Construction Law/JCT DB 2011 - EoT

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Question
Hi, I am acting as Employers Agent on the JCT 2011 DB form of contract.

On our new build housing scheme, the statutory authority works (i.e. gas, water & electric) were a provisional sum. Early in the contract, the Contractor received acceptable quotes, so we agreed the price and instructed the expenditure of the provisional sum.

In this instance the parties used are the regional bodies governing the gas, water and electric, but other multi utility companies were considered and quotes provided by the contractor.

Towards the middle of the scheme, it was clear that one of the service providers were causing substantial delays and the Contractor duly submitted an extension of time due under clause 2.26.2.2 (instruction of a provisional sum).

The disagreement lies because I believe the service providers should be treated as a domestic sub-contractor and the opportunity to extend the time was when the quote was agreed (i.e. the risk transferred to the Contractor).

What would your interpretation be?

Thanks
Gary

Answer
Hi Gary
Your instinct is probably correct but it all hinges on whether the delay was caused by the Statutory Obligation part of the sub-contract work.
I am currently employed by a contractor in an adjudication where Electricity Provider delayed the power connection by some months and we are stating that this is a relevant event even though the order was placed by the contractor.
The argument is that the connection is a statutory obligation even though it forms part of subcontract to lay cables into the site - which is not statutory.
See also http://www.fticonsulting.co.uk/global2/case-law/cj-0806-37809.aspx
In this case the Statutory Undertaker was employed directly by the employer and the contractor was awarded and EoT under the Artists and tradesman clause.
Since in your case the Statutory Undertaker was employed by the contractor this ruling would not apply - indeed the reverse could be implied.
Your solicitor can probably point out other cases where a Statutory Undertaker was deemed to be a domestic sub-contractor.
See also an extract from Building Contract Claims and Disputes  By Dennis F. Turner, Alan Turner
I googled Statutory Undertaker as subcontractor
I hope that helps
Best regards
Mike Testro.

Construction Law

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Mike Testro

Expertise

Anything related to extensions of time and delay analysis.

Experience

45 years in the Construction Industry 15 Years as a consultant delay analyst - I now hold myself to be expert in this field.

Organizations
Society of Construction Law Adjudication Society ex Planning Engineers Organisation

Publications
6 articles on the relevance of the India Contract Act 1872 and its relevance to modern construction in India. Waiting Publication

Education/Credentials
Associate Member of the Institue of Building

Past/Present Clients
Currently employed in India by Punj Lloyd as expert delay analyst. Engaged in ongoing arbitrations and EoT claims. Prior an Indepenent consultant in delay analysis.

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