a) Thecontractor is not entitled to claim any additional costs incurred during deeperexcavation. Clause 3.12 states that after the instruction is issued to excavatefurther, the contractor has seven days to complete the work, but since in thisscenario he surpassed this deadline by another seven days he has no right toclaim this money. b) Priorto what was agreed there is an additional task that must be done, and anadditional cost incurred.
This invokes clause 5.3.1 Variation of works To proceed, the CA or Architect must issue another written instruction, howeverthis time the contractor has to pay for the work as he was responsible toemploy a competent person in charge, which he evidently did not. Question2 Defective Worksa) Becausethe CA has inspected some of the cladding (Clause 3.17) and found it to be notin accordance with the contract, he has valid reason to suspect the rest of thework was also not done correctly.
This means he can apply clause 3.18 andinstruct the contractor to remove all defective work and replace it with thecladding specified in the contract. No allowance is to be specified in theContract Sum as this work is on the contractor’s own cost. This additional wokwill delay the progress of the project, which will have implications on theemployer who will not be able to take possession of the building as soon asexpected. b) Asspecified in Clause 3.
20 (Executed work) and repeated in Clause 2.3.3 (Materials,Goods & Workmanship), work and material quality must be deemed satisfactoryby the CA or Architect. Any issues or dissatisfactions must be noted within areasonable time frame.
In the scenario given, the CA only noted the wall to beunsatisfactory six months after its completion, which is not within areasonable time frame. The contractor isstill obligated to remove and redo the work to a better standard; however, heis given an extension of time to do so. Thequality of workmanship and materials was not satisfactory to the CA (Clause2.
3.1), which means the contractor must review the work at his own expense, aslong as the CA can justify whether the work has indeed been carried outwrongly.Toconclude, the Contractor is given extra time to carry out the work that needsto be done, however this has to be done at his own cost. Question3 Certificatesa) Asthe CA has issued a Non-Completion Certificate (Clause 2.
31), the next actionthe CA needs to take is to issue a new completion date, which would theninvalidate the Non-Completion Certificate (Clause 2.28). In order to fix a newcompletion date, the CA needs to make sure there are no Relevant Events thatwould allow for an extension of time. Because he has already started deductingLiquidated Damages, he must have complied with Clauses 2.
32.1 and 2.32.2 andnotified the contractor. One of the CA’s options to proceed would be to eitherdo nothing or to invoke Clause 4.
22.1 Acceleration Quotation before issuing thenew completion date, to ensure that the contractor accelerates the progress ofwork This however would have a negative impact on the quality of the workcarried out, as the contractor speeds up the work. The CA can use this as anincentive for the contractor to complete the work. After issuing theAcceleration Quotation, the CA is obligated to set a new completion date. Ifno Acceleration Quotation is issued, the work would still be delayed by 20weeks and the employer, any tenants and the general usage of the building willbe delayed, which in turn will result in a delayed revenue.
The consequence forthe contractor would be significant Liquidated Damages plus additional costsfor the work required over the following 20 weeks assuming the contractor hasnot budgeted for this.Insteadof issuing the Non-Completion Certificate, another option for the CA would havebeen to allow partial possession of the completed sections. This action wouldrequire the contractor’s consent to the employer and the CA has to notify thecontractor on the employer’s behalf of the Relevant Parts taken into possessionand the Relevant Date (Clause 2.33). Practical Completion would then occur forthe Relevant Part and the Rectification Period begins for the section. Thiswould take a lot of pressure off the contractor as the Liquidated Damages forthe completed section are reduced by the same proportion as the value of thissection in the contract sum.
In return, the contractor is responsible for hiringadditional workforce and resources to complete the work in a shorter period oftime. This would be the contractor’s best optionas it would accelerate the work and bring the completion date forward, as longas the cost for additional resources is lower than the Liquidated Damages savedby shortening the 20-week delay. A Furtheroption for the CA could have been to issue a Practical Completion Certificate (Clause2.30) for the complete project and hire another independent contractor tocomplete the work.
Despite an issue with responsibilities and liability betweenthe original contractor and the new one, this option would be in the bestinterest of all parties involved as it reduces the time to completion.Theemployer in this instance does not have any options, but it is in his bestinterest to start making revenue as soon as possible. b) TheCA or architect can instruct the contractor to replace the defectiveventilation system immediately, despite the Schedule of Defects no beingcompleted for another four months, as stated in Clause 2.38.1.
this won’t incurany additional cost to the employer. c) Byissuing the Final Certificate (Clause 1.9) the CA has approved all work anddeemed it in accordance with the contract.
The contractor is right to say he isno longer liable, which means the employer must hire someone else to replacethe tarmac on the footpaths.