Construction Contracts-Questions and Answers, Edition 2021 (PDF)

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About

Edition: 2021
Pages: 301
Author(s): David Chappell
Publisher: Routledge
Language: English
Size: 6 Mb

This fully revised and updated edition of Construction Contracts: Questions and Answers includes 300 questions and incorporates 42 new judicial decisions, the JCT 2016 updates and the RIBA Building Contracts and Professional Services Contracts 2018 updates.

Construction professionals of all kinds frequently need legal advice that is straightforward as well as authoritative and legally rigorous. Building on the success of previous editions, David Chappell continues to provide answers to questions from his experience as consultant and Specialist Advisor to the RIBA. Questions range in content from extensions of time, liquidated damages and loss and/or expense to issues of practical completion, defects, valuation, certificates and payment, architects’ instructions, adjudication and fees.
Every question included has been asked of David Chappell during his career and his answers are authoritative but written as briefly and simply as possible.

Legal language is avoided but legal cases are given to enable anyone interested to read more deeply into the reasoning behind the answers. This is not only a useful reference for architects, project managers, quantity surveyors and lawyers, but also a useful student resource to stimulate interesting discussions about real-world construction contract issues.

Content:

Preface to the Fourth Edition
Abbreviations used in the text
1 Tendering 1
1 Does the architect have a duty of care to the contractor when issuing tendering information? 1
2 Can the lowest tenderer legally do anything if its tender is not accepted? 1
3 The contractors tender states that it is open for acceptance for six weeks from the date of tender, but the contractor withdraws it after three weeks citing a suddenly increased workload. Is the contractor liable to the employer for the additional costs of a replacement contractor? 3
4 Is a contractor bound by its price even if there is an error in tendering? 3
5 Does the architect have any particular duty to draw the attention of the contractor to onerous terms or amendments in the contract at the time of tender? 4
6 Is the architect responsible if the tender comes in over budget?
2 Pre-contract issues 7
7 The employer is in a hurry to start work. Is there a problem in the issue of a letter of intent? 7
8 If a letter of intent is issued with a limit of £220,000, is the employer obliged to pay a higher sum after allowing a contractor to exceed the limit? 9
9 Can an architect be negligent for suggesting the letter of intent? 10
10 Can pre-contract minutes form a binding contract? 11
11 Has the contractor any remedy if the employer has said during the tender period that the contractor can freely use certain facilities on site but subsequently refuses to allow it? 12
12 Can there be two employers on one contract? 13
13 If the employer wishes to act as foreman, can each trade be engaged on an MW contract? 13
14 The employer rejected a contractor’s tender and accepted a different tender, but that tenderer went into liquidation before starting on site. The employer then accepted the first tender, but the contractor said it would have to increase the price. Is the contractor allowed to do that? 14
15 What date should be put on a building contract? 14
3 Possession of the site 16
16 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? 16
17 In a refurbishment contract for 120 houses under SBC, the bills of quantities say that the contractor can take possession of 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? 17
18 Can the project manager change the date of possession the contract? 18
4 General contractual matters 19
19 What does ‘time-barred’ mean? 19
20 What is a letter of reliance? 20
21 Is the contractor bound to stick to its price if it was described as an ‘estimate’? 20
22 If a contract is described as Guaranteed Maximum Price (GMP), is this the most the contractor can receive no matter what changes there are in the project? 21
23 If the employer is in a partnering arrangement with a contractor, does that mean that the SBC does not count? 21
24 So-called partnering and many other contracts contain terms to the effect that the parties will work together in the spirit of trust, fairness and mutual co-operation. How far does that affect other clauses? 23
25 What if no one notices the contractors serious financial error until the contract is executed? 23
26 Can the contractor opt to ignore the architect and just deal with the employer? 24
27 What if the parties sign one contract while thinking they are signing another? 24
28 If a contractor does not have a proper contract but has carried out work for the same company before on a written contract, will the terms of that written contract apply again? 25
29 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) has not paid despite reminders, 25
30 If a clause is deleted in a contract, is it just the same as if it had never been there? 26
31 If the employer wishes to bring directly engaged contractors onto the site to carry out special work, can the contractor refuse admittance? 27
32 If the employer has paid for materials on site which are subsequently stolen, who is liable? 27
33 Under SBC, is there a contract if everyone acts as though there is? 28
34 What if an employer tells the architect he or she does not want a building contract? 28
35 Can a contractor avoid a contract entered into under economic duress? 29
36 Under DB, if the employer provides a site investigation report and the ground conditions are found to be different, who pays any extra cost? 30
37 The contractor failed to take out insurance against its liabilities in regard to injury or damage to persons or other property. Does that mean that the employer cannot claim against the contractor if injury or damage occurs? 31
38 What are the dangers for employer and contractor in entering into a supplementary agreement? 32
39 If a contractor must do something ‘forthwith’, how quickly is that? 33
40 What is a reasonable time? 33
5 Warranties, bonds and novation 35
41 What are ‘step-in rights? 35
42 Cana warranty be effective before it is signed? 35
43 Have architects any choice whether they provide collateral warranties? 36
44 JCT contracts do not seem to mention performance bonds. What are they? 37
45 Is an architect who fails to secure a performance bond negligent? 38
46 If the architect is novated to a contractor who subsequently goes into liquidation, can the architect be re-novated to the client? 39
47 In the case of design and build, can the contractor claim from the architect for design errors in work done before novation? 40
6 Contractor’s programme 42
48 When a contractor says that it owns the float, what does that mean? 42
49 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?
50 Under SBC, the architect has approved the contractor’s programme, which shows completion two months before the contract completion date. Must the architect work towards this new date? 45
51 Can the architect insist that the contractor submit the programme in electronic format? 46
7 Contract administration 48
52 Is the architect obliged to check the contractor’s setting out if requested? 48
53 Does the contractor have a duty to draw attention to an error on the architect’s drawing? 48
54 Under DB, must the employers agent approve the contractor’s drawings? 50
55 Is the architect obliged to provide as-built drawings? 50
56 What happens if the contractor cannot obtain materials? 51
57 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? 51
58 What powers does a project manager have in relation to a project? 52
59 Can certificates and formal AIs be issued if the contract is not signed? 53
60 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? 54
61 If the employer sacks the architect and appoints an unqualified surveyor as contract administrator, is the contract still valid? 55
62 Under 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 six weeks and there is no performance bond, but the contractor says that the architect must certify, Is that correct? 56
63 If there is a clause stating that the parties will work together in a spirit of trust, can the employer demand to see all the relevant books of the contractor? 57
64 Bunding has been stopped and 3 certificates are unpaid. The contractor has suspended obligations. Subsequently, vandalism occurred on site - whose problem is that? 58
65 Is it impossible to say that a contractor is failing to proceed regularly and diligently? 59
8 Architects 60
66 An architect’s terms of appointment often require coordinating’, ‘liaising’ and ‘monitoring’. These seem like woolly terms; what do they imply? 60
67 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. Should the architect continue to do the drawings and administer the contract on site? 61
68 If an architect is engaged to apply for planning permission by a certain date, is the architect liable if that date is missed? 61
69 Are there any circumstances in which a contractor can successfully claim against the architect? 62
70 If the contract requires an architect to ‘have due regard’ to a code of practice, does that mean the architect must comply with it? 64
71 Can an architect be liable for advising the use of the wrong form of contract? 65
72 Is an architect liable for failure to advise a client to use a better material? 66
73 The job went over time* The employer and the contractor did some kind of deal. Where does that leave the architect? 66
74 What is the purpose of a net contribution clause? 67
75 Is the client entitled to the architect’s drawings in electronic format? 68
76 Is an architect liable for the specification of a product which is defective? 69
77 An architect has been appointed for work on which another architect has been engaged; is there a problem? 70
78 Can an architect use RIBA terms of engagement outside the UK? 71
79 Being asked to use reasonable endeavors sounds less onerous than best endeavors; is that correct? 71
80 Architects are often called upon to specify the key staff who will deal with a particular project. To what extent may the architect change such staff? 72
81 What are the implications of an architect being asked to provide a certificate of readiness for the preparation of bills of quantities? 73
82 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? 73
83 If, at the end of a project, the client engages another architect to investigate how the project has been run, must the original architect and contractor co-operate? 74
84 Is the client entitled to all the files belonging to construction professionals on completion of the project? 75
85 When can job files be destroyed? 75
86 What are the dangers of a construction professional giving a certificate of satisfaction to the building society? 77
9 Fees
87 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? 79
88 Can the architect hold onto the signed contract documents if the employer has failed to pay fees owing? 79
89 If the client fails to pay, can the architect withdraw the planning application? 80
90 Is the architect entitled to charge a new client full fees for a design which the architect has already prepared for a different client and for which fees have been paid? 80
91 Can the architect claim extra fees for looking at claims? 80
92 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? 81
93 The terms of engagement specify a percentage fee but the client wants to see timesheets 83
94 The consultant’s appointment was with a partnership. One partner left and the rest became a limited company. Was the consultant correct to continue invoicing the limited company? 83
95 If the architect is engaged at an hourly rate and the client now wants a fixed fee to end of job- must the architect agree? 84
96 Can the architect claim an extra fee if another contractor is engaged after termination? 85
97 If the architect was engaged on the basis of one of the RIBAPSCs and the client is being funded by a body such as the Lottery, must the architect wait for fees until funding comes through? 85
98 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? 87
99 Can the architect recover interest on unpaid invoices if the client can show that they are incorrect? 88
100 Can the architect who is owed fees also recover the cost of management time chasing payment? 88
10 Design 90
101 Can the architect escape liability for defective design by delegating it to a subcontractor? 90
102 If the architect completes the design but is asked to make changes, is that simply 'design development’? 91
103 Is the contractor liable for something done on its own initiative? 92
104 Under MW, how can a contractor be given design responsibility? 93
105 If the contractor is to 'complete the design’, does that mean that the existing design can be assumed to be correct? 94
106 Is the contractor liable for design produced by a nominated sub-contractor? 95
107 If the architect’s design is faulty, but the contractor builds it badly, who is liable? 96
108 Under IC does the contractor have any design responsibility for trussed rafters if they are in the specification? 97
109 Does the architect have a duty to continue checking the design after the building is complete? 97
110 Who owns copyright - client or architect? 98
111 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? 99
112 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"? 101
113 Why does a design and build contractor usually have a fitness for purpose obligation, but not under DB? 102
11 Architect’s instructions 103
114 What counts as an instruction? 103
115 What can be done if a contractor refuses to carry out an instruction and refuses to allow the employer to send another contractor onto the site? 104
116 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? 105
117 Should AIs be signed by an individual or the firm? 106
118 If the employer gives instructions on site directly to the contractor, must the architect then confirm those instructions in writing? 106
119 Can the employer tell the architect to instruct the contractor to omit half the Works? 107
120 Does the architect have power to give instructions after practical completion? 107
121 What is the position under a traditional contract if the contractor acts on instructions given directly by the mechanical services consultant? 108
122 Under SBC, roof tiles were varied at site meeting and letter, but the contractor ordered the original ones. Should the architect have changed the drawings as well? 109
123 Can the architect issue an Al if the client says NO? 109
124 Does the wording of MW give the architect power to issue an instruction to postpone the Works? 110
12 Inspection 111
125 What is the architect's site inspection duty? 112
126 What is the position if the contractor has covered up work? 113
127 If the architect's contract stipulates inspections every two weeks, is the architect liable if defective work is done between inspections and is not visible subsequently? 114
128 Is there a difference between inspecting and supervising? 114
129 Can the contractor argue that the architect saw what was being done on site and must have agreed with it? 115
130 Is the architect liable for the clerk of works' mistakes? 116
131 What is the position if the clerk of works approves defective work? 117
132 Can the clerk of works stop the Works? 117
13 Defects during progress 118
133 Under SBC, can the architect stipulate when the contractor must rectify defective work or can the contractor simply leave it all until just before practical completion? 118
134 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? 119
135 Is the contractor responsible for rectifying defects which the architect has noticed, but failed to report? 120
136 If a supplier persuades the employer to use a particular product in the Works and it subsequently fails, has the employer any redress? 120
137 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? 121
138 If the contractor is liable for a very serious defect, must it do whatever the employer requires to correct it? 122
139 Contractor will not rectify defects until the final account is agreed 123
140 The contractor says that it has no liability for defects appearing after the end of the rectification period. Is that correct? 124
141 1C: In this project there are two rectification periods: 6 months for building, 12 months for heating and electrical. Should there be two final certificates? 125
142 Are latent defects all the defects discovered during the rectification period? 125
143 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? 126
144 If there is a DB contract and the architect has been novated from the employer to the contractor at tender stage, can the employer ask the same architect to prepare a list of defects after practical completion? 127
145 What if the employer refuses to allow the architect to carry out the inspection at the end of the rectification period? 127
146 What is the position if the employer has taken possession of a block of flats, some have been let and the tenants will not allow defects inspection? 128
147 What if an architect forgets to issue a list of defects at the end of the rectification period? 128
148 Is there a time limit within which a contractor must remedy all defects notified at the end of the rectification period? 129
149 Must the contractor deal with defects at the convenience of the employer? 130
150 Must the architect take notice of defects reported by the client’s tenants if there are no warranties between architect and tenant? 130
151 Due to a construction defect in a swimming pool, hundreds of gallons of water have been lost. Can the employer recover the cost from the builder? 130
152 The contractor has re-laid a defective floor at the end of the rectification period. Can the cost of re-laying the carpet be deducted from the final account? 131
153 Can the rectification period be extended to deal with defects discovered and rectified at the end of the period? 132
154 Is the employer entitled to hold retention against future defects after the end of the rectification period? 132
15 Valuation and payment 134
155 Under MW, can the contractor insist on agreement on price before carrying out variations? 134
156 Is the contractor obliged to stick to a mistaken low rate in the bills of quantities if the amount of work is substantially increased? 134
157 Under 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. It was subsequently found necessary to instruct over 200 of these items. Is the quantity surveyor entitled to reduce the unit rate? 135
158 Tenders were invited on the basis of a bills of quantities. After tendering, the three lowest tenderers were asked to price a bill of reductions. The overall lowest tenderer was appointed. During the progress of the Works, the quantity surveyor wants to value using prices from either the bill of reductions or from the original bills of quantities, whichever is lowest 135
159 Under MW, can an architect who discovers that the contractor is making 300 per cent profit on some goods it is contracted to supply do anything about it? 136
160 What is the significance of retention being in trust? 136
161 Is there a problem for the employer who assists the contractor by making an advance payment? 137
162 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? 138
163 The architect and the quantity surveyor cannot keep up with the volume of daywork sheets. Is it OK to sign without checking? 138
164 Is the contractor entitled to loss of profit if work is omitted? 139
165 Is the employer entitled to delay payment if bank funding is delayed? 140
166 Is it true that a change in the scope of work can result in a re-rating of the entire bills of quantities? 140
167 Can the quantity surveyor be liable for measuring work which is defective? 141
168 German light fittings were specified. Can the contractor claim extra money because the exchange rate has altered to its detriment? 142
169 Under what circumstances is the contractor entitled to the costs of acceleration? 143
170 What is the effect of agreeing payment 'in full and final settlement? 145
171 If the employer and the contractor agreed financial settlement, can the employer set-off money because of a subsequent defect? 146
172 Under DB, the Employer’s Requirements asked for special acoustic windows which the Contractors Proposals did not include. The contract is signed. Can the employer insist on the special windows at no extra cost? 147
16 Certificates 149
173 What does it mean to 1issue" a certificate? 149
174 Under SBC, is the contractor entitled to suspend work under the Construction Act if the architect has under-certified? 149
175 Can an architect issue a negative certificate? 151
176 Can an architect who has under-certified withdraw the certificate and issue a revised certificate or simply issue another certificate for the additional money? 152
177 What should the architect do if the employer says that certain work is not to his or her satisfaction? 152
178 What is the payment position if the architect refuses or fails to check and sign daywork sheets? 153
179 Is it true that architects may lose their right to certify under JCT 2016 contracts? 153
180 If the contractor is falling behind programme, is the architect justified in reducing the amount of preliminaries costs in interim certificates? 155
181 Must the architect certify the amount in the quantity surveyor's valuation? 156
182 If the architect has made some factual errors on an interim certificate, is the employer entitled to refuse payment? 157
183 At the contractor's request, the architect has started issuing certificates every two weeks. Is there anything wrong with that? 157
184 What is the status of a certificate issued by the quantity surveyor or project manager? 158
185 Under IC, if the time for issuing a Pay Less Notice has expired but some serious defects come to light, can the employer set-off the value against the amount certified? 158
186 Under SBC, when is a certificate issued? 159
187 Under DB, should an architect working for a contractor issue certificates? 160
188 Under SBC, if the project has taken a long time and has not et reached practical completion, is the architect allowed to release 25 per cent of the retention? 160
189 If the employer and the contractor agree the final account, should the architect issue a final certificate in that amount? 161
190 What can a contractor do if the architect fails to certify? 161
191 Must the final account be agreed with the contractor before the final certificate is issued? 162
192 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? 163
193 If the contractor has signed the final account as agreed, is the architect entitled to reduce it thereafter? 164
194 Is the final certificate ever conclusive about workmanship and materials? 164
195 Under SBC and IC is there a problem if the architect delays issuing the final certificate? 166
196 Is it permissible to issue a final certificate on an interim certificate form? 167
197 Under SBC, should the architect issue a final certificate if further defects have appeared in the Works? 167
198 Is it possible to challenge a final certificate a year after it has been issued? 168
17 Sub-contractors and suppliers 170
199 Must the architect approve the sub-contractor's ‘shop drawings’? 170
200 Under MW, if the contractor is in financial trouble, can the employer pay the sub-contractors directly? 171
201 If the architect instructs the contractor to accept a specific sub-contractors quotation, is the employer liable if the contractor fails to pay? 172
202 If the specified supplier cannot deliver on time, must the employer choose another supplier and stand any difference in cost? 172
203 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? 173
204 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? 174
205 Can there be liquidated damages in a sub-contract? 175
206 Is the sub-contractor obliged to work in accordance with the actual progress of the main contractor's Works? 176
18 Extensions of time/adjustment of the completion date 178
207 Can the architect ignore delays if the contractor has failed to give proper notice? 178
208 What is the position if the contractor is delayed by delays in obtaining specified goods from overseas suppliers? 179
209 Is a note in the minutes of a site meeting sufficient notice of delay from the contractor? 180
210 Is time of the essence in building contracts? 180
211 What, in practice, are 'concurrent delays’? 181
212 How does time become 'at large’? 183
213 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 long? 183
214 Is the contractor’s Christmas holiday period included in extensions of time? 184
215 Under SBC, if 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? 184
216 Is there an easy way to decide an extension of time? 185
217 The contractor has a four weeks’ extension of time. Can the employer charge for supplying electricity during this period? 187
218 Can the architect issue an extension of time even if the contractor has not given any delay notices? 187
219 Under SBC: the project manager agreed the length of an extension of time with the contractor. Should the architect now certify it? 187
220 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 1 against any extension of time which might be due? 188
221 Can the employer legally prevent the architect from giving an extension of time? 188
222 Must the architect give the contractor detailed reasons to explain the extension of time? 189
223 Under 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-week review period? 190
224 Is it permissible for the architect to substantially backdate the certificate of practical completion instead of giving an extension of time? 191
225 The employer terminated the contractor’s employment in the ninth month of a term on the SBC contract. The contractor is now claiming 16 weeks’ extension of time 192
226 Can the contractor be entitled to an extension of time if it finishes before the date for completion? 192
227 Must everyone follow the Society of Construction Law Delay and Disruption Protocol? 193
19 Liquidated damages 195
228 Under SBC and IC, is there a time limit for the issue of the certificate of noncompletion? 195
229 The employer terminated in the 11th month of a 12-month contract. Can the employer deduct liquidated damages from the original contractor until practical completion is achieved by others? 195
230 Can an employer suffering no actual loss still deduct liquidated damages? 196
231 If an employer has entered into two separate contracts with the same contractor, is it entitled to set off liquidated damages due on one contract against payment due to the contractor on the other contract? 197
232 Why do contractors sometimes say that the employer cannot deduct penalties? 197
233 Is it true that where there is a liquidated damages clause, implication there must be a bonus clause in the same amount for early completion? 198
234 Under SBC, if an employer wants to be able to recover actual damages for late completion, is it sufficient that the liquidated damages entry in the contract particulars has been filled in as NA (not applicable)? 199
235 Does it make sense to include in the contract the way in which liquidated damages have been calculated? 199
236 Can the employer still claim liquidated damages if occupation of the Works has been taken? 199
237 Can actual damages be claimed instead of liquidated damages if the overrun is very long? 200
238 What does a contractor mean who says that ‘damages are at large’? 201
239 If the employer has to cancel a £13,000 holiday because a new house is not completed in week 17 of a 14-week contract, can the employer claim the holiday cost? Liquidated damages are £250/week 201
240 The contract shows the completion date of a school, but the contractor has submitted a programme showing a later completion date. From which date do liquidated damages run? 202
241 Under 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 contractors insolvency)? 203
242 If the employer tells the contractor that liquidated damages will not be deducted, can that decision be reversed? 204
20 Loss and/or expense 206
243 It is three months after practical completion and the contractor has just produced a claim in four lever arch files. What should be done about it? 206
244 Must the architect or quantity surveyor consider further loss and/or expense information provided by the contractor after the quantity surveyor has prepared the final account? 207
245 What exactly is a global claim? 208
246 How can a contractor claim for disruption? 210
247 Why are overheads and profit difficult to claim? 210
248 Can a contractor claim for loss of opportunity? 212
249 Why do contractors use formulae for calculating claims? 213
250 What are ‘interest and finance charges1 which the contractor is trying to claim? 214
251 Can a contractor recover the professional fees of a consultant engaged to prepare a claim? 215
252 Does the contractor have a duty to mitigate its loss? 215
253 Is it permissible to claim increased costs by reference to national indices? 216
254 The contractor is demanding to be paid ‘prelims' on the extension of time. How is that calculated? 217
255 Under MW, is it true that a contractor cannot make a loss and/or expense claim? 218
256 To what extent is a contractor obliged to provide information requested by the architect or quantity surveyor in connection with loss and/or expense? 218
21 Sectional completion 220
257 The contract is SBC, which includes provision for sections. The employer wants to rearrange the sections. Can that be done with an architect's instruction? 220
258 Can sectional completion be achieved by inserting the phasing dates in the bills of quantities Preliminaries section? 220
259 Under SBC in sections, the dates for possession and completion have been inserted for each section. Section 2 cannot start until section 1 is 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? 221
260 If the architect gives an extension of time for section 1 and 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? 223
22 Practical completion and partial possession 225
261 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? 225
262 Is the contractor entitled to a certificate of practical completion after termination? 226
263 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? 226
264 Can the employer take partial possession of the whole building so that the architect need not certify practical completion? 227
265 Is the architect entitled to issue the practical completion certificate and an extension of time on the instruction of the client's solicitor? 227
266 If the employer has agreed that the contractor can have another four weeks extension of time, should the architect backdate the certificate of practical completion? 228
267 Can partial possession be used for the whole of the interior if the employer is anxious to move in? 228
23 Termination 230
268 The contractor is running over time. The architect has over-certified. Are there any problems if the employer wishes to terminate? 230
269 Under SBC, termination took place due to the contractors insolvency. Can the liquidator insist that full payment of any balance plus retention is immediately payable? 231
270 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? 232
271 After termination must the employer invite three tenders to complete the Works? 233
272 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? 233
273 How can an employer get rid of a contractor who seems incapable of producing good-quality work? 234
274 In what circumstances can an employer terminate on the grounds of failure to proceed regularly and diligently even if the contract does not require the contractor to do so? 235
275 Under SBC, is it true that if the employer fails to pay, the contractor can simply walk off site? 236
276 Is there any time limit for the employer to terminate after the architect has issued a default notice? 237
277 The employer has terminated, but the contractor refuses to leave site, saving that it is entitled to stay until paid in full 238
278 What does ‘repudiation of a contract mean? 239
279 Can notice of termination be sent by fax or e-mail? 240
280 Is a contractors termination under a JCT contract valid if addressed to the architect but copied to the employer? 241
24 Disputes 242
281 What is a dispute or difference under the contract? 242
282 Is it acceptable to suggest to the nominating body whom to nominate as adjudicator? 243
283 If the contractor does not like the adjudicator who has been nominated, can it abort the process and seek the nomination of a different adjudicator? 244
284 An adjudicator has been appointed whom the employer has not agreed. What can the employer do about it? 244
285 Is it permissible to refer several disputes to adjudication at the same time? 245
286 How important are the various time periods in adjudication? 246
287 What exactly is a failure to observe the rules of natural justice? 247
288 Is the architect obliged to respond to the adjudication referral on behalf of the employer if so requested? 248
289 Is a person acting as an expert witness immune from actions for negligence? 249
290 Can a mediator be called as a witness about the subject of the mediation? 250
291 Can an adjudicator use his or her own experience to decide the dispute? 251
292 Can an adjudicator make a decision about an interim payment if it is the final account value which is being referred? 252
293 Is the adjudicator entitled to award interest? 252
294 Other than going to arbitration or litigation, are the parties stuck with an adjudication decision which contains obvious errors in calculations? 252
295 Can the losing party setoff monies owing against the adjudicators order requiring payment? 253
296 If in valuing the Works, it is decided that there has been an overpayment, can the adjudicator order repayment? 253
297 If the adjudicator is late with the decision, is it still valid? 255
298 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? 255
299 The court has just ruled that the adjudicators decision is a nullity. Can the losing party refuse to pay the adjudicator’s fees? 256
300 If the contractor wants to take matters beyond adjudication, what are the pros and cons of arbitration and litigation? 257
Table of cases
Index

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