Control of the works

In drafting a specification and where an employer desires a particular individual to undertake or supervise the work, it is advisable to state this. This right to sublet, where not specifically stated as such, is difficult to object to under clause 3.3.

Named subcontractors

The Contract form does not provide for naming or nominating subcontractors. By contrast, other forms that do so have comprehensive provisions for this. A way of dealing with the employment of a chosen specialist is to do so by way of instruction and by including a provisional sum in the contract documentation. The complications that can arise are numerous and can include the main contractor's objections and programming issues. The issue of responsibility in the event of the subcontractor's liquidation would require further instruction and such procedures could prove costly. The simple solution would be to use an alternative form of contract that would cater for this.

Architect’s or contract administrator’s instructions

Clause 3.4 is revised and the contractor is only obliged to take notice of instructions once they are confirmed in writing. In the previous 2011 edition there was a 2-day period within which the contract administrator could confirm the instruction.

Variations

The provisions of clause 3.6 allow the architect/contract administrator to issue instructions without invalidating the contract. These can amount to an addition, an omission, and a change in the sequence of the works.

Clause 3.6.2 makes provision for the agreement of a price between the architect/contract administrator prior to carrying out of the instruction (variation). This agreement should confirm the amount of any loss and expense and impact on the completion date where possible.

Clause 3.6.3 provides a default mechanism for the valuation of a variation and it is noteworthy that this valuation shall include any direct loss and expense.

In the case of most variations the parties are well advised to record in writing the details of the variation and price agreed as well as any allowance for ‘direct loss and or expense’. Where this is not included then this should be stated. It is often the practice of contractors to present a rolled-up claim for loss and expense sighting numerous extensions of time as the cause of the resultant loss and expense. On the strict interpretation the Minor Works seeks to link variations to loss and expense. While the difference should be academic because the variations usually give rise to the delay, which in turn results in the loss and expense, there may be situations where this results in an incorrect calculation of the claim. The key point is to link loss and expense to a variation.

The more difficult issue is where the architect or contract administrator varies the time and causes acceleration either intentionally or unintentionally or disruption.

If a cost is agreed for acceleration, issues can arise. Should the contractor be paid the money in any event, or only on achieving the revised date? What if the contractor achieves an improved date but not the date that was stipulated? Is the contractor entitled to a proportion of the price? These issues can cause difficulties and expert opinion should be sought when drafting any amendment.

Work outside the contractor’s capabilities

It is an express term of the Contract that the employer, through the architect or contract administrator, can add or omit work. However, if the request is for work outside the type of work undertaken, for example, the contract is varied from residential refurbishment to a fit-out of a nursing home, then it can be argued that such a variation is outside the work undertaken by the contractor. Such arguments are very subjective and a third-party legal opinion ought to be taken.

Provisional sums

Clause 3.7 covers the requirement to issue instructions and cross refers to 3.6.3 regarding valuation. The definition of provisional sum is limited in that it does not attempt to state whether such work is to be included in the duration of the works or excluded. Clearly the impact of unknown work can impact on the contractor’s time to complete and it is advisable for reasons of clarity that parties exclude or include such work when making reference to the completion date.

Good practice dictates that an architect or contract administrator should issue instructions at the earliest opportunity to omit the value of such sums and then endeavour to issue instructions as to expenditure at the earliest opportunity to prevent delay to the works.

CDM Regulations

The provisions of the 2016 Contract have been revised in accordance with the Construction (Design and Management) Regulations 2015 (CDM 2015), effective from 6 April 2015.

Clause 3.9 states the overarching obligation to comply with the Regulations.

Clause 3.9.1 states the employer's obligation to ensure parties carry out their duties.

Clause 3.9.2 states the contractor shall comply with regulations.

Clause 3.9.3 states that compliance is included at no extra cost or any extension of time.

Clause 3.9.4 covers the scenario where the employer replaces the principle designer or principle contractor.