The Aqua Group Guide to Procurement, Tendering and Contract Administration

Mark Hackett, Gary Statham, Mark Hackett, Gary Statham

• Publisher: Wiley-Blackwell
• Year: 2016
• ISBN:
  9781118346624
• Edition: 2
• Topic: Technologie et ingénierie
• Subtopic: Ingénierie de la construction et de l'architecture

This key text for the building team is an authoritative guide and gives a detailed account of the team's roles and responsibilities, with best industry practice required to ensure that building projects meet clients' expectations on time, cost and quality.

The second edition of The Aqua Group Guide to Procurement, Tendering and Contract Administration has been edited, enlarged and updated by a high-profile author team with unparalleled experience of both private and public sectors, as well as of teaching on QS courses. It covers the entire building process from inception to final account and throughout, the emphasis is on current best practice. This edition has new material on the CDM regulations; JCT contracts; the RIBA Plan of Work; the RICS New Rules of Measurement; BIM; and Sustainability - as well as a general update for industry changes, especially on procurement; internationalisation; and PFI.

With clear and thorough explanations, you are taken through self-contained chapters covering the detail of the briefing stage, procurement methods, tendering procedures, and contract administration.

The period from starting a college course to successful completion of professional examinations represents a long and steep learning curve. The range of skills and the knowledge required to perform work efficiently and effectively might, at first, seem rather daunting. Although designed as an introductory textbook for undergraduates in construction, architecture and quantity surveying, The Aqua Group Guide offers an excellent overview of contract administration and will provide you with sufficient understanding to hold you in good stead for your early years in professional practice.

Part I
Briefing the Project Team

Chapter 1
The Project Team

Introduction

Since the first editions of the Aqua Group's books, the process of constructing and running a built asset has become increasingly complicated. From inception to completion, through site acquisition, design, tender, contract and construction, each stage of the process is time-consuming and can be considerably expensive. The need to optimise the process is of paramount importance and the best base from which to achieve this is proper and efficient team work. It is therefore vital that all members of the project team are fully conversant, not only with their own role but also with the roles of others and with the inter-relationships at each stage of the project. All members of the project team can then play their part fully and effectively, contributing their particular expertise whenever required.

The make-up of any particular project team will depend upon the scope and complexity of the project, the procurement route and the contractual arrangements selected. There are already many different methods of managing a project and, no doubt, others will be developed in the future. This chapter is set in the context of traditional procurement and, although not exhaustive, provides an indication of the principles involved and the criteria by which other situations can be evaluated.

Parties to a building contract and their supporting teams

The parties to a building contract are the employer and the contractor. Those appointed by these two will complete the project team which can include:

The design team

• *employer
• *architect
• *quantity surveyor
• *principal designer
• project manager
• structural engineer
• building services engineers
• sub-contractors

In addition, the employer may appoint:

• *clerk of works

The construction team

• *contractor and/or principal contractor
• *site agent (or foreman, described in the contract as the person-in-charge)
• sub-contractors

It should be noted, however, that only those marked with an asterisk are mentioned in the Joint Contract Tribunal (JCT) Standard Building Contract With Quantities 2011 Edition (hereinafter referred to as the ‘SBC’). This list is not exhaustive and to it could be added planners, landscape consultants, process engineers, programmers and the like. Furthermore, some roles may be combined and roles such as the project manager or principal designer may be fulfilled by individuals, firms or companies from varying technical backgrounds.

Rights, duties and responsibilities

The SBC is comprehensive on the subject of the rights, duties and responsibilities of the employer, the contractor and the other members of the project team mentioned in it. Not all the members of the project team are mentioned in the SBC and those not mentioned will usually be given responsibility by way of delegation from those who are mentioned. The delegation of any duties and/or responsibilities must be spelt out elsewhere in the contract documents and this will usually comprise part of the bills of quantities.

Whatever the size of the project team, all members should be familiar with the contract as a whole and, in particular, with those clauses directly concerning their own work, so that the project can be run smoothly and efficiently. It should be noted that the duties comprise (i) discretionary duties; (ii) mandatory duties; and (iii) statutory duties.

The employer

The employer is referred to throughout the contract and is expressly required to perform specific duties. The vast majority of these duties are codified and are carried out by the architect/contract administrator on behalf of the employer. However, the employer, as one would expect, retains the important duty of payment to the contractor for works which are completed in accordance with the contract. Such is the importance of the payment provisions in the SBC, and indeed in all construction contracts, that failure to adhere to the provisions may lead to statutory repercussions against the employer.

The architect/contract administrator

The architect/contract administrator is named in the contract and, as the designation contract administrator suggests, is not only responsible for carrying out the design of the works but also for the vast majority of the administrative duties under the contract on behalf of the employer. The architect/contract administrator is also the only channel of communication for any un-named consultants with delegated powers. Historically, the architect was recognised as being the person responsible for administering the contract. However, since the designation ‘architect’ is a protected title under section 20 of the Architects Act 1997, it can be used in business or practice by only those with the requisite education, training and experience. In this regard, if a person happened to carry out the duties of administering the contract and that person was not entitled to practice as an ‘architect’, then he could be held to be in breach of the Act. The title ‘contract administrator’ was added in order that other professionals could administer the contract without fear of breaching the Act.

The quantity surveyor

Quantity surveyors are named in the contract and their principal duties are in relation to the payment provisions, value of the works including the value of variations and, if so instructed, ascertainment of any loss and/or expense suffered by the contractor as the consequence of a specified matter.

The principal designer

The Construction (Design and Management) Regulations 2015 (hereinafter referred to as ‘CDM 2005’), which came into effect on 6 April 2015, introduced the ‘Principal Designer’ to the project team (having been previously referred to as the planning CDM co-ordinator in the Construction (Design and Management) Regulations 2007). When a project is notifiable, the principal designer is appointed by the employer, pursuant to regulation 5(1)a of the CDM Regulations. Standard contracts such as the SBC make provision for the appointment of a Principal designer. For instance, Article 5 of the SBC identifies that the Principal designer is the architect/contract administrator unless such other person is appointed.

The Principal designer is required to:

• plan, mange, monitor and co-ordinate matters relating to health and safety during the pre-construction phase to ensure the project is carried out without risks to health and safety;
• liaise with the principal contractor regarding the contents of the health and safety file, the information which the principal contractor needs for preparation of the construction phase plan, and any design development which may affect planning and management of the construction work;
• assist the client in the provision of the pre-construction information required by regulation 4(4) and to provide such of that information as is relevant to designers and contractors as is necessary;
• ensure that designers comply with their duties under Regulation 9 and ensure that all persons working in relation to the pre-construction phase cooperate with the client, the principal designer and each other; and
• prepare and update as necessary the project ‘health and safety file’ and, at the end of the construction phase, pass that file to the client; and

The clerk of works

The clerk of works may be appointed by the employer to act as an inspector of the works, solely under the direction of the architect/contract administrator. Traditionally, the role would have been taken by an experienced tradesman such as a carpenter, joiner or bricklayer. However, with today's highly complex and high-tech buildings, the architect/contract administrator, who will normally recommend the appointment, may need someone technically experienced or qualified and here the Institute of Clerks of Works will be able to assist in finding the right person. The clerk of works should be ready to take up the duties before the date of possession (how early will depend on the size and complexity of the project) and that person will either be resident on site or will visit the site on a regular basis during the period of the works.

The status of named consultants

While the architect/contract administrator and the quantity surveyor are expressly referred to in the contract and are expressly required to perform specific duties (many clauses include the phrase ‘the architect/contract administrator shall’), they are not parties to the contract. Should the contractor have a grievance regarding the named consultants failing to carry out their duties prescribed in the contract, the only contractual recourse is to seek redress from the employer.

Unnamed consultants with delegated powers

The project manager, the structural or any other consulting engineers are not referred to in the contract and nor do they have any express powers under the contract. They do, however, have a duty, as the employer's persons, not to impede the progress of the contractor. Their position within the project team depends on the agreement they have with the employer or the architect. Where they have been given responsibility by way of delegation, perhaps for design or site inspection, they should be named in the contract documents and the extent of their delegated responsibility should be defined so that they have contractual recognition. Since they have no powers under the contract, if they need to issue instructions then this must be done through the architect/contract administrator.

As with the named consultants, if the contractor has any grievance against an unn...