UO Contract Administration

1. The possession of site is an important activity to be done as per the planning of a project. Late possession often creates delays in construction as its a preliminary task to be done before a construction project begins. Here contractor has the right to claim an extension of time and associated prolongation as it proportionately covers the liquidated damages.

2. Construction works run in delays due to unlawful act of either government or concerned authority to the contractors. In construction contract they usually make provision for the contractor to claim an extension of time to contractual date for completion in certain circumstances due to mitigation's in possession of site.

In the construction contract valid clarification may be made in regard to right to claim and bearing of charges due to liquidity damages.

3. As per clause 34.3 of AS-4000-1997 Claim The Contractor shall be entitled to such extension of time for carrying out WUC (including reaching practical completion) as the Superintendent assesses (‘EOT’), if: a) the Contractor is or will be delayed in reaching practical completion by a qualifying cause of delay; and b) the Contractor gives the Superintendent, within 28 days of when the Contractor should reasonably have become aware of that causation occurring, a written claim for an EOT evidencing the facts of causation and of the delay to WUC (including extent). If further delay results from a qualifying cause of delay evidenced in a claim under paragraph (b) of this subclause, the Contractor shall claim an EOT for such delay by promptly giving the Superintendent a written claim evidencing the facts of that delay.

4. In January 2019 mean maximum temperatures were highest on record for the southern two thirds of the Northern Territory, adjacent parts of Western Australia, Queensland and South Australia, eastern South Australia, New South Wales and southern Queensland, Victoria and Tasmania, and also for patches of inland southern

Western Australia. Mean minima were highest on record for the month for a large area of inland northern Australia, and a large area spanning southern Queensland to the eastern half of Victoria.

As the weather was higher in this month compared to other months there is a chance that workers would stop the work

5. As per clause 34.5 in AS 4000- 1997 contractor shall be reminded that

Within 28 days after receiving the Contractor’s claim for an EOT, the Superintendent shall give to the Contractor and the Principal a written direction evidencing the EOT so assessed. If the Superintendent does not do so, there shall be a deemed assessment and direction for an EOT as claimed. Not withstanding that the Contractor is not entitled to or has not claimed an EOT, the Superintendent may at any time and from time to time before issuing the final certificate direct an EOT.

The activity could not be delayed as it is a critical activity here, So its necessary to find a new HVAC contractor The first is to take care when drafting unilateral EOT clauses. They are a worthwhile inclusion in your contract, provided care is taken in their drafting.The second, more critical lesson is a simpler one. That is, if you delay your contractor (or subcontractor), you should not expect to be able to recover liquidated damages. Although there will be times that you may be able to do this, the courts will work hard to avoid such a result.

6.As per clause 34.6 in AS 4000-1997 The Contractor shall give the Superintendent at least 14 days written notice of the date upon which the Contractor anticipates that practical completion will be reached. When the Contractor is of the opinion that practical completion has been reached, the Contractor shall in writing request the Superintendent to issue a certificate of practical completion. Within 14 days after receiving the request, the Superintendent shall give the Contractor and the Principal either a certificate of practical completion evidencing the date of practical completion or written reasons for not doing so. If the Superintendent is of the opinion that practical completion has been reached, the Superintendent may issue a certificate of practical completion even though no request has been made.

7. The decision highlights two key principles, being: whether practical completion has been achieved is a question of fact to be determined by the Superintendent; and the date of practical completion is taken to be the date on which the certificate is issued.

Whilst in this case the decision provided the contractor with a reference date and a right to claim payment, the short term gain of this contractor is likely to provide long term pain for contractors who could have greater exposure to liquidated damages and, in effect, longer defect liability obligations as a result of the superintendent not being able to “backdate” practical completion. In circumstances where the superintendent is being tardy in issuing practical completion, contractors may need to give consideration to whether the delay is a substantial breach of contract (which it is under many unamended Australian Standard forms of contract Determining the date of practical completion is crucial to a myriad of requirements and inquiries which may arise under contract or statute.

8. As per 34.9 clause of AS 4000-1997 For every day the subject of an EOT for a compensable cause and for which the Contractor gives the Superintendent a claim for delay damages pursuant to subclause 41.1, damages certified by the Superintendent under subclause 41.3 shall be due and payable to the Contractor.

9. As per clause 19.5 to the extent that reinstatement has not been the subject of a payment or allowance by the Principal to the Contractor, the Contractor shall be entitled immediately to receive from insurance moneys received, the amount of such moneys so paid in relation to any loss suffered by the Contractor.

10. The final certificate shall be conclusive evidence of accord and satisfaction, and in discharge of each party’s obligations in connection with the subject matter of the Contract except for: a) fraud or dishonesty relating to WUC or any part thereof or to any matter dealt with in the final certificate; b) any defect or omission in the Works or any part thereof which was not apparent at the end of the last defects liability period, or which would not have been disclosed upon reasonable inspection at the time of the issue of the final certificate; c) any accidental or erroneous inclusion or exclusion of any work or figures in any computation or an arithmetical error in any computation; and d) unresolved issues the subject of any notice of dispute pursuant to clause 42, served before the 7th day after the issue of the final certificate.

11. If urgent action is necessary to protect WUC, other property or people and the Contractor fails to take the action, in addition to any other remedies of the Principal, the Superintendent may take the necessary action. If the action was action which the Contractor should have taken at the Contractor’s cost, the Superintendent shall certify the cost incurred as moneys due from the Contractor to the Principal. If time permits, the Superintendent shall give the Contractor prior written notice of the intention to take action pursuant to this clause.

12.As per clause 19.3 AS 4000-1997 the party shall ensure that they provides that a notice of claim given to the insurer by either party, the Superintendent or a subcontractor shall be accepted by the insurer as a notice of claim given by both parties, the Superintendent and the subcontractor; and requires the insurer, whenever the party fails to maintain the policy, promptly to give written notice thereof to both parties and prior to cancellation of the policy.As per clause 19.4 of AS 4000-1997A party shall, as soon as practicable, inform the other party in writing of any occurrence that may give rise to a claim under an insurance policy required by clause 16 or 17 and shall keep the other party informed of subsequent developments concerning the claim. The Contractor shall ensure that subcontractors in respect of their operations similarly inform the parties.

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Building and Construction Assignment Help

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