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Channeling your inner peacock

WHEN a flooring contractor client of ours was on the end of a £250,000 claim and set off from the main contractor, he was glad he’d issued the right notices because without them he would’ve had no defence. So ignore this article at your peril.

Most standard forms of subcontract require you to give notice of delay and/or extra cost in such terms as ‘forthwith’, ‘as soon as reasonably apparent’ etc. Indeed, even if there are no such terms, it is imperative you do so, and if the contractor’s own terms apply they’ll almost always have very stringent and/or onerous notice requirements.

Either way, and never mind the finer nuances, it’s quite simple. The party you’re in contract with eg, the contractor is entitled to know, at all times, about anything that affects the timely completion and end cost of the project. If you don’t issue notices, you’re in breach of contract, and as a matter of legal principle you’re not entitled to benefit from your own breach. So be warned!

One could say it’s become ‘the norm’ for specialist contractors to suffer delays and financial loss owing to the defaults of other parties. And it has almost become the only way that some contractors can make money ie, by taking money off their subcontractors.

In my experience the contractor almost welcomes the project being delayed. The contractor then finds any reason he can to blame the employer or the client and persuades them not to deduct liquidated damages in exchange for the contractor not claiming loss and/or expense for the extension of time he says he’s entitled to.

This then leaves the contractor free to blame his subcontractors for the delay. The contractor then sets about hacking big lumps off the subcontractors account for the delay he says the subbie has caused. A typical scenario can see your works delayed by lack of access, poor building progress and lack of progress by other key trades; delayed information; excessive and/or late variations. These and any number of other reasons result in ‘piecemeal’ working and delay and disruption to your works.

Many such situations go unrecognised (and unnotified) until it’s too late. The danger is that disruption and ‘hand to mouth’ working become part of daily life onsite and are accepted as ‘normal’. A good rule-of-thumb is to stop and ask: ‘did the estimator price the job to be done this way?’ In almost every case the true answer would be ‘no way!’

You must be ready and able to identify these circumstances as soon as they appear on the horizon and to notify the contractor in writing forthwith. Don’t be put off by accusations that you’re ‘getting contractual’ or any other BS that the contractor wants to conjure up.

You have a contractual obligation to serve notice as soon as you foresee delay, and or disruption, and the terms of the contract will almost always require you to notify delay within a matter of days or you will lose your right to claim the costs and the loss and/or expense that will inevitably arise.

Make no mistake the contractor will be the first to rely on ‘lack of proper notice’ as a basis for refuting your claims and bashing you with ‘set off’ charges for alleged delays. There is no need to antagonise the contractor, even if he reacts badly. Indeed, it is good practice to stay on as friendly terms as possible.

Call him up or go and see him. Explain that the contract he has put in place requires you to give notice and that you will lose your entitlements if you don’t issue them. But don’t be put off, you must get noticed.

Having given notice be ready and willing to discuss the situation in a constructive and friendly manner (without committing yourself to additional expenditure). Submit daily records of any labour or plant involvement. Submit as much detail of ‘cause-and-effect’ ie, the relationship between events or things, where one is the result of the other.

A typical example: the ‘cause’ is you’re prevented from completing the installation of flooring because the room is full of another subcontractor’s stored materials. The effect is that your works are delayed until the materials are moved, and abortive costs arise from the disruption.

Such costs would include the time taken to restock the flooring back into the site storage or back to base, the cost of removing the plant you were using, and the time for your operative to tell the foreman, the foreman to redeploy the operative and tell the contracts manager, the CM to tell the contractor etc.

This is a combination of action and reaction and in some way shape or form the details need to be captured at the time because it’s a hopeless exercise if left too late. Provide an estimate and details of likely loss and expense as soon as is possible.

You must tell the contractor immediately and confirm it in writing. Give him the chance of doing something about it. Remember, an early notice and outline of possible costs stands far more chance of getting sympathetic treatment than some ‘ripping yarn’ submitted long after the job is completed.

No notice means you’re in breach of contract, and/or no extension of time. No extension of time means you are at the mercy of the contractor when he’s looking for someone to clobber and get his profit from.

And if you want to speak to our flooring contractor client about what happened to him, and why he was glad he’d issued notices please get in touch.
01773 712116
info@streetwisesubbie.com
www.streetwisesubbie.com
Barry is MD and co-founder of StreetwiseSubbie.com which provides business solutions for specialist contractors throughout the UK

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