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Architectural Association Part 3 Seminars, 2008 Building Contracts

Architectural Association Part 3 Seminars, 2008 Building Contracts. Quentin Pickard BA, RIBA Day 2. Architect/Contract Administrator’s Instructions . the architect is to be:

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Architectural Association Part 3 Seminars, 2008 Building Contracts

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  1. Architectural AssociationPart 3 Seminars, 2008Building Contracts Quentin Pickard BA, RIBA Day 2

  2. Architect/Contract Administrator’s Instructions

  3. the architect is to be: 'the intermediate agent between the employer, whose honour and interest he is to study, and the mechanic (ie contractor) whose rights he is to defend'. Sir John Soane

  4. Contractor’s Obligations General obligations 2.1 The Contractor shall carry out and complete the Works in a proper and workmanlike manner and in compliance with the contract documents, the Health and Safety Plan and the Statutory Requirements, and shall give all notices required by the Statutory Requirements. Materials, goods and workmanship 2.3 • where and to the extent that approval of the quality of materials or goods or of the standards of workmanship is a matter for the opinion of the Architect/Contract Administrator such quality and standards shall be to his reasonable satisfaction.

  5. Supply of Documents, Setting Out etc Contract documents 2.8 • Immediately after the execution of this Contract the Architect/Contract Administrator, without charge to the contractor, shall (unless previously provided) provide him with: • one copy, certified on behalf of the employer, of the contract documents • two further copies of the contract drawings; and • two copies of the unpriced bills of quantities

  6. Supply of Documents, Setting Out etc Construction information and Contractor’s master programme 2.9 • As soon as possible after the execution of this Contract, if not previously provided: • the Architect/Contract Administrator, without charge to the Contractor, shall provide him with 2 copies of any descriptive schedules or similar documents necessary for use in carrying out the Works (excluding any CDP Works); and • the Contractor shall without charge provide the Architect/Contract Administrator with 2 copies of his master programme …. but nothing in the descriptive schedules or similar documents …shall impose any obligation beyond those imposed by the Contract documents

  7. Architect/Contract Administrator’s Instructions SBC: Compliance with instructions 3.10 The contractor shall forthwith comply with all instructions issued to him by the Architect/Contract Administrator in regard to any matter in respect of which the Architect/Contract Administrator is expressly empowered by these conditions to issue instructions, save that: Compare with Major Projects Form: • 2.1 The Contractor shall comply with all written instructions issued by the Employer in connection wit the design, execution and completion of the Project, except to the extent that the terms of the Contract restrict the Employer’s right to issue any particular instruction.

  8. Architect/Contract Administrator’s Instructions Instructions to be in writing 3.12 • All instructions issued by the Architect/Contract Administrator shall be in writing. • If the Architect/Contract Administrator purports to issue an instruction otherwise than in writing it shall be of no immediate effect but the contractor shall confirm it in writing to the Architect/Contract Administrator within 7 days…

  9. Architect/Contract Administrator’s Instructions Provisions empowering instructions 3.13 On receipt of an instruction or purported instruction the contractor may request the Architect/Contract Administrator to specify in writing which provision of these conditions empowers its issue…..

  10. Delays, Adjustment of Completion Date, Loss & Expense NB, prior to JCT 2005, ‘adjustment of completion date’ was known as ‘extension of time’

  11. Delays caused by : -

  12. Notice by Contractor of delay toprogress 2.27 • If and whenever it becomes reasonably apparent that the progress of the Works or any Section is being or is likely to be delayed the Contractor shall forthwith given written notice to the Architect/Contract Administrator of the material circumstances, including the cause or causes of the delay, and shall identify in the notice any event which in his opinion is a Relevant Event • In respect of each event identified in the notice the Contractor shall…give particulars of its expected effects, including an estimate of any expected delay in the completion of the Works…. • The Contractor shall forthwith notify the Architect/Contract Administrator in writing of any material change in the estimated delay or in another particulars and supply such further information as the Architect/Contract Administrator may at any time reasonably require.

  13. Fixing completion Date 2.28 • If in the opinion of the Architect/Contract Administrator, on receiving a notice and particulars under clause 2.27 • any of the events….are a Relevant Event, and • completion of the works…is likely to be delayed…. Then….the Architect/Contract Administrator shall give an extension of time by fixing such later date as the Completion Date for the Works or Section as he then estimates to be fair and reasonable. • whether or not an extension is given, the Architect/Contract Administrator shall notify the contractor in writing of his decision….as soon as is reasonably practicable and in any event within 12 weeks of receipt of the required particulars • the Architect/Contract Administrator shall in his decision state: • the extension of time that he has attributed to each Relevant Event; and (numerous other clauses) • provided always that: • the Contractor shall constantly use his best endeavours to prevent delay….however caused… • in the event of any delay the contractor shall do all that may reasonably be required to the satisfaction of the Architect/Contract Administrator (and so on)

  14. Relevant Events 2.29 The following are the relevant events…. • variations…. • instructions of the Architect/Contract Administrator…. • deferment of the giving of possession of the site.. • suspension by the Contractor… • the carrying out by a statutory Undertaker of work…. • exceptionally adverse weather conditions • civil commotion or the use or threat of terrorism… • strike lockout…. • force majeure

  15. Loss & Expense Matters materially affecting regular progress 4.23 if in the execution of this Contract the Contractor incurs or is likely to incur direct loss and expense…because the regular progress of the Works….has been or is likely to be materially affected by any of the Relevant Events…then the Contractor may make written application to the Architect/Contract Administrator. If the contractor makes such application…as soon as the Architect/Contract Administrator is of the opinion that the regular progress has been or is likely to be materially affected or that direct loss and expense has been or is likely to be incurred… the Architect/Contract Administrator [or the QS] shall from time to time thereafter ascertain the amount of the loss and/or expense; provided always that the Contractor shall: • make his application as soon as it has become, or should reasonably have become, apparent to him that the regular progress has been or is likely to be affected • in support of his application submit to the Architect/Contract Administrator upon request such information as should reasonably enable the Architect/Contract Administrator to form an opinion, and • upon request submit to the Architect/Contract Administrator or to the Quantity Surveyor such details of the loss and/or expense as are reasonably necessary for such ascertainment.

  16. Loss & Expense Relevant Matters 4.24 The following are relevant matters • instructions of the Architect/Contract Administrator • under clause 3.15 or 3.16 [expenditure of provisional sums] • opening up for inspection or testing…. • in relation to any discrepancy in or divergence between the Contract Bills and/or other documents… 5. any impediment, prevention or default… by the Employer, the Architect/Contract Administrator, the Quantity surveyor….

  17. Major Projects form • 10 Damages for delay • 10.1 If the Contractor fails to achieve Practical Completion by the Completion Date, it shall be liable to pay the Employer liquidated damages at the rate stated in the Appendix… • 12 Extension of Time • 12.1 The contractor shall be entitled to an adjustment of the Completion Date to the extent that…completion of the Project…is or is likely to be delayed by: • .1 force majeure • .3 the use or threat of terrorism • .5 any Change • .6 interference with the Contractor’s regular progress Of the Project by Others on the Site • 12.2 Whenever the Contractor becomes aware that the progress of the Project is being or is likely to be delayed due to any cause, it shall forthwith notify the Employer…

  18. Insurance

  19. Sub-contractors (Sub-Letting)

  20. SBC Consent to sub-letting 3.7 • The Contractor shall not without the written consent of the Architect/Contract Administrator sub-let the whole or any part of the Works. Such consent shall not be unreasonably delayed or withheld but the Contractor shall remain wholly responsible for carrying out and completing the Works…. • where there is a Contractor’s Designed Portion, the Contractor shall not without the written consent of the Employer…

  21. SBC List in Contract Bills 3.8 • Where the contract Bills provide that certain work measured or otherwise described in those bills and priced by the contractor is to be carried out by persons named in a list or annexed to the Contract Bills and selected from that list by and at the sole discretion of the Contractor, the provisions of this clause 3.8 shall apply • The list shall comprise not less than three persons. The Employer (or the Architect/Contract Administrator on his behalf) and the Contractor shall each be entitled with the consent of the other…to add additional persons to the list at any time prior to the execution of a binding sub-contract

  22. IBC Consent to sub-letting 3.5 (as SBC cl 3.7.1 ) Named sub-contractors 3.6 Where it is stated in the Contract Bills/Specification/Work Schedules that work described therein for pricing by the Contractor is to be executed by a named person who is to be employed by the Contractor as a sub-contractor (the ‘Named Sub-Contractor’) the Contractor shall not later than 21 days after entering into this Contract enter into a sub-contract with such person using the Intermediate Sub-Contract Agreement ICSub/NAM/A…..

  23. MW Sub-letting 3.3 • (as SBC cl 3.7.1 )

  24. MPF 18 Pre-appointed Consultants and Named Specialists 18.2 Immediately upon entering into the Contract the Parties shall take all steps necessary to execute a Model Form in respect of all Pre-Appointed Consultants 18.3 The Contractor shall appoint a Named Specialist to prepare any designs or execute any works that are identified by the Requirements as having to be undertaken by a Named Specialist.

  25. Certificates & Payments

  26. Issue of Interim Certificates 4.9 • the Architect/Contract Administrator shall from time to time as provided in clause 4.9.2 issue Interim Certificates stating the amount due to the Contractor from the Employer and specifying to what the amount relates and the basis on which that amount was calculated. • Interim Certificates shall be issued on the dates provided for in the Contract Particulars up to the date of practical completion….[and] thereafter as and when further amounts are ascertained as payable to the Contractor…

  27. Interim Valuations 4.11 Interim valuations shall be made by the Quantity Surveyor whenever the Architect/Contract Administrator considers them necessary… Interim Certificates – payment 4.13 • The final date for payment…shall be 14 days from the date of issue of that Interim Certificate.

  28. Amounts due in Interim Certificates 4.10 Subject to any agreement between the Parties as to stage payments, the amount stated as due in an Interim Certificate shall be an amount equal to the Gross Valuation…less the aggregate of • [the retention] • [any advance payment] • The total amount stated as due in Interim Certificates previously issued.

  29. Priced Activity Schedule (Typical example) £ Structural frame 75,000 External walls 90,000 Windows 37,000 Plasterwork 17,500 Decorations 26,400 Etc etc ----------- 245,000

  30. Practical completion (from definition in the Major Projects Form) Practical completion takes place when the Project is complete for all practical purposes and, in particular: • the relevant Statutory Requirements have been complied with and any necessary consents or approvals obtained, • neither the existence nor the execution of any minor outstanding works would affect its use, • any stipulations identified by the Requirements as being essential for Practical Completion to take place have been satisfied, and • the health and safety file and all ‘as built’ information and operating and maintenance information required by the Contract to be delivered at Practical completion has been so delivered.

  31. Disputes & Determination

  32. They utter mere words; With empty oaths they make covenants; So litigation springs up like poisonous weeds In the furrows of the field. Hosea 10, v4

  33. Section 9: Settlement of disputes Mediation 9.1 The Parties may by agreement seek to resolve any dispute or difference arising under this Contract through mediation. Adjudication 9.2 If any dispute or difference arises under this Contract which either Party wishes to refer to adjudication, the Scheme shall apply….. Arbitration (Clauses 9.3 to 9.8 give detailed requirements)

  34. From the articles: Article 7: Adjudication If any dispute or difference arises under this Contract, either party may refer it to adjudication in accordance with clause 9.2.

  35. Article 8: Arbitration Where article 8 applies, then, subject to Article 7 and the exceptions set out below, any dispute or difference of any kind whatsoever arising out of or in connection with this Contract, whether before, during the progress or after the completion or abandonment of the Works or after the termination of the Contractor’s employment, shall be referred to arbitration in accordance with clauses 9.3 to 9.8 and the JCT 2005 edition of the Construction Industry Model Arbitration Rules (CIMAR). The exceptions to this article are: • Any disputes or differences arising under or in respect of the Construction Industry Scheme or VAT…. • Any disputes or differences in connection with the enforcement of any decision of an Adjudicator.

  36. Article 9: Legal proceedings Subject to Article 7 and (where it applies) to Article 8, the English courts shall have jurisdiction over any dispute or difference between the Parties which arises out of or in connection with this Contract.

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