Get your Contractual Notices in to the Principal Agent
Wednesday, 02 May 2018
Posted by: Tasveera Singh
Most building contractors celebrate once they are awarded a job after a long tender process or negotiation. After the physical symptoms from the celebrations have worn off, there is a flurry of activity within the company namely planning, resource allocation and complying with statutory requirements.
The contract document is forgotten once it is signed and all energies are expended on gearing up for the site handover. Only once the building is nearing completion and practical completion is being discussed with the threat of penalties being mentioned in site meeting minutes, is the contract document taken out of its dark hiding place. By this time it is too late and any claims you submit at this stage for delays that occurred in the beginning of the building contract will be time barred.
In the JBCC Principle Building Agreement, Edition 5.0, July 2007, Clause 29.0 (6.1 Clause 23 ) deals with the REVISION OF DATE FOR PRACTICAL COMPLETION. The main problem is that contractors do not take cognisance of Clause 29.4.3. (6.1 Clause 23.4.2)
“Within twenty ( 20 ) working days from the date upon which the contractor became aware or ought reasonably to have become aware of the potential delay notify the principle agent of his intention to submit a claim for a revision to the date for practical completion or any previous revision thereof resulting from such delay, failing which the contractor’s right to claim shall lapse.
With the above clause in mind the contractor must carry out the following to have a successful claim for delays.
1. Must be submitted to the Principle agent in writing.
2. Must be within 20 working days of you the contractor becoming aware of the delay.
3. Do not quantify the days as this is merely a notice that you are aware of a potential delay.
4. This gives the Principle Agent time and notice on which he may act to minimise the potential for delay.
5. Do not let yourself be persuaded by the Principle Agent that you need not notify him as he is aware of the problem. This will not stand you in good stead should the matter go to arbitration later.
6. Relate the notification to the relevant clause in the contract document.
7. Also get the fact that you have submitted a notification of delay recorded in the Site Meeting Minutes.
Once the contractor has complied with the above and is able to quantify the delay due to the delay ceasing the contractor must then comply with the provisions of Clause 29.5 (6.1 Clause 23.5)
“The contractor shall, within forty ( 40 ) working days of the delay ceasing, submit such claim to the principle agent, failing which the contractor shall forfeit such claim.
The process to be followed is thus:
1. Submit a claim in writing to the principle agent with the amount of working days you are claiming.
2. The claim must contain the reference of the original notification of delay.
3. The principle agent must receive this claim within the stipulated forty working days.
4. Supply proof of your claim and relate this claim to your programme.
5. Supply proof of how the delay has affected your critical path.
6. Relate the claim to the clause or clauses under which the original notification was submitted.
7. The principle agent must adjudicate the claim within fifteen working days of receipt of a claim.
8. Insist that a record the total number of days granted for delays are recorded in the Site Meeting Minutes.
If the above process is strictly adhered to the vast majority of disputes about the principle agent imposing penalties as per the contract document may be averted.
The main point to remember is that once a claim has been made, you can withdraw it at any time; however you cannot submit a claim at the end of the contract once you as the contractor have realised you are in trouble financially or facing time penalties.
Ross Stembridge | Building Services Manager