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CCL Group Assignment
CCL Group Assignment
CCL Group Assignment
One month after the completion of rectification works, the Defects Liability Period
expired, whereupon, the contractor requested from the Architect the Final Schedule of
Defects. One week later, the hairline cracks reappeared at the same areas despite
following the engineers method of rectification. The architect did not issue the Final
Schedule of Defects and the contractor refused to rectify the defects on the grounds
that in accordance to Clause 15.3 of the Conditions of Contract, as the 14 day
deadline for delivery of the Final Schedule has now expired, no further instruction to
rectify defects for the Works shall be issued by you.
The architects replied that, as the Main Contractor for the Works, the contractor is
responsible and liable for the defects and failure of the Works.
Whilst, from the view of the project structural engineer, the cracks are not due to
design problem after inspection and investigation to the works. From his
investigation, absence of proper exmet reinforcement has resulted in shrinkage in
concrete. Consequently, shrinkage cracks appear in the work. Therefore, the cracks
are called as workmanship deficiencies.
However, one issue that it is not so straightforward can arise in the contract where the
design is not the responsibility of the contractor but of the Architect, and that is the
categorization of a particular defect as either design defect or defect of workmanship.
For instance, the choice between of pitch roof and flat roof is a matter of design, but
the choice between of nail and screw is a matter of workmanship.
Furthermore, the contractor shall always take care in consideration of the implication
of the design even he has no design obligation whatsoever. In some jurisdictions, the
contractor is under a duty to warn the employer of any problems with the design.
(Jeremy Glover, n.d.)
According to Clause 1.1, the contractors obligation is to carry out and complete the
works in a proper and workmanlike manner in accordance with the contract
documents. If defects occur during execution of works, the contractor must rectify
immediately for which he is responsible at his own cost. Moreover, the contractor will
be responsible if rectification works cause delay to the project.
However, the contractor shall be entitled for extra cost and extension of time as if
rectification works are due to the design or specification problems in which are not
the contractors fault.
In addition, the contractor shall always provide a good workmanship for the quality of
works as described in the contract and to the reasonable satisfaction of the Architect.
This typically means that the contractor must carry out the construction works with
skill and care, using quality good and materials.
bear with his own cost to rectify the work. In this matter, the contractor shall not be
entitled to any extension of time nor compensation for any loss and expenses that may
be incurred during the works based on Clauses 6.6 due to the contractors fault.
Based on the Clauses 6.7, if the contractor fails or refuses to comply with the
Architect Instruction, the Employer may employ and pay to other person who can
carry out the works in compliance with such instruction issued by the Architect and
any cost incurred for such works shall be set-off by the Employer based on Clause
30.4.
14 days
The contractor in his
opinion the works are
practically completed
delivered a written
notice to the Architect
Timeline 1
DLP start
The employer can have full and beneficial use of the works for their intended
purposes.
b)
The contractor has given undertaking to make the defect good and complete the
works.
c)
Other requirements stated in the contract document have been complied with the
contractor.
d)
e)
f)
g)
h)
i)
j)
Contractor send all necessary documents for adjustment the Contract Sum to the
Architect.
Question D Were the hairline cracks due to design problem and not
due to the contractors workmanship or materials, hence, the
rectification works shall be treated as variations to the contract?
Referring to Clause 11.1, a variation is defined as any changes, alteration or
modification to the scope of works in a construction contract in the form of design,
quality or quantity of the works.
Variation, sometimes referred as variation order (VO), includes variation works by
referring to Clause 11.1(a) until Clause 11.1(d). Variation can be due to:
1. Clause 11.1(a)
scope of works
2. Clause 11.1(b)
3. Clause 11.1(c)
the site
4. Clause 11.1(d)
regarding assessment or utilization of the site or the execution and completion of the
work
Any changes or rectification due to the contractors faults are not entitled as
Variation. Therefore, based on this situation where the hairline cracks is due to
design problem and not due to the contractors poor workmanship or materials not in
accordance to the contract documents, the rectification works shall be treated as
variation to the contract under Clause 11.1. Therefore, the contractor is entitled to
Extension of Time under Clause 23.0 and claim for any loss or expenses incurred in
the work under Clause 24.0.
Since the method of rectification work of using exment reinforcement over the cracks
is as required by the project structural engineer, such rectification work has no
immediate effect to the contractor unless the Architect with an Architect Instruction
confirms such variation work.
For an Architect Instruction to be valid, according to Clause 2.1, the contractor shall
comply with all instructions issued to him by the Architect which the Architect is
expressly empowered by the Condition of Contract to issue instructions. Furthermore,
all instructions issued by the Architect shall be in writing expressly entitled Architect
Instruction.
When such defective work is rectified as a variation, valuation of variation shall be
conducted to the work. According to Clause 11.5, all variations shall be measured and
valued by the Quantity Surveyor. The contractor shall provide assistance to the
Quantity Surveyor as if it is required by the Quantity Surveyor.
Where the variation work is not included in any description of works in the contract
documents, the valuation of the work shall be at a fair market rate and price
determined by the Quantity Surveyor according to Clause 11.6(c).
According to Clause 11.9, the amount of variation work shall be added to the contract
sum once the Architect has ascertained such amount for the variation work, and shall
be included in the interim certificate.
Question F Was the contractor right to insist that the architect can
no longer issue instructions to rectify works after the expiry of the
DLP?
According to the Article in PAM Form 2006, Defect Liability Period (DLP) means
the period stated in the Appendix under Clause 15.4 in which the period is usually
twelve months from the day stated in the Certificate of Practical Completion of the
works unless otherwise stated. DLP is a period whereby the contractor must repair
any defects identified by the Architect after a particular work was duly completed.
DLP is also a guarantee period offered by the contractor to the Employer under the
contract. The contractor still remains having the obligation and liability to rectify any
defects appearing within this time. However, he does not get paid for the rectification
works. (Jeremy Glover, n.d.) Instead of getting paid by the Employer, the contractor
has benefit to rectify the works at his own cost rather than the Employer employs
other person to rectify the defects and the greater cost incurred by the Employer will
then been covered by the contractor which shall be set-off under Clause 30.4.
According to the Clause 15.4, any defects appear within DLP, the Architect shall
specified such defects in a schedule of defects and delivered to the contractor within
fourteen (14) days after the expiry of DLP. Therefore, if the Architect has delivered a
schedule of defect to the Contractor within 14 days after the expiry of DLP, the
Contractor cannot refuse in compliance with the schedule of defects. Whilst the
contractor shall make good defects within twenty-eight (28) days after receipt of the
schedule of defects at his own cost. In the case where the contractor refuses or fails to
rectify the defects, the Employer may employ other person to rectify the defects. All
costs incurred in the works will then been set-off by the Employer under Clause 30.4.
Or, the Architect with the consent of the Employer, may also instruct the contractor to
leave the defects in the work, then a deduction for not made good defects by the
contractor could be set-off by the Employer under Clause 30.4.
On the other hand, if the Architect fails to issue the schedule of defects to the
Contractor within fourteen (14) days after the expired of DLP, the Architect will loss
his right to issue any instruction to the contractor. Therefore, the contractor can refuse
to comply the schedule of defects.
12 months
Issuance of
CPC
DLP start
14 days
DLP end
Timeline 2
12 months
DLP start
14 days
DLP end
Architect is no failed to
issue schedule of defects
if the defects appear
after 14 days from the
expiration of DLP
Conclusion
Defects are one of the major causes of dispute and construction litigation. Dealing
with construction failures requires various degrees of familiarity with law, building
technology and practice. There is often disagreement when it comes to identifying
what a construction defect is. This, of course, will be down to the differing viewpoints
and interests of those who are asking the question or making the determination. These
parties typically include the builder, developer, contractor, subcontractor or consultant
team.
There is no short or definite answer to this question. However, there is a big
difference between design deficiencies and workmanship deficiencies. These
construction defects could range from complex foundation and framing issues, which
threaten the structural integrity of buildings, to aesthetic issues such as improperly
painted surfaces and deteriorating wood trim around windows and doors.
(Jeremy Glover, n.d.)
References
Lecture Note:
1. Sr.Zetty (2015) Construction Contract And Law 2, QUS 3204 [Lecture Note]
Materials, Goods and Workmanship. INTI International University. Department of
Quantity Surveying
2. Nik Fatyma (2014) Professional Quantity Surveying Practice, EGK 2122 [Lecture
Note] Completion and Defects Liability. INTI International University. Department of
Quantity Surveying
E-Book:
1. Jeremy Glover (n.d.) Liability for Defects in Construction Contracts Who pays
And How Much [Online] Fenwick Elliott. Available from: www.fenwickelliott.co.uk
[Assessed: 03/04/2015]
Wikis
1. Designing Building Wiki (2014) Defects in Construction [Online] Available from:
http://www.designingbuildings.co.uk/wiki/Defects_in_construction
[Assessed:
03/04/2015]
2. Designing Building Wiki (2014) Remedial Works in Construction [Online]
Available from: http://www.designingbuildings.co.uk/wiki/Defects_in_construction
[Assessed: 03/04/2015]
Statutes
1. Malaysia. Agreement And Conditions Of PAM Contract 2006 (With Quantities)
(2007) Kuala Lumpur: Pertubuhan Akitek Malaysia