Unfortunately for specialist sub-contractors, in the current economic climate the risk of not getting your retentions is even higher than in the good times.

Specialist sub-contractors often complain that triggers for release of their retentions are unfairly linked to release triggers under the main contract – such as the Certificate of Making Good of Defects. You cannot influence the completion of works or defects by other sub-contractors, but there are things you can do to influence the situation.

First and foremost you can try and negotiate the terms of the sub-contract so the release of retention is independent of the main contract. This may be easier said than done but if you don’t ask you don’t get.

Secondly, you can offer a Retention Bond as an alternative to the usual provisions for retention.

If that isn’t possible, make sure you understand the terms and conditions you are being offered.

Ordinarily, half of the retention fund is returned at practical completion and the remaining half following the Certificate of Making Good of Defects. You need to make sure the terms and conditions of the sub-contract reflect this and don’t allow the contractor to hold on to all your retention until PC of the Main Contract. This is a common try on by some main contractors.

Make sure you understand what is required to achieve practical completion in accordance with the terms of the sub-contract. When that time comes, again make sure you notify the contractor and push for the release of the first moiety (half) of the retention. Different contractors require different procedures, but don’t take no for an answer.

At the end of the defects period, chase the contractor to find out what’s happening and establish clearly whether or not retention has been released to them. If it hasn’t, find out why not. Don’t settle for wishywashy excuses. Get the facts.

If the release of retention has nothing to do with your work then you should start to apply pressure on the contractor to release your retention. He will resist. Do not be put off. Make yourself as much of a nuisance as possible – and speak to the right people. It is pointless just letting your accounts department talk to their accounts department.

If you have any suspicions that the company hanging on to the retention is in financial trouble you need to act sooner rather than later because later is likely to result in you losing the lot.

You need to check whether or not your contract is subject to the Housing Grants Construction & Regeneration Act 1996. The provisions for retention in your contract may fall foul of section 110 (a), which requires all construction contracts to provide “...an adequate mechanism for determining what payments become due under the contract, and when”.

If they do, this is good news because it may be possible to take formal action against the contractor to recover the retention. Sometimes, just the threat of action is enough to get the money flowing in your direction.

This last step might be a bit tricky so it would probably pay to take some advice about it, but it is effective when used correctly.