Level 3 - Contract Practice Flashcards
1
Q
What is a contract?
A
A legally binding agreement (between two parties) to provide goods and services within a specified timeframe.
2
Q
What is necessary to form a contract?
A
- Offer
- Acceptance (or counter offer)
- Consideration
- Intention (to be legally bound)
- Capacity (to make agreement) (e.g. power of attorney on behalf of a company)
- Legality
3
Q
How is a contract executed?
A
- Under hand, signed by both parties, 6 year limitation period. Means that a party must bring about any claim for breach of contract within 6 years of the breach taking place. Any later and the claim will be time-barred.
- Under Seal (as a deed), signed and witnessed, 12 year limitation period. Valuable consideration not required.
4
Q
What are common contract documents?
A
- The Contract (with any amendments)
- Preliminaries
- Contract sum analysis/Pricing Schedule
- Drawings
- Specification
- Planning conditions/agreements
- Contractors Proposals
5
Q
What are the main contract suites?
A
- JCT (Joint Contract Tribunal)
- NEC (New engineering contract)
- FIDIC (International federation of Consulting engineers)
- ICE (Institution of Civil Engineers)
6
Q
How did you try to mitigate a delay on one of your projects?
A
Keltbray Demolition - Liasing with Main contractor to overlap the works, early survey work can begin on site whilst last section of demolition taking place.
7
Q
Why use standard forms of contract?
A
- They are cheaper than getting a bespoke contract drawn up.
- Offer a level of familiarity between the parties.
- Tried and tested contracts in court, therefore you should be able to predict the outcome in the courts.
8
Q
Why wouldn’t you use a bespoke contract?
A
- They are costly to produce and time consuming.
- Contractors do not like them, as they regularly put a lot of the risk onto the contractor.
- They are not tried and tested like a standard form.
9
Q
What is required to form a contract?
A
- Offer
- Acceptance
- Consideration
- Capacity
- Intention
- Legality
10
Q
What should you consider when selecting the contract?
A
- The criteria of the client.
- The procurement method you are going to use.
- Nature of the works.
- Timings, are the works required to start quickly or do you have time to produce robust set of documents.
11
Q
What standard forms of contract do you know that are offered by JCT?
A
- SBC 2011/2016
- Intermediate building contract 2011/2016
- Minor works Building contract 2011/2016
- Major Projects building contract 2011/2016
- Design and build contract 2011/2016
- Management Building contract 2011/2016
- Construction management contract 2011/2016
- Prime cost building contract 2011/2016
12
Q
Can you name some NEC standard contract forms?
A
NEC - Engineering and Construction Contract (ECC)
- Option A, Priced contract w/ Activity Schedule
- Option B, Priced contract w/ BoQ
- Option C, Target contract w/ Activity Schedule
- Option D, Target contract w/ BoQ
- Option E, Cost reimbursable
- Option F, Management contract
13
Q
When is a JCT Minor Works contract NOT suitable?
A
- Complex projects
- Detailed control procedures
- Where there are named Sub-Contractors
14
Q
Can you provide more information on the JCT Major project construction contract?
A
- Used on large , complex project by experienced clients
- They place most of the risk on the contractor
- Has sub-contract derivatives
15
Q
Can you provide more information on the JCT Design and Build Contract 2011?
A
- They are used by all types of clients, create a single point of responsibility for the design and construction with the contractor
- Can be used on projects of all sizes
- Client must produce the Employers Requirements
- Has a sub-contract derivative broken into two parts: JCT DB11 Sub-contract Agreement, JCT DB11 Sub-contract Conditions
16
Q
Can you provide more information on the JCT Management Building Contract?
A
- Used then a management contracting route is chosen
- Used by experienced clients who understand the construction costs
- No real cost certainty until all packages are let
- Works are completed by a number of ‘Works Contractors’ who are placed under a management works contract.
- Works Contractors are contracted to the Management Contractor
- Management Contractor is a fee earning professional onto the the final construction costs.
17
Q
Can you provide more information on the JCT Construction management contract?
A
- Used where a CM procurement route is chosen
- Used by experienced clients who understand the construction costs
- No real cost certainty until all packages are let
- Works are completed by a number of ‘Trade Contractors’, who are placed under a ‘Construction Management Trade Contract’.
- Trade contractors are contracted directly with the client
- The Construction Manager is only responsible for looking after the programme and construction.
18
Q
Can you provide more information on the JCT Prime Cost Building Contract?
A
- Used on projects which require an early/quick start
- Usually on a cost plus basis, as the extent of the works are not known until the project is underway
- Has sub-contract forms
19
Q
Can you provide more information on the NEC Option A contract?
A
Option A - Priced Contract with an Activity Schedule
- For all types of clients, the balance of risk is mainly with the contractor
- It comes with/requires an activity schedule, containing a list of activities the contract expects is required to complete construction.
- Lump sum
20
Q
Can you provide further information on the NEC Option B contract?
A
Option B - Priced Contract with a Bill of Quantities
- For all types of clients, the risk is mainly with the contractor
- Comes with a detailed BoQ, which can either be produced by the client or Contractor, which is a detailed statement of all the works that will be undertaken.
- Lump sum
21
Q
- Can you provide further information on NEC Option C contract?
A
Option C - Target Contract with Activity Schedule.
Option C is a cost plus contract which is subject to a pain/gain share mechanism by reference to an agreed target cost built up from an activity schedule.
Introduces a mechanism enabling the contractor, and/or the consultant team, to share in the benefits of cost savings, but also to bear some of the cost when there are cost overruns.
22
Q
Can you provide further information on NEC Option D contract?
A
Option D - Target Contract with BoQ.
- A target cost introduces a mechanism that enables the contractor, and/or the consultant team, to share in the benefits of cost savings, but also to bear some of the cost when there are cost overruns. This is typically shared in a pre-agreed proportion.
- A bill of quantities is a document prepared by the cost consultant (often a quantity surveyor) that provides project specific measured quantities of the items of work identified by the drawings and specifications in the tender documentation. A bill of quantities can be prepared when the design is complete.
23
Q
Can you provide further information on NEC Option E contract?
A
Option E - Cost Reimbursable Contract
- Option E is a cost reimbursable contract in which the contractor is reimbursed the actual costs they incur in carrying out the works, plus an additional fee.
- The financial risk involved is largely taken by the client.
- A cost reimbursable contract might be used where the nature or scope of the work to be carried out cannot be properly defined at the outset, and the risks associated with the works are high, such as, emergency work (for example, urgent alteration or repair work, or if there has been a building failure or a fire requiring immediate reconstruction or replacement of a building so that the client can continue to operate their business).
24
Q
Can you provide further information on NEC Option F contract?
A
NEC Option F - Management contract.
- Option F is a cost reimbursable management contract in which the works are constructed by a number of different works contractors who are contracted to a management contractor. The management contractor is responsible for the work and is paid a fee (the cost that it pays the works contractors plus an additional fee), while the financial risk is largely taken by the client.
25
When was NEC3 published?
2005
Used by both the ICE and Government.
26
What are the perceived problems with NEC3 Contracts?
- Very admin heavy
- Requires a lot of expertise to operate effectively
- Focuses too much on Project Management
- Cost information in relation to compensation events can take a long time.
- PM regularly has to decide how to proceed based on a cost estimate from the QS, which then gets replaced by the actual costs.
27
What are the specialities with NEC?
- No Contract Administrator required, replaced by a Project Manager
- Compensation Events as opposed to variations, extensions of time, loss and expense etc.
28
What is a compensation event?
Events that occur during the course of the works that cause the completion date to be changed, or additional cost to the contractor as a result to the client.
29
What might a Compensation Event include?
- Variations
- Instructions to changes contracted services
- Failure to provide access
- Late issue of information from client
- Failure by client to supply materials
- Instruction to halt/delay works
- Conditions that can't have been reasonably foreseen
- Exceptionally adverse weather
- Acts of god.
30
What is the process for a compensation event?
1. Contractor must notify the project manager within 8 weeks of the event becoming apparent with an EARLY WARNING NOTICE, if not notified in this period then it will not be considered.
2. PM has 1 week to review claim and
respond
3. Contractor has 3 weeks to provide quotation
4. PM has 2 weeks to respond to quotation
5. Final costs of works calculated on a cosy reimbursable basis
31
What is the Project Managers role under NEC contracts?
- Manage programme
- Operate early warning mechanism
- Issue instructions
- Issue outcomes for compensation events
- Determine when practical completion has been achieved
- Assess defects
32
What is the Contract Administrators/Employers Agent role under JCT?
- Issue instructions
- Certify payment
- Issue Extensions of time
- Consider all Variations, Loss and expense claims, interim applications
- Assess when practical completion has been achieved.
33
Who is the Employers Agent?
Typically used in Design and Build contracts, they are there to ensure the clients best interests are met.
34
What is the Main Contractor responsible for?
The construction of the project, through either direct labour or sub-contracted labour.
Health and safety, if they are the principle contractor then CDM regs apply;
- Construction phase plan
- Prepare, develop and implement written site plans
- Provide welfare facilities
- Ensure all workers have site inductions
- Provide all relevant information required for H&S plan to the Principle Designer
35
What is Novation?
Where the contractual benefits and burdens of a contract are passed from one party to another.
Commonly used in Design and Build for Design Team.
36
Is the contractor responsible for the Novated party's design prior to Novation?
No, unless they state they have adopted the design.
37
What is Assignment?
Where the contractual benefits and burdens of a contract are passed from one party to another. Such as the assignment of a collateral warranty from one tenant/operator to another.
38
When can Assignment take place ?
Any time, as it is a statutory right, however it can be limited within a contract.
39
Give an example of how Assignment can be restricted?
Restricting the assignment of a collateral warranty to one time only, without the written consent of the warrantor.
40
What is the aim of Assignment?
They give the assignee the same rights as the assignor under the contract
41
What is a Collateral warranty?
A way of forming a direct contractual link between two parties which otherwise wouldn't have a link, such as between a sub-contractor and a client.
42
What case law do you know that relates to Collateral Warranties?
Parkwood Leisure v Laing O'Rourke
43
What happened in the case of 'Parkwood Leisure v Laing O'Rourke'?
It was found that Collateral Warranties can be considered to be a construction contract, and are therefore subject to the same provisions as the construction act.
44
What Collateral Warranties do you know of?
- Collateral warranty for a Purchaser/Tenant
- Collateral warranty for an Employer
- Collateral warranty for a funder
45
What are third party rights?
- An alternative to Collateral Warranties
- They allow a third party to be written into a contract
Introduced as part of the Contracts (third party rights) act 1999.
46
What is the aim of Third Party Rights?
To give the Third party the benefits of the contract only, not the burdens. I.e Writing in the tenant as a the third party will ensure that they receive the contract benefits.
47
What is a Letter of Intent?
- A document outlining an agreement between two parties, before a formal contract has been created
- Each letter of intent is different, with each being assessed based on it meaning
48
What can a Letter of intent be based on its wording?
- An expression of the intention to enter into a contract at a future date, which doesn't give rise to any legal obligation.
- An expression of the intention to enter into a contract at a future date, which does not exclude the right to recover costs on a quantum merit basis.
- The creation of a interim contract.
- The creation of a legally binding. contract, whereby the letter can be offered and accepted.
49
What can be included within a letter of intent?
- Spending caps
| - Expiry dates
50
What is a title retention clause?
Where the good and services remain the property of the seller until a certain obligation is undertaken, i.e. payment.
51
What is a Performance Bond?
A form of financial Security, used to cover the client against the contractor failing to fulfil their contractual obligations.
52
What are the typical values of a Performance bond?
Typically work approximately 10% of the Contract Value to the client.
53
What are the problems with bonds?
They will come at the clients cost.
54
What are the two types of bond?
- Default bond
| - On demand bond
55
What is the difference between a Default Bond and an On demand bond?
- A default bond can be called in when the contractor defaults on their contractual obligations however the client will have to prove that the contractor has defaulted.
- An on demand bond can be called in at any time, without having to satisfy any of the pre-conditions.
56
What types of Bonds do you know of?
- Advanced payment bonds
- Retention bonds
- Materials off site bond
- Tender Bond
57
What is an Advanced Payment Bond?
A financial surety to the client that if an advanced payment is made, then the bond will pay out if the contractor defaults.
58
Why would you use an Advanced payment bond?
If a contract had high upfront costs, and the contractor wanted advanced payment to ease the upfront cost.
59
What is a Retention Bond?
A Bond taken out instead of taking retention from interim valuations, improving contractor cash flow.
60
Why would you use a Retention Bond?
If a Contractor had poor cashflow, a retention bond means that no retention is taken from interim payments, improving cashflow.
61
What happens with variations to a Contract in relation to a retention bond?
The bond value will need to be updated to suit, or the additional retention can be deducted as usual from interim payments.
62
What if a Contractor doesn't maintain a Retention bond? (or other bond)
Then the client is entitled to take the retention out the next interim application.
63
What is a Parent Company Guarantee?
A parent company guarantee is an alternative form of surety for the client, whereby a parent company to the subsidiary company will warrant the subsidiary's companies work, and will remedy any breaches by the subsidiary company, by either stepping in to complete the works, paying damages etc
64
What is Professional Indemnity Insurance?
A form of insurance that covers professional negligence.
65
What is Employers Liability Insurance?
A form of insurance that covers the injury and death arising from business activities.
66
What is Contractors All Risk Insurance?
A form of insurance that covers for subsequent loss or damage.
67
What types of payment method are there?
- Stage Payments
- Milestone payments
- Payment based off activity schedule
- Third party certification
68
What are Stage Payments?
Whereby a predetermined amount is paid on a pre-determined date. They are time accurate but not necessarily value accurate.
69
What are Milestone Payments?
Whereby a value is paid when a certain Milestone is reached, i.e. completion of the footings. They are fairly time and value accurate.
70
What are Payments based on an Activity Schedule?
- Payments are made against activities that have been completed at pre-determined times.
- They are reasonably value and time accurate.
71
What is Third Party Certification?
- Traditional form of valuing the works complete to a certain date.
- Low form of predictability, but high accuracy of the value of works complete.
72
What is the real name for the construction act?
The housing Grants, Construction and Regeneration Act 1996.
73
What is the name of the Act which amended the Construction Act?
The Local Democracy Economic Development Act 2009.
74
What provisions did the Construction Act introduce?
- No paid when paid clauses
- The statutory right to adjudication
- The right to interim payments on contracts over 45 day duration
- The right to suspend performance
- The right to be informed of the amount due, and any amounts withheld.
75
What are the payment provisions under the construction act?
7 days from application date = due date
5 days after the due date = contractor can issue a default notice
17 days from due date = final date for payment
7 days prior to final date for payment = the last day a payless notice can be issued
Overall payment terms of 24 calendar days.
76
What is a payless notice?
A notice which is issued stating how much less you intend to pay than the contractors application.
77
Does a contractor have to issue a Default notice if they issue interim valuations?
No, the interim valuation becomes the default notice.
78
What happens if the final date for payment is missed and no payment made?
Then the contractor is entitled to issue a 7 day notice of their intention to withdraw from site unless payment is received in full.
79
What is a 7-day notice?
- A contractual notice which advises a party of another parties intention to withdraw from site until payment is made.
- A notice for terminating a contract if a certain remedy of breach is not met.
80
What are the payment provisions under NEC?
- 21 day payment terms
- Payless notice to be issued 7 days prior to final date for payment
- Project manager must assess and certify the amount due within one week of the application.
81
What are the payment provisions under JCT?
- 21 day payment terms
| - Payless notice upto 5 days prior to final date for payment
82
What should be included within interim valuations?
- Measured works
- Dayworks
- Variations
- Fluctuations
- Loss and Expense
- Preliminaries
- Materials on/off site
- Provisional sums
- Prime cost sums
83
How can you secure payment for materials off site?
By providing a materials off site bond.
84
What should you do when paying for materials off site?
Ensure a vesting certificate is issued for the materials, confirming your ownership.
85
What should you do when paying for materials on site?
Get the materials clearly separated and marked as being under the client's ownership.
86
What are fluctuations?
A way of dealing with inflation over long period contracts. They allow for the contractor to be reimbursed for the inflation of specific items within the contract.
87
What are the three main types of Fluctuation Clauses?
- Changes to taxation
- Change in the cost of labour, transport and materials
- Change to office or administrative costs
88
How can fluctuation clauses be calculated?
- Calculated in real times, i.e. actual cost increases
| - Or using a pricing index
89
What are the three types of fluctuations considered under JCT ?
a. Changes to statutory contributions, levies and taxes
b. Changes to labour, materials and statutory costs
c. Changes to statutory contributions, levies and taxes calculated by formula.
90
How do JCT Fluctuations clauses work with retention?
A and B do not have retention held, C does.
91
What is excluded from retention?
- Dayworks
| - Loss and Expense
92
What is retention?
A percentage of the amount certified for payment, retained by the client as a financial incentive for the contractor to complete the works, and also return to rectify and defects which may appear.
93
What value is normally taken for Retention?
3 or 5%
94
When does retention get released?
Typically half at PC and half once the Rectification period and completion of making good certificate has been issued.
95
What can a contractor request to protect their retention money?
That it is held in a separate bank account, which they have regular access to regular updated statements.
96
What items do not have retention taken on them?
- Loss and expense
- Fluctuations
- Opening up and testing fees
- Statutory charges
97
What is the definition of 'change'?
An alteration to:
- The Scope of works
- The design
- The quantity
- The quality
- The working conditions
- The sequence of works
or
The imposition of additional obligations on the contractor by the client.
98
What change cannot be undertaken without the contractors consent?
- Omission of work
- Changes to the fundamental nature of the work
- Work that is instructed after Practical Completion
99
Who instructs changes under JCT?
Contract administrator / Employers Agent.
100
Who instructs change under NEC?
The project manager.
101
How should change be valued under
| JCT?
1. Use the Method of Measurement used at tender.
2. Firstly using bill rates/rates from the activity schedule.
3. Pro-rata rates.
4. Rates from first principles.
5. Dayworks.
102
How should change be valued under NEC?
1. Called a Compensation Event.
2. An approximate price should be provided to the Project Manager, which they can base their decision on.
3. The final price is calculated on a Cost Reimbursable basis, based off the actual cost for the Change
103
What is the reason for a Compensation event under NEC?
To put the contractor back in the same position both financially and programme wise, prior to the variation occurring.
104
What is an Extension of Time?
An adjustment to the completion date, relieving the contractors liability to pay LADS for the period of additional time granted.
105
What is the process for submitting and granting an Extension of time?
* When the delay becomes reasonably apparent, the contractor gives written notice to the client identifying the delay.
* The client has 12 weeks to review and respond.
106
What is a relevant event?
An event that entitles a contractor to an extension of time.
107
What can be considered as a relevant event?
* Variations.
* Exceptionally adverse weather.
* Delays in receiving possession.
* Force Majure.
* Terrorism/ civil commotion.
* Failure by the client to issue materials.
* Delays caused by a nominated sub-contractor.
* Changes to statutory requirements.
* Failure by the client to provide information.
108
Do Extensions of Time benefit the client?
Yes, as they set a new contractual completion date the contractor must adhere to, otherwise they will have liquidated damages levied against the contractor.
109
What is a concurrent delay?
Where delays caused by both the contractor, client and unforeseeable events cause a delay.
110
How do you assess concurrent delay?
Each delay should be assessed on its merits, to determine the root cause of the delay.
111
What is a relevant matter?
A delay caused by the client, entitling the contractor to an extension of time and loss and expense.
112
How is a relevant event different to a relevant matter?
* A Relevant event is any delay caused by the client or a neutral event.
* A Relevant matter is a delay typically caused by the client, which entitles the contractor the a claim for loss and expense.
113
What is loss and expense?
• Usually associated with Extensions of Time/Relevant Matters, whereby the contractor is entitled to claim additional costs as the result of a delay.
114
What are the Loss and Expense heads of claim?
* Preliminaries
* Overheads
* Loss of Profit.
* Interest
* Finance Charges
115
When do most disputes in construction contracts occur?
When there are discrepancies between tender and contract drawings or the information is poor, creating too much ambiguity.
116
What types of dispute resolution are there?
* Negotiation
* Mediation
* Conciliation
* Adjudication
* Arbitration
* Litigation
* Expert Witness.
117
How does Mediation work?
An independent third party is appointed, with the intention of facilitating talks between he disputing parties, in aid of them reaching an amicable resolution without going legal.
118
How does conciliation work?
Same as mediation, however the conciliator will propose a settlement agreement at the end of proceedings.
119
How does adjudication work?
* Notice of intention to adjudicate is served from one party to another.
* Adjudicator must be appointed within 7 days of notice.
* Decision is made with 28 days (can be extended to 42)
* Confidential.
* Statutory right.
120
How does arbitration work?
* Third party arbitrator is appointed to decide on a dispute.
* Parties will attend a hearing, where the arbitrator will listen to both sides and make their decision on a dispute.
* Confidential.
121
What is Litigation?
• The process of taking legal action, i.e. construction disputes will be taken to the Construction and Technology courts for settlement.
122
What is expert determination?
Where a third party expert in a field is appointed to make a decision on a specific dispute.
123
What is the Civil Procedure Rules 1998?
• They introduced the Alternative Dispute Methods of Resolution, Mediation, Conciliation, Adjudication and Arbitration to try speed up the legal process, along with making it cheaper and easier to understand.
124
What is a named sub-contractor?
A Sub-contractor recommended by the client, which doesn’t have to be used by the contractor and also doesn’t impose any form of repercussions to the client if the contractor uses the named sub-contractor.
125
What are the benefits of naming a sub-contractor?
It allows the client to influence the contractors decision, whilst taking no responsibility for the performance or cost of the named sub-contractor.
126
What is nominating a sub-contractor?
It allows the client to choose a particular sub-contractor, and impose them in the main contractor.
127
What are the issues of nominating a sub-contractor for a client?
It will leave them responsible for the nominated sub-contractors performance and price.
128
How do nominated sub-contractors work financially with regards to the main contractor?
They are on a prime cost sum, whereby the final value of the nominated contractors work is added to the contract sum, usually with an uplift for Overheads and profit for the main contractor.
129
What is Sectional Completion?
A similar method to Practical Completion, it is used on large project where the works can be broken down into sections, allowing the client to take possession of individual sections once they are complete.
130
What is practical completion?
Practical Completion is awarded when the works are considered to be ‘substantially complete’.
131
What happens when Practical Completion is awarded?
* Half Retention is released.
* Defects liability period commences.
* Client is responsible for insuring the site.
* Ends the Contractors liability to pay liquidated damages.
132
What is Partial Possession?
Similar to Sectional Completion, however it is used when the client wants to take possession of a particular part of the site early. It is granted at the contractor’s discretion.
133
What happens when Partial Possession is awarded?
Alleviates the contractor’s liability to pay LAD’s for that section partially taken over. Lads should decrease proportionally.
• Half Retention is released proportionally.
• End of defects period for that section commences.
• Client is responsible for insuring that part of the site.
134
When can Partial Possession be used?
* Sectional Completion must be written into the contract.
| * Each section will come with it own Sectional Completion date, retention and liquidated and ascertained damages.
135
What is Partial Possession?
• Similar to Sectional Completion, it is used when a client wants to take possession of a section of the works early, even though it has been broken down into sections such as sectional completion.
136
What happens if Practical/Section Completion/Partial Possession is granted?
* Client becomes responsible for insuring the works.
* Half retention released.
* Alleviates contractors liability for LADS.
* Contractors Defect liability period commences.
137
Does the contractor have to accept partial possession?
No, but they cannot reasonably refuse.
138
What is the alternative to partial possession?
Use or occupy, whereby the client uses the area even though its still in the contractor possession.
139
What is a contractors design portion?
* Whereby the Contractor is required to design a portion of the works, as part of their contract.
* What is to be designed by the contractor should be made clear within the tender documents.
140
What is determination?
Where both parties mutually agree to walk away from a contract.
141
What is a final account?
The final value of the works completed, inclusive of all adjustments to the contract sum.
142
How is the final account shown?
In the final certificate.
143
What is included within the final account?
* Contract Sum.
* Variations.
* Provisional Sums.
* Prime Cost Sums.
* Retention.
* Loss and Expense.
* Contra Charges.
* Liquidated Damages.
* Payments to Nominated Sub-contractors.
* Fluctuations.
144
What is completion?
* When all works are completed, and the defects rectification period has ended and all defects have been made good.
* The Certificate of Making good should be issued.
145
What needs to happen if PC/SC is not achieved and the Client wants to levy liquidated damages?
Certificate of Non-completion needs to be issued as a pre-requisite.
146
When does the defects rectification period begin?
When PC/SC is achieved, and usually last 6 – 12 months.
147
What happens if defects are found?
* The Client notifies the CA, who will instruct the contractor to remedy the defects.
* At the end of the Defects rectification period, a schedule of defects will be issued to the contractor for remedy.
148
What are Liquidated Damages?
* An amount that can be levied by the client against the contractor if they fail to meet the contract practical/sectional completion dates.
* They must be a genuine pre-estimate of the contractors loss and are usually fixed daily/monthly sums.
149
What happens if they are construed as a penalty?
They will be unenforceable in court.
150
What are Un-liquidated damages?
Based on the actual loss of the employer, who will have to either negotiate with the contractor the value or refer the matter to legal proceedings.
151
What is a Contra-Charge?
A contra-charge is effectively a back charge, a way of off-setting payment for an item, i.e. for the supply of materials from the contract to a sub-contractor.
152
When is the final certificate issued?
It is issued at the end of the defects liability period, with it releasing the remaining half of the retention, along with ending the contractors liability for defects.
153
What is acceleration?
• Whereby the completion dated is brought forward, requiring the works to be completed quicker.
154
What are the methods of accelerating?
* Supplying the site with additional resources.
* Re-sequencing the works.
* Working Longer Hours.
* Reduction in scope by the client.
* Change of Specification.
155
What are the issues with Acceleration?
* Constructive Acceleration can cause problems.
| * Most methods will usually come at additional cost to the Client.
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When is Acceleration Simple?
When the Delay is client led, and the client issues a formal instruction to accelerate.
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What is Constructive Acceleration?
* Arises where the contractor believes they have a valid claim from an Extension of Time, but the Client disagrees.
* The contractor will accelerate without instruction to mitigate their risk of Liquidated damages, and try recover costs from the Client.
* Uninstructed Acceleration is not accepted by the courts however.
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CASE LAW QUESTION: DO YOU KNOW OF ANY CASE LAW RELATING TO THE OMISSION OF WORK?
* Yes, Abbey Developments Limited V PP Brickwork.
* The case is essentially about whether Abbey Developments was able to omit the remainder of PP Brickwork’s Work.
* Abbey Developments were unsatisfied with PP Brickworks progress.
* They issued and instruction the omit the remaining works from their contract, and employ a new sub-contractor.
* Abbey found to be in breach by the adjudicator, as the clauses in the contract did not allow for such an omission.
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CASE LAW QUESTION: DO YOU KNOW OF ANY CASE LAW RELATING TO A CONSTRUCTION CONTRACT?
* Yes, Parkwood Leisure v Laing O’rourke.
* The case was about determining whether a Collateral Warranty is considered a Construction Contract under the Housing Grants, Construction and Regeneration Act 1996.
* Due to wording of the Collateral Warranty, it was considered to be a Construction Contract, allowing Parkwood Leisure to Adjudicate.
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What is Subject to Contract?
Creates a legal meaning that the parties do not wish to enter into contract until a form contract is signed.
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What is Without Prejudice?
When using this term, it means that the document etc. cannot be used in court as evidence.
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CASE LAW QUESTION: DO YOU KNOW OF ANY CASE LAW RELATING TO A LETTER OF INTENT?
* Yes, Volkerfitzpatrick v Twintec Ltd.
* Volkerfitxpatrick instructed twintec to proceed with the concrete slab on a LOI, including the clause: in accordance with the DOM/2 sub-contract.
* Volker adjudicated against twintec for poor works.
* Twintec refered the matter to court, to get an injunction on the adjudication because it was invalid.
* Court ruled that because the Letter of Intent didn’t reference the dispute resolution method, that it was actually invalid and granted the injunction.
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What are the DOM 2 suite of contracts?
A suite of sub-contracts published by the RICS
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What are Relevant Events? (and give and example)
• An event which causes a delay to the completion date. Relevant Event entitles Contractor to claim an Extension of Time that is, for the completion date to be moved.
Examples include;
```
o Variations
o Adverse Weather
o Terrorism
o Delay by nominated sub-contractor
o Force Majeure
o Loss from a specified Peril (such as flood)
```
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What are Relevant Matters? (and give an example)
• Something that the client is responsible for that materially affects the progress of the works. A relevant matter enables the contractor to claim direct loss and expense incurred. A RM may not always result in an Extension of Time (i.e. a change to the completion date)
• Example's might include;
o Failure to give the contractor possession of the site
o Opening up works that have been carried out in accordance with the contract
o Failure by client to supply goods or services
o Instructions relating to variations and expenditure of provisional sums
