a)   The
contractor is not entitled to claim any additional costs incurred during deeper
excavation. Clause 3.12 states that after the instruction is issued to excavate
further, the contractor has seven days to complete the work, but since in this
scenario he surpassed this deadline by another seven days he has no right to
claim this money.

 

b)   Prior
to what was agreed there is an additional task that must be done, and an
additional cost incurred. This invokes clause 5.3.1 Variation of works
To proceed, the CA or Architect must issue another written instruction, however
this time the contractor has to pay for the work as he was responsible to
employ a competent person in charge, which he evidently did not.

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Question
2 Defective Works

a)   Because
the CA has inspected some of the cladding (Clause 3.17) and found it to be not
in accordance with the contract, he has valid reason to suspect the rest of the
work was also not done correctly. This means he can apply clause 3.18 and
instruct the contractor to remove all defective work and replace it with the
cladding specified in the contract. No allowance is to be specified in the
Contract Sum as this work is on the contractor’s own cost. This additional wok
will delay the progress of the project, which will have implications on the
employer who will not be able to take possession of the building as soon as
expected.

 

b)   As
specified in Clause 3.20 (Executed work) and repeated in Clause 2.3.3 (Materials,
Goods & Workmanship), work and material quality must be deemed satisfactory
by the CA or Architect. Any issues or dissatisfactions must be noted within a
reasonable time frame. In the scenario given, the CA only noted the wall to be
unsatisfactory six months after its completion, which is not within a
reasonable time frame.  The contractor is
still obligated to remove and redo the work to a better standard; however, he
is given an extension of time to do so.

 

The
quality of workmanship and materials was not satisfactory to the CA (Clause
2.3.1), which means the contractor must review the work at his own expense, as
long as the CA can justify whether the work has indeed been carried out
wrongly.

To
conclude, the Contractor is given extra time to carry out the work that needs
to be done, however this has to be done at his own cost.

 

 

Question
3 Certificates

a)   As
the CA has issued a Non-Completion Certificate (Clause 2.31), the next action
the CA needs to take is to issue a new completion date, which would then
invalidate the Non-Completion Certificate (Clause 2.28). In order to fix a new
completion date, the CA needs to make sure there are no Relevant Events that
would allow for an extension of time. Because he has already started deducting
Liquidated Damages, he must have complied with Clauses 2.32.1 and 2.32.2 and
notified the contractor. One of the CA’s options to proceed would be to either
do nothing or to invoke Clause 4.22.1 Acceleration Quotation before issuing the
new completion date, to ensure that the contractor accelerates the progress of
work This however would have a negative impact on the quality of the work
carried out, as the contractor speeds up the work. The CA can use this as an
incentive for the contractor to complete the work. After issuing the
Acceleration Quotation, the CA is obligated to set a new completion date.

 

If
no Acceleration Quotation is issued, the work would still be delayed by 20
weeks and the employer, any tenants and the general usage of the building will
be delayed, which in turn will result in a delayed revenue. The consequence for
the contractor would be significant Liquidated Damages plus additional costs
for the work required over the following 20 weeks assuming the contractor has
not budgeted for this.

Instead
of issuing the Non-Completion Certificate, another option for the CA would have
been to allow partial possession of the completed sections. This action would
require the contractor’s consent to the employer and the CA has to notify the
contractor on the employer’s behalf of the Relevant Parts taken into possession
and the Relevant Date (Clause 2.33). Practical Completion would then occur for
the Relevant Part and the Rectification Period begins for the section. This
would take a lot of pressure off the contractor as the Liquidated Damages for
the completed section are reduced by the same proportion as the value of this
section in the contract sum. In return, the contractor is responsible for hiring
additional workforce and resources to complete the work in a shorter period of
time. This would be the contractor’s best option
as it would accelerate the work and bring the completion date forward, as long
as the cost for additional resources is lower than the Liquidated Damages saved
by shortening the 20-week delay.

A Further
option for the CA could have been to issue a Practical Completion Certificate (Clause
2.30) for the complete project and hire another independent contractor to
complete the work. Despite an issue with responsibilities and liability between
the original contractor and the new one, this option would be in the best
interest of all parties involved as it reduces the time to completion.

The
employer in this instance does not have any options, but it is in his best
interest to start making revenue as soon as possible.

 

 

b)   The
CA or architect can instruct the contractor to replace the defective
ventilation system immediately, despite the Schedule of Defects no being
completed for another four months, as stated in Clause 2.38.1. this won’t incur
any additional cost to the employer.

 

c)    By
issuing the Final Certificate (Clause 1.9) the CA has approved all work and
deemed it in accordance with the contract. The contractor is right to say he is
no longer liable, which means the employer must hire someone else to replace
the tarmac on the footpaths.