When things go wrong...

Every job is unique and has its own set of potential pitfalls and difficulties. The 2 key issues to consider when supervising minor works are:

• failure to progress the work; and
• substandard workmanship.

Always work within the law, and within the limits of your own knowledge. If in doubt about any aspect, seek guidance from an authority.

A common problem for contract administrators or project managers is that the contractor is failing to adhere to the programme set down - the most common scenario being where a small builder takes on too many jobs to be able to fulfil them all within the appropriate timescale, or is encountering cash flow problems.

In these cases it is usually straightforward to terminate the contract, if necessary paying for work satisfactorily completed to date.

However, if you commission a second contractor to continue with the works, the costs are likely to go up quite significantly because the second contractor will need to verify the work done to date and familiarise themselves with the project.

In the case of a contractor with cash flow problems (or one that has gone into liquidation, be extremely careful to confirm that works carried out (and fixtures and fittings attached to the building) are within the ownership of the client.

It is not unheard of for subcontractors to return to site to try and claim for goods to offset where they have not been paid in full.

• Normally, once components are on site or constructed into the building fabric they come within the ownership of the client.
• If materials stored on site have been paid for by the client but not yet fixed to the building, it is sensible to obtain a ‘vesting certificate’ to establish ownership of the goods by the client and prevent any dispute which might arise later on.
• If materials are being stored on site but have not yet been paid for, this is another matter. The contractor might have a valid claim to take them back (or more likely, the administrator would).

Contractual issues

If you are using one of the JCT contracts, it is likely to impose the requirement for the contractor to proceed 'regularly and diligently' with the contract works.

Case law is a little confusing in this area, but there is a certainly duty on the contractor to be in attendance on site (i.e. regularly) and to proceed diligently – that is, applying suitable industry and application to meet the various timetables set out in the contract.

Your ability to terminate the contract is likely to depend very greatly on the quality of record keeping – both by the contract administrator or project manager (or client) and by the contractor. Hence the importance of maintaining written records and minutes of pre-start or site meetings.

If you have used the agenda format set out in Project assessment, you should not go too far wrong in recording the appropriate information.

However, many contractors are quite legitimately able to claim that they are unable to proceed diligently due to shortcomings by either the design team, contract administrator or the client. They may cite:

• late delivery of information;
• inadequate clarification of working drawings or employers' requirements; or
• inability of the contractor to take possession of the whole site, or boundaries which subsequently come into disputed ownership.

All of these could be legitimate grounds for delay. These would also be reasonable grounds for the contractor to ask for an extension of time. This would mean that liquidated damages (or indeed any penalty clauses, should they be in the contract) could not then reasonably be applied.

The ramifications of terminating a contract can be so severe that it would be appropriate to take legal advice (or advise the client to do so) before confirming this course of action.

If you have not used one of the standard forms of JCT contracts, pay particular attention to what form of words are used to enable the contract to be terminated for lack of progress or inadequate quality of workmanship.