MBSA Congress – Contractual & Legal Matters
27 September 2017
Posted by: Tasveera Singh
During the Master Builders South Africa Congress which was held from 10th to 12th September in Cape Town, one of the specialist breakaway sessions was on Regulatory, Contractual & Legal matters. This session was chaired by Alan Bodill and the panel consisted of Peter Barnard, Jim Garner, Nico Mass and Ewe Putlitz.
The following Items were discussed:
The importance of unaltered contracts
Contracting parties often do not realise the implications when standard contract documents are changed. The majority of changes made result in the increase of risk for the main contractor and subcontractors and reduction of risk for the client. If, however there is no alternative other to alter or delete a clause then these changes should be referred to a competent attorney in order that changes do not impact on other clauses within the contract agreement.
Issuance of Practical and Final Completion Certificates
The legal opinion is that only one list should be compiled for Practical Completion by the Principal Agent. This list may not be added to or amended in any way. For Final Completion however the list can be added to by the Principal Agent but not the client.
Extension of time claims
A contractor must submit an extension of time claim when it arises. This benefits the Principal Agent in managing the contract and the main contractor in that he is not penalised at a later date by being time barred. Should the Principal Agent not rule on the claim then this matter can be referred to adjudication immediately.
There was consensus that the clause that states the claim has been deemed to be refused by the Principal Agent requires revision in the new JBCC Agreement.
The members present felt that MBSA should issue recommendations to the Competition Commission on the participation ban of industry members on the CIDB and other relevant Boards.
The CIDB should take disciplinary action against CIDB listed members who do not pay subcontractors was view of a number of delegates.
The CIDB has confirmed that due to numerous factors the downgrading of members has been suspended.
The following concerns were voiced about the act:
Corruption is a possibility on who is eligible for incorporation on the list of subcontractors that are able to compete for the work on any given contract. This also could be construed as anti-competitive.
The measures that have been introduced do not look at sustainability, but provide only a quick cash injection for the subcontractors.
RH Stembridge | Building Services Manager