8 Conditions need to be met for a contract to be in place ?
- offer by one party (tender)
- Acceptance by the other party (tender return)
- Consideration (price of the promise)
Intention to form a contract
Legality of contract
Capacity to make agreements
Consent
Possibility of Performance
What are the advantages of standard forms over bespoke contracts?
Written by legal experts
Rights and obligations of each party are clearly set out to the required level of detail
Risks should have been allocated equitably between parties
Parties should be familiar with the provisions in the form
Fewer unforeseen anomalies
The time and expense of preparing a fresh document for each occasion is avoided
Case law is built up over time – provides a good source of knowledge and clarity.
When pricing an Extension of Time, what would you include for and what rates?
Include for costs of prolongation of site preliminaries - welfare facilities, utilities ect
Facilities management staff, security, cleaners
Sub contractor mobilisation cost
How would you assess an adverse weather claim for EOT ?
Need to be supported by historical weather data taking into account the time of year and region the project in question is located in.
The contractors claim should be based on data from a recognised independent source and the data would be compared to previous years to assess if the prolonged period is equivalent to the EOT
Is the construction phase programme part of the contract document for JCT MW ?
The CPP is not a contract document under MW16
But the contractor must ensure that a CPP is prepared before setting up the construction site (regulation 12)
The construction phase plan is not a contract document under MW16, and the recitals make no mention of it. However, the employer and the principal designer must provide the contractor with pre-construction information (regulations 4(4) and 12(3)), which should be sent out with the tender documents. Where the contractor is the principal contractor, the contractor must ensure that the construction phase plan is prepared before setting up the construction site (regulation 12); compliance with this is required under clause 3.9.2.
To avoid uncertainty, it is advisable to require that this document be submitted by the contractor well in advance of start of work on site. Following commencement, the contractor must ensure that the plan is reviewed and updated on a regular basis (regulation 12(4)).
What option have you got if a contractor makes a mistake in their tender submission (JCT) ?
Alternative 1 - Inform the contractor who can choose to either confirm or withdraw
Alternative 2- Inform the contractor who can choose to confirm or amend
Can you name some legislation in relation to contract administration ?
Contracts (Rights of Third parties) Act 1999
House Grants Construction and Regeneration Act 1996
CDM 2015
Why would a final certificate not be issued?
If there is an ongoing dispute resolution process then a final certificate should not be issued, potential for a certificate of non completion dependent on contract.
What is a Rectification Period, and what is the process involved
If any defects are found within the rectification period, the CA will issue an instruction that notes a schedule of defects, which should be issued no later than 14 days after the expiry of the rectification period. The contractor should then return to rectify those identified defects at no cost to the employer. Once these works have been carried out the CA will issue a certificate of making good to document these works
What clause within the Minor Works contract deals with Defects and Rectification Period?
Clause 2.11 deals with defects found within the Rectification Period, and clause 2.12 notes the requirement for a Certificate of Making Good Defects. The Rectification should be defined within the contract particulars
In what situation would acceleration of a programme be considered?
If a contractor wanted to avoid liquidated damages due to delay, or perhaps to free up staff. A client may wish to accelerate a programme to avoid the works being completed late.
What is the difference between Sectional Completion and Partial Possession?
Sectional completion of is a pre-arranged situation, whereas partial possession occurs within the course of the project, and the needs to be consented to by the contractor.
What is a Pay Less Notice, in what situation would it be issued and what are the timescales involved?
A pay less notice is a notice issued either to the employer or the contractor noting the intention to pay less monies than noted due in the valuation. Where a valuation is considered to be wrong, or where example the client wishes to claim liquidated damages, then a pay less notice should be issued to detail the amount to be paid. A pay less notice must be issued no later than 5 days before the final date for payment.
Why would you use JCT or a NEC contract
JCT has been around longer so its more established and people are more familiar with it
NEC is more collaborative and has less ambiguous language, better risk management
Why is conflict avoidance important in construction contracts ?
The Latham report 1994suggested that construction contracts are confrontational. Therefore the NEC was introduced which has collaboration and better risk management
How can a change be undertaken with a contract scope during works.
A formal request is submitted by the party wishing to change the works. This is the evaluated by the other part for impact of time, cost and quality. A competition event (NEC) or relevant events and relevant matters (JCT) is submitted for a approval. In NEC the contractor has 8 weeks to notify for payment after becoming aware of the event in JCT its 2 weeks. NEC = project manager, JCT = Contract administrator
What is the difference between contractual completion and planned completion ?
Planned completion comes at the end of the contractors critical path and therefore moves if critical delay occurs. The completion date is the date by which the contractor is contractually obliged to complete the works , this can only be changed in accordance with the contract (clause 11.2). If a delay in the works occurs for any any other reason that would allow the contractual completion date to change then the planned completion is pushed out. Once the contractual completion date is surpassed then liquidated damages can be claimed by the client (in the contract). An Extension of time may be submitted by the contractor if delays were outside of there control. Delay damages can be claimed by either party for additional costs or losses (i.e. increased financing costs, increased project management costs). Once the date of contractual completion has been passed in JCT a certificate of non completion must be issued before any monies are claimed. In NEC you can issue non-completion certificate but it is not required.
Is a programme required by the contract ?
In JCT (depending on the specific contract), it is a provision that programme or schedule of works be used, whereas in NEC is is advised and used as a KPI.
How do you claim for Liquidated damage?
Notify the other party, Submit a compensation event, assess impact, agree LDs, formalise claim, receive payment.
When would a non-completion certificate be issued?
A non-completion certificate would be issued when works are not complete at the relevant completion date, and no extension of time has been issued. LDs cannot be claimed unless a Non-Completion certificate has been issued.
What clause in the minor works contract deals with Non-completion certificates?
None. Non-Completion Certificates are not required under the minor works contract but are advised to be defined in writing the practical completion has not been met.
How is the amount of liquidated damages applied in a contract calculated ?
Liquidated damages should be a genuine pre-estimate of loss due to delay. They may include loss of rent, extended professional fees, the requirement to rent additional spaces etc.
What is the difference between liquidated and un-liquidated damages?
- Liquidated damages are a genuine pre-estimate of loss. When used actual loss is irrelevant, and once set they can only be revised down.
- Unliquidated damages are when the section in the contract particulars is left blank, and the loss must be calculated at the time and need to be proven
What clause within the JCT Minor Works contract deals with Liquidated Damages?
Clause 2.9 deals with liquidated damages. Amount of liquidated damages should be defined in the contract particulars
What clause within a Minor Works contract deals with Loss and Expense?
Loss and Expense is dealt with in clause 5.10, where details of when a contractor is entitled to loss and/or expense is detailed
What counts as exceptionally adverse weather conditions?
- JCT does not define exceptionally adverse weather condition, meaning it is left to discretion. This means that it can be a potential cause for dispute.
- NEC defines it as a 1 in 10 year event, otherwise the contractor should have allowed for the effects of weather within their price.
What is a Specified Peril ?
a specified peril is a relevant event which can justify an application for an extension of time, but not an application of loss and expense:
Defined in MW and IBC :
* Fire
* Lightening
* Explosion
* Storm
* Escape of water from tank or pipe
* Earthquake
* Riot/Civil commotion
Specified risk are usually covered by the works insurance policy, and may give rise to a claim
what is an Extension of time ?
If a contractor fails to complete the works within the allotted time for reasons beyond their control, the CA can consider an application for the contractor for an Extension of Time - which is a certificate that alters the completion date.
What is Retention ?
Retention is a sum deduced at each valuation (generally 5%) to provide the client with security that the contractor will return to correct any defects.
What clause within JCT Minor Works contract deals with Retention ?
The amount of retention is defined in the contract particulars, and then Clause 4.3 deals with interim Payments
What does Practical Completion trigger ?
-End of contractor liability (termination of liquidated damages)
- Insurance handover
- Handover of the premises
-Beginning of the defects liability period
- Retention releases, generally from 5% to 2.5%
What does Practical Completion mean ?
There is no legal basis for the term Practical completion. It is when the works are completed to the satisfaction of the Contract Administrator. The CA cannot certify PC if there are outstanding works or patent defects (Identified during works or defects liability period), but they also cannot withhold PC for minor defects outstanding
What is a collateral warranty ?
A collateral warranty is a binding agreement which gives third parties contractual rights which are collateral to an underlying contract to which it is was not an original party. It allows the employer to enforce the obligations of a sub-contractor in the event that the main contractor went bust, or were unwilling to take action themselves.
A contractual right is also more effective than tort.
What types of JCT contracts are there and briefly when would you use them.
JCT MW - simple in nature works, under 500K, don’t need BOQ, traditional procurement With CD - if not enough info to complete design of part or want contractor to take on the risk for the element.
JCT Intermediate - Sectional completion and BOQJCT Design and build - with DAB procurement
JCT Standard Building contract - large/complex projects, traditional procurement with or without BOQ
JCT Major Works
What is frustration to a contract?
Frustration occurs when circumstances that are not the fault of either party mean it is impossible to continue with the contract. The contract will come to an end without any party being considered to be in breach.
Notes: it does not cover contracts that were always going to be impossible to perform. For example, it would not apply in the case of a contract to construct a tall building that could not be fulfilled because the ground conditions were completely unsuitable. Some events that may lead to a frustrated contract include: The government imposing unforeseen restrictions on building. Laws being passed that make it illegal to undertake what was promised under the contract The building where works were to be carried out being destroyed. An event that was crucial for the contractual obligations being cancelled
What is Force Majeure ?
An unforeseen act of god Very broadly, it relates to exceptional, unforeseen events or circumstances that are beyond the reasonable control of a party to a contract and which prevent or impede performance of their obligations under the contract. Generally it cannot be an event that the party could reasonably have avoided or overcome, or an event attributable to the other party. Clauses referring to force majeure attempt to set out the circumstances to which the term applies to and prescribe how such situations should be treated. Depending on the provisions of the contract, the following may be considered to constitute force majeure: Unforeseen changes to legislation. Wars and other hostilities (such as terrorism).Fires. Exceptionally adverse weather. Civil unrest, such as riots or revolution. Strikes (other than by the contractor or subcontractors).Natural catastrophes such as earthquakes, floods and volcanoes. Epidemics or pandemics. In some contracts, force majeure is considered a ‘relevant event’, that may allow the contractor to claim an extension of time if they have been prevented or impeded from performing their obligations under the contract. Although, if the contractor has continued to perform their duties, despite the occurrence, they may not be able to make a claim.
What certificates might the contract administrator be required to issue under the contract?
The CA will be required to issue a number of certificates. Confirmation of certain events, milestones and occurrences e.g.
- Practical completion
- Making good of defects
- Partial possession
- Making good to relevant part
- Non-completion
- Payment certificates
Can you explain what the contract sum means ?
The Contract Sum is the agreed lump sum the client will pay the contractor for the work. This figure will quite often be subject to change (normally an increase) and this will then become the Final Account figure
What is a contract instruction and what should it contain ?
1) A contract instruction is an important legally binding document and may well be referred to in any disputes or legal action which may arise between the client and the contractor so it is essential that the CA ensures the format and content of the document is accurate and compliant with legal protocol.
The Format should be (in writing but can be verbal initially) :
- Names of the parties involved
-Include the project name
- Specify the date
- provide an issue number
Circulate to all necessary parties Quantify the financial implication The content of instructions will include the following: a Only what the contract states e.g. A Variation of the works Removal of work not in accordance with the contract Expenditure of Provisional Sums Opening up of the works for inspection/testing The content of instructions will include the following: a Only what the contract states e.g. Variation of the works Removal of work not in accordance with the contract Expenditure of Provisional Sums Opening up of the works for inspection/testing
What is a provisional sum?
A provisional sum is a figure specified within the tender and contract documents which is included to fund an item which cannot be fully specified prior to work commencing for various reasons. An example would be an inclusion of £10,000 to cover provision of new foundations which cannot be specified due to the uncertainty of the ground conditions. The contractor will then be required to complete the work within that sum therefore the sum included should be adequate
What is an instruction under the contract? Can they be verbal ?
These are formal documents issued by the contract administrator to document ANY communication between the CA and the contractor. There are many standard instruction forms available for a CA to use. An instruction can range from a single page of A4 to detailed documentation including drawings and specifications if additional work is being instructed. The Architect/Contract Administrator may issue instructions and the Contractor shall forthwith comply with them. If instructions are given orally, they shall not have effect until the Architect/Contract Administrator confirms them in writing. There may be numerous instructions issued ensure you keep up to date with your records.
What is on an agenda for a pre-contract meeting ?
A standard agenda for a pre contract meeting will cover issues including:
* Health and safety
* Access arrangements
* Storage
* Programme
* Valuation and payment arrangements
* Site progress meetings
* Project insurance
* Person in chargeable
When would an extension of time be granted to the contractor and what is considered a ‘relevant event’ ?
The general rule is that an extension of time should only be issued if the reason is outside of the contractors control - a relevant event
What does practical completion trigger ?
- the final months payment (known as the the penultimate payment)
- The release of the contractors insurance obligations (which may be expensive)
- Exemption of the contractors liability to pay liquidated damages
- Half the retention is released
- start of the rectification period
What is the rectification period / defects date ?
The rectification period is where the contractor remains open after completion of the work during which the contractor is still liable for rectifying problems (or defects) which have developed following the building work.
What are liquidated damages?
LDs are sum of money included within the contract to incentivise the contractor to complete on time and may be deducted from the contractors final monthly payments and retention (see retention later). LDs are a reasonable estimate of loss as a result of the project not completing on time (for example £250 per week due loss of rent of a residential property).
What are defects ?
Defects are the legal term for work which has not been completed to the agreed specification or work that has subsequently failed whilst still under contract.
What is the certificate of making good defects ?
This certificate (and also the certificate on not making good)need to be completed by the contract administrator following rectification/failure to rectify defects and certifies their rectification. These will either trigger final payment to the contractor or result in withholding money until they are rectified.
When would you use JCT Minor works and when wouldn’t you ?
The JCT Minor Works contract is commonly used for projects likely to be administered by a building surveyor under the traditional procurement method and it is under the following criteria:
Where the work involved is simple in character.
Where the work is designed by or on behalf of the client/employer.
Where the client/employer is to provide drawings and/or a specification and/or work schedules to define adequately the quantity and quality of the work;
Where an architect/contract administrator is to administer the conditions.
Where the approximate maximum value is £500k but this is flexible depending on the complexity of the project.
It is not however suitable:
* Under a design and build procurement route as a design and build contract
* Where bills of quantities are required
* Where provisions are required to govern work carried out by named specialists
* Where detailed control procedures are needed
What are the contract particulars ?
Contract Particulars This section contains the all-important contract clauses covering items including:
* Carrying out the works
* Control of the works
* Payment
* Injury, damage and insurance
* Termination
* Dispute
What is required to issue practical completion ?
The majority of the works must be completed bar de-minis work. The building must be functional and safe to use. There must not be substantial defects, if there are, you should not submit PC.
What are the consequences of issuing PC ?
The health and safety file and operations manual needs to be given to the client, the client takes possession of the site and the client takes on insurance liability of the building. Half the retention is released and the contractors liability for liquidated damages ends and the defects liability period starts.
How do you assess liquidated damages ?
Liquidated damages are a pre-determined estimate for the likely costs that will be incurred by the client if the project over runs such as rent payments or income lost etc. They cannot be a penalty.
How do you assess unliquidated damages ?
These have to be proven losses incurred by breaching the contract and the amount is not pre-agreed. The amount is determined by the courts.
