Who is responsible for administering the building contract?
- JCT MW/IC/SBC - Contract Administrator
- JCT DB - Employer’s Agent –
- NEC3 and NEC4 - Project Manager
What guidance is there for design and build?
- RICS Employer’s Agent: Design and Build, 1st edition, 2017
Can you talk me through the RICS Contract Administration document?
- Dated 2011, now archived
- Intro - how CA role was introduced in JCT 1987
- Section 2 - Context (role of the CA) -administers terms between employer and contractor (agency and decision making)
- Section 3 - Appointment of a CA (confirm T&C’s, ensure processes agreed with employer, ensure no conflicts)
- Section 4 - Roles and Responsibilities
- Appendix A - Checklists
- Appendix B - Office procedures
Is the Contract Administrator a role before the construction phase starts?
- Begins when building contract in place
- In practice can have responsibilities before (procurement method / building contract selection, ascertaining damages)
What qualities does a CA require?
As RICS Contract Administration
- Knowledge and skill to apply relevant contractual provisions
- Act independently, impartially, and fair
- In-depth knowledge of construction and inter-relation between trades so changes and impact can be traced
- Appropriate record keeping procedures
- Be aware of different types of critical path and project programming techniques
Key tasks of a CA?
As RICS Contract Administration
- Chairing meeting
- Periodically inspect the works (not include checking compliance of work with design
- Employer’s obligation which could be delegated to design team)
- Give instructions (variations, change orders)
- Determine EoT applications
- Authorise interim payments
- Certify completion
- Settling adjusted contract sum (FA)
(- doesn’t include design - need to take care that instruction / design changes are approved by employer and designers)
- Comply with CDM 2015 regs as a designer role
- Reporting to client
What is required within a CA inspection?
As RICS Contract Administration
- Frequency depends on project
a) recording information: date and time, weather conditions, no. and type of operatives on site, instructions given on site, progress of works
b) review quality of workmanship
c) review progress in relation to programme
d) check materials being used
e) check works conform with spec and drawings (may have assistance)
f) note general info so CA can report to employer on progress and quality
g) record any measurement that might be needed for certification (valuation)
h) General awareness of H&S > confirm outcome in writing, inc any instructions, to employer and contractor
What is the CA’s role at completion?
- CA to check completion date. May be required to issue ‘certificate of non-completion’ depending on contract so employer can claim liquidated damages
- EoT - CA assesses whether delay has had effect on completion date and what the effect is. ‘Reasonable’ assessment required
- CA obliged to issue certificate granting PC for part of works where possession obtained. CA advises what contract includes, may have to consider granting PC of entire works whether or not complete. Potential to omit works and make necessary financial adjustments
- CA’s commonly issue lists detailing snagging works, but most building contracts don’t allow for ‘snagging lists’. Avoid if possible
CA vs PM vs EA?
- CA - specifically identified in contract; administers contract for employer. Impartial role, only exists at point contract is entered into
- PM - specifically identified in NEC contract; manages team to develop and deliver a project for an employer. Provides info, controls, manages team communications. Impartial in contract. Managing contract on behalf of employer
- EA - identified in contract; acts on behalf of employer in all matters, as if EA employer. Should act impartially in certification and decision-making functions
Employer’s Agent Design and Build Guidance Note
CA steps with defects?
- Issue instruction to remove from site
- After consultation with contractor, issue change instructions as reasonably necessary to accept defect with no addition to contract sum nor EoT
- Have due regard of Code of Practice in Schedule 4 - issue instructions reasonable to open up for inspection / testing
- Latent defects (not observable at time of inspection and arise potentially years later). EA may be called to provide info pertaining to any claim, even after appointment ended. Works necessary to return works to compliant state = contractor cost
What is practical completion?
- PC - point at which a building project is complete (except minor defects and outstanding works that can be put right without undue interference/disturbance to an occupier - Project is “capable of beneficial occupation and use’ by Employer
Can you rescind the PC statement once it has been issued?
- No - once issued, it’s final and binding on the employer
What are the consequences for the contractor and employer once the PC statement has been issued?
- 50% retention released (STC) - Defect rectification period starts
- Employer usually required to start insuring and securing building
- Employer’s ability to levy liquidated damages ends
- Performance bond / PCG expires
What is a non-completion certificate?
- Formal written notice that contractor has failed to complete the works described in the Contract by the completion date - Enables liquidated damages to be levied
What are the consequences of a non-completion certificate?
- Triggers right for employer to levy liquidated damages if they choose to do so (employer must also write to contractor notifying them of intent and issue pay less notice to recover LDs)
If a project was due to finish before Christmas, but an extension of time was given which meant the contractor finished after Christmas, is the contractor entitled to costs over the Christmas break, which is normally 2 weeks?
- Depends on why EoT issued and whether L&E allowed to be claimed for - If L&E can be claimed, contractor would be entitled to costs over Christmas period
What is the defects liability period?
- Duration at end of contract (usually 1 year after PC certificate issued) where contractor undertakes to rectify any defects arising within the structure at the Contractor’s expense, providing they were due to materials and workmanship not in accordance with contract - If the contractor failed to rectify any defects, the employer may employer someone else to undertake and recover cost from main contractor (can use retention monies)
Why might the EA instruct the contractor to ‘open up’ works which have been covered up?
- If they suspect work isn’t completed in ‘proper and workmanlike manner’ or believes ‘materials, goods, or work not in accordance’ with the Contract - Defined under clauses 3.12 and 3.13
When issuing instructions for further opening up and testing to determine the extent of non-compliance what sort of things should the CA consider?
- Significance of non-compliance and consequences on building owners, users, adjoining properties and public - Reason for non-compliance - Level of supervision and control employed by contractor - Recognised testing methods - Time and consequential costs of opening up
Assuming the EA has instructed the contractor to ‘open up’ the works, what are the potential outcomes? (including effect on cost and completion date)
- If works NOT defective, contractor paid for opening up, may be entitled to adjustment of completion date - If works ARE defective, contractor remedies at own expense / gives Employer saving, EA can instruct Contractor to open up similar work, which if defective no payment / adjustment of completion date. If not defective, completion date may be adjusted but still no payment
If the works or materials aren’t in accordance with the Contract, what options does the Architect have available to them?
Architect may: - Instruct contractor to remove all defective work / for variations necessary, materials and goods at their own expense and time
- Notify in writing they can remain with appropriate deduction made from contract sum
- Instruct to open up and test further work to determine extent of any non-compliance
What’s the procedure for claiming an EoT?
- As soon as reasonably apparent that delay has, or is likely to occur, contractor notifies CA in writing
- Notification identifies ‘relevant event’ and gives indication of extent of delay - usually shown on a programme - Contractor required to submit info requested by CA to determine claim
- CA notifies contractor of their decision of the claim- completion may be adjusted, if delay in accordance with contract and adequately demonstrated
From a CA point of view, what are the time periods related to assessing relevant events and adjusting the completion date?
- CA must notify contractor of their decision within 12 weeks of receipt of the required particulars (sooner if completion date less than 12 weeks away) and state extension awarded
If the contractor successfully demonstrates a relevant event and CA adjusts the completion date, is the Contractor due additional preliminaries?
- No, Contractor is required to demonstrate a ‘relevant matter’ for L&E claim
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