Robert Merry is an independent stone consultant and project manager who ran his own company for 17 years. He also acts as an expert witness. Here he offers further advice on avoiding the pitfalls of contracts.

Whenever I read the tortuous inclusion of sub clauses within clauses in contracts it makes me think they must have been written by someone from another era – possibly that of the Victorian Music Hall?

“I say, I say, I say, this surface ‘aint smooth enough for me to fix my lovely stone to, don’t you know.”

“Core blimey, love a duck, you’re right!”

“Can you smooth it to SR1, my good man?”

“Well I’s love to help you in your endeavors, Mr Stone Man, but the contract clearly states acceptance of site conditions and surfaces prior to commencement. Safe to say, you should have checked the attendances schedule.”

“But it’s going to cost a bally fortune to sort this lot out!”

“Yes… well, if it’s going to affect the programme then you’re going to need to let me know. I don’t want to be issuing you with one of them there delay notices, now do I?”

or

“I say, I say, I say, some of the plaster work has been damaged by your stone fixers.”

“Core blimey, love a duck! Has it? Aren’t the plasterers responsible for their own protection, governor?”

“Well, yes. And then again, no, my good man. If it’s new plaster then they are responsible, but this is existing plaster. The contract attendances say: allow for all satisfactory protection to the subcontract works during and after completion including adjacent surfaces against damage. So you’re responsible for the damage, me ol’ mate, so you’d better set-to repairing it, sharpish like.”

So, before you enter into the contract, there are some sub-clauses within clauses I would recommend you double check.

1) The schedule of attendances. The two examples above were taken from a recent refurbishment contract. The ‘acceptance of surfaces’ is unclear and would need clarification by the main contractor. In writing.

The schedule is a list of what the builder will provide and what you will provide. It covers from distribution to protection and everything in between. Did you issue your own with the tender? Do they match?

2) Specification. More important than Bills of quantities, tender drawings or finishes schedule, the specification is a contract document that needs careful checking, not only for the obvious material clauses but the workmanship and quality clauses as well.

3) Design Responsibility. Is there any? If it’s a standard building contract and you are expected to design anything it will be in the Sub Contractor’s Design Portion. If the contract is Design & Build, there will be some form of design responsibility inherent in the contract. Make sure you understand the limits of the design responsibility. Design means greater risk and therefore greater cost.

4) Insurances, warranties and the like. You will be insuring, warranting and / or guaranteeing the work, in one form or another. It is worth checking with your insurers to confirm you have adequate cover. How long does the collateral warranty last? Six years? Twelve years?

5) Commencement and completion. Notice to start – how long? Enough time to mobilise? Is there a programme or have you issued your own that has been incorporated into the contract documents?

Finding the resources is painful. Entering into a contract without an action plan to find the resources is suicide.

Contracts run on time. Failure to complete or adequately prove reasons for delay, outside of your contract responsibility, result in cost.

6) Liquidated Damages (LADs). these set out the cost of delay, usually per week. It is unusual to have LADs levied against a company. There has to have been a serious failure to perform before they are triggered.

7) Payments. Valuation dates, payment notices, last date for payment should all be listed in the contract’s documents in a table of dates. As part of the Construction Act it’s an obligation for Main Contractors to provide these. Take time to work out the last date for payment and, if in doubt, ask. Cash is still king. Retention and discounts are important. How much? When are they applicable?

Remember, before you enter the valley of the shadow of a building contract, either by action (starting the work in any form) or by deed (signing the documents), or both, please pause. Take stock and read through the ‘bally’ contract documents… just to make sure.

Robert Merry, MCIOB, ran his own stone company for 17 years and is now an independent Stone Consultant and Project Manager. He is also an expert witness in disputes regarding stone and stone contracts. Tel: 0207 502 6353 / 07771 997621. robertmerry@stoneconsultants.co.uk