| Preface to the second edition |
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xxi | |
| Abbreviations used in the text |
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xxiv | |
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1 | (7) |
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1 Can the lowest tenderer legally do anything if its tender is not accepted? |
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1 | (2) |
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2 The contractor's tender states that it is open for acceptance for 6 weeks from the date of tender, but the contractor withdraws it after 3 weeks citing a suddenly increased workload. Is the contractor liable to the employer for the additional costs of another contractor? |
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3 | (1) |
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3 Does the architect have any particular duty to draw the attention of the contractor to onerous terms or amendments in the contract at time of tender? |
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4 | (2) |
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4 Is the architect responsible if the tender comes in over budget? |
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6 | (2) |
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8 | (11) |
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5 The employer is in a hurry to start work. Is there a problem in the issue of a letter of intent? |
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8 | (3) |
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6 If a letter of intent is issued with a limit of £20,000, is the employer obliged to pay a higher sum after allowing a contractor to exceed the limit? |
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11 | (2) |
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7 Can pre-contract minutes form a binding contract? |
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13 | (1) |
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8 What date should be put on a building contract? |
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14 | (1) |
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9 Can there be two employers on one contract? |
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15 | (1) |
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10 If the employer wishes to act as foreman, can each trade be engaged on a MW contract? |
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16 | (3) |
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19 | (6) |
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11 Can the project manager change the date of possession in the contract? |
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19 | (1) |
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12 If the employer cannot give possession on the due date, can the matter be resolved by the architect giving an instruction to postpone the Works? |
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20 | (1) |
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13 In a refurbishment contract for 120 houses under SBC, the bills of quantities say that the contractor can take possession of 8 houses at a time, taking possession of another house every time a completed house is handed over. Is the contractor entitled to possession of all 120 houses at once? |
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21 | (4) |
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4 General contractual matters |
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25 | (21) |
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14 If the employer is in a partnering arrangement with a contractor, does that mean that the SBC does not count? |
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25 | (2) |
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15 What if no one notices the contractor's serious financial error until the contract is executed? |
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27 | (2) |
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16 What does `time-barred' mean? |
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29 | (1) |
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17 If a contractor does not have a proper contract, but it has carried out work for the same company before on a written contract, will the terms of that written contract apply again? |
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30 | (1) |
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18 The contractor has no written contract with the employer (A). (A) instructed the contractor to do work and asked it to invoice their `sister company' (B). The contractor did so and (B) have not paid despite reminders. What remedy does the contractor have? |
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30 | (3) |
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19 Is the contractor bound to stick to its price if it was described as an `estimate'? |
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33 | (1) |
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20 If the employer wishes to bring directly engaged contractors on to site to carry out special work, can the contractor refuse admittance? |
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34 | (1) |
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21 If the employer has paid for materials on site which are subsequently stolen, who is liable? |
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35 | (1) |
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22 Is there a contract under SBC if everyone acts as though there is? |
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36 | (1) |
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23 If a contract is described as Guaranteed Maximum Price (GMP), does it mean that is the most the contractor can receive, no matter what changes there are in the project? |
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37 | (1) |
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24 Can a contractor avoid a contract entered into under economic duress? |
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38 | (2) |
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25 In DB, if the employer provides a site investigation report and the ground conditions are found to be different, who pays any extra cost? |
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40 | (2) |
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26 What are the dangers for employer and contractor in entering into a supplementary agreement? |
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42 | (1) |
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27 If a contractor must do something `forthwith', how quickly is that? |
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43 | (1) |
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28 What is a reasonable time? |
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44 | (2) |
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5 Warranties, bonds and novation |
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46 | (10) |
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29 Can a warranty be effective before it is signed? |
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46 | (1) |
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30 What are `step in rights'? |
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47 | (1) |
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31 JCT contracts do not seem to mention performance bonds. What are they? |
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48 | (1) |
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32 If the architect is novated to a contractor who subsequently goes into liquidation, can the architect be re-novated to the client? |
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49 | (2) |
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33 In the case of design and build, can the contractor claim from the architect for design errors in work done before novation? |
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51 | (2) |
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34 Have architects any choice whether they provide collateral warranties? |
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53 | (3) |
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56 | (9) |
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35 If an architect approves a contractor's programme, can the contractor subsequently change the programme without the architect's knowledge and, if so, can the architect demand an update? |
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56 | (2) |
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36 Under SBC, the architect has approved the contractor's programme which shows completion 2 months before the contract completion date. Must the architect work towards this new date? |
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58 | (2) |
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37 Can the architect insist that the contractor submits the programme in electronic format? |
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60 | (2) |
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38 When a contractor says that it owns the float, what does that mean? |
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62 | (3) |
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7 Contract administration |
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65 | (19) |
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39 Does the contractor have a duty to draw attention to an error on the architect's drawing? |
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65 | (2) |
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40 Under DB, must the employer's agent approve the contractor's drawings? |
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67 | (2) |
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41 What happens if the contractor cannot obtain materials? |
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69 | (1) |
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42 What if the contractor argues that the standard of work should take into account the tender price and a lower standard should be expected if the price is low? |
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70 | (1) |
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43 What powers does a project manager have in relation to a project? |
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71 | (2) |
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44 Can certificates and formal AIs be issued if the contract is not signed? |
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73 | (1) |
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45 Is the architect obliged to check the contractor's setting out if requested? |
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74 | (1) |
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46 If the architect finds that there is no person-in-charge on site, can the project be halted until the person-in-charge is on site? |
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75 | (2) |
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47 If the employer sacks the architect under MW and appoints an unqualified surveyor as contract administrator, is the contract still valid? |
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77 | (1) |
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48 SBC: There is a clause in the bills of quantities preliminaries which states that no certificates will be issued until the contractor has supplied a performance bond. Work has been going on site for 6 weeks and there is no performance bond, but the contractor says that the architect must certify. Is that correct? |
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78 | (2) |
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49 Funding has been stopped and three certificates are unpaid. The contractor has suspended obligations. Subsequently, vandalism occurred on site - whose problem is that? |
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80 | (1) |
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50 Is it impossible to say that a contractor is failing to proceed regularly and diligently? |
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81 | (3) |
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84 | (21) |
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51 Planning permission was obtained for a small building. The building owner wants to press ahead with a larger building without further reference to Planning. The architect knows that the Planning Department would refuse the large building out of hand. Should the architect continue to do the drawings and administer the contract on site? |
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84 | (1) |
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52 Are there any circumstances in which a contractor can successfully claim against the architect? |
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85 | (3) |
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53 If the contract requires an architect to `have due regard' to a code of practice, does that mean the architect must comply with it? |
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88 | (1) |
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54 Can an architect be liable for advising the use of the wrong form of contract? |
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89 | (1) |
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55 The job went over time. The employer and the contractor did some kind of deal. Where does that leave the architect? |
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90 | (1) |
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56 What are the dangers in a construction professional giving a certificate of satisfaction to the building society? |
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91 | (2) |
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57 Is the client entitled to all the files belonging to construction professionals on completion of the project? |
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93 | (1) |
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58 When can job files be destroyed? |
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94 | (3) |
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59 Is an architect liable for the specification of a product which is defective? |
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97 | (1) |
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60 An architect has been appointed for work on which another architect has been engaged; is there a problem? |
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98 | (1) |
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61 Being asked to use reasonable endeavours sounds less onerous than best endeavours; is that correct? |
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99 | (1) |
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62 An architect's terms of appointment often require co-ordinating, liaising and monitoring. These seem like woolly terms: what do they imply? |
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100 | (1) |
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63 What are the implications of an architect being asked to provide a certificate of readiness for the preparation of bills of quantities? |
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101 | (1) |
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64 Are there any dangers for the architect if the client wants full drawings, but intends to deal directly with a contractor to get the project built? |
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102 | (3) |
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105 | (12) |
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65 If the tender price has been reduced and the architect has been paid for the reduction work, is the architect entitled to be paid for doing the extra design in the first place? |
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105 | (1) |
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66 Can the architect claim extra fees for looking at claims? |
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106 | (1) |
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67 If the architect charges additional fees for work which has to be done as a result of the contractor's breach of some obligation, can the employer recover such fees from the contractor? |
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107 | (2) |
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68 Can the architect claim extra fees if another contractor is engaged after termination? |
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109 | (1) |
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69 If the architect was engaged on the basis of an RIBA Agreement and the client is being funded by a public body such as the Lottery, must the architect wait for fees until funding comes through? |
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110 | (3) |
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70 The architect agreed a fee of 5 per cent of the total construction cost. The Contract Sum was £325,000, but it is now only £185,000 at final account stage. Is the architect obliged to return some fees? |
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113 | (2) |
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71 Can the architect recover interest on unpaid invoices if the client can show that they are incorrect? |
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115 | (2) |
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117 | (13) |
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72 Can the architect escape liability for defective design by delegating it to a sub-contractor? |
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117 | (1) |
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73 Is the contractor liable for something done on its own initiative? |
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118 | (2) |
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74 If the contractor is to `complete the design', does that mean that existing design can be assumed to be correct? |
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120 | (1) |
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75 Is the contractor liable for design produced by a nominated sub-contractor? |
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121 | (1) |
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76 If the architect's design is faulty, but the contractor builds it badly, who is liable? |
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122 | (1) |
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77 Does the architect have a duty to continue checking the design after the building is complete? |
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123 | (1) |
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78 Who owns copyright - client or architect? |
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124 | (2) |
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79 If a designer has been paid for producing full drawings for a development and the client sells the site, can the new owner use the drawings to build on the site? |
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126 | (1) |
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80 What does it mean to take `reasonable skill and care' and how is that different from an obligation to provide something that is `fit for purpose'? |
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127 | (2) |
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81 Why does a design and build contractor usually have a fitness for purpose obligation, but not under the JCT Design and Build Contract? |
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129 | (1) |
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11 Architect's instructions |
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130 | (12) |
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82 What counts as an instruction? |
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130 | (1) |
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83 What can be done if a contractor refuses to carry out an instruction and refuses to allow the employer to send another contractor on to the site? |
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131 | (1) |
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84 Can a contractor refuse to comply with an architect's instruction which requires the acceptance of the quotation of a sub-contractor chosen by the architect? |
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132 | (2) |
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85 Should AIs be signed by an individual or the firm? |
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134 | (1) |
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86 If the employer gives instructions on site directly to the contractor, must the architect then confirm those instructions in writing? |
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135 | (2) |
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87 Does the architect have power to give instructions after practical completion? |
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137 | (1) |
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88 What is the position under a JCT traditional contract if the contractor acts on instructions given directly by the mechanical services consultant? |
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138 | (1) |
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89 Does the wording of MW give the architect power to issue an instruction to postpone the Works? |
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139 | (1) |
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90 Can the clerk of works stop the Works? |
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140 | (2) |
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142 | (9) |
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91 What is the architect's site inspection duty? |
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142 | (3) |
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92 What is the position if the contractor has covered up work? |
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145 | (2) |
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93 Is there a difference between inspecting and supervising? |
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147 | (1) |
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94 Is the architect liable for the clerk of works' mistakes? |
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147 | (2) |
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95 What is the position if the clerk of works approves defective work? |
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149 | (2) |
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13 Defects during progress |
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151 | (6) |
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96 Can the architect stipulate when the contractor must rectify defective work under SBC or can the contractor simply leave it all until just before practical completion? |
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151 | (1) |
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97 The contractor incorrectly set out a school building, but it was not discovered until the end of the project when floor tiles in the corridor were being laid. What should be done? |
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152 | (2) |
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98 Is the contractor responsible for rectifying defects which the architect has noticed, but failed to report? |
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154 | (1) |
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99 What can be done under SBC if a serious defect arises when the Works are nearly finished if the contractor denies liability and the employer is desperate to move in? |
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154 | (3) |
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14 Defects after practical completion |
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157 | (8) |
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100 The contractor has re-laid a defective floor at the end of the rectification period. Can the cost of relaying the carpet be deducted from the final account? |
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157 | (1) |
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101 The contractor says that, under IC, it has no liability for defects appearing after the end of the rectification period. Is that correct? |
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158 | (1) |
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102 Can the rectification period be extended to deal with defects discovered and rectified at the end of the period? |
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159 | (1) |
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103 The contractor denies liability for a serious defect notified during the rectification period and submits an unsolicited report from an expert which supports its position. Has the report any status under the contract? |
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160 | (1) |
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104 What if the employer refuses to allow the architect to carry out the inspection at the end of the rectification period? |
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161 | (1) |
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105 What if an architect forgets to issue a list of defects at the end of the rectification period under SBC? |
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162 | (2) |
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106 Is there a time limit within which a contractor must remedy all defects notified at the end of the rectification period? |
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164 | (1) |
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165 | (18) |
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107 MW: Can the contractor insist on agreement on price before carrying out the work? |
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165 | (1) |
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108 Is the contractor obliged to stick to a low rate in the bill of quantities if the amount of work is substantially increased? |
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166 | (1) |
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109 SBC With Quantities: The contractor put in a very high rate for an item of which there were only 3 no. in the bills of quantities and it was subsequently found necessary to instruct over 200 no. of these items. Is the QS in order in reducing the unit rate? |
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166 | (1) |
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110 Can an architect who discovers that the contractor is making 300 per cent profit on some goods it is contracted to supply under MW do anything about it? |
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167 | (1) |
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111 What is the significance of retention being in trust? |
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168 | (1) |
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112 Is there a problem for the employer who assists the contractor by making an advance payment? |
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169 | (1) |
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113 If work is being done on a daywork basis, can the time claimed be reduced if the quantity surveyor thinks that the contractor has taken too long? |
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170 | (1) |
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114 Is the contractor entitled to loss of profit if work is omitted? |
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171 | (1) |
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115 Is the employer entitled to delay payment if bank funding is delayed? |
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172 | (1) |
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116 Is it true that a change in the scope of work can result in a re-rating of the entire bill of quantities? |
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173 | (1) |
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117 German light fittings were specified. Can the contractor claim extra money because the exchange rate has altered to its detriment? |
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174 | (1) |
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118 Under what circumstances is the contractor entitled to the costs of acceleration? |
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175 | (2) |
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119 What is the effect of agreeing payment in full and final settlement? |
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177 | (2) |
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120 Under DB, the Employer's Requirements asked for special acoustic windows which the Contractor's Proposals did not include. The contract is signed. Can the employer insist on the special windows at no extra cost? |
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179 | (4) |
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183 | (21) |
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121 SBC: Is the contractor entitled to suspend work under the Construction Act if the architect has under-certified? |
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183 | (1) |
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122 Can an architect issue a negative certificate? |
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184 | (3) |
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123 Can an architect who has under-certified withdraw the certificate and issue a revised certificate or simply issue another certificate for the additional money? |
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187 | (1) |
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124 What is the payment position if the architect refuses or fails to check and sign daywork sheets? |
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188 | (1) |
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125 If the contractor is falling behind programme, is the architect justified in reducing the amount of preliminaries costs in interim certificates? |
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189 | (1) |
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126 Must the architect certify the amount in the quantity surveyor's valuation? |
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190 | (1) |
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127 Under IC, if the time for issuing a withholding notice has expired, but some serious defects come to light, can the employer set off the value against the amount certified? |
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191 | (2) |
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128 If the employer and the contractor agree the final account, should the architect issue a final certificate in that amount? |
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193 | (1) |
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129 If the contractor fails to provide the final account documents within the period specified in the contract after practical completion, what should the architect do? |
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194 | (2) |
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130 What does it mean to `issue' a certificate? |
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196 | (1) |
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131 What can a contractor do if the architect fails to certify? |
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197 | (2) |
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132 Must the final account be agreed with the contractor before the final certificate is issued? |
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199 | (1) |
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133 Is the final certificate ever conclusive about workmanship and materials? |
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200 | (4) |
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204 | (10) |
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134 Must the architect approve the sub-contractor's `shop drawings'? |
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204 | (1) |
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135 MW: If the contractor is in financial trouble, can the employer pay the sub-contractors directly? |
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205 | (2) |
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136 If the architect instructs the contractor to accept a specific sub-contractor's quotation, is the employer liable if the contractor fails to pay? |
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207 | (1) |
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137 If the contractor engages a sub-contractor without the architect's consent, can the contractor avoid having to pay the sub-contractor for work done?207 |
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208 | (1) |
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138 The contractor has gone into liquidation and the heating sub-contractor says it is going to remove all the loose piping stored on site and take away the radiators fixed in the building. Can it do that? |
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209 | (1) |
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139 Can there be liquidated damages in a sub-contract? |
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210 | (2) |
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140 Is the sub-contractor obliged to work in accordance with the actual progress of the main contractor's Works? |
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212 | (2) |
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18 Extensions of time: adjustment of the completion date |
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214 | (17) |
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141 Can the architect ignore delays if the contractor has failed to give proper notice? |
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214 | (1) |
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142 Is a note in the minutes of a site meeting sufficient notice of delay from the contractor? |
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215 | (1) |
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143 Is time of the essence in building contracts? |
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216 | (1) |
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144 What, in practice, are `concurrent delays'? |
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217 | (2) |
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145 How does time become `at large'? |
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219 | (1) |
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146 Under SBC, if the architect gives an instruction after the date the contractor should have finished, is the contractor entitled to an extension of time, and if so how much? |
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220 | (1) |
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147 If, under SBC, the architect does not receive all the delay information required until a week before the date for completion, must the extension of time still be given before the completion date? |
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221 | (2) |
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148 Is there an easy way to decide an extension of time? |
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223 | (2) |
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149 If there is a clause in the contract which says that the employer will remain in residence during alterations to a house, but the employer in fact moves out, should the improved working conditions count as a `discount' against any extension of time which might be due? |
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225 | (1) |
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150 Can the client legally prevent the architect from giving an extension of time? |
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226 | (1) |
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151 Must the architect give the contractor detailed reasons to explain the extension of time? |
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227 | (1) |
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152 SBC: Is it permissible for the architect to give a further extension of time if documents from the contractor have not been received until after the end of the 12 weeks review period? |
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228 | (3) |
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231 | (10) |
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153 Is there a time limit for the issue of the certificate of non-completion under SBC and IC? |
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231 | (1) |
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154 The employer terminated in the 9th month of a 10-month contract. Can the employer deduct liquidated damages from the original contractor until practical completion is achieved by others? |
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231 | (3) |
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155 Can an employer suffering no actual loss still deduct liquidated damages? |
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234 | (1) |
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156 Why do contractors sometimes say that the employer cannot deduct penalties? |
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234 | (1) |
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157 Is it true that, where there is a liquidated damages clause, by implication there must be a bonus clause in the same amount for early completion? |
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235 | (1) |
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158 In SBC, if an employer wants to be able to recover actual damages for late completion, is it sufficient that the relevant entry in the contract particulars has been filled in as NA (not applicable)? |
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236 | (1) |
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159 Can the employer still claim liquidated damages if possession of the Works has been taken? |
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237 | (1) |
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160 SBC: If practical completion is certified with a list of defects attached, can the employer deduct liquidated damages until termination (which occurred later due to the contractor's insolvency)? |
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238 | (1) |
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161 If the employer tells the contractor that liquidated damages will not be deducted, can that decision be reversed? |
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239 | (2) |
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241 | (18) |
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162 It is 3 months after practical completion and the contractor has just produced a claim in four lever arch files. What should be done about it? |
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241 | (2) |
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163 What exactly is a global claim? |
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243 | (3) |
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164 How can a contractor claim for disruption? |
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246 | (1) |
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165 Why are overheads and profit difficult to claim? |
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247 | (2) |
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166 Why do contractors use formulae for calculating claims? |
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249 | (2) |
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167 What are `interest and finance charges' which the contractor is trying to claim? |
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251 | (1) |
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168 Can a contractor recover the professional fees of a consultant engaged to prepare a claim? |
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252 | (1) |
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169 Does the contractor have a duty to mitigate its loss? |
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253 | (1) |
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170 Is it permissible to claim increased costs by reference to national indices? |
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254 | (1) |
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171 The contractor is demanding to be paid `prelims' on the extension of time. How is that calculated? |
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255 | (2) |
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172 Is it true that a contractor cannot make a loss and/or expense claim under MW? |
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257 | (2) |
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259 | (6) |
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173 The contract is SBC which includes provision for section. The employer wants to rearrange the sections. Can that be done with an architect's instruction? |
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259 | (1) |
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174 The contract is SBC in sections. The dates for possession and completion have been inserted for each section. Section 2 cannot start until section 1 finished. Is it true that possession of section 2 must be given on the due date even if it is the contractor's own fault that section 1 is not finished? |
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260 | (2) |
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175 If the architect gives an extension of time for section 1 and if all the sections have dates for possession which depend upon practical completion of the earlier section, is the architect obliged to give a similar extension of time for each section? |
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262 | (3) |
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22 Practical completion and partial possession |
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265 | (4) |
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176 If the architect has issued a certificate of practical completion with 150 defective items listed and the contractor is not remedying them within a reasonable time, what can be done about it? |
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265 | (1) |
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177 Is the contractor entitled to a certificate of practical completion after termination? |
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266 | (1) |
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178 Is there such a thing as `beneficial occupation' and is the architect obliged to certify practical completion if the employer takes possession of the Works? |
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266 | (1) |
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179 Can the employer take partial possession of the whole building so that the architect need not certify practical completion? |
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267 | (2) |
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269 | (10) |
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180 The contractor is running over time. The architect has over-certified. Are there any problems if the employer wishes to terminate? |
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269 | (1) |
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181 Termination took place under SBC due to the contractor's insolvency. Can the liquidator insist that full payment of any balance plus retention is immediately payable? |
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270 | (2) |
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182 The contractor has gone into liquidation and another contractor is needed to finish the project. The MD of the original firm has now formed a new company and is asking to be considered for the completion work. Is that a problem? |
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272 | (1) |
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183 If the contractor discovers that it has under-priced a project and cannot afford to carry on, must the architect try to negotiate an amicable termination and settlement? |
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273 | (1) |
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184 How can an employer get rid of a contractor who seems incapable of producing good quality work? |
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274 | (2) |
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185 Is it true that, under SBC, if the employer fails to pay, the contractor can simply walk off site? |
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276 | (1) |
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186 What does `repudiation' of a contract mean? |
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277 | (1) |
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187 Can notice of termination be sent by fax or e-mail? |
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278 | (1) |
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279 | (20) |
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188 What is a dispute or difference under the contract? |
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279 | (2) |
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189 Is it acceptable to suggest to the nominating body whom to nominate as adjudicator? |
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281 | (1) |
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190 An adjudicator has been appointed whom the employer has not agreed. What can the employer do about it? |
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282 | (1) |
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191 How important are the various time periods in adjudication? |
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283 | (2) |
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192 What exactly is a failure to observe the rules of natural justice? |
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285 | (2) |
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193 Is the architect obliged to respond to the referral on behalf of the employer if so requested? |
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287 | (2) |
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194 An Adjudicator's Decision has just been received and it is clear that the points made have been misunderstood and the adjudicator has got the facts wrong. Can enforcement be resisted? |
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289 | (2) |
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195 Can an adjudicator make a decision about an interim payment if it is the final account value which is being referred? |
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291 | (1) |
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196 Other than going to arbitration, are the parties stuck with a decision which contains obvious errors in calculations? |
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292 | (1) |
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197 Can the losing party set off monies owing against the adjudicator's order requiring payment? |
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292 | (2) |
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198 If the adjudicator is late with the decision, is it still valid? |
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294 | (1) |
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199 The court has just ruled that the Adjudicator's Decision is a nullity, can the losing party refuse to pay the adjudicator's fees? |
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294 | (2) |
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200 If the contractor wants to take matters beyond adjudication, what are the pros and cons of arbitration and litigation? |
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296 | (3) |
| Table of cases |
|
299 | (12) |
| Index |
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311 | |
