JL Submission - Case Study Flashcards
What is the contractual process for implementing deferment of possession?
- Clause 2.4
- Employer may defer giving contractor possession of site for up to 6 weeks, calculated from relevant date of possession
- Classes as relevant event
- Value of changes not subject to retention
- If Contractor foresees loss and expense, must provide appropriate notifications within contractual timescales (28 / 14 days to get reimbursement
- Could class as relevant matter as Employer preventing the contractor’s access (4.21.5)
What are the financial implications of deferring possession of the site?
- Can class as a relevant matter
- Could incur loss and expense, loss of profit, works for labour put on hold
- Delivery dates - cancellation costs
- Potential increased costs and interest charges
What is Clause 8.9.2?
Termination by Contractor if Employer impedes / prevents access to site
Who can suspend the works?
- CA can under instruction referring to Clause 8.11
- Contractor can spend under Clause 8.11 for failure of Employer’s payment
What is the JCT default period for suspension?
2 months
In the event the contract was terminated, what is the process?
Consequences of termination under Clause 8.12
- Contractor removes all their temp buildings, plant, tools and equipment
- Contractor provides Employer copies of as built drawings
- Contractor submits final account or provides Employer necessary documents to do so (up to 2 months)
- Contractor’s final accounts sets out value of work properly executed, direct loss and expense, reasonable costs for removal, costs of materials and goods, and loss and/or damage caused by termination
- Employer pays contractor monies due within 28 days of submission, no retention deducted
What happens to site compounds and machinery upon termination?
Contract says contractor removes their items- their responsibility, but they provide costs for removal to employer in final account
Would you deduct any retention monies owed to a contractor if a contract was terminated?
No, as per contract clause 8.12.5
Upon termination and site possession being the employer’s, what advice would you give your client?
Various options:
- Employ existing subcontractors to complete project
- Go out to tender again, utilising existing documentation / new documentation
- Replace the contractor with one of the other competing tenderers
- Negotiate a new contractor and novate contract to them
Is the addition of Plots 4-7 considered too high a value to be treated as a change?
No - Contractor has right to object to works instructed under the Contract if they require additional conditions to meet instruction. As long as the Employer and Contractor agree this is fine.
What is the implication of having a date of possession later than the commencement of services by a Contractor? (i.e. D&B contracts awarded at Stage 2 & 3)
Contractor can be paid under main contract for works to date including drawings, surveys etc.
What are some time related costs?
- Time related
- Plant hire
- Welfare / temporary accommodation hire
- Project specific management and staff (PM, Construction manager, supervisors)
- Transport
Why / how would having a detailed preliminaries breakdown assist you in the event of a delay?
Ascertain which time-related charges are applicable (not all time-related charges are applicable to whole project)
What was included in the instruction when suspending piling works to plot 3?
Instruction to delay commencement on site. [Clauses not specifically referred to, however this could have been interpreted for a claim either under postponement or suspension]
What happened at the end of the suspension of plots 1 & 2? How did the Contractor restart?
- Secured plot 3 to ensure works would not continue there
- Booked piling date as per instruction
What happens to the site / part of site when suspension occurs?
Not specifically mentioned in contract, however in this case Plot 3 was secured to avoid works impacting badger setts
What if your fee doesn’t allow for more frequent site visits? What options are there?
- Liaise with EA / PD visits, ensure plenty of pictures taken to determine works undertaken on regular basis
- Under prelims document, specifies frequency that contractor needs to take photographs
Was there a risk register for this project?
No, not specifically listed in scope
- Regular meetings with risk on agenda
- Planning condition tracker
- Regular communication with client
Whose risk was it to close out the planning conditions?
Client - all contractors excluded discharging pre-commencement conditions from their tenders
What are the contractual steps after the suspension period expires?
- Either party can give notice that unless suspension ceases within 7 days of receipt that they may terminate Contractor’s employment
- After 7 days, if not ceased, further notice to effectively terminate contract
Why did the contractual dates not reflect the end of the mobilisation period?
- Employer wanted to pass responsibility of insuring works to the Contractor
- Contractor to undertake surveys
How did you calculate costs associated with potential loss and expense and financial implications of the options?
- Obtained prelims costs from CSA, split into fixed and weekly
- Determined cancellation fees from piling contractor following receipt of that information
- Determined rates for loss of profit (OH&P x plot 3 costs)
- Determined rates for temporary hoarding with historical data
- Rates for road resurfacing based on CSA
- Costs to re-tender works based on Stace fee
- Inflation costs from BCIS TPI
Were any further discussions had with the contractor regarding sectional completion under Key Issue 2?
Tried to raise matter in several meetings and see if there were compromises / conditions that would be agreeable however they were firm on the matter
Why did you explore the option of Plots 4-7 with the current contract and omitting Plot 3 if it wasn’t viable for the Client?
Under client direction to explore potential options including omission and addition of plots. Later transpired it wasn’t viable following confirmation from funders
