Watch out for the Christmas Grinch...
He can’t make a profit, disguises himself as Santa and tells Trump-worthy fibs.
THE Grinch is a bitter, grouchy, cave-dwelling contractor with a heart ‘two sizes too small’ who preys on the merry and warm hearted subbies. His only companion is his unloved, but loyal dog that he named Stabard after himself (come on, work it out).
From his cave, the Grinch jealously listens to the noisy Christmas festivities, as the subbies celebrate having made some reasonable profits. A feat of which the Grinch is incapable!
Annoyed, he decides to stop Christmas from coming by stealing their payment (which they need for presents, trees, and food for their Christmas feast). He crudely disguises himself as Santa, by issuing a payment notice, but then at the last-minute snatches it all away with a heartless payless notice that contains about as much solid fact as a Donald Trump speech.
The Grinch steals the Subbie’s’ Christmas presents, the Christmas tree, and even the log for their fire. The Grinch then takes his sleigh to the top of Mount Bwankers, but rather than help the Grinch celebrate by lending him another £trillion £zillion pounds, the Bwankers take all his ill-gotten gains and throw the Grinch into the abyss.
As dawn breaks, the Grinch expects to hear the subbies’ bitter, sorrowful cries but is confused to hear them singing a joyous Christmas song instead. He puzzles for a moment until it dawns on him that ‘maybe construction, means a little bit more to them’ than just money, despite the fact they’re rather better than him at making it.
The Grinch is condemned to spend eternity in the abyss, while the Bwankers finally realise where their bread is buttered and go off to celebrate Christmas with the subbies!
Don’t let this be you...
A fairytale perhaps, but as in all good fairytales, there’s a serious message: don’t allow the Grinch to steal your money this Christmas!
The Construction Act provides three great remedies for late or non-payment (suspension and adjudication and the threat of either or both). Unfortunately, these remedies aren’t used as widely as they should be.
One reason is that there’s a good deal of uncertainty about how much is due for payment and when it should be paid.
Use the contract to get paid on time
The Construction Act applies to most projects (some are excluded by the act itself), and the scheme applies to non-compliant contracts (or to that part of a contract that doesn’t comply), so if it’s a ‘construction contract’ as defined in the act, then there’s no escaping the legislation for those who would seek not to pay you.
To conform to the legislation regarding stage payments, construction contracts should now provide for the following main stages:
- Payment due date - the date each month when a payment becomes due.
- Payment notice - a notice indicating the amount due on the due date (the ‘notified sum’) and the method of its calculation.
- Final date for payment - the date on which payment should be made.
- Payer’s ‘pay less’ notice - if the payer intends to pay less than the amount due, a notice to that effect, together with explanation.
The new provisions require a payment notice and a pay less notice to be given even if the amount which is due is zero. They also require payment notices and pay less notices to be served separately.
Cutting through the Grinch-speak
Don’t assume the Grinches always comply with the law, or that they’re bound to be better at this than you. They’re Grinches after all! Here are three ways to beat the Grinch:
1. Check out who you’re about to work for
How much do you actually know about the organisation you’re getting into a contract with?
I appreciate that you may really want that order, but what if they turn out to be a Grinch and screw you over, or even go bust?
If you don’t think it can happen to you then you need to speak to some of my clients. They didn’t think it would happen to them either.
2. Read, understand and keep a copy of the contract
If you think all contracts are the same, or that the Grinch will not change his ‘take it or leave it’ attitude, please think again.
Not reading or understanding the contract is fatal because if you don’t know what he’s getting you to sign up to then the Grinch will rub his long spikey hands together with glee.
And if I had a tenner for every time a client has told me that he hasn’t got a copy of the contract in the past 29 years, then I would be a very rich man.
No contract, no remedy, it’s that simple!
3. Do what the contract says when you should do it
If your team don’t do what they’re supposed to, when they’re supposed to, then the Grinch will eat you for breakfast. It’s as straightforward as that.
Never mind the Grinch’s BS about ‘getting contractual’, not following the rules puts you in breach of contract. And as the underlying law is that you shall not benefit from your own breach, where do you think that’s heading?
Beating the Grinch isn’t just for Christmas
Once you get your head around it, it makes sense, so don’t let the way the Grinch writes his contracts or runs his jobs put you off, and don’t let him steal your payments now or in the future. It might be getting near Christmas but don’t give the Grinches a gift that they don’t deserve.