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    Professional Practice

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    Download as pdf
    30 views81 pages

    Contract and Problem Part 2

    Uploaded by

    Kripa Panjari
    Professional Practice

    Copyright:

    © All Rights Reserved
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    eM heemantcere re ees he ay Pa SS Shae Sate eae a Thon where a claim for compensation ie Mae OY Seether cinoma tla SESS ine Se Senate SS Ses cates tse EPS ST Ca remem scien 0, rcs ne nnn ruc tna a to corporate a gOvernMEnt ‘SCOPE AND INTENT ‘Tne anstony or general scheme ot becondionsunually satan ne ape Sa Rc Rata ee te Rey conditions wich EA. ESISELIIGIDNE an denon and expanatone hen hres ee ee eames Key ERSP Er Thcnd tach a omerconditonerelateyTe 11 Se ee ed nl Four hinamemal of Boapeenentnam eeporconeact the Sea eect vas potent these oactinoctren he to arcs 1S comms an prt are Soe pa ago vhs beady sated tha conton No forms the hry condition. It tuys Sewn thatthe genera character anal seope ofthe werk 16 {ier and eit by Speceationss Ai) Bigs rowan reapurtin scordance wit (WW the Sst oan (Wi To the resonate nae ote 1) Puen ewe stn sa 2 SCR Asta ert rm tn (hereof ane rsonahly bucrse deere re eveope ‘he neonate nae ee semen a ts ar nite yah era coer os well Known techni! or ade mcanag aoe ect ‘recognised standard like: — ‘refer to auch 1S £2 Re SS a pentane — — “0 Sara prope flail neice it en teen tre Sareea eae eres cele cat entcary saa Se eer ne penran aera ae Sees = See eee reference to the definitional condition No:| shows the messing of pile ec wrk and date ar watunl competion weeneponge nt sit Livmeanseatycer Tacs lame epet ta tt oY raseecrer ar teaie STL ee nae aceetas Spctinicomatemer artis Stan icercoratremmeat'd tae et arneent steer neta Nodeekeineree gee A ag nee agacer = eee Sp Sraoeegcmi seam et ou teas ‘Ss ares “ones ney cea ha Poros maces the ret or SThatgummetcegene anion AT To pls eT cue he whe te Reet he tt pp cn Pe ety tat mae (47 check rh ty hel ad nes a9 Sort er no oa oe ea ac pe oe he A eran tan et prions ee Relea aga ‘ete fe he mein of ee wc weitilerany aber tac etn Litatbenbet aspect limpet oon Sota geet ay ewe at ov nae wr Sn set tsin anne ae Cx ort, cation of he wh ‘ou becnslnt se are repens Se Dy rier da we Sesleri ee qe ret te State ts ben employe ty De owe ee cea Quan Sree ehcaret ty ect (G1 fopapar sels be cy he ender engi ges a ect eect ental eat wa eet (2 Ppa satin cor (0) Abc th val ower re al erate ea ae uy aby ect apr Ue penttte serait enero re I erg cores tae ‘Srtsaretrgdony pen sel any ses wae Exide ae Semis omer nines ‘ndotherctnatantsctindepensent practice tptoyed by hes wer iimrrspemuterieermmeneers monet oe See Sas seen oe ala he decunettr arcana Tana tee Se a Sen i sige Seco “Br Shere pe eg estes ‘Socpemienin ens geese La teatemn aes eee cy Lona se SANE a soveet ent reg a a ea mops gt sqininnigadratt ace naman ts Some mut pete Sspertvatn + Suni te wrk, mera and met ‘et qunates: Quen ef werk teofech mle werk ‘Any dicey betwen drawing a pecan io be rec ales cents fa cha tcc wna jesepanca mente to) tytn ene etna apni rp etapa tore o stares seiner mgt proviso cota SD Terhpecd daneraton on ge sabe drvings 10 Se ‘CONTRACT AND PRORLEMS ARISING THEIHEIOMT 175 {4 Work done eo masa awn content with Tnnge sae tnwtngs tobe emmecd ye contractor a hss provided heh ie out seh works before veel of large teale drawings ee (a Architects len over his drawings and contact documents thereby wets prtibited,buteopy ofthe samecan be kept bath bythe owner as wellasby the contactor. In practice neither the tue nor the contactor rtura thelr dosent copies to the architect forthe same maybe reguled tobe produced in future sin the case ofarbitration prctedings. before the ncome-tax authorities te Supply of RCC. bar bending actedule by the contractor to the architect arises i the contractor appoints his own RCC. specialist as otherwise not Power in Condition No. § must be Informed with Reason ‘The power in condition No, § 1s cortained in sub-condition No. 2 in just twelve words: “The architect's interpretation of these documents shall be final and without appeal ‘The said power must be informed with reason, and should be free rom arbitrariness. Itdoes not give the architect unlimited power without {etters. The power ifexercised arbitrarily or irationally can be subject to appeal ‘The architect's interpretation of the documents {s limited to draw- Ings and specifications, both being of technical nature. It is not appli cable tothe interpretation of contract terms and conditions, The limited encompassment extends to find out whether the contractor's work has. deviated from the drawings and specifications. If the contractor finds errorsor inconsistencies in the drawings and speeification he has to give written notice to that effect for necessary interpretation and /or correc tion. However, a situation may arise when such errors or inconsistencies {g0 undiscovered by all the parties like contractors, clerk of works and ‘even by architect during the course of his periodic supervision. The con- tractor's plea at that time will be that he did not find any error or discrepancy and that is why he did not think itt to notify on the specified stem. Under the above circumstances the architect is required to take a rational view like: (a) Item unacceptable | Contractor may be required tobe paid {in (otaity. the cost for rectification, for sub: ‘cond.ticn 5(9) puts. bar on the claim for extension of time, but not its cost hy Tem acceptable Contractor be offered reduced rate. though undesirable. EL i PROFESSIONAL, PRACTICR se Como No 2 farther pve we anna aperia (0) Original of contract document to remain tn eustaly of architec available for Inspection to partis at all eawonobie ea Note: Allpagesfcontrartr tne tah ie parties tat here arena chances ofaleallons creeping in afer te exer of the etact, (i) One copy ofthe contract document tobe supple tothe parties free of charge. {u) Two coples of contract drawings, specications, descriptive scheduler other ike document nchuing further drawings and etal easetial for the work, tobe supplied tothe contractor fre of charge. (i) Contractor to keep one set of such specications, drawings and detals (working drawings forming fesh for the skeleton of contact cravings descriptive aches, architects nsactios, f= welas inspection notes within the ercompassnent of condition 16(1) and 16(2) as also order for varlaton under condition No.0 (0) The documents are to be used for works in question and 10 be returned to the architect on final payment if requested by the architect. Though in practice auch a situation hardly arises ‘The general of traditional specifications as well as descriptive ‘schedules form part and parcel of the contract document. The former describe the whole of materials and workmanship whereas the latter show the essentialities of the work which must be met with by the contractor. It also known as Performance Speciteations. Mlustration Providing and fixing in position 38 mm. thick ply solid Qush door venereed on one side and commercial on other side with standard aluminium fixtures and fittings complete with three coats of ell paint, ‘The above item is explained in detail in descriptive schedule Uke: (a) Details of fixtures and fttings; (b) Godrej night latch, peep hole, safety chain, handle, aldrop. ete. with detailed sizes and or dimensions. (c) Types of screws, hinges, safety bars. (d) Teakwood beadings ete. Condition No. 2 imposes an obligation on the architect not tocall for ‘more via specifications and descriptive schedules etc, than what is com- ‘templated by the Contract drawings, the Contract Bills, the Articles of ‘Agreement and the Conditions of Contract. renernom wr at eed ine he des eaten oe 0 Contra i uthent carries a two way restrictions, one on the rks, ar wells on the cvmer contractor not tome tt ise for his other works land the architect both not to divulge oF use the price quoted by the contractor Mstrations (a) Contractor copies structural design of factory shed and uses for this another job, (©) Contractor's negotiations for works in the adjoining compound fata higher rate may get shattered due to divulgence by the fowmer of the price quoted for the work in hand in owner's ‘compound (Condition No. 4 and No. 7) Schedule of Quantities Contract ‘Bills ‘The schedule of quantities when priced and on acceptance takes the ‘rom of contract bill. It shows the extent and quality of each item of the work. The important aspects to be noted are: (1) Quantities are based on standard method of measurement of Dullding works as issued by Indian Standard Institution. (2) Any error in description or in quantity or omission of tems tobe ‘treated as variation: ‘Condition No. 4 lays down that if there is any error in: (a) Description of an item, (b) Quantities (6) Omission of item. ‘The same shall not deprive the contract of its efficacy, but such items to be treated as variations which has been defined and explained ‘under conditions No. 30(2) and 3044), Error means a mistake in judgement which causes variation it ‘measurements, quantity of works; being of unintentional nature. ‘The real debate comes up when quantities get increased beyond rea- sonable mit due to siteconditionsegs (@) Foundation required of a greater depth as compared to pre- planned depth or requiring pile foundations instead of isolated RCC. footings. (b) More repairquantiies cropingupduringthecourseofexecution because of exposure of hidden decayed members, | a PROFESSIONAL puAeTiCN ynintentional nature. The Increase 1 ia toe courage ge soa ee Sein ett a ee i tenlanc mra it a eto sacs irc trate © Seca setae nee Sonen Importance of Bill of Quantities Forming Part of Lump-sum ‘Contract, ‘Lump-sum contract ean be: (a) Without bill of quantities: or (b) With bal of quantities: when: (0) Prepared by the architect/engineer at the tender stage of lump-sum contract; (w Prepared by the contractor and by consent introduced in contract document: (st) When item rate contract converted into lump-sun contract. Based on the circumstances of the case and intentions of the parties, as to the legal postion of bil of quantities, the contractor's labilides will vary accordingly. The partes may have intended that {tough the contrat Is lump-sum, yet the same to inelude all tems of bill cof quantitles including their qualities and/or quantities. The parties may hhave intended that bill of quantities wll be used only to decte the rates for extra apd that billof quantities tohave no relevance to works contem: plated in lump-sum. Can Contractor Claim Loss of Profit ift Reduced? thas been observed that many a times the owner changes his mind ‘during the execution ofthe work whereby one item is replaced by another fone. The owner has a right to omit items of works, but the work of alternative items be given to the contractor 60 that he does not suffer for Joss of profit. However, the owner on the other hand carries out the work of new items through the agency of other sub-contractor and here the heart burning starts. Take the case of tender item of mosaic tes of the Quantities are [CONTACT AND PRORLEMS ARISING THEREFROM i0 vate of ove aki omit and the owner ha opted oft wast pavement being done through his own agency. Can the contractor clatin Joes of promt at 15% of Rs. 1,00,000 = Re, 18,000 ?. Same analogy wi, ‘apply when there is reduction tn the tendered quantity. Intheabove case the owner has right todeducta sumof Rs. one lakh from the contract sum, but at the same time to offer a reasonble sum to the contractor for loss of profit. That Is eqult. However, ifthe owner does not desire to pay the reasonable loss of profit, then a clause be introduced in the contract aa under “The bill of quantities to form part ofthe contract and all variations irrespective of the extent of quantities to be priced atthe rates stated in the bill and added to or deducted from the lump-sum amount Without contractor claiming any lose of profit for — reduced quan. ‘ites or for items omitted from the contract’ Contract Sum Since 1... form of contract is an item rate contract and as such Contract sum is required to be looked in wider perspective. It may refer to the total ofall priced tender items, the total of which has been arrived ‘at by multiplying the tendered quantity with tendered rates, The said sum is not allowed to be adjusted or altered in any way whatsoever ‘otherwise than express provisions of these conditions which one an find {® condition No. 31(5) and 31(6). The only exception made is relating to any error in description or in quantity or in omission of item which are ‘subject to correction, but taking the form of variations or extra, with the ‘contract remaining in force. : AA close reading of the condition shows that since LLA. form of Contract is an item rate contract, no rectification will be allowed in the unit rate quoted by the contractor after execution even if there 1s a mistake, Mustration ‘The contractor quoted for mosaic tlle Item at Rs. $00 per 100 Sq.ft fon presumption that mosaic tiles will be supplied by the owners. The matter went unnoticed even at the scrutiny stage, where the contractor could have corrected the same. On executing of the contract, the contractor was made to respect his commitments, Mlustrations on Errors 1, ‘Typographical ‘Mosaic ties quoted at Rs. 600/- per 100 Sq f. whereas percentage ‘omitted and it read Rs. 600/- per Sq. 2. Error in Words: ‘Mangalore tiles with T.W. Battens .... 1000 $.M. Rs. 1.10 per SM. = Rs. 11,000/- 180 PROFESSIONAL peace on checking the aciet na comet the total to Re tang the tte quoted corel The work wa entrusted the fUnftalor whe subsequenty pointed cut that there was ye frail mistake The rate shoul have ban R117. per 8 inthe rt place snot permissible fo the architect to ary the fates: He has (adopt rates as ined one and correct the total we thedutyof tecontactor owe the atesofitemsin wrdealsolat rupess eleven only wherhy rates in words wl eupeacde te one ven in figures tn eate ofa lump-sum contract f the contractor has commited a sta in he sate, he has to lle, iis forte above reasons that architects ener ually prepare comparative summary ofal ender recetvel vo ae to detect any mistake {2 te tender, hough this duty isnot of latory nature ‘This wil event unneccesay hindrances in the execution ofthe work. The eator here gts an opprtunty fo corcet hs mistake before exc ‘Smet the contact ater execution the msales may prove tbe fatal Sepenaing upon the extent and valu ofthe em where mista has ecpet ‘Some authors hae sugested insertion of percentage adjustment clause’ heat feos in ates, but these Nas not ound favour in iter of tandard forme aed moreover ths clause i kel to open fendgaes of Higatons Contract Bus ‘Contract bills are known as bills of quantities that is priced ‘schedule of quantities. When inviting the tenders, the architect and ‘engincer usually issue schedule of quantities along with other relevant papers.The said schedule of quantities shows the description of tems, thelr quantities, rate column, units on which rates are to be quoted and total of each item of work, Condition No.7(1) and 7(2) deal with contract bills. Condition ‘No. 72) forms an exception to condition No. § whereby necessary correc- tions can be carried out in description, quantity oF omission of item \which will assume the characteristics of extra or variations but not the “unit rate quoted by the contractor. Even in the unit rate there can be mistake in figures and words like: ate in fgures ate tn words Rs. 991/ [Rupees three hundred and ninety one. ‘The figure in words with ‘and’in between shows the rate quoted ‘Rs, 200-01 and not Rs, 391 /- as rate in words will supersede that given. 1m figure. 1. The 1991 Form of Bullding Contract; Willan T, Creawel (1093 Bd. p. 49), sovract mo nu S80 HE eran othe contract ll onion No. 71) ge rine ound eco, 8 sheqel gun ec ca ae concer, aes any speciied item, So E38 a of building works of recent edition sandard method of mest pattution as the base. If there is any yin - he base I ee atensistency or ambiguity, thecontract bill has been given superseding = “na erence maybe made to the evant 181. Publestons Pa er terpenes a fae eee ee ‘Seventeen me fee eee ruin trmamet weire mo eee = eee ieee cpenimances Architect's aeration Condition No.6 accra age nee coach te nal ul of toe coniae ay ee et by oes compas oe na a tin contst Suodars plan och prone ena fl Gnelcr aa ay nee ( Thecontact il shows ie conete mits M160 whereas plan aonareare woes lw The Contratbilshws cocking parm of RCC slab, cement iniaes waren towing so te ae em lomeuscn eat (WW) Type of joints required in case of timber framed structures, How one can se the unccrainles ofthe retire eeu the are thes eth se sere at sey CSnanictenteingacomplr werk hg ana ce is PROFESSIONAL PRACTICE ‘The architect's Instructions have not been set out collectively at one place n te contract but have been spread over. The collation ofthe same ‘will be as under: Condition No Instructions 4872) Correction of contract bi an Discrepancy n o dvengence between contract drawings andor the contract bls 2) General power. ° Procedure for save of istructions 1921 Eleven subject-matter (to L of instructions. 18 Limit of clerk of works Instructions. 13) Insiructons to Enger n-Charge aun Statutory oblgatons son Varios. 306) Expenditure on pine cost and provislona sums. 2 Clam for extra. am ana} ree aah Postponement of any wor 4209) Defects to be made god sauna ‘Amount and os du tconractot or not ecelvingin tie peer tatrctions et san) ‘mount and be duet postponement of work 401116)0016 | Determination bythe contractor for suspension of work ‘Besides theaboveat a number ofplaces there are indirect references of instructions by the use ofthe word “Directions” or references can be Inferred in the form of (Deemed instructions”. Consider condition No. 54 relating to Antiquities which lays down for additional cost if incurred by the contractor to dig out such antiquities. The additional cost depends ‘on the opinion of the architect which will be preceded by the claim made by the contractor, resulting in the opinion which will be nothing ‘but “Deemed instructions” or architect may give direct instructions to the contractor to dig out antiquities agreeing to his extra cost for the same. Ione were to analyse the subject of Architect's instructions, itis ‘possible to create six classification of the same like: (1) Procedural ones to clarify matters, (2) Corrective nature. (@) Changes in the standards, methods, specifications. (4) Deductions from the work, ‘CONTRACT AND PROBLEMS ARISING THEREFROM fc (5) Substitution of the work. (6) Additions to the work Procedure for Instructions ‘Sub-condition No. 9(1)lays down an obligation on the contractor to comply with such instructions issued to him for which this contract ‘rants necessary authority in favour of the architect, s0 that the final results are achieved. Paper dream gets translated into a reality to the ‘satisfaction of all and “Separate with smiling face" a slogan of the architect achieved, Condition No. 9(1) casts an obligation on the contractor to comply with Architect’ instructions issued in writing even if t were to involve vvarlalons, The contract contemplates three remedies Ifthe contractor falls to comply within seven days of the recelpt of notice to that effect (1) Hold him table for breach of contract (2) Determine the contract ifthe instructions pertain tothe subject ‘matter of condition No. 481) (A) 48(1)(B), arid 48(1) (eh (3) Owner to carry out such works covered by the instructions rough his own agency and recover the reasonable cost thereof {rom the contractor. In order to safeguard the position of the contractor, this sub. condition glves him right oask under which condition such tnstrctions ‘have been issued. On compliance by the architect in writing the centrac {or has two courses open (1) Tocomply with the same subject to the condition of entitlement of extra payment necessary (2) Challenge the validity of instruction, Both wil form the issue of arbitration under condition No, 6. Ifthe ‘contractor has carried out the instructions, challenge to the authority 63 out from arbitration forthe clause itsel proves: “the contractor shall thereafter comply with such istructicn then ‘soue ofthe same shall be deemed for all purposes of this centract tohave been empowered by the provision of these conditions spect fe by the Architect in answer to the contractor's request ‘Sul the issue of extra payment asa result of compliance wil frm ‘point for arbitration within the instructions issued, if the con:ractor feels that he has suffered injustice. The third sub-condliion deals with Drocedure to give a legal sanctity tothe instructions lasted. (1) Instructions must be issued in writing by the architect; (2) Architect beinga busy bird is time being divided for works lke: {a} supervision, (b) visit to several authorities for approval of Plans (catending cients and contractors in office (d) nations ‘and directions to staff, (cjattending correspondence ete he may 164 PROFESSIONAL PRACTICE fssue Instructions orally which is required (o be confirmed by him: (3) In light observation No. 2, its well advised that the contractors do keep on site an inspection note book with triplicate wherein allnstruetions given on site be recorded and duly got signed by all the parties including the architect. This wil help tn solving. ‘problems n ease of disputes not only at the architect's office but also before the arbitrators in case of dispute: (4) Architect can confirm the instruction within 7 days from Issue of instructions orally: (5) The contractor has to get the instructions given orally to be confirmed in writing. If no reply is received from the architect within seven days from the receipt of the said letter requesting for confirmation, the same stands as confirmed: (6) Even if it remains oral tll the stage of fina certificate still the architect has been empowered to confi the said oral instructions prior to issue of the Gnal certificate which will relate to the date of issue of oral instructions, Attimes even the owners issue necessary verbal instructions for the work. It is beyond the scope of the executed contract for the work in question, The contractor as a businessman cannot afford todisplease the owner and at the same time he has to secure the work carried out under the instructions from the owner. Hence, Is advisable te confirm the sald verbal instructions both from the owner and architect whereby this verbal instructions of the owner will partake as Architect's instructions land heart burning of future will be avoided, ‘Typleal Inspection note-cum-Inatruction Name of the wore Name ofthe owner Name ofthe contractor het Progress of work 1 2 3 Instructions and directions 1. Intolerable honey combing in frstslb, hence guatte thes cilingand Mish othe extent of 121.0 =125M. 2. Omi: External drain pipes of A.C. Provide In place: P.V-C.plpes of approved make, Financial implications: Hem No. 1 [Nas part of the contract. Wem No, 2 Omit tender tem No. 85 relating’ A.C. drain pipes land P.V.C. plpes to be paid as per D.S.R. 1993-04 plus 10% above. ‘Guner Teontractor Se Arche Aine acini te co loved drain, sa pence og Si ong ihaice wa ine he ean ag doc nau Soca See Sitar nan ten ete feng forequltinextra cost, mere coletion of revised drawing op Em Sin ne whee ap wr mercy anne ra gout wor per the eva drawing wih no extn cot oa ii roe tat tas wl aly beset ome way roe DY the feta tao all uncertainties, such eos danse introns mua ie ecto ys forwarding eer thn tome" incoporsta ens feet wire encapuomnet of the “Acts triton armen Sanued om ume tune a eed woe taras sie wh te te doce i oo guaece Spotter tc ation tte dengh west shown the pian but nt desea in Oe bil oper Sontractr tet supposed tens such work when eee af architec ashen ol ot be eed toy ee ‘cre same Thiswllte trmetasBcasoren 6 aes on the lan but mat descent le guaiics eee Sul ree tourchtats instruction ete ein et sSbetitatone, waraaces the contract for not completing the work in time. Even in case of change in the mode of contract like item rate contract Senverted into lump-sum contract, the Architect's instructions wil ke Qfne help ifa mistake is detected afterwards resulting in profit or es the contractor. The said instructions cannot correct the Paislake oe he intentions of the parties are to get certain works executed for aflned sun, inspite of the fact that the bill of quantities is attached to the cntant document. If the materials and workmanship are defective, the contractor has {oFemove the same immediately on receipt of Architect's instructions ts ‘that effect and bear the loss. But sometimes cases may arise llke (2) Architect orders removalof the materials first and subsequently ‘on being tested, they are found to be of standard qualities. The 1068 to the contractor in this case will have to be made good by the owner. (2) The works which are, on doubt, broken open and found to beas Per the drawings and specifications, will have to be made good at the cost of the owner. The Architect while making use of his power under the “Architect's insturetions” must be very honest, carefaland impartial as otherwise the 186 PROFESSIONAL FRACTION. toss to the contractor as well create extra works. A removal of defective materials or defec: Fheayy loss to the contractor though the the same as defective. The said hon of te works but actor the ‘same may result i ‘careless decision as regarda the ‘tye workmanship can result ina architect may not be called upon to prove ‘Powers can be made use of sas to control the exec Rtn time the architect can vary the conditions of the cont design asa whole, ike converting ingle room tenements intoflats and ‘The nominated sub-contractor is subject the instructions of the ‘main contractor as wellas that of the architect as he has tocarty out and Complete the work to the reasonable satisfaction of both. tn case of SSnlict, whose instructions to the sub-contractor will supersede, is & Gebatable proposition, perhaps may be decided by the arbitrator a= SRenitec’s instructions can form the subject-matter of arbitration, The ‘SSntractor is satisfied thatthe owner will pay reasonable increased cost Sy mpllcation as the ovmer with ull owed of revised drawing, has permitted the contractor to proceed with the work. Central Core of Power ‘The central core of power ‘enrolled in “Reasonable satisfaction of the architec” Sie architect means the reasonable execution of the works as shown on the drawings and described in te bill of quantities. The contractor rot cache to give more than that is reasonably expected of hm as pet she eer apintot the contract e “Tite to be of approved make and desig {rue orth the contractor has quoted a certain rate in which only tes with for whit had can be had, whereas the owner s kely to insist on Wes Meat ght shade and there are chances of te owner making legatrs Teun te architect if he approves the tes with neutral sade. Th ae i ot apply his mind carefully tothe relevant clause and st f Sree abt be should study the bill of quantities (find out whether ‘shade ean be had or not. In such ‘egligent In his duties ‘reasonable satisfaction pertains toachlevement ofthe objects Of the cat namely finished work a8 per the contract document. Ce aoe ont cetiiente has been issued by the architect ater dec: Nabi a incr and defect any have been rectiled, easonable sali tion reaches its terminal point varied position Par i edependent authority tle payment certieate ae si%2 a om [CONTRACT AND PROBLEMS ARSINO THERFFRC ley ee Sears | aster soe mate Th ctr toad on ry eo br at sch con Pepement of asa an bn eae Scarce Schaerer See eg ane arte teed ene SESS Sear sn cm tat he tar saz lee econ oenmemes : Architect's Duties and Liabilities under the Contract (Condition No. 16) Condition No. 16 party isan independent one and party related, otter conditions. i is avied in tree parts and deals with arch? status and decision. This condition loads the architect with professional duties and lables inspite of the fact that he snot apse to the contract like: (1) Agent of the owne: (2) Interpreter of the contract. (@) Quast-arbitrator ofthe claims ofthe owner or ofthe contractor, | (4) Impartial instruction issuing authority (1) As an Agent of the Owner: (a) To act as owner's representative during construction period, (©) Pertodically ist the site to find out the progress and quality of | the work. Exhaustive or continuous visits are not contemplovay of the architect. (©) To keep informed the owner about the progress of the work (4) To guard the owner against defects and deficiencies in the werk, (6) Tocondemn the work which isnot as per the contract document (9 To act within the contract as expressly provided and not ts exceed his authorty, (@ To stop the work as may be necessary. (2) As Interpreter of the Conzact: Fair interpreter of the contract and to see that both the parties ‘namely, the owner and the contractor discharge thelr respectiveot, Lugations under the contract. (3) As Quastarbitrator: Te (4) As Impartial Instruction Issuing Authority: To issue further drawings, details, written instructions directions ‘and explanations from time-to-ime as may be neceseary fer. ie nore {a) Variations or modifications of design {) Quality, quantity, additions, omissions, or substitution of any work. (c) Any diserepaney in or divergence between drawings and/or specifications. () Removal and/or execution of defective or improper work: {6} Dismiseal from work of any person employed by the Contractor who fs incompetent or misconducts himself. (9 Opening up for inspection of any work covered up, (g) Amendingand making good ofany defects under defects lability period. (hy Removal of any material on site and substitution of any other material therefor. () Assignment and sub-letting. ) Delay and extension of time. (k) Postponement ofany work tobe executed under the provision of ‘this contract. He 1s not responsible for the contractor's failure to carry out the work as per the contract drawings which the contractor otherwise would hhave carried out had there been the exhatistive or continuous supervi: son. SECTION. PRE-REQUISITES The LIA, form of contract sets out the rights, duties and liabilities of three prime movers for completion of building project in a balanced ‘manner, For the sald purpose as per condition No. (2) the contractor is ‘given. admission to the site on the date of commencement as given in the ‘Appendix with an obligation to complete the work on or before the “Date ‘of completion as per Appendix subject to right of extension of ime in certain circumstances. However, condition No.12(1) throws an abliga- {Won on the contractor to visit the site prior to tendering and ascertain for ‘umself the ely dificulties to be met within execution of the works ike i) Nature of approach, (i) Means of communication, dW) Character of sol, iv) Nature of excavation (©) Facilities needed for obtaining speclal articles called for in the contract, ‘The condition No. 12(1) further contains a negative mandate for claim of extra charge on account of misunderstanding or incorrect as Asn THEREFROM [CONTRACT AND FRONL 7 tnfrmatonso the above pont a als. te LOU siti, eer ofthe ate We contractor Ba ny discrepant ; eee Sontag confietsner amend “en Attn aa facts not later than 10 days Before the fas ayes ® it antguiis, These ae sf explanatory containing reimysracy® for Iabour expenses as also creating proprietary rights in such any! Sintra crannies ea cee ere ee ae ee he co Sania Sinn ee eon 10 ich myo erwin cena, or NE Senin ran sebaacre a r be ge extent of site its advisable to how that extent on bck a (1:500) bounded red. " Tiara cre nuts font sop i ee etre ay iceinader mea eee ante al hoa cx pa cnc oa at eee me of the bling mat tnvolve the process of second a a A soo nigemtttora are directed to store materials at 5 claimed extra amount due Sem ngs and thereater subject t very near othe work point c he materials inquestion (oth, ; handling”. The contractors when han ner whine Pieri tance at bout Sos MY Hig the ma a And when goes inthe wos en Bess of hain where materials are M. or mote, process fesame material within a peripheral Where does Exclusive Proviso Apples? ag aelusve Proviso will apply in general to existing means of approach to ste facilities for transporting special articles am when ag with definition of ste under condition No. (8) the likely hurdice, Spe way duc exatingbuldingorerecionson sitelikehertage bling or clearing of the site or shrubs and giass ete Another issue arising out of condition No, 12 1s the nature of Possession ofthe site with the contractor, It has usually been observed in Fractice that contractor either as simpliciter contractor or in the capaelly of a developer refuses to haat ~ over possession of the site either during the contract or even aller ‘completion of the workon the ground that these persons have an interest ‘nthe land. The reasons for not handing over the poaucssion are two oul ‘pamely to demand the balance payment and/or to force the owner to get ‘the work done from the contractor or developer at the exorbitant rates. In the above connection it 1s to be submitted that the contractor vr anthers Sancta naar spec igser papel ean IER (0 pce ln a SY compre gmgrame tn eocey na apectg ca sr dea eg tin este cet owtoliesoeee Tn ne fine nate et gE Ths een ha a cope ie ADE Sf ‘eianaeconmyetmanip ants oat coe See er ae te ceil emmeenentne option ad net en stn seg tment ie pen peta spe iet acmyaete ae poet soa ges tment Nes an 7 ran age 1/05 ber Lr unis str aa np tr hte dae 7-8 igh Gal fe nee te Lot a St anh rier ee ose ttn net te Gi nda toener mney ren econo mtr atest monet a any ancunae atest ‘Samples and Shop Drawings (Condition No. 13) ‘The condition No. 13 deals with samples and shop drawings witha {ime Unt for their submission that is within 60 days from signing ofthe [This condition 19 contains three sub-conditions (1), (2) and (9) and deals in two subjects namely: (1) Samples. (2) Shop drawings Sub-condition (1) deals with both the subjects of samples and shop ‘Qfawinge and thereafter sub-condition (2) and (3) specifically deal with Samples and not shop drawings. Thus, scheduled dates of submission of ‘samples are to be given in progress chart whereas the shop drawings do ou i? 62 PROFESSIONAL PRACTICE not carry that factor except the contractor has to be prompt in the submission of shop drawings. the reason being these abop drawings ‘depend upon the term and conditions of the manufacturer to whom the {contractor Is to assign the sub-contract, Further condition No. 12(3) Geals with approval of the samples and does not speak of approval ofthe shop drawings. In condition No. 14 somereference is there to shop draw: {ngs and approval, the same pertains to approval of scheduling of shop drawings and not to approval of shop drawings. cree es aoe ee ee een ee ae ene ganas eae aegree er ore aerree , mtarercaetopnscanomeg tense asenetoaa aac aya es Scena enc ong co ao oe for shop drawings fom the achitectand ican turno is proposition fr thearchitest His dutics ere afeTimited toexamine auch sigpidrawings submited and make uesesSory comments so tha ‘ubject-matter fits with in the concept evolved by him with a rider ‘Rot be consirtied as {introduced in his lettér that "such comments shot the approval of such shop drawings’ Incase of lit installing plans, th¢architect usually tates in specific terms that his approval is limited to the dimensions of ft pit and Lit ‘machine room and not applicable to whatever deta have been shown, ‘on lft machine drawings. Progress Chart (Condition No. 14) Progress chart has assumed its ovm importance when viewed through the science of Management Studies and has opened up a new field in the building industry called “Cortract Management”. Progress ‘chart is nothing but a schedule showing the commencement and completion of each item of the work indicating date of submission of ‘samples, shop drawings and approvals, tothe date of completion of such stems. It is required tobe submitted within 21 days from date of award of the contract and is subject to the approval ofthe architect both as tolts form and contents ‘The condition No.14 uses theword "Progress Charts” but does not specify the specife char of format tobe submitted by the contractor. One ‘can find a similar aspect in clause 5.3 of JCT 80, where itis termed as “Master Programme" which means overall programme for achieving final goal in time Ccoraacr aND PRORLEMS ARISING THER 7 |SURJECT To AALABLTY OF COVTROLEDHaTERAGR Fan AO OTERO NTT Pig. 10.1 Bar Char (Ground Foor + Two Upper 198s PROFESSIONAL PRACTICE, “ vyweves th Bar Chas ha been = 7 engincers lini to balling works PPM amo the architects! ‘The concept of "Bar Chart" was developed by Mr. Henry L. Onalt somes TO11 and also called“ GhattChait-A times, it “Bar Charts also referred toas Pert Chart perhaps inthe wider perpes the ofthe scence of construction management te heres Peet Paluation and Review Technique Chat Pert Char dies tte hee Chast ‘The Bar Chart or Progress Chart shows the commencement of the activity and when full completion expected. The period's completion aivized-among the various agencies to execute a number of activites From ammong!he activites contemplated smearccrlne gece ne bi some ae interdependent, It isbased oneal start tech intern ns and wih "ere Slack oral ett Inoher word all activites are consberedof eriteal nature, delay snon wae oternterdepenent actives and ths-Bar Chari, feque necessary review from te tome to abc the ‘hf: th fave laken place dslodging tne nal date ef compete Ts chart should tot be ule for taking acto agaist the contractor for delay a 1 might present problemas tis cha eae, pated as “Threat of punishment and not to be used as tol or acto punishment” Performance Bonds (Condition No. 17) ‘he standard form of L.A. contract lke other forms eg. JCT-80 sncorporates within its fold other contracts to; ether of express nature or of impled nature but subsiiary tothe main contract. Performance Bond asthe name suggests is one of ther. Bond is a contract (at present to beexecuted on Rs, 50/- stamp paper) which provides for payment of spcted eum of money, toanother fn condition that the obligation shall be void if a speciled act 1s performed or is not performed as the case may be. When read with prefix “Performance” itmeans an undertaking given bya person usually a bank) to indemnify the onner against contractors {aur to full his obligations under the contract. It forma a sword inthe hands ofthe owner against breaches committed by Une contractor, which encompasses: (0 Indemnification tothe owner agains ss from defects, patent or latent arising from any clause under the contract of (uw) Against oss due tothe failure ofthe contractor to promptly carry ‘cut any matter arising under the LL.A. contract. Thus, it takes the characteristics ofan omnibus clause not only ‘gains defects, patentor latent but against any matter where contractor ‘an be eld liable for loss,» [CONTRACT AND PROMLRNESARISND THEREFROM in Condition No.17 provides for certain financial guara contractor both in regard to his sovaney a8 also lo htt eon any breaches or delay tn completion of the work: For the sald purges ‘ter payment ofthe Earnest Money (usually 1% ofthe tendered among) {he contractor to whom the work has been assigned is (0 deposit furthey ‘sum as speciied tn the Appensix, collectively called as security depony ‘ith an upper limit specified in the Appendix. Thscan be done as nor, (1) Deposit with architect balance amount from the upper limit say Of Rs. 6 lakhs after deducing the amount of earnest money. ¢ (2) Every interim bil is subject toa cut of speciied percentage say ‘5% to 10% till the specified limit of Rs. 5 lakhs is reached. Thy {s called "Limit of Retention Fund” and thereafter interim billy are certified in full. The specifed retention fund limit wil ase Include tender depositor earnest money already paid; or (3) Fora work of Rs. 50 lakhs where total retention contemplated is RR. lakhs, partis deducted from the interim bills at 5% of the {interim bills amounting to a limit of Rs. 2.50 lakhs and for balance the contractor has to give a bond in the form of Bank Guarantee. ‘The form of securty deposit whether in cash, bond or a mixture of ‘wo depends upon the terms and conditions as may have been agreed. Care should be taken to see that the performance bond oF bank Guarantee ts kept in full force during the entire period that would be taken forthe performance ofthe contract and til the owner certiles that the terms and conditions of the contract in question have been fully and property discharged by the contractor. In the alternative, the bond ‘becomes ineffective after a specified period set therein or from date of virtual completion certfate ofthe work unless a notice is served on the contractor before expiry ofthe specified period, called the notice of claim, ‘showing non-performance and/or defective performance, breaches com matted by the contractor and loss, damage, costs, charges and expenses fon account of such aspects refered to above, Contractor's Field Orgenisation and Equipment (Condition No. 19) ‘Condition No. 19 provides for eight aspects to be provide by the contractor like Engineer in-Charge, equipment, office accommodation (Foreman), watchman, storage sheds, sanitary conveniences, telephones (scaffolding, staging, guardrails The sub-conditions dealing with the ‘ahove are clear and require no explanation. The engineer in-charge (s prohibited from doingany work inadvance of instructions fromarclect Foreman and site supervisor are synonyms with rich experience may be ‘with or without technical qualifications, “Another pont o be noted forthe architect le to raw the attention of the contractor la (tough not obligatory to provide guard rals to Ut shafts and ducts or vols on all oorsas aeldents and deaths have aket) place due to it shafts and ducts bing kept unguarded his condition No. 19 raises the probie ontenctor when MIs services are ty ne crcaared ty the ree condtton N20 ORS crs moet noe “Neyo nate ve omtnar “nema mann statutory Obligations, Notices, Fees and Charges ‘The condition No. 21 fs required tobe interpreted ina wider sense sg relevant statutory poles ete, are required to be gien Pye 35 ising architect. The condita becomes impertant nse cases (1) When the contract is a package deal contract where Ne cattactor builder appoints his own arctitect and the ore? saree may not appounthis own architect Here both the MSGS" aay elias builder's architect are covered under ths cht Mate ofthe fact that definition of the archet icone Ilustrations: (1) Approval and (2) Approval (3) Notice as to etc, and ob rotce for drainage work, set camectnn sa notice for cece work ri reaping ees ing ther completion inthe work. ment act the contracts: oe CONTRACT AND PRONLENES AUISING THEREFROM i Te, COMTERCKOr Is Hable for al ees oF Charges Gnctudin Feapee ntl FEaUITed Co be pad uiniee oie Statutory requ Tespeet of the work Problem, 8 ANY ratey Pecessary authority i and permits and ines ey form a payment on SGCOUNE which wal be ded ‘um the contractors rutting account se PROFESMIONAL PACER — ee aes aig ae sl ee corn eh wan i a lela ee “sacar etn he mar cf rt Sea ce assent erst ent, steel, ete, to be supplied on the site If there is any rise, the a oma eh ee seer ree woken rhe eet snc fen ceca oe a as cerita cha peng es ccna Water for Construction (Condition No, 24) This clause calls for three aspects to be noted namely (0) The contractor to provide water connection need for construction [purpose at his own cost; (ui) The contractor to pay for water consumed for construction purpose. ui) Water analysis report if watef Is from other source uke wel, tank, river, etc. other than the supply authority of the area ‘So far as Bombay is concerned, the other source of supply can be either from the wellor from the tankers which tankers again tap the water fom supply authority of the area. Insurance ‘The contract deals with insurance broadly in two felis: 1) Injury to persons and property (u) Insurance of works. ‘These aspects have been dealt with in conditions Nos. 45, 48, 474, 478, and 47€ with afoot note. Again condition No. 45 and 46 deal inthe same field, yet, with different subjects. Condition No. 45 deals with Andemnification ofthe owner whereas condition No. 48 deals with protec live measures in the form of Insurance Policies Condition No. 45(1) vests in the owner right to demand indewout cation in respect of personal injury to or death of any person whosoever arising (a) Out of, or (b) Inthe course of: or (©) Caused by. [CONTRACT ANI FRORLEMS ARISING THEMEBROM 109 caryng oto the works Thus, the potent ably of he eontactoy wipotsomeon the see unless thee eax ete he wor Sry perm ine generally ren observed that during the reso Sonstacton the works are belng utilis rest place at righty the cuter eile te tregpaeaere wh have no enitetion wh the work Ian iy or death takes pace, he contractor fot lable The ably ofthe contractor does no ara there Is any “actor eto the owe or of any pereon fr whom the ower I responsthie Mustrattons (0 Contractor's workman fling in chow, ft pit or fom height where bythe contract is lable (i) A plumber appointed by the owner fellin unguarded it shaft from 4th floor and died. This case though settled leaves a ‘number of aspects tobe probed into aso the labilty; whether ‘owner or the contractor for negligence i keeping the lit shaft ‘unbarricaded. Condition No, 45(1)and 45(2)are required tobe interpreted in right perspective by the legal luminaries; fr condiuen No. 48(1) throws all lability for indemnification on the contractor except where there is any ‘ct oF neglect of the owner of any person for whom the owner is responsible: yet persona injury of death must have arisen out of, or in course of of caused by carrying out ef the work. This indemnification fs restricted in condition No. 45(2) where there 1s "any negligence, mission or default ofthe contractor” The other aspect covered by condition No. 48 and 46 relate to injury or damage whatsoever to any propery real or personal with the come supervening conditions that the said injury or damage must have exes with the work and the same must be die to negligence omission oy default of the contractor. Besides the above even Bombay Munlcple Corporation puts acon- ition while approving plans of works that the applicant has a take cut Janata Insurance Policy oranyother relevant poly tocover the compen sation claim arising ou of the Workmen's Compensation Act azarae condition No, 46 transfers that Lablityon tothe contractor Mlustration While carrying out the work of removal of pith ofan old building. the neighbouring building situate ata clear distance of 10-0" collapsed ‘The neighbouring building collapsed because it was an old building a ‘ge of more than 60 years, heavily propped up and required consider ble ‘extent of structural repairs Here the contractor isnot responsible for there was no negligence, ‘omission or default on bis part. Moreover. the nelghboutiig ower pleaded that heavy machines were used for removal of plinth wlerens at a PmorPAMOHA PRACTICE Ane te of collapse when pli wrk semua grachines were Fond on site an coy as done by manual labour Such types of phenomena are «he building under tepairs comes down b, pouring building elther tn part or in fat, Can tbe called an accident or an net of ‘can unfold the same, Wil come to hal way. ne plete operation of nh ema fo Bombay Cay weve ging along wn te seg What is the state of aflaira a tation, whereas condition No. 47(A) 47(B). and 47(C) deal with policies for works, unfixed materials and goods but excluding temporary bull, ng. plants, tools and equipments owned or hired by the contractor ‘The foot note tothe condition shows that there are three alternatives for insurance depending upon the circumstances of the case, two conditions not required are to be deleted from the contract. Condition 471A) = Insurance of new building project by the con: tractor. Condition 4718) = Insurance of new bullding project by the Condition 47(C) = Insurance of works comprising of alterations or extension to an existing bullding together with all contents ofthe existing structure by the owner. ‘The architect in practice may meet with diferent nature of jobs like ‘new works, additions and or alterations or a combination. Ifthe works are of specific nature like new work only or work of additions and alterations only, no difficulty will arise, one can make use of condition No. 47(A)or 47(C), However, in case ofcombination itis desirable to make Use of appropriate conditions. Architect ts advised to apply his mind properly to all the three conditions, reasons being tat condition No, 47(B) and 47(C) transfer the ‘isk and insurance to the owner and these aspects are required (0 be Drought to the attention of the owner 80 tha these conditions may not lead to arbitration and litigations. | “CONTRACT AND PROBLEMS ARISING THEREFROM 201 Summary of Conditon hos. aia) | Comparative Watier of Gondlb Nos, 4708). 4716), 471, 478), 4710), Sentractors Lia owners Liabat. [exsthy Structure ang baties 4714)” | ties 4708) [Works of Additions land Alterations 4710) Name of sured. | Joint names ofthe | Owner w the (Owner Is the insured CMmers and con-|sured and he is | and responsible nt tractors, esponsible to | take out poly ofade, take out policy. | quate value both for } cexistingstructureas ‘well a for “works” | 1 sage | Subject to appa Roappoal eaw Te ‘approval form | surers val of the archi. | Architect. Architect. | Peril insured, Fire, storm. iem- [Perils insured | Perils Insured a | est, lightening, | same as percon: | same as per coral | earthquake. | dition No. 4714). | tons No. 471A) alrcraft or any. thing dropped therefrom, acrial objects, rot. and ctv commotion Rnereasing value [Owners obliga. | Owners obligation a8 the work pro- | ton. if he takes | for la) Fleed eaten Seeds to cover | out poticy ithas | cover existing best subject of insur-|1o be of the na. | ing’ and (b) ee Insurable value ance. ture of increas: | ing value cover for ng value, as oth | works {| Jerwise he runs ‘ the righ tn case | of named peri {| saneet oFtasuc TAI works execu | Subject same as [Subject mame pet | ance, fed, “all unfixed | per condition No. | condition No. aa) \ materi ls and [47(AL for con: | plus the existing foods ‘meant for | tractual lability | building and the the works exclud-| of insurance is [owner to qo tn ‘he ing temporary |on the owner | cover, of ‘adequate i butlding, ‘plant. Jexcept for” ex- | value tocoveral the tools ‘equipment subjects, ‘owned or hired by i the contractor for which the contrac: (or will be lable for tts insurance. ‘When covers | On virtual comple] acd nat ex | For Twasla? need ease, tion ofthe work. | tend beyond vr | not extend tensed {ual completion | virtual completion lta! completion | vrtual “completion PmOPRABIONAL FRACTION ern operative Hat af coon No ” 4 7B) 470C) “ATIA), 47101, ATED = Foonracors to owners taste etn Scr ot fons 4714) [len 4705) fork of Adal ind Alterations 471C) date, for existing building beyond ‘tual completion atertis et forthe owner decided However, nexus between the works anv existing ul Ingoomes oan cd con virtual comple ton ofthe works Faken] Depot rat [No prea wees ‘No proof neces: pole ae receipts | sar sary. fn respect of pre mim. paid. wit the architect, [owner may him- ccotractor fel insure the | arse work against any isk and recover the premlum paid from interim cer- ideas Goaprebenaive [Acceptable as a Cangefthe aerate sublet eatactor to covering ofthe works in question, foods and unieed materials all con- covered and for fll value fnd endorsement gor [Question docs not] Question does not Betoa of he arise. as Sicha pb ts poof preetum ra. Barat ot | Contractor to Yeon mor we] Obligate Reet | Cs [ence samc] weet mete fereions7 damage. damaged, replace | per condition crear unfaed | 471A) subject to] aubect to cost of SONTRACT AND PRONLEMS anisivortEREsnons ‘Summary ef Condition Nos. a7(Ay ‘Comparative Matter of Condion Noe 470, 4740) 471A, 4710), 4710), Owners Labi 203, Won Nos, settlement of his claim with insu lance company. Destination of —] ‘and that too after | extra xtsing Structure tes 4713) forks of Additions ind Alterations 4716) wd neat | st of damage damage cc be a hen gece | et. tobe paldas | par got ‘stination of | Contractor to money paid under alm amount (ex. of teri cer fleas. This will, ot be subject to deducted for dam. Further the con. tractor not entited toextra for rectin- The owner Ras etre complete ct. | taten wey ha ‘the claim, - hes hhence contractor Soh for fees in the | tobe paid for sect form fetention “which | or to gue eae has already been | te tothe ache tector the owner aged “work ete | about the ieee damage so that ocomplictons ase tn fature at faton of damage [alse tne worksetesanateo [ean per ‘a for temoval and | Such clase 5 Aisposalordebris, | fore the ance “company, Though nor obligatory toe notlee, yet Prudency dears this “course of actin bythe con [As per condition No, 47. Extra amount. | Not entiied Entitled taking entitled taking the the format of |ormatot ‘variations’ “arlations”. ston | Rated a per Ente ss = of time condition No.0 |constton” Re & se ber [Entilied as per con: ldtuon Wo. 4013, (Clerk of Works (Condition No. 18) The eye and voice of the architert is the correct position ofthe clerk of woFRE OA SITE Who wlllses rich expe Tung work for the RS ug Work for the sot PRorESsionAL practice sections Bsns eo arches SLC orbs SENET) rates slay oF emtineratan is eg a Conon Notes te rk of Work” ibis, ies 6 also rest but no where it 1s provided that 208 ne of ceric of wrk conpuloan ses pe Efgaion onthe part of he cma een ere mo rie pe impacts of condion No Ie ine se ome (a) Over does not appoint clerk ot work nape of repented reminders from the architect. Theeontentcn of icc eae Aspe HLA itl tat compulsory or hin eee eat worn If at all appointed, he 1s nie ‘aclerk (e) Attimes the developers wok inthe capacity of contactors with the result that no contract exit and a auch no cero works competent to superae the werk ‘The question assumes importance when some mishap takes place ae colpac of sla, structural cracks in REG works dedeniog gol bemling ets. When the question of pinpointing responce ace, tatch the pereon In charge ofthe werk and us achnet ie ets Stapegeat with the git of tension fall night, he ator to appoint clerk of works ark rom para 2.10 and 2.11 ofthe Conditons of Agcementorming par of hretlects ofee final Conduct Regulations. 1980 which eal a under Para 2.10. Viste sito workan provide pelle aperion a and When necessary to car any decision or interpretation of {he drawrge and optical tat may be necesay ee attend conferences snd meetings as and when required ae toenure thatthe projet proceeds general In seordance th conditions of contract. Para 2.11( For frequent or constant supervision, Clerkof Works shall be Pointed. Fe shall be nominated or appointed bythe Archi” feet and shall be under. the direction and control of-the ‘Afchileet-He shallbe paid by the centr alternatively, may De empioyed fy Tar tec who sabe remburecd the cost ofthe said employment including overheads. However, ‘the overall cost ofthe employment ofthe Clerkof Works shall not exceed 0.5% of the overall cost ofthe project. Since he ts being paid by the owner and as such the owner will ‘usually consider him as his employee and wil goon ging the necessary fastructons which he snot bound to folow. This should be made clear to the owner inthe Beginning ‘CONTRACT AND TRONLEMS ARISING THEREFROM aon Jneyimnt Be furnished with one copy of the plan, contract copy, Sopoations, te. ad all nsteuctions fo him must be glven in ari reeset who in tumexpectea written reply from himas and whe Since jhe Js Working under the directions of the architect, the Sontractor ts to give him all reasonable facilities passing reference js madg here to condition No. 64 (Antiquities) amie uuee ©" find reference to clerk of works as a custodians, antiquities Condition No. 18 besides defining the term clerk of works lays down sae and Powers of clerk of works, the main thrust Being ing sree tion of supervision resultingin good quality works, Thisconmtens se contains a supervening aspect showing ite limitation as applied fronenntractor and all other instructions beyond this conditions ees from the architect alone. Duties (2) To act under the order of the architect. (2) To inspect works in the absence of the architect, (3) To inspect and check materials. (4) To check and measure time Powers To BNE notice to the contractor about non-approval of any work or srascnals and such work to be suspended or use of such materiale to be discontinued until final decision of the architect is obtained, ‘No Powers Except when Conferred by the Architect in Writing (1) No power to set out works. (2) No power to revoke, alter, enlarge of relax any requirements of the contract, (3) No power to sanction any day work, additions, alterations, deviations, omissions or any extra work Defect Liability Remains Even though the works are being examined by the architect, clerk of works or the architect's representative and no remarks or observations made on the works, the same shall not in any way exonerate the contractor from obligation to remedy any defects which may be found to ‘exist at any stage of the works or after the same Is completed, ‘Thus, by condition No. 18 the powers as to remedying defective works or rejection of materials are to be exercised during the progress of the work. On completion of works, the powers of condition No. 18 dis: appear, yet condition No. 37 is still available to the architect for rectif. cation of defects. Again the duty of clerk of works is limited to non-approval of works or materials but no power toask the contractor to remove or rectify not 206 PHOPESSINAL mnACTCR works for which architect's instruct spect aes min ni he Pin wea ance ee cn wrk over ing he has none ‘Tus, his powers are of negative nature limited to disapproval of noe nran rg te tape by te approval which power vests withthe architect. carlasto etaken tec that tnecterk of wrk duties are med to ser ‘owner and under the direction of the architect and contractor (o give him every facility to carry out his duties. eis delegate with ore overs te arch hima ome abi Wine interest ofthe owner sullers thereby. Architets ability wil ot be Himited to the amount of ees payable to him but may be measured by the Joss suffered by the owner depending upon the circumstances of the fase. The authority on this aspect is the case of Lelcester Poard of Guardian vs Trollope (1911)75 J.P. 197, (Building Contracts by Donald eating: 1978 Ed. p.214) where the clerk o works was toact solely as the Repost and assistant of the architet, to protect the interests of the “Employer against the contractor mainly because the architect could not fethere all the time, When a clerk of works is employed the architect is Tesponsile tose that his design scarred out but is enti toleave the Topersion of detail tothe clerk of works. In this case the architect was Feld liable for damages where dryrot resulted fom faiure to carryout the fesign of lower floor. A series of precast concrete blocks had to be made ghd the architect admitted that he had not checked whether they were Shade properly oF not. Observed the Learned Judge: ‘if e architect had taken steps to sce thatthe first block was all rightand he had then told the clerk of works that the work in others, fyas to be carried out inthe same way, I would have been tneined to hold that the architect had done his duty". Inthe sald case it was alleged that the deviation from the design was due to frau of the clerk of works, a Iwas held that even if dls were Sethe architect could still be lable. However, the essence of fraud euberateintenton to deceive, Here the architect was nat party to the {feud which was committed by the clerk of works who acts a the agent cttne owner and condition No. 16 doesnot give him the status of agent tthe architect. Thus, Donald Keating has rightly opined that the part of the judgement dealing with the fraud perpetrate by the clerk of work in his own interest and not in the interest of his employer, cannot be supported on the ground of iraud, but “hatitspartythe architect's duty tolake reasonable care to guard against fraud by the clerk of works” another case anarchilect was appointed to supervise therebulld- lng of premises after fre. The owner also appointed the clerk of works Now te clerk of works thought that certain beams didnot requir to Be replaced and the architect relied upon the views of the clerk of works ‘wthout inspecting the sald beams. It was beld that whether new beame Were required was one forthe architect and not forthe clerk of works and a of Ph works “SONTRACT AND PROM EMS ARISING THEMES ROM (hat the responsibtity was o Mew without inspecting thom (hee vs. Batemay the architect i Ne adopted clerk of wonky PB Eg TS TIES Oct 91; p78, of Hann Bullding Contract: 1959 Ea) ‘Two Noteworthy Features in Preuides for necessary appointment $i supervisor or clerk of works ining agreement with architect which reads: eh Ribesion of work the architects shall appoint at their cost rons. dualiied and experienced talt ie Supervisor/s or clerk of ne ne teets shall turnish detailed ata oe staff to the Board, If during the Supervisors in case ofeon, Sion don of Private buildings. It makes provenre constant supervi- comet ang the progress of the building work by the Tegistered licensed with building constructon, (9) On site co-ordination between architect, consultants, cliente and contractors. stern CONTRIBUTORIES 0 THE WoRK construction of a building is a com, vst pl St rere cg a sis nr et ra 1p at ae ope setae work ard thet slot ine oan The LIA. form of contact dels with such contre under erent beads 2 ven Below Conon Peartlars Zenon No 18 Clerk wrk. ont No 19 Resfent Engine Condon 8.28 Assignment and ub-etin ‘Condition No. 26° ‘Nominated : sub-contractor Sandton No. 27 Feine cost nd provisnal sums Sandton No. 28 ‘Artist and trade Canon No. 29 Other contracts Note should be taken of condition No. 10 which deals with facilities ‘and co-operation for some of the contributories, Condition Nos, 18 and 19 have been dealt with in previous sxctlon Condition No. 25 Assignment end Sub/etting Before discussing this clause, its essential to distinguish between. Assignment and Sub-letting of the contract, To clear this aspect the assignment of a lease and creation of a sub-lease of an immovable property are adopted as planks. In case of assignment of lease, the ‘riginal lessee ts replaced by a new lessee whereas in case of sub-lease, the original lessee docs exist and a new relationship is created between tbe orginal lessee (called the head lessee) and the new lessee (called the sub-lessee). The LLA, form of contract does not contemplate this form of assignment as otherwise this contract will become a contract Novato (new contract), and that original contractor who has been assigned the work looking to a number of factors goes out of picture. Here the assignment contemplated is of such a nature whereby the assignee (new contractor) undertakes to perform all duties of the Assignor (original Contractor). Such performance of duties by the third party (namely the ‘ew contractor) is known as “Vicarious performance” wherein the origh- zal contractor is not relieved of his rights and obligations. [CONTRACT AND PROBLEMS ANISINO THFREF Hon 200 Mustration of Assignment saibscomtracior "8" takes sub-contract for plastering work for Rs. 50,0007 from the mat n contiacior "M”. After proceeding with te, TO att teeeteng part pasment of Rs.10,000/- frm "Mt the a SPuactor writes letter to M” that he has assigned the sub-contract, eannktbalanee payment be made to him as agreed. Consent leter ot 's also forwarded to“M”. Ifa go wel, no problem will ars flegal suit by “MI both "P* and °S" will have tobe the letter of “P* does 1 contract, Sub-ltting means creating sub-contractors either forthe full job or ing ing Pav Job. This aspect willbe observed on site for a number of works wherein com 1. But in case artlesas consent wt relieve “S" from his obligations under the suf, followed, remaining unaffected Condition No. 25 enrolls two aspects in one namie: (0 Prohibition of assignment vithout writen consent of the architec. This is a clause dealing with full discretion glven to the architect and his refusal is not oper to any challenge forthe words “shall pot be unreasonably withield” as given in this clause qualifee Subsletingand not assignment. The question of refusal to grant ‘Sonsent forthe assignment is not open for arbitrator to review ‘The architect and the owner are both within their rights toreluee assignment as the architect and or the owner have selected the Contractor looking o his age in contracting ted. Workmanshie planningand organisation availabilty ofadequate equipments, {echnical knowhow ete. Thus, architee's refusal to give fis cconsent for assignment is fully justified (i) However. in case of sut-letting, the architect's consent is essential. He has to grant consent to it: for otherwise the Contractor may plead thatthe refusal will result in the lees In both the cases of assignment or sub-letting the owner doce not Jose his rights to get the works completed atthe tendered rates, However, (ut of abundant caution while giving consent for subletting the arene {ect will be well advised if he writs in his consent letter about binding nature ofthe tendered rates an terms and conditions of the erigital ‘contract. Besides the above, note shoul! be taken ofthe following (0) Condition No, 25 forms an excepted matter covered by condition 55. (IC forms one of the defaults if the contractor falls to comply with Condition 25 and will be one of the grouuuds for determination of the ‘contract by the owner (Refer condition No. 48(1\D), 0 a PROFESSIONAL Practice PRIME COST (.0) AND PRO CONDITION Nos. aa anna 8 peer vrtcus reason ahing nesenary forte ey stor are eng ken butinchudes sales tax where applicabljandoise meee e ee ae af packing and delvery but not special packing ot epee sone 2. all specialists, merchant, Wadesmen er others norresed by arcitet to supply materials or goods re decane eran {ontractors and refered as nominaed ap aces 8. The suppliers will have to ener into a contrat of sale with the contactor whieh ato provide forte allowing (a) Materials or goods tobe supplied shall be tothe reasonable satisfaction of architect (by Alldefectve goods or materials tobe replaced or defects tobe rected by supplier who hae also to Pay ary catenwes Incurred by the contractor on such items dete dee when defets cannot be found out when uslng cr faire soa due to defective workmanship. However, the ppl ant to pay the expenses incurred when defeta crop up dee te improper storage, misuse, negect or any oles a of ihe contractor, architect eth enter. 4. The delivery of materials and goods to be supplied shall be commenced and completed within such tine lint as given bythe com trator 5. The contractor to make the payments in ful to the nominated supplier within 30 days ofthe end ofthe month during which deal ia made 6. Prine cost amount tobe expended as per the architect's instruc. tions {All specialists, merchants, tradesmen and others executing any works or supplying and fing ay goo wito may be nominated or ‘elect by the afthitet shall be deemed to be the sub-contractors ones ARISING THEREFROM ‘cowTaAcT AND PROULEA . ‘employed by the architect are referred fo a8 nominated au entra, rate obfetng sh nat gen sae ering contract It ialaon work ete ne eons Loarecter imo to subrail Hat of bub acters prying athe ne ine the er a he Femur dbtan estimate and select her agencies as may oe oc [ich apptntments belng by mutual consent Duties of Sub-contractor x carry out and complete the work a8 per reasonable dy ano eisacton eb the tees and the entra Micon 2. To obser, perform and Eonply Wi al the rons oy contract relating to his work. 8. To indemnify the contractor against same ab sub.work for which the contractors lable to owner. 4. Toindemnfy the contractor gant lama in respect tan, gnc, omission of default onthe par of eubcontactorer nas agente misuse of any mplemerts and to insure against anya aime ites in respect op 5. Tocomplet the sub workin time or inextendedtinetinit ss may be granted by the main contractor with the written consent of wy architect. & Topay liquidated damages tomain contractor as may have been agree! for non-completion of work in ime as may be determined byte architect. 7. To retain proportionate retetion fund (proportion tothe total contract amount) with the main contractor. 8. No privity of contract betweer the owner and sub-contractor 8. The contractor can quote for sich works which are incorporated under PC. and PS. tems, On reeelving tenders if his tender Is accepted hecannot sub-let without the consent of architect. = 10. The contractor to allow all general facilities as are there onsite to the sub-contractor. 11. Right of architect and his representative to the workshops and ‘other places of nominated sub-contractors, Payment to Nominated Sub-contractor |. Maln contractor to pay to sub-contractor the necessary payment ascerulied by architect within 14 daysfrom the date of receipt ofthe sd Certificate from architect to that effec 2, Before issue of any certificate the main contractor has to pravuce Geidence to prove that he has made payments to sub-contractor 45 otherwise architect can issue direct certifieate to sub-contractor a ‘owner to pay the amount and deduct te samme from the contractors} aw PROFESSIONAL PeAcTICE 8 Te ret a Ct the Boal payment to aun

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