Answer

I have absolutely no doubt that the contractor has a valid claim when he has been instructed [32.5.1] to use clay bricks for the internal walling where he had intended and priced for cement bricks. The contractor, in preparing his tender, is in no position to anticipate what could be in the architect’s mind at the time of tendering and therefore must price in relation to the materials and methods stipulated in the tender documents. Should the employer’s agent have wanted clay bricks he had ever opportunity to have specified as such.

Answer

What may be assumed to be “normal” to you may not be normal in relation to the provisions of the JBCC Agreements. This is particularly true in relation to your query. Ever since the publication of the first JBCC Agreement in 1991 and continued in the Series 2000 in 1997 “profit and attendance” has been dealt with as a “composite amount” and therefore any adjustment up or down is prorated accordingly.

Answer

Where the contract value is to be adjusted to take into account additional work resulting from a contract instruction then such adjustment is to be determined either by agreement between the principal agent and the contractor [32.1] or in accordance with the schedule of applicable rates [32.2.1]. It would appear that the former method has been used in this instance and despite the fact that the principal agent acted without your authority you are bound by his decision and failure to pay any certified amount constitutes a breach of the agreement which entitles the contractor to terminate [38.1.6].

Your remedy lies against the principal agent, not the contractor, and you will have a claim for the recovery of an amount in excess of that by which the contract value should have been adjusted based upon the aforementioned provisions.

Answer

Since plans are included in the definition of a contract instruction [1.1] where these result in additional work being required the contract value is to be adjusted. Such adjustment is either to be agreed between the principal agent and the contractor beforehand [32.1] or, where such additional is of similar character to that provided in the priced document and is to be executed under similar conditions, as in your case, then it is to be priced at the rates in the priced document [32.2.1].

Answer

In the first place you are incorrect in saying that the contract sum has been reduced since it is quite clear from the definition of this term [1.1] that such amount, once agreed, is not subject to any adjustment. Where work is to be omitted in accordance with a contract instruction its value is to be determined [32.2.4] and an adjustment made to the contract value which adjustment should also take into account an increase in the rates for the remaining work as reasonable compensation to the contractor. Should provision not be made for such compensation result in the contractor incurring a loss this may be recovered from the employer upon notice to the principal agent [32.6].

Whilst the agreement contains no provision which would entitle the contractor to terminate as a result of these circumstances such relief nevertheless remains available to the contractor under the common law.

Answer

Clause 32.15 allows such rectification – this has nothing to do with ‘ownership’ 31.7.

Answer

Clause 32.6 requires the contractor to notify the principal agent within 40 working days of becoming aware … of such expense or loss. The principal agent shall make a reasonable assessment of the compensation to be added to the contract value within 20 working days of receiving such details. These time bars have been introduced to ‘encourage’ the contractor and the principal agent to resolve variations to the contract sum as soon as practical – it seeks to prevent the contractor raising a lot of claims not previously identified at final account stage.

Answer

The principal agent should have / must issue a contract instruction to keep ‘leftover paving blocks’ on site – which implies that the contractor must be paid for the material. Should this not have been done / paid for … then the contractor may lay a charge of theft against the employer.
Note Clause 17.3 states that an oral instruction issued by the principal agent ‘shall be of no force or effect’.

Answer

JBCC has introduced the concept of an ‘advance payment guarantee’ that is given to the employer by the contractor (completed by a financial institution) to have access to buy, for example, items that have a long delivery period (air conditioning, lifts) and would therefore not be included in a valuation.
Recoupment / payment is via the normal recovery statement – payment certificate procedure … where a VAT invoice will be required to release the certified money.

Answer

The definition for ‘prime cost’ amounts and Clause 32.10 require the omission of the ‘guessed amount’ to be replaced with the actual amount including waste, delivery charges, etc. The principal agent must authorise such work by issuing a contract instruction (Clause 17), such work is valued in terms of clause 32.2 – Clause 32.2.3 (and 32.4) specifically allows the contractor a 10% mark up on the procedure cost.

Answer

A budgetary allowance is a sum of money included in the contract sum for work intended to be done by the contractor set aside - the extent of which is identified but not detailed…compared to a prime cost amount for materials and or goods delivered to site. In both scenarios the allowance in the contract sum is replaced with the actual cost.

Answer

The principal agent should highlight aspects of the contract that may be subject to currency fluctuation during the life of a contract in the contract, particularly if the contract period extends over a year or two. Such items are likely to be identified as prime cost items supplied by a N/S contractor who, in turn, should qualify his tender to ensure he gets paid appropriately. CPAP does not provide for currency fluctuations.

Answer

Clause 32.2.2, and in particular clause 32.2.4, provides for adjustment of the contract value using contract instructions – Clause 15.7 requires the contractor to provide reasonable assistance to the principal agent in the preparation of cash flow projections … based on the programme. It would be good practice for the parties to agree changes to the contract and implications arising there from using the mechanisms of clause 32.

Answer

The employer has obviously not negotiated with the contractor – and is presumably in financial difficulty. The principal agent should have issued a contract instruction – but the scope change extent is beyond that catered for in Clause 17 – the contractor could dispute such instruction. Clause 32.5.5 default by employer / agent could apply – but would also lead to a dispute … Clause 40.

Answer

Assuming that the project team did not obtain the required wayleaves prior to letting the contract, then the principal agent should issue a contract instruction (Clause 17.1.2) in terms of which the contractor would be entitled to an extension of time and/or payment depending on the impact on the programme. And compensation in terms of Clause 32.5.

Answer

Clause 32.15 allows for the ‘rectification’ and ‘correction’ of descriptions, quantities, omissions etc. Where such adjustments are made, in particular those involving rates, the accepted tender amount = contract sum must remain the same.

Answer

Clause 17.4 Permits the employer to appoint another contractor provided the notification procedure has been followed. Clause 32.2.4 allows the omission of work valued in terms of the contract.

Answer

The contractor is responsible for the works as a whole. The principal agent and the contractor have allowed the employer to interfere (Clause 5.6). To cover his risk, coordination, etc in Clause 32.8, the principal agent shall prorate contractor’s attendance and profit provisions on n/s subcontract amounts (Clause 32.7) but excluding any allowance for CPAP.