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Clause 32
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Question 1


Can a contractor claim an extra where he was instructed by the architect to use clay bricks when he did not qualify in his tender that he intended using cement bricks for the internal walls? The tender documents only specified that face-bricks were require externally.

Ref: P32.001

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.

 

Question 2

Where a Provisional Amount has profit and attendance, normally, once the final value is established for the provisional sum the profit is adjusted accordingly to the final value but attendance is not adjusted and stays the same as priced. What is the case with the JBCC contract, do I adjust attendance accordingly or does it stay the same?

Ref: P32.002

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.

 

Question 3

Whilst my agreement with the contractor includes a schedule of applicable rates I have discovered that my principal agent has allowed for an increase in these rates in excess of 60% for additional work resulting from a contract instruction. Am I entitled to withhold payment of such increased amount on the basis that this was not authorized by me and is clearly inconsistent with the provisions contained in clause 32.2?

Ref: P32.003

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.

 

Question 4

Following the acceptance of my tender I was issued with plans reflecting a boundary wall considerably longer than that for which I had tendered. Do I have a claim for additional work and, if so, how is this to be dealt with?

Ref: P32.004

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].

 

Question 5

We successfully tendered on a project in we budgeted for a profit of R1,5 million although as a result of a subsequent reduction in the scope of the works the contract sum has been substantially reduced as has our profit which will now amount to no more than R1 million. Do we have a claim against the employer for such reduction and, if not, are we entitled to terminate the contract?

Ref: P32.005

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.

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