1. cause delays or additional cost on

1.       

Contractual options available to Pig’s
Ear on issues related to contract document discrepancies and failure by Artless to appoint
contract administrator.

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In the project, Artless has failed to appoint an architect
or contract administrator as required under their contractual obligations
within the JCT 2016 suite1.
The three key duties of the architect2
under JCT suite 2016 are (a) to
provide drawings, instructions (b) quality control (supervision) and (c)
certification. The appointment of architect is a key role of the Employer, however,
if no one is appointed, the Employer is obliged to carry out their duties. In
absence of the architect, it will the responsibility of Artless to provide
drawing and supervise the construction works. In this case, Pig’s Ear need to serve
notice on Artless for its failure to make appointment and consider it as a
fundamental breach of contract3
which will entitle them to rescind the contract, sue for damages or apply for time
extension.   

 

In addition, the failure of Artless to provide Pig’s
Ear with relevant project drawings prior to the foundation works, will
constitute a relevant event by virtue of provisions under clause 2.12.2 of the
JCT SBC/Q 2016. The relevant event4
will confer a right on the Contractor to extend the completion time and claim associated
costs. In this case, Pig’s Ear needs to evaluate the impact of the changes to
the completed works. Pig’s Ear must serve notice to Artless upon receipt of the
project drawings, stating the reasons why they consider late issue of project
drawings as relevant event5.
Here, discrepancies and divergences discovered by Pig’s Ear in the project
drawings6
are likely to cause delays or additional cost on account of abortive or
rectification works.

 

Pig’s Ear must submit a claim to Artless with full and
detailed particulars, refer to requirements7
under CDM 2015 and clauses from JCT 2016 suite, establish cause and effect to
their entitlement on cost and time. In JCT SBC/Q 2016, extensions of time are
dealt under clause 2.28 which uses the mechanism of the relevant event, when
such an event occurs the Contractor is entitled to an extension of time.

 

Responsibilities of Pig’s Ear under the
JCT 2016 suite in dealing with issues related to faulty design of roof trusses
provided by Artless.

 

In construction, defects can arise if work was not
carried out in accordance with standard practice or specified design or wrong
materials, matters under the preview of the Contractor. Alternatively, the
designer could be at fault, if a particular design is faulty and the defect
will therefore not be attributable to the Contractor. If an absolute sense of
obligation is desired under the contract, the Contractor would be obliged to
provide and do everything necessary for the due and proper completion of the
work. It would mean that the liability for defects in construction contracts
would always fall under the Contractor, who will be held responsible for
failing to use best endeavours for the completion of the work and will
therefore in breach of contract.

 

In Brunswick
Construction Ltd Vs Nowlan and Others8,
a Contractor is engaged to execute all the works, with supervision of the works
by architect, the Engineer’s drawing were found to be defective, the courts
implied a term in to the contract requiring the Contractor to warn of any known
or suspected defects in design. It is noted that belief will be sufficient9
to find a duty to warn the Employer. However, in another case, Plant Construction Vs Clive Adams Associates10,
adequate propping of roof trusses led to roof collapse, where the Employer was
advised independently by Engineer, it was held that the principal duty of
Contractor was to carry out the works and not subject the design to critical
examination. It is clear that under the JCT suite, that the Contractor is not
required to subject the preliminary design to scrutiny, he shall not be responsible
for verifying the accuracy of the design. However, in some cases, the courts
have implied a term into building contracts requiring the Contractor to warn of
design defects on examination of the drawings or by reason of the Contractor’s
experience. The rationale here is that, if a Contractor, on the basis of
experience, takes the view that some aspect of a design is unsatisfactory or
unworkable the Contractor11
should not proceed to execute the design.

 

The nature of warning will depend on circumstances,
the warning must be overwhelmingly and plainly effective12. Here,
Artless has not appointed an architect and the courts may apply an implied
obligation on Pig’s Ear to warn Artless of inherent defects to the roof truss
design. Pig’s Ear ought to have written to the Employer advising on the hazards
of the roof truss and document the advice, where matters could lead to unsafe
conditions and danger to life. However, Pig’s Ear have not advised Artless and
chosen to build the roof truss. Having discovered the design defect later, it
is only fair for Pig’s Ear to rectify the roof truss as required, cost with any
additional time would be on Artless.

1 Clause 3.5.1 of JCT
SBC/Q 2016.

2 RIBA’s standard form
of agreement for the appointment of an architect (SFA).

3 London Borough of Merton v.
Stanley Hugh Leach Ltd. (1985) 32 B.L.R. 51.

4 Trollope & Colls Ltd. v. North West Metropolitan
Regional Hospital Board 1973 2 All E.R. 260 and Peak Construction (Liverpool)
Ltd. v. McKinney Foundations Ltd. (1970) 1 B.L.R. 111.

5 A relevant event is defined as any impediment, prevention or default,
whether by act or omission, by the Employer, which will entitle the Contractor
to time and cost, Clause 2.29.7 of JCT SBC/Q 2016.

6 Items listed in the Information Release Schedule (IRS) 66 or simply
supply of contract drawings.

7 The CDM 2015 imposes
general duties on parties to appoint professionals and provide information.

8 (1974) 21 BLR 27

9 Victoria University of
Manchester v Wilson (1984)

10 2000 BLR 137

11 Equitable Debenture Assets Corporation Ltd. v. William
Moss Group Ltd. and Others (1993) 2 Con L.R. 1; (1984) 1 Const. L.J. 131

12 Six Continents Retail Ltd v
Carford Catering Ltd (2003) EWCA Civ 1790

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