Contract Practice Flashcards
How do you feel about oral contracts?
- Difficult to prove any specific Terms & Conditions, and can make it difficult to prove any agreement
- Ideally all contracts should be written down to refer to
What do you understand by the term contract law?
The body of law that govern and implements agreements between parties 
What are the key elements to make a contract legally binding?
Offer, acceptance, consideration, and the intention to create legal relations
What are express terms?
Expressed terms are terms, ideally written down, that have been discussed and agreed between parties
What are implied terms?
Imply terms are terms not expressly agreed, but are implied by law
What are some of your considerations when you were recommending an appropriate construction contract?
- The client
- Priorities in relation to time, cost, quality, and risk
- Procurement route
- Value, nature and complexity of works
- Public or private sector client
What is the Housing Grants, Construction, and Regeneration Act 1996?
The overarching legislation to ensure construction activities and contracts are fair and reasonable for all parties
Are you aware of any addendum to the Housing Grants, Construction, and Regeneration Act 1996?
The Local Democracy, Economic Development and Construction Act 2009
Can you summarise your knowledge of the Local Democracy, Economic Development and Construction Act 2009
THE ACT PROVIDED THE PROVISION FOR STATUTORY REFERRAL TO ADJUDICATION FOR CONSTRUCTION CONTRACTS
Contracts:
- Can be both written and oral under the addendum (previously only written contracts)
Payment:
- Need for adequate payment mechanisms to determine what payments are due and when
- Payment when certified clauses no longer acceptable
Payment notices:
- At least one party must issue a payment notice (usually client)
- Must be issued no later than 5 days after due date
- Must be issued even if payment is nil
Default payment notices:
- If the client does not issue the payment notice, the payee is entitled to serve a payment notice for the amount due (would be the contractors assessment of works completed)
Pay less notice:
- Can be used to amend the payment due
- Must be issued before final date for payment (under NEC=7 days, and JCT=5 days before final date for payment)
Suspension for non-payment:
- Contractor can suspend all works and obligations under their contract for non payment
- Client is obligated to pay contractor reasonable expenses for their exercising the suspension of works
Could a client make any changes they wanted under their construction contract?
Any changes could be made providing aligned with legislation such as the construction act
What are the maximum number of days you can go without paying your contractor?
The construction act states contractors are entitled to interim payments if the scheme is anticipated to exceed 45 days
Can a contractor the suspend works for non-payment?
Yes, under the Construction Act 2009, a Contractor can suspend their works, and all other obligations under their contract, for non-payment
What is a Parent Company Guarantee?
Parent company guarantee is when a contractor, who is managed by a larger, more financially stable company, can obtain confirmation from their parent company, that if anything was to happen to them, the parent company would step into complete the works
When might a parent company guarantee be required?
- when a small contractor forms part of a larger, financially stable organisation
- Can be used in lieu of a performance bond
- gives the client comfort that if the smaller contractor goes insolvent, the parent company will meet all obligations under the contract on behalf of that smaller company
What do you understand about the contracts (rights of third parties) act 1999?
- The act allows third-party to a contract to enforce the terms of that contract
- the third parties must be a beneficiary under that contract to enforce those terms (under NEC, beneficiaries can be named within the contract data)
What are the advantages and disadvantages of the third-party rights act?
Advantages:
- No separate documents required, such as collateral warranties, so time and cost are saved
- Provides certainty from the contract execution, rather than collateral warranties which may not be agreed until the end of the works
Disadvantages:
- Lack of flexibility: any provisions explicit under the third-party rights act (including amendments) would be applicable to all third parties under that contract. Any provisions have been included for one third-party, that provision would apply to all, therefore it could lead to problems
Why might the third-party rights act be used instead of a collateral warranty?
- If a lot of collateral warranties are required under a contract, there can be a lot of administration and cost involved
- Third-party right are easier to get in place because there’s no separate document required
What is a collateral warranty?
The collateral warranty is contractual link between two parties, where one would not otherwise exist
Can you provide an example of how a collateral warranty could be used?
If employer and contractor have a design and build contract, and contractor has a subcontract with an MEP subcontractor, then a collateral warranty could be executed between the employer and that MEP subcontractor
Why might a collateral warranty be requested from the client?
To provide a contractual link to a subcontractor who was undertaken specialist design, so they can hold that subcontractor accountable for defective workmanship or defective design
A collateral warranty might be requested in the event of a contractor going into solvent, there would be a contractual link between the subcontractor and the employer
What ways can benefits be transferred to 3rd parties under building contracts?
- assignment
- third parties act
- collateral warranty
What is assignment under building contracts?
Assignment is when the benefit of a contract contract is transferred from one party to another, but the burden of that contract remains with the original party
Who might want benefits under a construction contract, in relation to assignment?
- Bank
- Funders
- Tenants
What is a bond?
Construction bonds are taken out for protection against non-payment or lack of performance in the event a party were to default under the contract
Can you name some types of bond?
- Advance payment bond
- tender bond
- Performance bond
- Retention bond
- Off materials bond
What is a tender bond?
A tender bond can be requested by the employer in the event a successful tender fails to enter into contract
It can help prevent idle tendering
What is an offsite material bond?
An offsite material bond is used if the employer pays for offsite materials, and the subcontractor or contractor goes bust, monies can be claimed on the bond for the goods paid for
What is an advanced payment bond?
Protects advanced payments made to the contractor before the works have been completed
What is a retention bond?
- if the contractor fails to perform its duties for remedying defects, bondsman will pay the employer the full retention value
- Can be adopted in pool market conditions to assist with contractor cash flow
What are the disadvantages of using a retention bond?
- Employer would have to pay the premium for the bond
- Can disincentivise contractors to complete works promptly and properly
Are you aware of any alternatives to a retention bond?
- Retention clauses under NEC and JCT can be executed to withhold monies
What is a performance bond?
The performance bond is if the contractor is unable to complete their obligations under a contract, the employee can recover the costs associated with this under their bond
What is the value of a performance bond?
- Usually around 10%
- The exact cost of performance bonds were vary on the project they are being executed on
Why might the employer want a performance bond?
- if the contractor is new or unapproved
- If there are concerns around the contractors financial
- The economy is heading into a recession, that could be an increased risk of insolvency
- Employer may wish to protect their commercial standing
What are the risks of not having a performance bond?
- Employer will be liable for all costs associated with contractors non-performance
- Costs for sourcing a new contractor would lie with the employer, which is likely to attract a premium
What types of performance bonds can be executed?
On demand:
- Monies are available available immediately without justification required
Conditional:
- Requires the employer to provide evidence that they have suffered a loss due to contractor non-performance
What are antiquities?
- Historical artefacts
- Bones and fossils
- Archaeology
What should the contractor do if they discover antiquities on site?
- Cease work and seek advice prior to proceeding
- take necessary measures to preserve in the existing location and condition
- Inform the contract, contract administrator or project manager of the discovery and location of the artefact
When an object of interest is discovered on site, who is liable to pay for the delay and expense incurred?
- This would depend on what was specified in the contract, however, this risk is usually retained by the client
What is a defect?
A defect is something that has been constructed properly due to poor workmanship, design or materials
NEC defines defects as something not accordance with the scope, or, not an accordance with the law or design
What is a patent defect?
A defect that can be discovered through reasonable inspection. For example.:
-Missing tiles
-Broken windows
What is a latent defect?
Something that cannot be discovered through reasonable inspection.
This would include issues with the frame or foundations
Why is the defect rectification period typically 12 months?
12 months allows the building to go through all seasons of the year, therefore, most defects will become apparent within this period
What is novation?
- Where the obligations and deliverables of one party is transferred from one party to another party, by agreement of all parties involved.
- For example, a design team who has a contractual obligation to a client, may then be moved to work directly for the contractor, and therefore their obligations and rights have transferred to the contractor
Are novation agreements required under traditionally procured projects?
Not usually, because the designers are typically retained by the employer to carry out the design all the way up until construction
What are the advantages and disadvantages of novation?
Advantages:
- reduced learning curve due to familiarity with project, team and client
- Reduce contractual risk for employer, as design liability is transferred to the contractor
Disadvantages:
- employee will require execution of collateral warranties to the designers
- Potential conflict of interest as designers may feel obligated to still support the client and maintain that relationship, and also may find it difficult to critique their own design
What is retention?
Retention is a percentage of the sum certified retained by the employer
What is the role of retention in construction contracts?
Retention is used as assurance for the client, of the projects completion, and rectification of any defects
Are you aware of any guidance associated with retention?
I’m aware of the RICS retention guidance note
What can the employer use retention monies for?
- Correct any defects
- Incentivise contractor to return to correct defects
How is retention released to the contractor?
Typically done in two stages. In my experience:
- 50% Retention released on completion
- Remaining 50% retention released after defects period
Who typically benefits from interest accruing on retention money?
The client
Are there any alternatives to holding retention?
A retention bond
How does the release of retention work with sectional completion?
It would depend on the contract conditions, and when retention is due to be released.
I could refer to the contract data and schedule of amendments.
Typically, I would expect sectional completion to release some retention, ie 25% (half of half retention for section)
What is Contractor Design Portion (CDP)?
Typically used on traditionally procured projects, where design responsibility for specific elements of the building is transferred to the contractor
Can you list some typical Contractor Design Portion elements which the employee may wish to transfer to the contractor?
- MEP
- steel work connections
- Cladding
- Roofing
- Design of temporary works
What is the difference between traditional procurement with Contractors Design Portion (CDP) vs Design & Build?
Traditional & CDP:
- design responsibility lies with the employer except for certain elements that would be transferred under CDP
Design and build :
- Contractor would be liable for whole design
How are Contractor Design Portions (CDP) elements executed?
- At tender
- performance specification will be provided and contractor would provide the design proposal in their response
What is professional negligence?
When a professional fails to perform their responsibilities to the required standard and breaches their duty of care.
This could result in financial loss, physical damage or injury of their client
How can an employer recover the loss if a consultant or contractor is professionally negligent?
Claim through their professional indemnity insurance
What is public liability insurance?
Protects against liabilities for injury to 3rd parties or their property
For example, if a brick fell on someone’s car, or if a member of the public tripped over an unsecured cable
What is employer liability insurance?
Can pay the compensation amount and legal costs if an employee claims compensation for work related illness or injury
For example, if someone fell from height on site
What is product liability insurance?
Protects the policyholder against liability, resulting in defective products
For example, faulty cladding panels
What is contractors all risk (CAR) insurance?
Coverage for the costs associated with repairing or redoing construction works that have been damaged by any insured event
For example, heavy rainfall damages materials or a fire damages part of the works
What are domestic subcontractors?
Subcontractors chosen by the contractor to execute a package of works.
Cannot be influenced by employer or their consultants
What are named subcontractors?
Name subcontractors is when the employer provides a preapproved list of subcontractors to undertake a package of works
Once appointed by the contractor, they would become a domestic subcontractor
What are the advantages of naming subcontractors?
Provides the employer with control to for who is appointed, but still provides the contractor with an element of choice as to who they wish to ultimately appoint