Tute 9 (Tara)

Question 1

What should you do if the client pays the builder more than you have assessed the progress claim for?

Answer 1

Advise the client of their responsibilities under the contract

Remind them that the extra money they have paid is not insured to be included in the next claim

And process your assessed claim.
You are acting independently (top hat)

Reference: Tute 9 2020-07-27 19:35:00

Question 2

If you are worried that the subcontractor is not building the joinery to the latest revision of drawings?

Answer 2

Contact the contractor immediately.

Never contract the sub-contractor directly.

Question 3

Who’s responsibility is it to collect all certification for the Statutory compliance document to give to the building surveyor for certificate of occupation?

Answer 3

The contractor.

You can switch the responsibility to the owner in a section of the ABIC - sometimes happens in projects like prisons where the security isn’t done by the contractor and therefore the contractor cannot get full certification.

Question 4

What is the difference between calendar days, business days and working days?

Answer 4

Calendar days are all days.

Business days are Monday-Friday.

Working days are the days that the site is operational often with union RDO’s excluded (usually every two weeks)

Question 5

What falls under the construction days timeline under the contract?

Answer 5

Mobilising time (ABIC, 10 wd)

Net construction days

Weather delay days (ABIC, Item 20, 10 wd)

Other known delay days (nominated in Item 21 ABIC. E.g. site is on a public road that will be shut down for an event)

Time extension

Liquidated damages (item 24 ABIC)

Question 6

When do the official construction days start and finish?

Answer 6

Official the construction days run from the signing of the contract until the date of Practical completion.

Question 7

What happens when the client or the architect triggers the prevention principle with the contract and what does it mean to say the ‘clock is running’?

Answer 7

The prevention principle is when a party has caused the contractor to not be able to proceed at all as they normally would and therefore when the clock starts running means that the delay has now voided the end date and they can finish whenever they want.

ABIC-SW, Section L1.

Question 8

Approved time delays that do not incur Time extensions costs?

Answer 8

Extra weather delays over the weather days slowed in the contract (ABIC item 20)

Other delays (known delays) that run over the nominated time under the contract (ABIC item 21)

Question 9

What if the contractor is ahead of schedule and then put in a request for delay. Do you approve the delay and adjust the PC date?

Answer 9

It depends on the wording of the contract.

If the contract says the delay affects a critical element of construction then they will be entitled to delays.

Question 10

What happens if a contractor submits a critical RFI does not follow it up and then submits an extension of time after the due date?

Answer 10

They could be entitled to the delay if the RFI was critical and affects the critical path.

However, if could be argued that the contract states something to the effect that they should do everything in their power to avoid delays and if they didn’t follow up the RFI and knew it was critical then they might not be entitled to the delay.

Question 11

What does a concurrent delay mean?

Answer 11

It means a delay to a construction element whilst another element is happening and therefore does not affect the trades timeline.

Question 12

Is the construction programme a contract document?

Answer 12

No!
You want to allow the contractor flexibility to change it otherwise they could claim a variation every time there’s a change as it’s bound to the contract.

Question 13

In many cases, what aspects of the project is the architect responsible for? (Acumen, Project Control)

Answer 13

ALL.
Including design, the work of specialist consultants, project costs and time. A key responsibility is to maintain accurate project records that demonstrate how the project has been managed.

Question 14

What is the formal response to viewing a program devised by a contractor?

Answer 14

Programs provided by contractors should not be accepted, approved or commented upon as this may be construed as an endorsement of the document and affirmation of the accuracy of its content.

Acumen, Program as a Contract

Question 15

Should the construction program be part of the Contract?

Answer 15

Nicole recommends it not be included as a contract doc.

Acumen, Managing time during construction:
It is important that the program is a requirement of the contract and NOT PART OF THE CONTRACT documents, in case an instruction that causes the contractor to diverge from the construction program permits the contractor to claim an otherwise unjustifiable time extension.

Acumen, Program as a Contract:
Since the program is a management tool, it is o en in a state of flux as circumstances change. As a contract document, each update would require all parties to the contract to accept and endorse the new program as a variation to the terms of the original contract. The risk of dispute is high if an updated program were to be unacceptable to one of the parties.

Question 16

When should the program be updated?

Answer 16

Regularly.

The program to be either regularly updated during the course of the contract, or when directed by the architect, if the contractor is behind program.

• Acumen, Managing time during construction

Question 17

When does the contractor have to provide a up-to-date accurate program (not preliminary)?

Answer 17

The ABIC suite of contracts requires the contractor to provide the architect with a construction program within 10 working days aer possession of the site, and to provide an updated program when the date of practical completion has been adjusted by five working days or more or such other period as agreed.

• Acumen, Managing time during construction

Question 18

with the contractor, what is falling behind schedule an indication of and how should the architect proceed if they have concerns about the contractor fulfilling the contract?

Answer 18

Insolvency.
The Contractor should be reminded that the job is to be completed on time or the owner will be entitled to liquidated damages. The contractor can also be asked to demonstrate how it is proposed to fulfill the contract.
The facts can be stated for example, ‘It is a week until the date for practical completion and the footings have not been poured yet.’
- Acumen, Managing time during construction

Question 19

Should the client come to site meetings with the contractor?

Answer 19

Yes as its important to keep the client informed.

Invite the owner to a ttend or send a representative to site meetings to observe, but NOT NECESSARILY PARTICIPATE.
The owner can thus see the constructive role played by the architect in monitoring the progress of the work, in identifying work which is behind schedule, and in encouraging the contractor to reschedule work to regain lost time.
- Acumen, Managing time during construction

Question 20

What should the contractor prepare for each site meeting?

Answer 20

The agenda should include a report from the contractor on progress and the likely date of completion.
- Acumen, Managing time during construction

Question 21

how and when should a program be provided to tenderers?

Answer 21

For larger/complex projects.
Consult a programming consultant to set a realistic provisional program, related to the date for practical completion. This provisional program could be issued to tenderers for their INFORMATION ONLY in tendering and may, at the contractor’s discretion, form the basis for the construction program referred to above. Again, it should be made clear that whatever the source of the program may be, it DOES NOT form part of the contract.
- Acumen, Managing time during construction

Question 22

If a program is to be provided to tenderers, what might also accompany it?

Answer 22

the program be accompanied by a cash-flow projection and a trade breakdown of the tender with both related to the program.
- Acumen, Managing time during construction

Question 23

What is the critical path or critical activities in construction?

Answer 23

The critical path is the longest path through the project. The critical activities to progress are those which determine the critical path and are the activities that must be completed (or at least started) before subsequent activities can commence.

Question 24

What are claims for delay assessed against?

Answer 24

Claims for delay are assessed against the critical path.

Delay, beyond the contractor’s control, to activities on the critical path would normally be agreed and the date for practical completion would be adjusted. Delays to activities not on the critical path may be agreed with or without an adjustment to the date for practical completion.

• Acumen, Managing time during construction

Question 25

Does the architect have authority to give instruction of the program or construction timeline?

Answer 25

The architect cannot legitimately interfere with the contractor’s programming and sequencing of the works unless the contract allows the owner to instruct this through its agent, the architect. Generally it is the contractor’s obligation to execute the works within the contract time or else be liable for payment to the owner of liquidated and ascertained damages.
- Acumen, Managing time during construction

Question 26

What does clause L1.2 in the ABIC suite of contracts say about the contractors responsiblilty with delays?

Answer 26

the contractor must take all reasonable steps to minimise the impact of delay on the progress of the works.
In order for the contractor to qualify for an extension of time, the contractor must establish that proper and reasonable steps have been taken both to preclude the occurrence of the cause of delay and to avoid or minimise the consequences of delay.
- Acumen, Managing time during construction

Question 27

When is the architect not allowed to interfere between the Contractor and client obligations?

Answer 27

The architect must not interfere with the contractor’s responsibilities, including methods, sequencing and procedures of constructing the works. The architect is free to provide advice, but only if it is not given as a direction or instruction. Otherwise this could result in additional costs to the client and potential liability for the architect should it result in failure to achieve improved progress.
- Acumen, Managing time during construction

Question 28

WHat does the ABIC MW-1 contract include about architects authority to do with the timeline?

Answer 28

It allows the architect (on behalf of the owner) to instruct the contractor to amend the program in order to accelerate or decelerate the progress of the works, and allows the contractor to claim against the cost of this instruction.
- Acumen, Managing time during construction

Question 29

What clause in the ABIC MW-1 contract pertains to changes in program due to instruction?

Answer 29

If the contractor amends the program as instructed under clause G9, the contractor is able to claim for the cost of the amendment in accordance with clause G10.
- Acumen, Managing time during construction

Question 30

Under Subclause 33.2 of AS 2124-1992 contract, What does it state about the construction program?

Answer 30

Subclause 33.2 of AS 2124-1992 makes reference to a construction program to be furnished voluntarily by or as required by the superintendent, but it does not affect the parties’ other rights and obligations concerning timely completion and ordering of the works. When a program has been provided the contractor is not to depart from it without reasonable cause.
- Acumen, Managing time during construction

Question 31

Under Subclause 33.2 of AS 2124-1992 contract, What does it state about the super intendants authority over stages of the project?

Answer 31

Under subclause 33.1 of AS 2124-1992 the superintendent also has the power to direct at what time or in what order various stages should be undertaken. In some instances it can be of great advantage to the owner to have a certain part of the works completed prior to overall completion. The contractor is entitled to be compensated for extra costs incurred.
- Acumen, Managing time during construction

Question 32

In Construction Industry Terminology (Standen, 2000), FLOAT is:

Answer 32

the measure of predicted free time in a [program] between non-critical activities not affecting
the finishing time for a project.
In other words, float is the additional time available before a non-critical activity becomes a critical activity in relation to the overall program of activities leading directly to the date by which practical completion is to occur. (A critical activity is one that if delayed will directly result in a delay to the date for practical completion or one that directly causes other delays that will in turn directly affect the date for practical completion.)

• Acumen, Managing time during construction

Question 33

What is CPM? (construction)

Answer 33

the tool to manage contract time administration, and to assist in establishing what does and does not constitute a delay resulting in a contractual adjustment of time.

The development in the 1950s of the Critical Path Method (CPM) of programming, introduced for the first time a reliable method for the planning and control of major construction projects.

• Acumen, Managing time during construction

Question 34

What causes a ‘float’?

Answer 34

• contractor unilaterally program floats for their own benefit
• ‘Contractual float’ may be built into the contract
• The ‘project float’ is the free time available in a particular chain of activities
• Acumen, Managing time during construction

Question 35

Who has the benefit of the float or in what ways can a float be used?

Answer 35

• the contractor has gained a windfall of additional time to complete other activities.
• Float can be offset against delays in the critical path and therefore the owner has the benefit of project float in a critical path activity until it becomes zero.
• contractual float. It is in effect a credit from the owner for agreed likely delays. Credit in time only (not money).

Acumen, Managing time during construction

Question 36

What defines the ‘core architectural services’?

Answer 36

Core architectural services are the professional services required by most clients for a building project from the initial design to completion of construction. The majority of projects comprise the core architectural services of concept design, design development, documentation and contract administration.

Acumen, Core architectural services

Question 37

Who is the Contract Administrator?

Answer 37

The person who administers the contract. The contract administrator may be a representative of either party or may be a third party, depending on the terms.

Acumen, Contract administration

Question 38

What does the contract admin include?

Answer 38

The duties of the contract administrator flow from both the construction contract and the contract between the architect and the owner. The contract administration may include the tender stage and the post-construction stage.

Acumen, Contract administration

Question 39

What is the “Prevention Principle” in relation to the contract?

Answer 39

The Prevention Principle is that when a time is specified for completion of a contract, so that the time is ‘of the essence’, an act by one party (the client) which prevents the other (the contractor) from completing the work on time, will put the time for completion ‘at large’. The principle is that the party preventing the other from completing on time cannot have the benefit of enforcing a contractual obligation - specifically, completion by a certain date.

Acumen, Prevention Principle

Question 40

How do you avoid time being at large when the Prevention Principle occurs?

Answer 40

To avoid this occurrence in a “modern” construction law contract, the contractor is able to claim an extension of time so that the date for practical completion is adjusted by the superintending architect to allow for the time needed to complete the extra work.
Nicole: time is at large means the PC date is no longer and the timeline can be whatever.

Acumen, Prevention Principle

Question 41

Who is obligated to apply an extension of time to adjust the PC date under the prevention Principle?

Answer 41

Penninsula Balmain Case:the architect (as superintendent) must exercise the discretion to extend the time for practical completion honestly (fairly) and impartially and cannot rely on the failure of the contractor to avoid making a decision that the time for practical completion ought to be extended.

Acumen, Prevention Principle

Nicole: Its in your best interests to as time is at large and means the PC date is no longer and the timeline can be whatever.

Question 42

Which contract should you use if wanting to have a staged practical completion and what should you (as the architect) consider?

Answer 42

modifications may be required to both the contract conditions, and the design approach.
A standard form of building contract such as ABIC MW 2008 should be selected, which contains suitable provisions to cover such an arrangement.

there is provision in section M of ABIC MW 2008 for the architect to advise the parties by notice of the division of the works into separable parts. The current Australian Standard AS 4000 and the AS 2124 contain similar provision for staged practical completion

Acumen, Staged practical completion

Question 43

What are the guidelines/considerations to staged practical completion?

Answer 43

• advise your client to get a lawyer to write the special conditions
• insurances for staging require legally definable boundaries, etc.
• be aware that the stages will need to be fully complete to meet practical complete therefore for example the plant rooms supplying may needto be built in stage 1 and should therefore be located near the stage 1 works.
• requirements for release of security and operation of guarantees and warranties, are normally linked to the date of practical completion.
• Conventional inspection and acceptance procedures for various building components and services installations will need to be reconsidered to suit each particular project and the relevant conditions on the site need to be modified, to accommodate the intended staging of hand-over.

Question 44

Under ABIC contract, what defines the works as being at Practical completion?

Answer 44

Conventional inspection and acceptance procedures for various building components and services installations will need to be reconsidered to suit each particular project and the relevant conditions on the site need to be modified, to accommodate the intended staging of hand-over.

Acumen, Practical Completion

Question 45

What are the considerations to slip resistance in court cases?

Answer 45

not only the physical characteristics of the floor surface and the footwear but also the age, infirmities and even the emotional state of the persons involved.

Question 46

What does SRV stand for when referring to tiles?

Answer 46

Slip Resistance Value (SRV)

Question 47

How is Slip Resistance measured?

Answer 47

measurement of the slip resistance of floor surfaces: the British Pendulum Friction Tester and the Tortus Friction Tester. The British Pendulum Friction Tester is also referred to as the Stanley Pendulum, the TRRL Friction Tester, or the Skid Resistance Tester.

Question 48

With waterproofing details, what should they reference to make sure they are done to standard?

Answer 48

only by reference to the requirements of the BCA or the manufacturer’s standard details or installation guides.

Question 49

What should be covered in warranty of products that often catches out architects?

Answer 49

The specified use.

e.g. If the product is next to another material or used vertically instead of the standard horizontally or glued instead of mechanically fixed etc.

Question 50

What should you do if someone has verified something but is disinclined to follow it up in writing?

Answer 50

architects can protect themselves by confirming it in a lett er.

Although such a le er is not of such great evidential value as a document wri en by the supplier, if sent promptly a er the discussion, and preferably before the purchase, it is of assistance in the event of a subsequent dispute.

Question 51

What should you make sure the contractor gets from the subcontractors with details specified from the specialist consultants and hands over the owner before completion regarding the future of the building?

Answer 51

Manuals.

e.g. mechanical, electrical etc

Question 52

What should the subcontractors manuals include?

Answer 52

• notes on operation, cleaning and maintenance of plant and equipment
• warranties
• names and addresses of subcontractors, suppliers, tradespeople and specialist consultants

Question 53

with the asistence from the specialist consultants, what should the architects check when reviewing the manuals to give over to owner after construction is complete?

Answer 53

the architect should, with the assistance of the specialist consultant, check the details of the maintenance and operation manuals and forward the documents to the client.

Question 54

What should the architect ask the special consultant to provide the owner before occupancy regarding the plant and services?

Answer 54

The architect should ask the specialist consultant to inform them of the servicing requirements of all items with which they have been concerned.

Question 55

For the maintenance and running of the building after occupancy, is it particular important to obtain As-Built drawings on which disciplines?

Answer 55

Along with, or even separate from a maintenance and operation manual it is desirable to obtain, for the client’s use and/or records, as-built drawings of the services installations, such as mechanical, electrical, li , plumbing, sewerage, drainage and other piped, wired or ducted systems.

Question 56

The As-Built drawings can be obtain which ways?

Answer 56

• specified as the responsibility of contractor or subcontractor to prepare final drawings from progress records
• contractor or subcontractor to supply marked-up prints to enable the architect and/or specialist consultant to prepare final as-built drawings
• clerk of works (if any) to mark-up prints and revise the working drawings on completion
• on smaller jobs, architect to mark-up prints and revise the working drawings on completion

Question 57

What are the three main things that make up a Building Contract?

Answer 57

• Contract
• Specifications and schedules
• Drawings

Question 58

What is the Contracts role within the Building Contract?

Answer 58

The building contract defines the obligations, rights and responsibilities of the principal and the contractor.

Question 59

What are the specifications and schedules role within the Building Contract?

Answer 59

Specifications and schedules – the specifications describe in writing the workmanship and materials, and the manner in which certain work is to be undertaken. The schedules further list and prescribe aspects of the work to be carried out, and items to be supplied and installed under the contract.

Question 60

What are the the drawings role within the Building Contract?

Answer 60

The drawings are prepared to visually describe the works and the details. The drawings provide the graphical representation of the design intent from the original layout through to construction details.

Question 61

Who has devised and jointly publishes the ABIC contracts?

Answer 61

The Australian Building Industry Contracts (ABIC) are jointly published by Master Builders Australia Limited (Master Builders) and the Australian Institute of Architects (Institute).

Question 62

What does ABIC SW not provide as opposed to MW?

Answer 62

• urgent instructions
• separable parts to the works
• change of type of security given by the contractor to the owner
• provision of security for payments for off-site plant and materials
• provision by the owner of security to the contractor
• dangerous or contaminated materials
• encroachments
• quality assurance systems
• separate contractors (except in Queensland)
• identified, project specific potential causes of delay that entitle the contractor to costs
• amendments to programs and the consequences of any amendments alternative dispute resolution
• expert determination of disputes
• arbitration of disputes
• contract confidentiality

Question 63

Should you amend the documents with revisions from tender negogation before signing the contract or simply attached a list of revision and amend the documents after when doing the issue for construction?

Answer 63

Amendments and revisions made to any one of the contract documents a er completion of the post-tender negotiations must be reflected in all other documents to ensure the complete set accurately reflects the actual scope of works agreed between the parties. This is best achieved by amendments to the tender documents rather than simply a aching a list of agreed revisions. This means amending the drawings, revising the relevant sections of the specification and altering the bills of quantities. The extra time taken to do this before the contract is signed will ensure there is no confusion about the scope of work and the contractor will have a clear and coordinated set of documents to complete the building works.

Question 64

When should you use ‘N/A’ or ‘Not Applicable in the contract schedules?

Answer 64

NEver!
Trick question. It is highly recommended to not use these terms as they can be seen as ambiguous.

Acumen, Contract Preparation