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RICS APC QS FLASH CARDS > Contract Practice > Flashcards

Contract Practice Flashcards

1
Q
  1. What is a contract?
A

A legally binding agreement (between two parties) to provide goods and services within a specified timeframe.

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2
Q
  1. What is necessary to form a contract?
A 
Offer
Acceptance (or counter offer)
Consideration 
Intention (to be legally bound) 
Capacity (to make agreement) (e.g. power of attorney on behalf of a company)
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3
Q
  1. How is a contract executed?
A
  • Under hand, signed by both parties, 6 year limitation period. Means that a party must bring about any claim for breach of contract within 6 years of the breach taking place. Any later and the claim will be time-barred.
  • Under Seal (as a deed), signed and witnessed, 12 year limitation period. Valuable consideration not required,
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4
Q
  1. What are common contract documents?
A
  • The Contract (with any amendments)
  • Preliminaries
  • Contract sum analysis/Pricing Schedule
  • Drawings
  • Specification
  • Planning conditions/agreements
  • Contractors Proposals
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5
Q
  1. What are the main contract suites?
A
  • JCT (Joint Contract Tribunal)
  • NEC (New engineering contract)
  • FIDIC (International federation of Consulting engineers)
  • ICE (Institution of Civil Engineers)
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6
Q
  1. How did you try to mitigate a delay on one of your projects?
A

Coventry demolition - Liasing with Main contractor to overlap the works, early survey work can begin on site whilst last section of demolition taking place.

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7
Q

N 1. Why use standard forms of contract?

A
  • They are cheaper than getting a bespoke contract drawn up
  • Offer a level of familiarity between the parties
  • Tried and tested contracts in court, therefore you should be able to predict the outcome in the courts.
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8
Q

N 2. Why wouldnt you use a bespoke contract?

A
  • They are costly to produce and time consuming
  • Contractors do not like them, as they regularly put alot of the risk onto the contractor
  • They are not tried and tested like a standard form
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9
Q

N 2. Why wouldnt you use a bespoke contract?

A
  • They are costly to produce and time consuming
  • Contractors do not like them, as they regularly put alot of the risk onto the contractor
  • They are not tried and tested like a standard form
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10
Q

N 3. What is required to form a contract?

A 
Offer
Acceptance
Consideration
Capacity
Intention
Legality?
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11
Q

N 4. What should you consider when selecting the contract?

A
  • The criteria of the client
  • The procurement method you are going to use
  • Nature of the works
  • Timings, are the works required to start quickly or do you have time to produce robust set of docs
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12
Q

N 7. What standard forms of contract do you know that are offered by JCT?

A
  • SBC 2011/2016
  • Intermediate building contract 2011/2016
  • Minor works Building contract 2011/2016
  • Major Projects building contract 2011/2016
  • Design and build contract 2011/2016
  • Management Building contract 2011/2016
  • Construction management contract 2011/2016
  • Prime cost building contract 2011/2016
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13
Q

N 8. Can you name some NEC standard contract forms?

A

NEC - Engineering and Construction Contract (ECC)

  • Option A, Priced contract w/ Activity Schedule
  • Option B, Priced contract w/ BoQ
  • Option C, Target contract w/ Activity Schedule
  • Option D, Target contract w/ BoQ
  • Option E, Cost reimbursable
  • Option F, Management contract
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14
Q

N 12. When is a JCT Minor Works contract NOT suitable?

A
  • Complex projects
  • Detailed control procedures
  • Where there are named Sub-Contractors
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15
Q

N 13. Can you provide more information on the JCT Major project construction contract?

A
  • Used on large , complex project by experienced clients
  • They place most of the risk on the contractor
  • Has sub-contract derivatives
  • All derivatives/versions have a yellow and purple cover
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16
Q

N 14. Can you provide more information on the JCT Design and Build Contract 2011?

A
  • They are used by all types of clients, create a single point of responsibility for the design and construction with the contractor
  • Can be used on projects of all sizes
  • Client must produce the Employers Requirements
  • Has a sub-contract derivative broken into two parts: JCT DB11 Sub-contract Agreement, JCT DB11 Sub-contract Conditions
  • All derivatives have a Yellow and pink cover
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17
Q

N 15. Can you provide more information on the JCT Management Building Contract?

A
  • Used then a management contracting route is chosen
  • Used by experienced clients who understand the construction costs
  • No real cost certainty until all packages are let
  • Works are completed by a number of ‘Works Contractors’ who are placed under a management works contract.
  • Works Contractors are contracted to the Management Contractor
  • Management Contractor is a fee earning professional onto the the final construction costs.
  • All derivatives have a yellow and brown cover
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18
Q

N 16. Can you provide more information on the JCT Construction management contract?

A
  • Used where a CM procurement route is chosen
  • Used by experienced clients who understand the construction costs
  • No real cost certainty until all packages are let
  • Works are completed by a number of ‘Trade Contractors’, who are placed under a ‘Construction Management Trade Contract’.
  • Trade contractors are contracted directly with the client
  • The Construction Manager is only responsible for looking after the programme and construction.
  • All derivatives have a Yellow and Brown cover.
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19
Q

N 17. Can you provide more information on the JCT Prime Cost Building Contract?

A
  • Used on projects which require an early/quick start
  • Usually on a cost plus basis, as the extent of the works are not known until the project is underway
  • Has sub-contract forms
  • All derivatives have a yellow and pink cover
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20
Q

N 18. Can you provide more information on the NEC Option A contract?

A

Priced Contract with an Activity Schedule

  • For all types of clients, the balance of risk is mainly with the contractor
  • It comes with/requires an activity schedule, containing a list of activities the contract expects is required to complete construction.
  • Lump sum
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21
Q

N 19. Can you provide further information on the NEC Option B contract?

A

Priced Contract with a Bill of Quantities

  • For all types of clients, the risk is mainly with the contractor
  • Comes with a detailed BoQ, which can either be produced by the client or Contractor, which is a detailed statement of all the works that will be undertaken.
  • Lump sum
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22
Q

N 20. Can you provide further information on NEC Option C contract?

A

See revision sheet

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23
Q

N 21. Can you provide further information on NEC Option D contract?

A

See revision sheet

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24
Q

N 22. Can you provide further information on NEC Option E contract?

A

See revision sheet

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25
Q

N 23. Can you provide further information on NEC Option F contract?

A

See revision sheet

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26
Q

N 24. When was NEC3 published?

A

2005

Used by both the ICE and Government

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27
Q

N 25. What are the perceived problems with NEC3 Contracts?

A
  • Very admin heavy
  • Requires alot of expertise to operate effectively
  • Focuses too much on Project Management
  • Cost information in relation to compensation events can take a long time. PM regularly has to decide how to proceed based on a cost estimate from the QS, which then gets replaced by the actual costs.
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28
Q

N 26. What are the specialities with NEC?

A
  • No Contract Administrator required, replaced by a Project Manager
  • Compensation Events as opposed to variations, extensions of time, loss and expense etc.
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29
Q

N 27. What is a compensation event?

A

Events that occur during the course of the works that cause the completion date to be changed, or additional cost to the contractor as a result to the client

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30
Q

N 28. What might a Compensation Event include?

A
  • Variations
  • Instructions to changes contracted services
  • Failure to provide access
  • Late issue of information from client
  • Failure by client to supply materials
  • Instruction to halt/delay works
  • Conditions that can’t have been reasonably foreseen
  • Exceptionally adverse weather
  • Acts of god.
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31
Q

N 29. What is the process for a compensation event?

A
  1. Contractor must notify the project manager within 8 weeks of the event becoming apparent with an EARLY WARNING NOTICE, if not notified in this period then it will not be considered.
  2. PM has 1 week to review claim and respond
  3. Contractor has 3 weeks to provide quotation
  4. PM has 2 weeks to respond to quotation
  5. Final costs of works calculated on a cosy reimbursable basis
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32
Q

N 30. What is the Project Managers role under NEC contracts?

A
  • Manage programme
  • Operate early warning mechanism
  • Issue instructions
  • Issue outcomes for compensation events
  • Determine when practical completion has been achieved
  • Assess defects
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33
Q

N 31. What is the Contract Administrators/Employers Agent role under JCT?

A
  • Issue instructions
  • Certify payment
  • Issue Extensions of time
  • Consider all Variations, Loss and expense claims, interim applications
  • Assess when practical completion has been achieved.
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34
Q

N 32. Who is the Employers Agent?

A

Typically used in Design and Build contracts, they are there to ensure the clients best interests are met.

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35
Q

N 33. What is the Main Contractor responsible for?

A

The construction of the project, through either direct labour or sub-contracted labour

Health and safety, if they are the principle contractor then CDM regs apply;

  • Construction phase plan
  • Prepare, develop and implement written site plans
  • Provide welfare facilities
  • Ensure all workers have site inductions
  • Provide all relevant information required for H&S plan to the Principle Designer
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36
Q

N 34. What is Novation?

A

Where the contractual benefits and burdens of a contract are passed from one party to another.

Commonly used in Design and Build for Design Team

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37
Q

N 35. Is the contractor responsible for the Novated party’s design prior to Novation?

A

No, unless they state they have adopted the design.

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38
Q

N 36. What is Assignment?

A

Where the contractual benefits and burdens of a contract are passed from one party to another. Such as the assignment of a collateral warranty from one tenant/operator to another.

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39
Q

N 37. When can Assignment take place

A

Any time, as it is a statutory right, however it can be limited within a contract

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40
Q

N 38. Give an example of how Assignment can be restricted?

A

Restricting the assignment of a collateral warranty to one time only, without the written consent of the warranter.

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41
Q

N 39. What is the aim of Assignment?

A

They give the assignee the same rights as the assignor under the contract

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42
Q

N 40. What is a Collateral warranty?

A

A way of forming a direct contractual link between two parties which otherwise wouldn’t have a link, such as between a sub-contractor and a client.

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43
Q

N 41. What case law do you know that relates to Collateral Warranties?

A

Parkwood Leisure v Laing O’Rourke

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44
Q

N 42. What happened in the case of ‘Parkwood Leisure v Laing O’Rourke’?

A

It was found that Collateral Warranties can be considered to be a construction contract, and are therefore subject to the same provisions as the construction act

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45
Q

N 43. What Collateral Warranties do you know of?

A
  • Collateral warranty for a Purchaser/Tenant
  • Collateral warranty for an Employer
  • Collateral warranty for a funder
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46
Q

N 44. What are third party rights?

A
  • An alternative to Collateral Warranties
  • They allow a third party to be written into a contract
    Introduced as part of the Contracts (third party rights) act 1999.
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47
Q

N 45. What is the aim of Third Party Rights?

A

To give the Third party the benefits of the contract only, not the burdens. I.e Writing in the tenant as a the third party will ensure that they receive the contract benefits

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48
Q

N 46. What is a Letter of Intent?

A
  • A document outlining an agreement between two parties, before a formal contract has been created
  • Each letter of intent is different, with each being assessed based on it meaning
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49
Q

N 47. What can a Letter of intent be based on its wording?

A
  • An expression of the intention to enter into a contract at a future date, which doesn’t give rise to any legal obligation.
  • An expression of the intention to enter into a contract at a future date, which does not exclude the right to recover costs on a quantum merit basis.
  • The creation of a interim contract
  • The creation of a legally binding contract, whereby the letter can be offered and accepted.
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50
Q

N 48. What can be included within a letter of intent?

A
  • Spending caps

- Expiry dates

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51
Q

N 49. What is a title retention clause?

A

Where the good and services remain the property of the seller until a certain obligation is undertaken, i.e. payment.

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52
Q

N 50. What is a Performance Bond?

A

A form of financial Security, used to cover the client against the contractor failing to fulfil their contractual obligations.

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53
Q

N 51. What are the typical values of a Performance bond?

A

Typically work approximately 10% of the Contract Value to the client

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54
Q

N 52. What are the problems with bonds?

A

They will come at the clients cost.

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55
Q

N 53. What are the two types of bond?

A
  • Default bond

- On demand bond

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56
Q

N 54. What is the difference between a Default Bond and an On demand bond?

A
  • A default bond can be called in when the contractor defaults on their contractual obligations however the client will have to prove that the contractor has defaulted.
  • An on demand bond can be called in at any time, without having to satisfy any of the pre-conditions.
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57
Q

N 55. What types of Bonds do you know of?

A
  • Advanced payment bonds
  • Retention bonds
  • Materials off site bond
  • Tender Bond
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58
Q

N 56. What is an Advanced Payment Bond?

A

A financial surety to the client that if an advanced payment is made, then the bond will pay out if the contractor defaults.

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59
Q

N 57. Why would you use an Advanced payment bond?

A

If a contract had high upfront costs, and the contractor wanted advanced payment to ease the upfront cost.

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60
Q

N 58. What is a Retention Bond?

A

A Bond taken out instead of taking retention from interim valuations, improving contractor cash flow.

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61
Q

N 59. Why would you use a Retention Bond?

A

If a Contractor had poor cashflow, a retention bond means that no retention is taken from interim payments, improving cashflow.

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62
Q

N 60. What happens with variations to a Contract in relation to a retention bond?

A

The bond value will need to be updated to suit, or the additional retention can be deducted as usual from interim payments.

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63
Q

N 61. What if a Contractor doesn’t maintain a Retention bond? (or other bond)

A

Then the client is entitled to take the retention out the next interim application.

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64
Q

N 62. What is a Parent Company Guarantee?

A

A parent company guarantee is an alternative form of surety for the client, whereby a parent company to the subsidiary company will warrant the subsidiary’s companies work, and will remedy any breaches by the subsidiary company, by either stepping in to complete the works, paying damages etc.

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65
Q

N 63. What is Professional Indemnity Insurance?

A

A form of insurance that covers professional negligence

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66
Q

N 64. What is Employers Liability Insurance?

A

A form of insurance that covers the injury and death arising from business activities

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67
Q

N 65. What is Contractors All Risk Insurance?

A

A form of insurance that covers for subsequent loss or damage

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68
Q

N 66. What types of payment method are there?

A
  • Stage Payments
  • Milestone payments
  • Payment based off activity schedule
  • Third party certification
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69
Q

N 67. What are Stage Payments?

A

Whereby a predetermined amount is paid on a pre-determined date. They are time accurate but not necessarily value accurate.

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70
Q

N 68. What are Milestone Payments?

A

Whereby a value is paid when a certain Milestone is reached, i.e. completion of the footings. They are fairly time and value accurate.

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71
Q

N 69. What are Payments based on an Activity Schedule?

A
  • Payments are made against activities that have been completed at pre-determined times.
  • They are reasonably value and time accurate.
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72
Q

N 70. What is Third Party Certification?

A
  • Traditional form of valuing the works complete to a certain date.
  • Low form of predictability, but high accuracy of the value of works complete.
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73
Q

N 71. What is the real name for the construction act?

A

The housing Grants, Construction and Regeneration Act 1996

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74
Q

N 72. What is the name of the Act which amended the Construction Act?

A

The Local Democracy Economic Development Act 2009

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75
Q

N 73. What provisions did the Construction Act introduce?

A
  • No paid when paid clauses
  • The statutory right to adjudication
  • The right to interim payments on contracts over 45 day duration
  • The right to suspend performance
  • The right to be informed of the amount due, and any amounts withheld.
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76
Q

N 74. What are the payment provisions under the construction act?

A

7 days from application date = due date
5 days after the due date = contractor can issue a default notice
17 days from due date = final date for payment
7 days prior to final date for payment = the last day a payless notice can be issued

Overall payment terms of 24 calendar days

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77
Q

N 75. What is a payless notice?

A

A notice which is issued stating how much less you intend to pay than the contractors application

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78
Q

N 76. Does a contractor have to issue a Default notice if they issue interim valuations?

A

No, the interim valuation becomes the default notice

79
Q

N 77. What happens if the final date for payment is missed and no payment made?

A

Then the contractor is entitled to issue a 7 day notice of their intention to withdraw from site unless payment is received in full

80
Q

N 78. What is a 7-day notice?

A
  • A contractual notice which advises a party of another parties intention to withdraw from site until payment is made
  • A notice for terminating a contract if a certain remedy of breach is not met.
81
Q

N 79. What are the payment provisions under NEC?

A
  • 21 day payment terms
  • Payless notice to be issued 7 days prior to final date for payment
  • Project manager must assess and certify the amount due within one week of the application.
82
Q

N 80. What are the payment provisions under JCT?

A
  • 21 day payment terms

- Payless notice upto 5 days prior to final date for payment

83
Q

N 81. What should be included within interim valuations?

A
  • Measured works
  • Dayworks
  • Variations
  • Fluctuations
  • Loss and Expense
  • Preliminaries
  • Materials on/off site
  • Provisional sums
  • Prime cost sums
84
Q

N 82. How can you secure payment for materials off site?

A

By providing a materials off site bond

85
Q

N 83. What should you do when paying for materials off site?

A

Ensure a vesting certificate is issued for the materials, confirming your ownership

86
Q

N 84. What should you do when paying for materials on site?

A

Get the materials clearly separated and marked as being under the client’s ownership

87
Q

N 85. What are fluctuations?

A

A was of dealing with inflation over long period contracts. They allow for the contractor to be reimbursed for the inflation of specific items within the contract.

88
Q

N 86. What are the three main types of Fluctuation Clauses?

A
  • Changes to taxation
  • Change in the cost of labour, transport and materials
  • Change to office or administrative costs
89
Q

N 87. How can fluctuation clauses be calculated?

A
  • Calculated in real times, i.e. actual cost increases

- Or using a pricing index

90
Q

N 88. What are the three types of fluctuations considered under JCT ?

A

a. Changes to statutory contributions, levies and taxes
b. Changes to labour, materials and statutory costs
c. Changes to statutory contributions, levies and taxes calculated by formula.

91
Q

N 89. How do JCT Fluctuations clauses work with retention?

A

A and B do not have retention held, C does.

92
Q

N 90. What is excluded from retention?

A
  • Dayworks

- Loss and Expense

93
Q

N 91. What is retention?

A

A percentage of the amount certified for payment, retained by the client as a financial incentive for the contractor to complete the works, and also return to rectify and defects which may appear.

94
Q

N 92. What value is normally taken for Retention?

A

3 or 5%

95
Q

N 93. When does retention get released?

A

Typically half at PC and half once the Rectification period and completion of making good certificate has been issued.

96
Q

N 94. What can a contractor request to protect their retention money?

A

That it is held in a separate bank account, which they have regular access to regular updated statements.

97
Q

N 95. What items do not have retention taken on them?

A
  • Loss and expense
  • Fluctuations
  • Opening up and testing fees
  • Statutory charges
98
Q

N 96. What is the definition of ‘change’?

A

An alteration to:

  • The Scope of works
  • The design
  • The quantity
  • The quality
  • The working conditions
  • The sequence of works

or

The imposition of additional obligations on the contractor by the client.

99
Q

N 97. What change cannot be undertaken without the contractors consent?

A
  • Omission of work
  • Changes to the fundamental nature of the work
  • Work that is instructed after Practical Completion
100
Q

N 98. Who instructs changes under JCT?

A

Contract administrator / Employers Agent

101
Q

N 99. Who instructs change under NEC?

A

The project manager

102
Q

N 100. How should change be valued under

JCT?

A
  1. Use the Method of Measurement used at tender.
  2. Firstly using bill rates/rates from the activity schedule.
  3. Pro-rata rates.
  4. Rates from first principles.
  5. Dayworks.
103
Q

N 101. How should change be valued under NEC?

A
  1. Called a Compensation Event.
  2. An approximate price should be provided to the Project Manager, which they can base their decision on.
  3. The final price is calculated on a Cost Reimbursable basis, based off the actual cost for the Change.
104
Q

N 102. What is the reason for a Compensation event under NEC?

A

• To put the contractor back in the same position both financially and programme wise, prior to the variation occurring.

105
Q

N 103. What is an Extension of Time?

A

• An adjustment to the completion date, relieving the contractors liability to pay LADS for the period of additional time granted.

106
Q

N 104. What is the process for submitting and granting an Extension of time?

A
  • When the delay becomes reasonably apparent, the contractor gives written notice to the client identifying the delay.
  • The client has 12 weeks to review and respond.
107
Q

N 105. What is a relevant event?

A

An event that entitles a contractor to an extension of time

108
Q

N 106. What can be considered as a relevant event?

A
  • Variations.
  • Exceptionally adverse weather.
  • Delays in receiving possession.
  • Force Majure.
  • Terrorism/ civil commotion.
  • Failure by the client to issue materials.
  • Delays caused by a nominated sub-contractor.
  • Changes to statutory requirements.
  • Failure by the client to provide information.
109
Q

N 107. Do Extensions of Time benefit the client?

A

Yes, as they set a new contractual completion date the contractor must adhere to, otherwise they will have liquidated damages levied against the contractor

110
Q

N 108. What is a concurrent delay?

A

Where delays caused by both the contractor, client and unforeseeable events cause a delay.

111
Q

N 109. How do you assess concurrent delay?

A

Each delay should be assessed on its merits, to determine the root cause of the delay

112
Q

N 110. What is a relevant matter?

A

A delay caused by the client, entitling the contractor to an extension of time and loss and expense.

113
Q

N 111. How is a relevant event different to a relevant matter?

A
  • A Relevant event is any delay caused by the client or a neutral event.
  • A Relevant matter is a delay typically caused by the client, which entitles the contractor the a claim for loss and expense.
114
Q

N 112. What is loss and expense?

A

• Usually associated with Extensions of Time/Relevant Matters, whereby the contractor is entitled to claim additional costs as the result of a delay.

115
Q

N 113. What are the Loss and Expense heads of claim?

A
  • Preliminaries
  • Overheads
  • Loss of Profit.
  • Interest
  • Finance Charges
116
Q

N 114. When do most disputes in construction contracts occur?

A

• When there are discrepancies between tender and contract drawings or the information is poor, creating too much ambiguity.

117
Q

N 115. What types of dispute resolution are there?

A
  • Negotiation
  • Mediation
  • Conciliation
  • Adjudication
  • Arbitration
  • Litigation
  • Expert Witness.
118
Q

N 116. How does Mediation work?

A

• An independent third party is appointed, with the intention of facilitating talks between he disputing parties, in aid of them reaching an amicable resolution without going legal.

119
Q

N 117. How does conciliation work?

A

• Same as mediation, however the conciliator will propose a settlement agreement at the end of proceedings.

120
Q

N 118. How does adjudication work?

A
  • Notice of intention to adjudicate is served from one party to another.
  • Adjudicator must be appointed within 7 days of notice.
  • Decision is made with 28 days (can be extended to 42)
  • Confidential.
  • Statutory right.
121
Q

N 119. How does arbitration work?

A
  • Third party arbitrator is appointed to decide on a dispute.
  • Parties will attend a hearing, where the arbitrator will listen to both sides and make their decision on a dispute.
  • Confidential.
122
Q

N 120. What is Litigation?

A

• The process of taking legal action, i.e. construction disputes will be taken to the Construction and Technology courts for settlement.

123
Q

N 121. What is expert determination?

A

Where a third party expert in a field is appointed to make a decision on a specific dispute.

124
Q

N 122. What is the Civil Procedure Rules 1998?

A

• They introduced the Alternative Dispute Methods of Resolution, Mediation, Conciliation, Adjudication and Arbitration to try speed up the legal process, along with making it cheaper and easier to understand.

125
Q

N 123. What is a named sub-contractor?

A

• A Sub-contractor recommended by the client, which doesn’t have to be used by the contractor and also doesn’t impose any form of repercussions to the client if the contractor uses the named sub-contractor.

126
Q

N 124. What are the benefits of naming a sub-contractor?

A

• It allows the client to influence the contractors decision, whilst taking no responsibility for the performance or cost of the named sub-contractor.

127
Q

N 125. What is nominating a sub-contractor?

A

• It allows the client to choose a particular sub-contractor, and impose them in the main contractor.

128
Q

N 126. What are the issues of nominating a sub-contractor for a client?

A

• It will leave them responsible for the nominated sub-contractors performance and price.

129
Q

N 127. How do nominated sub-contractors work financially with regards to the main contractor?

A

• They are on a prime cost sum, whereby the final value of the nominated contractors work is added to the contract sum, usually with an uplift for Overheads and profit for the main contractor.

130
Q

N 128. What is Sectional Completion?

A

• A similar method to Practical Completion, it is used on large project where the works can be broken down into sections, allowing the client to take possession of individual sections once they are complete.

131
Q

N 129. What is practical completion?

A

• Practical Completion is awarded when the works are considered to be ‘substantially complete’.

132
Q

N 130. What happens when Practical Completion is awarded?

A
  • Half Retention is released.
  • Defects liability period commences.
  • Client is responsible for insuring the site.
  • Ends the Contractors liability to pay liquidated damages.
133
Q

N 131. What is Partial Possession?

A

• Similar to Sectional Completion, however it is used when the client wants to take possession of a particular part of the site early. It is granted at the contractor’s discretion.

134
Q

N 132. What happens when Partial Possession is awarded?

A
  • Alleviates the contractor’s liability to pay LAD’s for that section partially taken over. Lads should decrease proportionally.
  • Half Retention is released proportionally.
  • End of defects period for that section commences.
  • Client is responsible for insuring that part of the site.
135
Q

N 133. When can it be used?

A
  • Sectional Completion must be written into the contract.

* Each section will come with it own Sectional Completion date, retention and liquidated and ascertained damages.

136
Q

N 134. What is Partial Possession?

A

• Similar to Sectional Completion, it is used when a client wants to take possession of a section of the works early, even though it has been broken down into sections such as sectional completion.

137
Q

N 135. What happens if Practical/Section Completion/Partial Possession is granted?

A
  • Client becomes responsible for insuring the works.
  • Half retention released.
  • Alleviates contractors liability for LADS.
  • Contractors Defect liability period commences.
138
Q

N 136. Does the contractor have to accept partial possession?

A

• No, but they cannot reasonably refuse.

139
Q

N 137. What is the alternative to partial possession?

A

• Use or occupy, whereby the client uses the area even though its still in the contractor possession.

140
Q

N 138. What is a contractors design portion?

A
  • Whereby the Contractor is required to design a portion of the works, as part of their contract.
  • What is to be designed by the contractor should be made clear within the tender documents.
141
Q

N 139. What is determination?

A

• Where both parties mutually agree to walk away from a contract.

142
Q

N 140. What is a final account?

A

• The final value of the works completed, inclusive of all adjustments to the contract sum.

143
Q

N 141. How is the final account shown?

A

• In the final certificate.

144
Q

N 142. What is included within the final account?

A
  • Contract Sum.
  • Variations.
  • Provisional Sums.
  • Prime Cost Sums.
  • Retention.
  • Loss and Expense.
  • Contra Charges.
  • Liquidated Damages.
  • Payments to Nominated Sub-contractors.
  • Fluctuations.
145
Q

N 143. What is completion?

A
  • When all works are completed, and the defects rectification period has ended and all defects have been made good.
  • The Certificate of Making good should be issued.
146
Q

N 144. What needs to happen if PC/SC is not achieved and the Client wants to levy liquidated damages?

A

• Certificate of Non-completion needs to be issued as a pre-requisite.

147
Q

N 145. When does the defects rectification period begin?

A

• When PC/SC is achieved, and usually last 6 – 12 months.

148
Q

N 146. What happens if defects are found?

A
  • The Client notifies the CA, who will instruct the contractor to remedy the defects.
  • At the end of the Defects rectification period, a schedule of defects will be issued to the contractor for remedy.
149
Q

N 147. What are Liquidated Damages?

A
  • An amount that can be levied by the client against the contractor if they fail to meet the contract practical/sectional completion dates.
  • They must be a genuine pre-estimate of the contractors loss and are usually fixed daily/monthly sums.
150
Q

N 148. What happens if they are construed as a penalty?

A

• They will be unenforceable in court.

151
Q

N 149. What are Un-liquidated damages?

A

• Based on the actual loss of the employer, who will have to either negotiate with the contractor the value or refer the matter to legal proceedings.

152
Q

N 150. What is a Contra-Charge?

A

• A contra-charge is effectively a back charge, a way of off-setting payment for an item, i.e. for the supply of materials from the contract to a sub-contractor.

153
Q

N 151. When is the final certificate issued?

A

• It is issued at the end of the defects liability period, with it releasing the remaining half of the retention, along with ending the contractors liability for defects.

154
Q

N 152. What is acceleration?

A

• Whereby the completion dated is brought forward, requiring the works to be completed quicker.

155
Q

N 153. What are the methods of accelerating?

A
  • Supplying the site with additional resources.
  • Re-sequencing the works.
  • Working Longer Hours.
  • Reduction in scope by the client.
  • Change of Specification.
156
Q

N 154. What are the issues with Acceleration?

A
  • Constructive Acceleration can cause problems.

* Most methods will usually come at additional cost to the Client.

157
Q

N 155. When is Acceleration Simple?

A

• When the Delay is client led, and the client issues a formal instruction to accelerate.

158
Q

N 156. What is Constructive Acceleration?

A
  • Arises where the contractor believes they have a valid claim from an Extension of Time, but the Client disagrees.
  • The contractor will accelerate without instruction to mitigate their risk of Liquidated damages, and try recover costs from the Client.
  • Uninstructed Acceleration is not accepted by the courts however.
159
Q

N 157. CASE LAW QUESTION: DO YOU KNOW OF ANY CASE LAW RELATING TO THE OMISSION OF WORK?

A
  • Yes, Abbey Developments Limited V PP Brickwork.
  • The case is essentially about whether Abbey Developments was able to omit the remainder of PP Brickwork’s Work.
  • Abbey Developments were unsatisfied with PP Brickworks progress.
  • They issued and instruction the omit the remaining works from their contract, and employ a new sub-contractor.
  • Abbey found to be in breach by the adjudicator, as the clauses in the contract did not allow for such an omission.
160
Q

N 158. CASE LAW QUESTION: DO YOU KNOW OF ANY CASE LAW RELATING TO A CONSTRUCTION CONTRACT?

A
  • Yes, Parkwood Leisure v Laing O’rourke.
  • The case was about determining whether a Collateral Warranty is considered a Construction Contract under the Housing Grants, Construction and Regeneration Act 1996.
  • Due to wording of the Collateral Warranty, it was considered to be a Construction Contract, allowing Parkwood Leisure to Adjudicate.
161
Q

N 159. What is Subject to Contract?

A

• Creates a legal meaning that the parties do not wish to enter into contract until a form contract is signed.

162
Q

N 160. What is Without Prejudice?

A

• When using this term, it means that the document etc. cannot be used in court as evidence.

163
Q

N 161. CASE LAW QUESTION: DO YOU KNOW OF ANY CASE LAW RELATING TO A LETTER OF INTENT?

A
  • Yes, Volkerfitzpatrick v Twintec Ltd.
  • Volkerfitxpatrick instructed twintec to proceed with the concrete slab on a LOI, including the clause: in accordance with the DOM/2 sub-contract.
  • Volker adjudicated against twintec for poor works.
  • Twintec refered the matter to court, to get an injunction on the adjudication because it was invalid.
  • Court ruled that because the Letter of Intent didn’t reference the dispute resolution method, that it was actually invalid and granted the injunction.
164
Q

N 162. What are the DOM 2 suite of contracts?

A

• A suite of sub-contracts published by the RICS

165
Q

P 1. What are Relevant Events? (and give and example)

A

• An event which causes a delay to the completion date. Relevant Event entitles Contractor to claim an Extension of Time that is, for the completion date to be moved.

Examples include;
o	Variations
o	Adverse Weather
o	Terrorism
o	Delay by nominated sub-contractor
o	Force Majeure
o	Loss from a specified Peril (such as flood)
166
Q

P 2. What are Relevant Matters? (and give an example)

A

• Something that the client is responsible for that materially affects the progress of the works. A relevant matter enables the contractor to claim direct loss and expense incurred. A RM may not always result in an Extension of Time (i.e. a change to the completion date)
• Example might include;
o Failure to give the contractor possession of the site
o Opening up works that have been carried out in accordance with the contract
o Failure by client to supply goods or services
o Instructions relating to variations and expenditure of provisional sums

167
Q

P 3. What is the difference between a Relevant Event and a Relevant Matter?

A

–

168
Q

<p>What are contra claims?</p>

A

<p>Imposed as a result of the contractor's operations (such as a third-party claim resulting from contractor negligence or contractual breach, for example, flooding a neighbour's property)</p>

169
Q

<p>What is a Contract Sum?</p>

A

<p>The amount agreed and set out in the contract to be paid to the contractor for completion of the works</p>

170
Q

<p>Why may a Contract Sum need to be adjusted when it comes to Final Account?</p>

A

<p>• Variations
<br></br>• Fluctuations
<br></br>• Prime Cost sums
<br></br>• Provisional sums
<br></br>• Payment to nominated sub-contractors
<br></br>• Statutory fees
<br></br>• Loss & Expense
<br></br>• LD’s</p>

171
Q

<p>How is Retention Held?</p>

A

<p>• The employer deducts retention. The contract states the following: ‘…the Employer’s interest in the retention is fiduciary as trustee for the Contractor (but without obligation to invest)’.
<br></br>
<br></br>• Unless the employer is a local authority, the contractor may request that the employer place the retention monies in a separate bank account to comply with the above statement. The employer will certify that this has occurred to the contractor and then the architect/contract administrator. The employer benefits from interest earned on this account.</p>

172
Q

<p>What is Retention?</p>

A

<p>• A percentage (usually 3-5%) of the amount certified as due to the contractor on an interim certificate that is deducted and retained by the client.
<br></br>• Purpose is to ensure that the contractor properly completes the activities required of them under the contract</p>

173
Q

<p>What’s the difference between a Relevant Event and a Relevant Matter?</p>

A

<p>• A ‘Relevant Event’ is an event that causes a delay to the completion date which is caused by the client, or a natural event not caused by a party. A contractor is entitled to claim an Extension of Time
<br></br>
<br></br>• A ‘Relevant Matter’ is a matter for which the client is responsible that materially effects the progress of the works. This enables the contractor to claim direct/loss and or expense that has been incurred.
<br></br>
<br></br>• A Relevant Event does not necessarily entitle the contractor to claim loss and expense, and a Relevant Matter need not necessarily result in a delay to completion</p>

174
Q

<p>What is Tort?</p>

A

<p>A tort is a civil wrong by the “tortfeasor” that unfairly results in loss or harm to another. This makes the tortfeasor liable to other party. Law of Tort is separate to criminal and contract law and is dealt with by the civil courts.</p>

175
Q

<p>What are the categories of Tort?</p>

A

<p>• Negligence (Most common)
<br></br>• Nuisance
<br></br>• Trespass</p>

176
Q

<p>What happens if the client will not pay the retention?</p>

A

<p>• If retention is due to the contractor, then the client would be in breach of contract
<br></br>• Contractor could bring dispute to adjudication / arbitration or the dispute resolution technique listed in the contract</p>

177
Q

<p>What is the default retention in the JCT form of contract?</p>

A

<p>• Standard Building Contract 2016 with & without CDP = 3%
<br></br>• Intermediate contract 2016 = 5%
<br></br>• Intermediate contract 2016 with CDP = 5%
<br></br>• Minor works contract 2016 – 5%
<br></br>• Minor Works contract with Design = 5%
<br></br>• Design and build 2016 = 3%
<br></br>• Major Projects 2016 = NONE</p>

178
Q

<p>When is retention released?</p>

A

<p>A portion (50%) is released on completion of the works with the other 50% released at the end of the rectification period (Final Certificate)</p>

179
Q

<p>What is included and excluded with Retention?</p>

A

<p>Included:
<br></br>• Preliminaries
<br></br>• Measured works
<br></br>• Variations
<br></br>• Materials on site
<br></br>• Materials off site
<br></br>
<br></br>Excluded:
<br></br>• Insurance
<br></br>• Statutory fees and charges
<br></br>• Costs relating to patent defects
<br></br>• Cost of opening up the works and testing the works
<br></br>• Loss and expense
<br></br>• Insurance for restoration works
<br></br>• Fluctuations in the cost of labour and material (Option A & B)</p>

180
Q

<p>What is a Collateral Warranty</p>

A

<p>• A ‘Collateral Warranty’ is a formal contractual agreement which runs alongside another primary contractual agreement – its purpose is to create a contractual relationship between two parties where one would not otherwise exist due to Privity of Contract
<br></br>
<br></br>• Privity of Contract provides that you cannot enforce either the benefits or liabilities of a contract to which you are not a party
<br></br>
<br></br>• Therefore a Collateral Warranty provides for a duty of care to be extended by one of the contracting parties to a third party who is not party to the original contract</p>

181
Q

<p>What is the Duration of Collateral Warranties?</p>

A

<p>Usually duration of limitation period of contract (6 or 12 years)</p>

182
Q

<p>What are the disadvantages of collateral warranties?</p>

A

<p>• Administration of completing them - On large projects there can be a great number consultants and sub-contractors meaning resulting in a lot of warranties
<br></br>
<br></br>• ‘The contracts (rights of third party)’ can offer a way around this difficulty by allowing the primary contracts to confer benefits upon third parties even though they are not party to the contract</p>

183
Q

<p>Examples of when Collateral Warranties are used?</p>

A

<p>• Client with subcontractor’s
<br></br>• Main Contractor and
<br></br>• Client with any Contractor’s Design Portion (E.g. MEP, cladding specialist, joinery specialist etc.)
<br></br>• Funder with developer providing ‘step-in’ rights if client goes insolvent</p>

184
Q

Why are collateral warranties used / introduced

A

Provide a contractual link to third parties where they dont exist within the standard contract

185
Q

Who are third parties & why would they require an interest in a construction contract

A

Construction projects often involve collateral warranties and third party rights so that third parties (such as funders, purchasers, tenants, and so on), can enforce the benefit (or benefits) of a contract they are not a party to.

186
Q

Legislation within construction

A

Planning Legislation
HSAW Act 1974
Housing Grants, Construction and Regeneration Act 1996
Local Democracy, Economic Development and Construction Act 2009
Construction (Design and Management) Regulations 2015 (CDM 2015)
Building Act 1984
Equality Act 2010
The Control of Asbestos Regulations 2012

187
Q

Explain insurances

A 
Public Liability
Employers Liability
Product Liability
Contractors All Risk
Existing Buildings
Professional Indemnity
188
Q

My knowledge & duties involved with regards to advising on and administering contracts

A

Advising on appropriate procurement route & form of contract
Advising on the need for collateral warranties
Preparing contract documents
Preparing & issuing Letters of Intent
Administering contracts

189
Q

What are the contractual procedures & mechanisms of a construction contract

A 
Change procedures - Instructions
Valuing variations
Valuations & Retention
Ensuring insurances are in place
Early Access & Partial Possession
Practical Completion Certificate
Extensions of Time
Relevant events
Loss & Expense
Liquidated Damages
Making Good Defects Inspections & Certificates
Final Account negotiations
190
Q

My knowledge & duties involved with regards to advising on and administering contracts

A

Advising on appropriate procurement route & form of contract

Knowledge of the document ‘Deciding on the appropriate JCT Contract 2016’ - explains the difference, design responsibilities, contract provisions and consultant input required between the types of contract

Advising on the need for collateral warranties
Preparing contract documents

Preparing & issuing Letters of Intent

Administering contracts

191
Q

What are the contractual procedures & mechanisms of a construction contract

A 
Change procedures - Instructions
Valuing variations
Valuations
Ensuring insurances are in place
Early Access & Partial Possession
Practical Completion
Extension of Time
Relevant events
Loss & Expense
Liquidated Damages
Making Good Defects Inspections & Certificates
Final Account negotiations
Dispute Resolution
192
Q

What are the available JCT forms of contract & what are the appropriate contract values

A 
SBC Without Quantities
SBC With Quantities
Intermediate Building Contract
Intermediate Building Contract with Contractor Design
Design & Build
Minor Building Works
Minor Building Works with Contractor Design
Repair & Maintenance Contract
Management Building Contract
Construction Management Appointment
Building Contract for a home owner (no consultant appointed)
Building Contract for a home owner (where a consultant has been appointed)
Home repair and maintenance contract
Partnering Contract
Framework Agreements
Sub Contractor Contracts
Consultant Agreements
193
Q

What are the contract provisions within JCT contracts

A

The contract provisions throughout the JCT suite of contracts are:-

Client control - What consultants are needed to administer the contract
Design responsibilities
Commencement & Completion
Selection of Sub Contractors
Variations
Testing & Opening Up
Payment
Insurances
Warranties
Dispute Resolution
194
Q

What are the matters influencing the choice of procurement & type of contract

A

The choice of appropriate procurement and type of contract may be influenced by may things but consideration such as the following should be given:-

Nature of the project - alteration, extension, new build, historic building commercial, residential
Scope of the works - minor, unusual size, complex work or logistics
Measure of control by client - will the design be wholly in the hands of the client or can some of it be left to the contractor
Accountability - Does the client want on point of responsibility yor will a number of consultants be appointed by the client
Appointment of contractor - negotiated, competitively tendered, is early appointment required for programming / logistical input
Certainty of cost - Is a fixed / lump sum price required or are design / price fluctuations acceptable
Start & completion times - Is a fast track approach required or can time be afforded to bottom out the full design
Restrictions - Will there be any surrounding restrictions applicable that the contractor will not have any control over
Changes during construction - Is there a likelyhood of design changes throughout the course of the works
Assessment of risk - Is it to be a contract with the lowest risk possible to the client, what are the priorities in apportioning risk conserning cost, time, quality & performance
Building r

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