5
Control of the works
5.1 The previous chapter focused on the programming of the works, and on monitoring progress in relation to the planned programme. This chapter examines the quality of the works: how it is achieved, who is responsible for it and what steps can and may need to be taken if problems are experienced.
5.2 Achieving the contractual standard is entirely the responsibility of the contractor, but the contract administrator also has a role to play, by providing information on the required standard and monitoring whether it is achieved. The RIBA Building Contracts also confer various powers on the contract administrator that can be used if the contract administrator feels it is necessary to step in.
Control of day-to-day activities
5.3 The day-to-day control of the works, i.e. the management of operations on site, coordination of orders and supplies, procurement of labour and subcontractors, and all issues relating to quality control, is entirely the responsibility of the contractor.
Contractor’s representative
5.4 In order that its responsibility is carried out properly, the contractor is required to ensure that ‘a suitably qualified representative is available during the Works to answer queries and receive instructions on its behalf’ (cl. 2.3). What constitutes ‘suitably qualified’ would depend on the nature and scale of the project, i.e. the representative should be sufficiently qualified to fulfil their role competently and in accordance with the contract. The contracts do not require that the person is present on site or available ‘at all times’ (as in the JCT’s SBC16), and it may be that something less than full-time presence would be acceptable, provided that they are available at all material times, and that they make arrangements for dealing with queries or receiving instructions during short absences. There is no requirement in the Contract Conditions to have the person named, but it would be good practice to establish the identity of the person at the pre-start meeting, and to make sure this is recorded in writing.
Responsibility for subcontractors
5.5 The contractor is also fully responsible for the quality of work of all subcontractors (cl. 2.6), whether these are its own domestic subcontractors or those selected by the client under the required specialists optional clause 16. As there are no provisions in the RIBA Building Contracts for the client to directly engage other firms, any persons on the site during the works would be under the direct supervision and responsibility of the contractor. If the client made any special arrangements with the contractor, outside of the contract, to allow its directly engaged persons on site, then this would cause confusion as to who is responsible for their performance, including in relation to quality of work, progress and health and safety, unless a detailed agreement regarding these matters is drawn up.
Principal designer
5.6 The RIBA Building Contracts require that both parties comply with all health and safety regulations (cl. 1.5 and 2.1.3). The key relevant regulations are the Construction (Design and Management) Regulations 2015, which came into force on 6 April 2015 and apply to all construction projects.
5.7 For almost all projects, the Regulations require the client to appoint (in writing) a principal designer and a principal contractor (Regulation 5). The principal designer manages and coordinates health and safety aspects during the pre-construction phase, and then liaises with the principal contractor and coordinates ongoing design work during the construction phase. The principal designer could be the architect and/or the contractor administrator, but this is not necessarily the case; the role of principal designer is a distinct one and should normally be covered by a separate appointment. The principal contractor, which will almost always be the contractor under the contract, manages the construction phase of a project. This involves liaising with the client and principal designer throughout the project, including during the pre-construction phase, and producing a plan of how it will manage health and safety on site during the construction phase. If a domestic client fails to make the required appointments, the Regulations state that the designer in control of the pre-construction phase of the project is the principal designer, and that the contractor in control of the construction phase is the principal contractor (Regulation 7(2)).
5.8 If either party breaches its obligations under clause 1.5 or 2.1.3, it will be contractually liable to the other party, as well as liable under the Regulations. For a detailed understanding of their roles, the parties should consult the Regulations and related guidance.1
Flow of information
5.9 The most important function of the contract administrator is to ensure that the contractor is supplied with detailed and accurate information, either at tender stage or during the project, which makes clear precisely what standards and quality are required. In projects where the contractor is undertaking design, it will be required to submit its design to the contract administrator before or during the construction phase. The overall responsibility for integrating that design with the rest of the project rests with the contract administrator.
Information to be provided by the contract administrator
5.10 In most projects the information in the contract documents is not sufficient to construct the works; a certain amount of detailed information (e.g. schedules of finishes) is often outstanding, and it is usual for the contractor to be provided with this information during the course of the work. The RIBA Building Contracts state at clause 5.2 that the Contract Administrator:
- 5.2.1 provides the Contractor with up to two copies of the Contract Documents
- 5.2.2 issues any required changes and variations.
5.11 Although this does not refer to additional information, only to ‘required changes and variations’, it is likely that it would be given a broad interpretation that would include any information necessary to complete the project. In any case, such an obligation is likely to be implied with respect to all work that is not listed as a part to be designed by the contractor. It is difficult to see how a contractor could successfully achieve completion in the absence of a duty requiring that instructions, information, plans, drawings etc. are issued in good time, so the obligation is likely to arise under an implied duty to cooperate (see Wells v Army & Navy Co-operative Society Ltd, also para. 3.15, and National Museums and Galleries on Merseyside v AEW Architects and Designers Ltd). The contract administrator should therefore assume that it should provide the contractor with all key information, the only exceptions being in relation to contractor-designed items and, possibly, very small items, where it may be that the contractor could be expected to determine these for itself.
Wells v Army & Navy Co-operative Society Ltd (1902) 86 LT 764
The Court of Appeal refused to allow the deduction of liquidated damages where late completion was partly caused by late provision of information by the architect (as well as by variations and a delay by the client in giving possession). These were considered acts of prevention that were not catered for in the extension of time clause in the contract, and it was held that the liquidated damages provisions were ineffective and could not be applied to the delay period.
5.12 The time by which information should be supplied is whenever the contractor needs it, given the overall progress on site and the date for completion. The contractor’s programme might have been required to set out dates for information to be provided, in which case this would be a guide, but it would not be conclusive. As with other issues concerning timing, it would be sensible to have this as an ongoing agenda item at progress meetings.
Information to be provided by the contractor
5.13 If optional clause 15 is selected, the contractor is required to provide information regarding its developing design, as set out in the Contract Details. Clause 15.2 states:
This is a very useful provision to include, as it is essential that the contract administrator is able to monitor that the design meets the client’s requirements, as set out in the contract documents, and to coordinate it with the rest of the project.
5.14 The RIBA Building Contracts do not include a detailed procedure for submissions (e.g. format, response, comments or re-submission), such as that set out in Schedule 1 to SBC16. The administrator could, however, use the power under clause 5.4.5 to instruct that further or revised documents are provided. More importantly, the contracts do not include an equivalent clause to SBC16 Schedule 1:8.3, which states that:
5.15 If an RIBA Building Contract is to be used for a project where there are significant contractor design elements, then it may be wise to consider including some provisions regarding submission. Failing that, when making comments it might be sensible to remind the contractor of its obligation to ensure that the design is in accordance with the client’s specification (cl. 15.1.2).
Inspection and tests
5.16 In addition to providing information, the contract administrator will also inspect the works at regular intervals to monitor whether the required standard is being met. The contract administrator may also, if necessary, issue instructions to have work opened up and tested, although this may have implications for the contract price and programme.
Inspection
5.17 On most projects the contract administrator will inspect the works at regular intervals. The RIBA Building Contracts do not place a duty on the contract administrator to do this, although they do give the contract administrator the power to visit the site and other off-site locations, and inspect the works (cl. 5.3). Note that the reference in the guidance notes to the contract administrator’s ‘duty’ to visit is incorrect. However, the contract administrator’s obligations to the client will, almost always, include a duty to inspect. Normally this would be an express duty under the terms of appointment, but in some circumstances it could also be implied: clearly, when the contract administrator is required under the contract to form an opinion on various matters – including being satisfied with the standard of work and materials prior to issuing a payment certificate – then it is essential that some form of inspection takes place. However, it is important to note that the duty is owed to the client, and not to the contractor. For example, a contractor cannot blame a contract administrator for failing to draw its attention to defective work.
5.18 Furthermore, a contract administrator will not necessarily be liable to the client for negligent inspection if a defect in a contractor’s work is not identified. The question in every case is whether the contract administrator exhibited the degree of skill that an ordinary competent professional would exhibit in the same circumstances. Generally, the extent and frequency of inspections must enable the contract administrator to be in a position to properly certify that the construction work has been carried out in accordance with the contract (Jameson v Simon). The case of McGlinn v Waltham Contractors Ltd sets out some useful advice on the appropriate standard of inspection.
McGlinn v Waltham Contractors Ltd [2007] 111 Con LR 1
This case concerned a house in Jersey called ‘Maison d’Or’ that was designed and built for the claimant, Mr McGlinn. The house took three years to build, but after it was substantially complete, it sat empty for the next three years while defects were investigated. It was completely demolished in 2005 having never been lived in, and was not rebuilt. Mr McGlinn brought an action against the various consultants, including the architect, and the contractor, claiming that Maison d’Or was so badly designed, and so badly built, that he was entitled to demolish it and start again. The contractor however had gone into administration and played no part in the hearing. The architect was engaged on RIBA Standard Form of Appointment 1982, which referred to ‘periodic inspections’. HH Judge Peter Coulson QC usefully summarised the principles relating to inspection (at paras 215 and 218), which included the following:
- The change from ‘supervision’ to ‘inspection’ represented ‘a potentially important reduction in the scope of an architect’s services’.
- ‘The frequency and duration of inspections should be tailored to the nature of the works going on at site from time to time.’
- ‘If the element of the work is important because it is going to be repeated throughout one significant part of the building, then the inspecting professional should ensure that he has seen that element of the work in the early course of construction/assembly so as to form a view as to the contractor’s ability to carry out that particular task.’
Testing and defective work
5.19 As noted at the beginning of this chapter, it is entirely the contractor’s responsibility to ensure that the work is completed in accordance with the contract. The contract administrator is, however, given various discretionary powers that may be useful if it is concerned that the contractor does not appear to be fulfilling this primary obligation.
5.20 First, the contract administrator may issue instructions requiring any work to be uncovered, inspected and/or tested for compliance (cl. 5.5). If the work proves to be defective, the contractor will bear the cost of complying with the instruction and the correction of the defects (cl. 5.5.1). If the work complies with the contract, the client will bear the cost of complying with the instruction (cl. 5.5.2). Generally, therefore, the contract administrator would only issue such an instruction if there was a serious concern, or if the failure of the element in question would be crucial to the project or extremely difficult to correct later. Failure to issue any instructions would not in any circumstances lessen the contractor’s responsibility, no matter how difficult or expensive it might be to correct the problem later.
5.21 Second, whether or not the defective work has been tested, the contract administrator has the power to reject work that is not in accordance with the contract (cl. 5.4.4).
5.22 Unlike the 2014 versions, the current contracts do not contain an express power whereby the contract administrator may accept work that does not accord with the contract ‘and adjust the Contract Price accordingly’ (formerly cl. 5.8 in CBC, or cl. 5.5.3 in DBC). However, if necessary this could be done by issuing an instruction implementing a change under clause 5.4.1. Care should be taken when doing this. The contract administrator should obtain the client’s agreement, and a value should be proposed and agreed (see para. 6.11), and it would be advisable for the contract administrator to confirm the agreed deduction in the instruction.
Contractor administrator’s instructions
5.23 The RIBA Building Contracts give the contract administrator the power to issue a range of instructions. In some cases these are expressed as being a duty, and generally if the contract administrator fails to issue instructions necessary for the progress of the works, this may constitute a breach by the client.
5.24 Unlike the 2014 versions, there is no general clause that gives the contract administrator a wide discretionary power (‘instructions on any clause of the Contract to enable good administration’). Although clause 5.1 states ‘The Architect/Contract Administrator is not a Party to the Contract but administers the Contract, issuing instructions and certificates and taking decisions’ this is effectively a description of the role, not a clause conferring powers in addition to those detailed elsewhere. The contract administrator should therefore be careful that any instruction is empowered under a specific provision of the contract, and it would be good practice to state the relevant clause in the instruction.
5.25 A key power of the contract administrator is to issue an instruction that requires a change to the works (cl. 5.4.1). Note that a ‘change’ is not defined, nor is the exact extent of this power, as it is for example in JCT contracts, where it covers not only the design of the works, but also the manner of carrying out the works, working hours, access to the site and general management matters. The contract administrator is, however, given the power to postpone the works (cl. 5.4.2).
Delivery of instructions
5.26 All instructions are required to be in writing (cl. 11.8), and the contractor is required to comply with them promptly (cl. 5.6). If the contract administrator gives an instruction otherwise than in accordance with clause 11.8, for example orally, the contract requires that it is confirmed in writing ‘promptly’ (cl. 5.7).
5.27 The contracts do not make reference to the common practice whereby the contractor issues a ‘written record of the oral instruction’ (often termed a ‘confirmation of verbal instruction’ or ‘CVI’). Such a confirmation would therefore have no contractual effect, although it may serve as a useful reminder to the contract administrator. The contract administrator, however, should avoid slipping into a pattern where it relies entirely on the contractor’s CVIs as a trigger to issuing necessary instructions, and must be very vigilant and check that a contractor’s confirmation exactly reflects what was intended. In a busy office with a constant stream of emails, it is easy to misread one, and an inaccurate confirmation could inadvertently be turned into a binding instruction.
5.28 Ideally, contract administrators should avoid giving oral instructions, except in cases of emergency. If they cannot be avoided, it should not be difficult to confirm an instruction promptly using electronic communications. Remember that a simple email would constitute an instruction in writing; there is no need (although it may be good practice) to issue it in any special format.
Procedure following an instruction
5.29 The contractor is required to notify the contract administrator, within 7 days of receiving an instruction requiring a change to the works, if it believes the instruction is not in accordance with the contract or that implementing it would have adverse health and safety implications or would adversely affect any part of the works designed by the contractor (cl. 5.14). The contract administrator may then, on receipt of the notification, modify, amend, withdraw or confirm the instruction, and the contractor shall comply accordingly (cl. 5.15).
5.30 In both contracts, if the contractor fails to comply with an instruction, the contract administrator may issue the contractor with a 7-day notice to comply (cl. 5.8), and if the contractor fails to comply with the notice, the client may engage others to undertake the instruction (cl. 5.8.1); this works in a very similar way to the notice to comply with provisions in JCT contracts. As with the JCT notice, if the contract administrator has serious concerns that the contractor may refuse to comply (e.g. because it has already expressed that intention at a meeting) then it would be possible for it to issue the instruction and the compliance notice together. In addition to giving the client this right, the contracts require the contractor to cooperate with the new contractors (cl. 5.8.2) and to allow them access to the site (cl. 5.8.3), and the contractor is to be responsible for all costs and expenses incurred by the client (cl. 5.8.4).
5.31 Where a change to works instruction is issued, the contractor is required to calculate and submit details to the contract administrator of its effect on the contract price and date for completion (cl. 5.11). The contract administrator and contractor should aim to agree the appropriate revision of time and/or additional payment promptly (cl. 5.12), otherwise the contract administrator determines the appropriate amount (cl. 5.13).