Construction Law/Claim on prolongation of project
I would like to seek your professional advice on the following situation that I have encounter.
We have entered into a sub contract with the Main Contractor for the supply, delivery and installation of the Metal Roofing Works, with the subcontract period under the provision of Main Contractor in-house Conditions of the Contract, clause 5.
Clause 5 - SUB-CONTRACT PERIOD
5.1 The works shall be executed in accordance with the Main Contractor's program and to be completed by an agreed date within the main contract period. The main contract period is Nineteen (19) months commencing from 15 September 2012 and contract completion date is 15 April 2014.
5.2 Subcontractor works at site is target to commence in December 2013, subject to further instructions by our Project Director.
5.3 You are to schedule your sub-contract works in accordance with our works program or as directed by/ liaise very closely with our Project Director regarding the site matter and deliver in accordance with the Main Contractor's requirement and work program laid down on site.
5.4 Should your works are commented by the Main Contractor's representative for being slow/ not within the schedule during the Sub-Contract period, you are to expeditiously carry out the said works within two (2) days. Failure to do so, the Main Contractor reserves the right to do it and recover all costs incurred from you/ imposed fines accordingly to you.
On March 11, 2014 we notified the Main Contractor that the project is in delay as to-date the possession of roof was not given to us for our contract work and no notification on deferment date or regarding prolongation of the project. We therefore requested for appropriate compensation and reserve all our right and remedies on losses which will incur.
They rejected our claim and requesting us to withdraw our notification letter basing on the following sub contract agreement conditions.
1) Sub Clause 1.8 of Scope of Works
Your necessary supervision, co-ordination, plant and equipment, transport, material, labour, hand tools, consumables, profit and any other overheads and expenses necessary for the due completion of the Sub-Contract works
2) Clause 2 SITE VISIT
2.1 The Sub-Contractor is deemed to have visited the site, closely examined, fully aware of and accepted the site conditions and access and will complete the works in compliance with the drawings, instructions, regulations, codes of practice and all other requirements related to the work.
3) Clause 5.3 – As above.
4) Sub Clause 10.4 of SITE CO-ORDINATION
10.4 The Sub-Contractor is required to facilitate and co-operate with other Sub-Contractors working on site in order to ensure smooth progress of all works. There shall be no claims for any loss and/ or expense in this respect or lack of smooth site progress.
Kindly advise whether the main contractor is correct to reject our claim on prolongation of project basing on the ground of the aforementioned clauses.
Thanks for your question.
According to your statement, if you can establish that the Contractor delayed your commencement of any part of your subcontract work at any time, then, you are entitled to seek remedy as may be provided for under your subcontract.
The Main Contractor would be contractually wrong to deny your entitlement if you can sufficiently prove that, he has caused delays and or distruptions to either the commencement or and smooth progress of the execution of your subcontract. If you would need to prove your case satisfactorily and convincingly for any entitlement; you must be willing to demonstrate the following:
1. That, you have a program of works (work schedule) that was agreed between the subcontract ad the Contractor for the execution of your subcontract.
2. That this programme contain March 11 2014 as being the commencement date of your scope of the subcontract around the roof area (which the Contractor failed to hand over to you to work)
3. That in addition to the above in (2), you can evidently show that, you are ready to commence such work and you are devoid of delays from other sections of the work which is either related or are critical determinant or preceding activities to the commencement of the scope around the roof area. This, you have to demonstrate by progress records, photographs and availability of your resources in readiness for the works.
4. That you have not in good time, been aware of the possibility of such contractor's failure and should you have been aware, that, you are able to prove that you have taken sufficient actions and employ all reasonable endeavour to re-programme your schedule (to the extent practicable# to redeploy your available resources to any other available sections or areas apart from the areas which delay was apparent - i.e. roof areas). If you are not able to do this, you must be able to prove and demonstrate that, it was impracticable to do such and that the mitigation by reduction or any other loss-absorbing measures were impracticable.
If you are able to adhere to all of the above, you may be able to justify your entitlement and the clauses that the Contractor is citing would therefore be rendered irrelevant and inapplicable to the cause, effect of their default and your eventual justification for an entitlement.
I hope this is understood?