Disclaimer

These questions and answers are for general information and guidance only. They should not be relied on in particular situations without contacting Quigg Golden and receiving detailed advice.

What is the significance of having a record of when we started and finished?

Accurate and objective records on when work started and stopped are of great benefit for everyone. This sort of basic but fundamental record is often surprisingly badly kept. Don’t let this happen!

To recover money at the claims stage! The contract price will almost definitely be based in part on how long it is intended that the job will take. This is on the premise that if the job takes longer it will cost more. A record of when you started and finished will be invaluable when formatting a claim for disruption/delay/prolongation or loss and expense. In order to prove how effectively you carried out the work, you will also need records of when you started and finished each part of the contract. One essential record for both the offensive and defensive action is a programme.

How important is a programme?

Apart from being an essential planning tool for any construction project, programmes can have a specific contractual meaning. The most important programme, but also one of the most unusual, is a programme which actually forms part of the contract. This is a two edged weapon, since if any dates shown on a contract programme are not achieved then the contractor is automatically in breach of contract. One important programming item which is almost always included in the contract is a completion date. This is described in clause 23 of JCT 98; and in clause 43 of the ICE 6th Edition.

During the tender process it is good practice for the contractor to draw up a tender programme. This does not form part of the contract but is usually used by the contractor to estimate the contract duration and the critical elements and sequence for the Works. If the programme is detailed with reference to each part of the contract, it becomes of tremendous importance whenever the job begins to change as a result of changes by the Client, actions of the others on site, or unforeseen weather or ground conditions. This tender programme is commonly used by contractors to show how they had originally intended to do the work and consequently, when compared with an as-built programme or progress programmes, shows how much they have been prevented in using the method of work they had intended to complete the works as planned. This is a very important tool in establishing a claim for loss and expense because of disruption to the works or for attempting to prove an extension of time or acceleration claim. How accurate this tender programme is, very much depends on the priority allocated to it at tender stage, the skill of a contractor’s estimator and the ability to accurately reflect the elements of the work on paper. Whilst this will cost money for preparation, management or administration without careful preparation these costs will be subsumed by the cost of preparing a claim and the undoubtedly lesser amount that will be recovered. After all, the side with the better record wins.

The contractor must base his rates and contract sum on something. It, therefore, should not come as a surprise to clients or their professionals that whenever changes occur in the progress of the works, it costs the contractor money or has a cost implication. These are costs that clients must be prepared to pay. Most contracts have a mechanism for allowing the contractor to recover losses incurred in this way.

It is therefore vitally important that tender and successive programmes are carefully maintained and inter-related as the work progresses. The importance of these is often lost in the thick of battle during the contract.

How do I recover money by claims?

The first step, is to claim everything that is due to you. In practice, the amount that you will recover will depend not only on when you submit a claim, but also on your evidence. This highlights the importance of good record keeping. Often you will have a claim for something without realising it. Potential heads are:

• variations;
• unforeseen events;
• delay caused by design team;
• error in documentation;
• tendering process;
• sub-Contractors;
• others.

A well thought out and well prepared claim, can include any or all of these heads and bring in substantial rewards. In a claim you may recover:

• straight forward monetary loss i.e. full recovery for any measured work or variations;
• retention;
• wrongfully deducted discounts;
• damages for breach of contract;
• interest;
• the costs of the claim;
• an extension of time is also a valid head of claim and will not only be the foundation for claims where there has been a time element, but will also help to protect you against any claims against you for ascertained or general damages.

None of the above will be recovered unless you take action, and take it promptly.

What is completion?

When a building is practically complete varies, not only between Architect and Contractor, which you would
expect, but also varies between Architects.

The key tests to decide whether or not a building is practically complete must include:

• does everything work in the manner it is intended to, subject to minor adjustment?

• does the building serve its intended function?

• will any further work necessary not cause undue disruption to the occupants of the building?

If the answer to these questions is "Yes", then the building is probably practically complete.

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