What are the key differences between the role of an Employer’s Agent under JCT Design & Build and a Contract Administrator under JCT Standard Building Contract?
An Employers Agent is specific to a design and build contract and they act on behalf of the client by ensuring the contractor fulfils their duties.
A Contract Administrator oversees the contract by managing changes and ensuring contractual compliance.
A CA must remain impartial, whereas an EA does not as they’re acting on behalf of their client.
Could you explain the payment notice procedures under the JCT Design & Build 2016 contract, including key timeframes and requirements?
The contractor will issue their application for payment on the set contractual date.
The due date is 7 days from the valuation date.
The payment notice must be issued within 5 days of the due date.
The final date for payment is within 14 days from the due date.
If a pay less notice is required, this must be issued at least five working days before the final date for payment.
How would you explain the differences between FIDIC and JCT contract administration procedures to a client considering which contract to use?
FIDIC is internationally recognised and is commonly used for large-scale infrastructure projects.
The payment process in FIDIC is based on milestones, whereas in the JCT it is generally interim valuations.
Risk allocation in FIDIC is tailored to different project types, whereas in a JCT contract tends to put more onto the contractor.
What is the difference between an Early Warning and a Variation under the JCT Design & Build contract, and how should each be administered?
Early warnings are used to highlight potential risks or issues that could impact the projects cost, time or quality.
Generally, early warnings do not have enough information to enable the contractor to price them so proactive communication is encouraged to avoid disputes.
A variation is a formal change to the contract scope and requires and instruction.
What is the difference between an EA and a CA.
An Employers Agent is specific to a design and build contract and they act on behalf of the client by ensuring the contractor fulfils their duties.
A Contract Administrator oversees the contract by managing changes and ensuring contractual compliance.
A CA must remain impartial, whereas an EA does not as they’re acting on behalf of their client.
What under a JCT D&B constitutes a change?
Additions, Omissions or substitutions.
Instructions from the client.
Changes to access, working space or working hours.
In what circumstances, other than a change, might you need to issue an instruction under the contract?
A Provisional Sum
How did you determine what constituted a change under the contract on the Vista Tower project, and what process did you follow when issuing Employer’s Agent Instructions?
I referred to section 5.1 in the JCT.
When issuing the Employer’s Agent Instruction, I ensured that the costs had been reviewed and agreed with the contractor. This was then presented to the client for agreement and sign off before the works commenced.
What are the payment timeframe differences between a Design & Build and Traditional contract?
None, both contracts use the same payment timeframes.
What do you do if there are discrepancies between the ER’s and CP’s?
Follow the contract and it’s amendments.
Ensure that the CP’s are followed forward and have an open discussion with the client and contractor to see if variations need to be raised.
What is a framework agreement?
It forms a long term arrangement between a client and a supplier.
The supplier is not guaranteed work, but it can streamline the tender process as the supplier will be pre-approved.
What is nomination?
- Selection of a particular subcontractor to carry out works, manufacture or supply of materials.
- This provides the architect and client with greater control of material choice and thereby quality.
- It is often used when there are long lead-in times with the employer placing orders prior to the Main Contract award which reduces potential delays on site.
- The Main Contractor is relieved of liability of design and compliance with the performance spec in addition to subcontractor delays in respect of the works that have been nominated
Do nominated subcontractors get paid separately?
Nominated Contractors are normally paid via the Main Contract with sums identified separately
Can the contractor object to a nominated subcontractor?
- Any objections must be made during the tender period.
- There are specific exclusions and grounds for an objection for example if they have found out the
subcontractor is having financial difficulties and may be going insolvent
What is the employers payment responsibilities under the JCT contract?
Payments must be made to the contractor within the specified timeframes set out in the JCT.
I.e. the Final Date For Payment.
Describe differences between Statutory Provisions and Contract
Provisions?
- Statutory provisions are set out by law & must be complied with.
- Contract provisions relate to the contract in question & therefore only apply to a specific project.
What are domestic subcontractors?
This is a standard appointment of a Subcontractor by the Main Contractor.
After a valuation and a certificate has been issued, the client advises you that they don’t have sufficient funding to make the payment. What would you do?
- Once the certificate has been issued to the contractor, the client is contractually obliged to honour payment of the certificate and cannot withhold money without a valid reason.
- If this were the case, I would contact the client and contractor ASAP to arrange some form of
payment. It may be the case that the client has insufficient funds available in time for the final date for payment and it may be possible to defer payment by 1-2 days. - Failing this or if the contractor is unwilling to delay the payment, the client would need to find finance the payment through other funds to honour the certificate.
If an instruction was issued during the contract which involved the fabrication of a substantial amount of materials off site would you pay for them as off site materials within the valuation?
- There is no obligation on the client to pay for materials off site if this is not identified in the contract.
- However in the scenario where the client wishes to pay for them, I would ultimately check with the client before paying or rejecting them.
What documents would be required in incorporating a Contractor Design Portion Supplement into a project?
Within a Design & Build project, the documentation to be included would be the Employers Requirements including the Scope, Specification, Drawings, Contractors Proposals along with any insurances.
Could an e-mail constitute a contract document?
Yes providing there is offer, acceptance, intention to create legal relations and the responding email does not vary the conditions, a contract will be created.
What is a defined provisional sum?
A sum included in the contract for work that has not been completely designed at the time of contract sum agreement
Certain specified information can be given about the extent of works, its quantity, duration of installation and how it is to be fixed to the building.
What is an undefined provisional sum?
A sum included for work for which there is minimal or no information at the time of contract sum agreement. The location, quantity and time associated for the installation of the works is not fully known.
Can an EA act as a QS as well?
Yes, under a Design & Build Contract, an Employer’s Agent can also act as the Quantity Surveyor, provided that the scope of services is clearly defined and there is no conflict of interest.
Generally, it’s not advisable to do this.
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