The key to the successful execution of any construction or engineering project is the implementation and use of the numerous types of documents that are required in the construction contract. Planning is everything.
If you are unaware or ignorant of the purpose and importance of the required documents you are at risk of sustaining losses from disputes, losing control and more importantly losing the right to claim or defend.
The two main things to remember is that firstly the proper use of documents ensures the project is executed correctly and secondly they provide what is called "contemporaneous evidence". In other words documents that relate to the time events that have happened.
If you have to make any kind of claim you need contemporaneous evidence/documents, if everything is verbal you have nothing or little to go on.
The importance of documents is paramount when we are training construction firms to work with us, record keeping and document management is very much part of it.
Arbicon provide "document" services which provide the tools necessary to manage the works and/or provide the evidence required. Arbicon will provide the services as a one off or can manage the relevant process for you.
As Arbicon are experts in dispute management, we have the best understanding than most other practicing consultants on the impact of including or excluding documents and how they should be used.
Examples of Arbicon's services, including document writing in relation to documents and the management processes, are as follows:
- Suitability of Standard Form (e.g. which JCT suite)
- Content of Clauses (Omit and Add)
- Articles of Agreement
- Sub Contracts
- Associated Lists of Documents to incorporate
- Managing the precontract commercial decision making
Information Release Schedules
- Managing and co-ordinating
Drawing & Design Management
- Managing, co-ordinating consultants and checking
Contractors Design Portions
- Writing for tender purposes or interpreting
- Programmes and deadline management
- Bills of Quantities
- Essential for detailed analysis of the work to be carried out and ultimate cost control post contract
- Writing or interpreting (E.g. SMM7)
- Specifications - writing or interpreting
- Schedules of works - writing or interpreting
- Schedules of Rates - writing or interpreting
- Estimating for contractors - tendering
- Writing comprehensive ER's on design and build contracts
- Writing comprehensive CP's on design and build contracts
- Time management
- Planning how the work will be executed and when. Using Asta Powerproject programmes produced
- Recording delays measured against the original programme ideally during the construction process "contemporaneously" or retrospectively by forensic analysis.
- Narratives incorporating time Analysis on Asta Powerpoint and minutes
- Writing or interpreting
- Writing and managing plus Professional Indemnity Insurances
- Writing and managing
Health & Safety/CDM Documentation
- Writing and managing
Site Waste Management Plans
- Writing and managing
Operating & Maintenance Manuals
- Writing and compiling
Advisory Expert Reports
- Schedules of Works Partially Completed - Valuation
- Materials & Goods - Onsite and Offsite - Valuation
- Opening up the Works - Analysis
- Building Regulations compliance (Fire, Sound, etc.)
- Schedules of Defects of Dilapidations
- Insurance Claims
- All aspects of measurement & valuation of construction
- Works in accordance with the terms of contract
- Building Surveyors Reports
- Boundary Disputes
As Built Drawings
- Co-ordinating, managing and checking
- On-site training - what to do contemporaneously
- Requests for Instructions (RFI's)
- Site Diaries
- Recording Work Done - Daywork Sheets
- Essential for ongoing account management and monitoring or explaining any disputes
- Calculation and interpretation
- Drawing up, advising on, negotiating and executing. Ensuring full and final closure and what that means!
- Adjudication, Expert Witness, Solicitor Services/Court Assistance, Payment Issues, Construction Claims Consultancy, Arbitration, Mediation, Commercial Negotiation and Professional Negligence.
Essential Contract Notices & Tools
It is essential that in the delivery of any construction project and services provided implications and necessity of contract notices is understood. The content and timing of these contract notices can be disastrous if not administered correctly. If you are unsure seek professional advice from Arbicon to avoid damage. Do not wait for the horse to bolt from the stable keep door firmly shut!
Examples of documents in the category of contract notices and tools are as follows:
Mandatory Issue within 5 days of the Payment Due Date by the Paying Party. Must state the sum due and basis for calculation. (Statutory)
Must be served by the Paying Party by the date stated in the contract prior to the Final Date for Payment. Must state the sum due (even if zero) and the basis for calculation. (Statutory)
Default Payment Notice & Payment Applications
Served by the Payee or automatically applies if the Payer does not serve a Payless Notice. Must state the sum due and basis for calculation. The payment you ask for is what you get if you are ignored. (Statutory)
The contract may state the obligations of both parties to handle delay and may insist on a notice being a "condition precedent" to entitlement, care needs to be applied here.
Loss & Expense Notices
The contract may require such claims to be submitted by a set deadline under a condition precedent and may exclude or include certain types of claim
There is a statutory right to suspend work and obtain the expenses/losses associated with a 7 day notice where money is owed and not paid on the date it should have. Care is required so as to not pull off site before the 7 days or under a defective notice otherwise repudiatory breach may occur with disastrous consequences.
Non Completion Notices
Must be issued to entitle liquidated damages and so that there is no ambiguity in the position in respect of any extension of time.
Practical Completion Certificates
Defines the date the works are practically complete and handed over, starts the defects liability period and defines any delay period in the contract.
Defines defects and orders the rectifications of defects. Failure to comply may allow others to be employed to complete them.
Making Good Defects Certificates
Defines the end of the defects liability period and the status of defects. Liability for Latest Defects may arise under Statute beyond this. Normally one of the conditions required by a contract in order to reach the final certification.
Determination/Termination/ Repudiation Notices
Where the parties part Company during the contract period, including the defects liability period by breach of contract. The contract may have a provision for this. It is important that the implications and damages liabilities are understood and how manage this from the point in time it occurs. The consequence of mismanagement can be disastrous.
Architects Instructions/ Change Instructions
Any variations must be properly documented and agreed if possible as works proceeds. Failure to do this leads inevitably to disputes.
The contract may require a final certificate, which is normally issued when the final account is agreed, the defects are made good and the parties end their obligations. Any outstanding sums are also paid (or repaid).
Statutory Document Management
Statutes cannot be negotiated, you must comply contractually and if any clause does not comply with any Act it is void. It is thus important that any consultant has working knowledge of all relevant statutes otherwise you can fall foul of them in any construction contract.
The following examples are statutes that Arbicon are specialists in with particular reference to the first four in the list which Arbicon are experts on. We would suggest that this is an essential list that all consultants should have a working knowledge of. If your consultant does not know anything about nor heard of these statutes you are at risk. The list is not exhaustive there are numerous other statutes relating to utilities, insolvency, planning, fire, companies, fraud, misrepresentation, consumers, public contracts, site waste, employment, taxation, noise, party walls, environment, pollution, health and safety as further examples to be aware of. The essential statutes are:
- The Housing Grants Construction and Regulation Act 1996
- The Local Democracy, Economic Development and Construction Act 2009
- he Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (England) Regulations 2011
- The Late Payment of Commercial Debts (Interest) Act 1998
- The Late Payment of Commercial Debts Regulations 2013
- Construction (Design and Management) Regulations 2015
- Construction Contracts (England) Exclusion Order 2011
- Building Regulations 2010
- Arbitration Act 1996
- Consumer Rights Act 2015
- Bribery Act 2010
- Contracts (Rights of Third Parties) Act 1999
- Architects Act 1997
- Supply of Goods and Services Acts 1982
- Limitation Act 1980
- Unfair Contract Terms Act 1977
- Latent Damage Act 1986
- Defective Premises Act 1972
If you are unsure of any aspect of document management and legal obligations, please use our contact form or call one of our offices.