Following our recent series of articles about payments and contracts, Members have bombarded our expert with questions about a wide range of matters. Here, we answer some of the most common queries
I’ve heard about contracts from the Scottish Building Contracts Committee (SBCC), but where can I get them?
The SBCC website will give you a list of published SBCC Building Contracts, you can also obtain them from the RIAS or RICS Scotland. You can also subscribe to the JCT website and get regular updates and newsletters.
We’ve been criticised recently for not giving proper notices in accordance with the sub-contract. Is that a problem for us?
The answer to that is yes, and potentially a big one. If you look at any sub-contracts you’re getting, then read the provisions for notices very carefully – they’ll tell you what you need to do and when, and in what format, so follow them to the letter. The SBCC contracts require you to give notices for a number of events. The contracts will tell you what the addresses for notices are, and to whom they should be sent, and when they should be sent. When I am acting as an adjudicator, one of the most common defences to a claim is that one party has not given proper notices in accordance with the contract or the sub-contract, so you have to make sure that your procedures are in order. The answer is to have template letters in your company that the contracts and commercial mangers can use on a regular basis, and that will keep you right. Don’t worry about whacking these in continually. You are entitled to give notices, so do it!
In some of your articles in CABLEtalk, you mentioned how important it was to keep records. Any further advice?
Yes, always keep plenty of records on your project. This will range from a record of daily resources on site, plant and equipment, signing-in records etc, records of inclement weather etc. Record what work faces your resources are on, plus any situations where you can’t get access into work faces and/or you’re being held up by other trades. Record issues where you’re being disrupted including dates, and resources involved, and the time involved etc, and follow the notice procedures above. I encourage clients to also keep photos and/or videos of progress and disruption. I had a recent experience of a sub-contractor submitting a daily site audit report where a supervisor went round the site every day, and took photographs and e-mailed them to the contractor to record issues. It was of great assistance when we put a claim together for an extension of time. There is an app you can get called Site Audit Pro that is very useful to capture on-site events.
What about bombardment? We’re getting complaints from an employer that we’re bombarding them every day with notices of delay.
Don’t worry about that, and keep up the bombardment. The contract says you have to give notices so keep doing it. It’s a two-way street and the employers design team won’t hesitate to tell you that you are in delay, so just protect your corner.
We keep getting told that payments are on account.
This is becoming an increasing problem, in my opinion. I have seen a number of situations recently where during the contract period, the contractor and sub-contractor agree the measurement and valuation of work in progress, then at a later date the agreed values are reduced, particularly if a dispute arises. I have seen some real horror stories in the last two months where thousands of pounds have been taken off after the value of works on site had allegedly been agreed. I think all you can do is to keep writing and say: “The value of this variation is agreed between the parties at £xx” or words to that effect. Readers of CABLEtalk are encouraged to write to Alan Wilson at SELECT – to highlight issues relating to shoddy and unfair practice.
And finally…we’re finding life in the construction industry is getting tougher. Are we alone?
No you’re not – we’re seeing an increasing number of payment and cash flow issues emerging. One really worrying issue is the fact that final account disputes are now being referred to adjudication, and in many cases the contractor will be looking for the repayment by the sub-contractor of monies previously paid to them. What is wrong with our industry that professional quantity surveyors and contractors cannot meet and agree a final account? It is truly shocking and unacceptable.S
By Len Bunton FRICS FCIArb, HON FRIAS
SEC Group Scotland