104 Can the architect stipulate when the
contractor must rectify defective work under
SBC, or can the contractor simply leave it all
until just before practical completion?
SBC clause 3.18 gives the architect powers to deal with defects during the progress of the Works. There are basically two kinds of defects: those due to an inadequate specification that are not the contractor’s problem, and those due to work not being in accordance with the contract. It is only the second kind with which the contract is concerned. The architect may issue instructions regarding the removal from site of any defective work, goods or materials, but nothing in the clause entitles the architect to instruct when the defects must be corrected. This is in accordance with the contractor’s right to plan and perform the Works in whatever way it chooses.1
If, in the opinion of the architect, the contractor does not comply within a reasonable time with an instruction to rectify work not in accordance with the contract, the architect has two possible ways to approach the difficulty. Clause 3.11 gives the architect power to issue a notice to the contractor giving it seven days from receipt in which to comply with an instruction. If the contractor fails to comply, the employer may engage another contractor to carry out the instruction. The original contractor will be liable for all the additional costs incurred by the employer, which must be deducted from the contract sum. Such additional costs will, of course, include any additional professional fees charged to the employer as a result of the contractor’s failure. This will be the route of choice in most cases – assuming that a couple of threatening letters do not do the trick first.
As a last resort, the architect may send a default notice to the contractor under clause 8.4.3, giving notice that the employer may terminate the contractor’s employment if its refusal or neglect to comply with the architect’s instruction to remove defective work results in the Works being materially affected. This ground used to be qualified by the word ‘persistent’. That is no longer the case; the important point is that the Works must be substantially affected. The particular ground appears to be aimed at defects that are about to be covered up or which, for some other reason, would be awkward to put right if not given prompt attention. Therefore, if there is no urgency about the need to make good, this remedy is not appropriate and the contractor is entitled to plan the making good to fit in with its other work.
The position is, therefore, that in principle the contractor is entitled to plan its work, including making good, to suit itself. However, the architect is always entitled to insist on compliance with an instruction within seven days. In serious cases where the integrity of the Works is threatened, termination can be considered.
105 The contractor incorrectly set out a
school building, but it was not discovered
until the end of the project when floor tiles in
the corridor were being laid. What should be
Much depends on the effect of the incorrect setting out. If it resulted in the school encroaching over the boundary onto another person’s land, it is virtually certain that unless a deal can be done with the adjoining owner, the offending part of the school would have to be taken down and rebuilt to a different design. This could be very expensive for the contractor, if indeed the problem was incorrect setting out rather than incorrect setting-out drawings.
There are other possibilities. For example, the school might simply have gained half a metre in length without causing anyone a problem. In such circumstances, the school authorities have more school to heat and light, but also slightly more accommodation. If the gain is minor and of no consequence, it is technically a breach of contract because that particular part of the Works is not in accordance with the contract, but both parties are likely to let the matter rest. Obviously, the client will not be prepared to pay for the extra walls, floors and roof, and they should not be valued.
A trickier difficulty arises if the poor setting out results in the loss of half a metre or in the awkward internal arrangement of part of the school. One question the client is sure to ask is why the error was not picked up sooner by the architect. If the error resulted in an internal planning problem, it is indeed difficult to see why it was not picked up earlier than when the floor tiles were laid. An error picked up at such a late stage, becoming apparent only when the floor tiling pattern is disturbed, suggests that the error is purely one of length or breadth. It will be for the architect, if challenged, to provide evidence that site inspections were properly carried out and that the average architect in that position would not have found the error.