Council for Aluminium in Building

CAB Contractual Awareness Seminar Content 2020

In 2020, CAB will once again be organising a series of contractual awareness seminars presented by Geraldine Fleming, Operations Director, Driver Trett.

The dates and locations will be announced shortly, but below is the list of seminar topics that will be covered across 4-5 seminars run across the country.

JCT

  • Contract documents including completing the Contract Particulars
  • Communications including notices
  • Third party rights
  • Payment
  • Design
  • Variations
  • Programme
  • Liquidated damages
  • Extensions of time
  • Money claims – loss and expense
  • Subcontractors
  • Defects
  • Dispute resolution including adjudication
  • Termination

DESIGN LIABILITY

  • General contractual overview – formation of contract, hierarchy of documents
  • Who has design responsibility – relationships
  • Important issues
    • Common law position on design, general case law review including is there a difference between acceptance / approval / comments
    • Reasonable skill and care v fit for purpose / new products
    • Novation – overview and review of typical documents, how it works and what are the risks
    • Co-ordination of design – what does this mean?
    • Equal and / or approved
    • Design responsibility under LOI’s
    • Subcontracting design – is this permitted?
    • Subconsultants – what form of contract?
    • Subcontractors
      • Pre contract meetings – programme / design submissions
      • Important subcontract design clauses
  • JCT contracts
    • What contracts are available (standard form with design / DB etc)
    • Clauses to review – articles / CP’s / section 2 / ER v CP
    • Design submission process
    • Contract amendments
  • NEC
    • Important parts of the contract eg communication clauses, WI / SI
    • Option clauses dealing with RSC
    • How is design dealt with – info from guidance notes and CD
    • Contract amendments
  • Dealing with design defects

LEGAL UPDATE

  • This course focuses on recent developments in construction law.  The topics covered will include the following
  • Design – the difference between reasonable skill and care and fit for purpose, along with the importance of limitation of liability clauses
  • Money – milestone payments and what does a “fair valuation” mean when valuing variations
  • Condition precedent clauses – will you lose your rights
  • Practical completion – what to watch out for
  • What has changed in relation to liquidated damages
  • Personal guarantees – what to watch
  • Dispute resolution developments including recent adjudication cases
  • The future – what might we see coming up

COMMERCIAL AWARENESS FOR SITE BASED STAFF

  • Contract formation
  • Correspondence and communication clauses
  • Record keeping and notices
  • Time – what should a contract contain
  • An introduction to claims for time and money (covering extensions of time, prolongation costs and liquidated damages)
  • Payment under the Construction Act 2009 and covering related issues such as discount and retention

CONTRACTUAL NIGHTMARES

Pre-Contract

  • A Subcontractor commences work on receiving a letter of intent before the contract is entered into. Is the Subcontractor entitled to payment if the project is cancelled?
  • A letter of intent is sent to a Subcontractor which includes an instruction to commence work but puts a cap on the value of work to be carried out until the contract is signed.  What happens if the capped value is exceeded?
  • Some contracts require the designer to exercise reasonable skill and care; others impose a fitness for purpose obligation – what is the difference?

Programme

  •  Should the programme a be a subcontract document?

Extension of Time

  • Are Subcontractors entitled to extensions of time if a delay notice is not sent?
  • If work is omitted, can a negative EOT be issued?
  • What does the phrase “constantly use best endeavours to prevent delays” mean?
  • Can an Employer deduct liquidated damages if he suffers little or no loss?
  • Can a Subcontractor challenge a liquidated damages sum included in a subcontract after the subcontract has been signed?
  • Is it possible to cap liquidated damages by a term of the subcontract?
  • Where work is in delay but the Employer takes partial handover of the work, how are the LD’s affected?

Money

  • If work is omitted by way of a variation can the Subcontractor successfully claim for profit lost as a result of the variation? Would it make any difference if the work was omitted and given to another subcontractor to carry out?  What if a Subcontractor, due to its own default, is behind programme, can the Main Contractor take work out of the subcontract and arrange for it to be carried out by others. If so, can any additional cost be recovered from the Subcontractor?
  • Can a Contractor sign a daywork sheet and later refuse to certify the sum involved. Would it make any difference if the daywork sheet was signed for record purposes only?
  • A contract provides for payment when the Subcontractor reaches a certain milestone defined in the contract. Work is delayed due to late instructions issued and the milestones are likely to be reached much later than programmed. What should the Subcontractor do to ensure that the cashflow is not adversely affected?
  • If payment is not made when due, is a Contractor or Subcontractor entitled to suspend work and walk off site?
  • Can a Contractor certify monies as due in respect of a section of work and subsequently omit the value from a later valuation on the basis that the work is defective?
  • Can a Subcontractor claim interest in respect of under certification?
  • Can a Contractor, when making payment to a Subcontractor, reduce the payment to reflect claims the Contractor has against the Subcontractor on other contracts?
  • Where agreement of a final account is reached in full and final settlement and a document is signed to that effect and any balance due paid will this remove any entitlement to payment of items missed out of the final account due to an error?

Rights and Remedies

  • Is a Subcontractor obliged to correct defects which come to light after practical completion?

Other

  • Is a Subcontractor obliged to cover and protect the subcontract works or is protection of all work the responsibility of the main Contractor? If it is the Subcontractor’s obligation when does it cease?
  • A Subcontractor submits his final account which includes several new rates not included in the tender. The Contractor does not include payment in respect of these rates explaining that until accepted by the Employers QS he is unable to do so. What action should the Subcontractor take?

QUOTATIONS WORKSHOP

HOW TO REVIEW THE TERMS IN THE SUBCONTRACT ORDER (SUBCONTRACT FROM HELL)