CONTRACT ADMINISTRATORS
More sad contractor stories
instruct remedial works for the contractor to do and pay for.”
What protection is there? Builders never want to think of being in an adversarial relationship with the client but as Reid-Evans points out, the builder stands alone in the contract. “The client has a battalion behind them with letters to their names. The architect, the QS, the CA, a clerk of works – they’re on the client’s side because they are paid by the client,” he says. “They enforce the client’s wishes, whether right or wrong, against the contractor. “If the contractor doesn’t agree with the architect’s instruction, there’s next to nothing they can do. If they don’t fulfil it, they get served with a notice of default. Contract termination follows. You’re out the door and there’s nothing you can do about it.” Currently, the best a contractor can do is use whatever contract mechanism is in place – notices of default, letters of concern – to register their complaint to the relevant person. Reid-Evans says: “On a contractual level, it has to change. It’s ridiculous. The industry has moved forward in leaps and bounds in terms of saving the planet, energy performance, the durability of the property, but contracts have hardly moved.” * Noah is not the real name of the Director of the FMB member company. in question. It has been changed to protect him legally. Share your story If you have been affected by a CA’s unfair decision-making, contact Gordon Nelson at gordonnelson@fmb.org.uk .The FMB is determining the extent of the issue so anyone who can provide feedback will support all members in the future. Scan the QR codes for support when dealing with CAs: ● Checklist for evaluating a CA ● Briefing note for pre-contract meeting with a CA.
The QS was negligent The client appointed and paid for the QS to be the CA, but the client later accused the QS of negligence, claiming their payment certificates did not add up. The QS would not issue any other certificates until approved by the client, and the situation escalated with the contractor and client fighting a legal battle in court. The Director of the FMB member company won but it cost them four years and around £250,000 in lost earnings and legal costs – and all of the emotional turmoil that went with it.
despite not being at fault, and the architect is unwilling to accept responsibility. And
in many, if not all, cases will not meet the costs arising themselves, as this would admit responsibility and affect their PI insurance. “There is a precedent whereby the architect will not issue an invoiceable instruction, which would pass the cost unfairly on to the client, but will issue a rectification notice, the cost of which will likely be borne by the contractor, despite following previous instructions correctly.” The ‘normal procedure’ would be for the CA to review the issue and give an acceptable and fair, independent view of instruction and fiscal responsibility through the contract conditions. “In instances where the architect is the CA, there is clearly a conflict of interest as few will find in favour of the contractor, and will defend their own position as the architect,” Raitt explains. Who’s at fault? To determine who is at fault, Angus Reid-Evans, Director of Spey Building & Joinery in Kingussie and member of the Scotland Board, says: “If there’s an area of workmanship that’s suspect you have to ask why is it suspect? “Is it due to poor materials, poor workmanship, or poor design? If it’s poor design, it is nothing to do with the contractor. If the materials have been specified, it is nothing to do with a contractor. If it is poor workmanship, it has to do with the contractor. “So when you get an instruction for remedial works, if it’s anything other than workmanship, the cost should be applied to the client. But if it has to do with design, and the person issuing the instruction, the CA, is also the architect, who ultimately would have to pay to remedy the issue, then they could simply
Architect won’t take the blame
The architect designed a roof with a stone wall on one side of it. The contractor (an FMB member) followed the design, which resulted in interstitial condensation in the roof. There was a dry side and a cold wet side (because of the stone wall), resulting in condensation. Nevertheless, the architect accused the contractor of not building the roof correctly. The architect did their own condensation risk analysis and said it passed. The issue persisted so there was a second independent risk analysis, which showed a risk to the property. The contractor followed the architect’s revised drawing and instruction at a cost of £12,000. The architect classified it as remedial work and the client refused to pay. The contractor has since been kicked off the project and has lost the retention of £40,000.
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