Legislation I Part B 1 of 4

Contractual Issues
1. CDM Regulations
CDM 2007 Regulations identify the keyrole designers ha!e in "onstru"tion
health and safety #ro$e"ts% Designers shall not "o&&en"e 'ork in relation to the #ro$e"t
unless their "lient is a'are of their duties under the Regulations% (his) in turn) 'ill hel#
ensure that the "lient*s re+uire&ents are "learly understood ,y en"ouraging dis"ussion
and "oo#eration%
- ne' duty #la"ed on the designer is) as far as is reasona,ly #ra"ti"a,le) to
.eli&inate ha/ards 'hi"h &ay gi!e rise to risks* and to .redu"e risks fro& any
re&aining ha/ards*% (his is a ne' re+uire&ent and re+uires designers to "onsider if they
are introdu"ing a ha/ardous &aterial or #ro"ess%
Designers &ust not #rodu"e designs that "annot ,e "onstru"ted) used and
&aintained in reasona,le safety and 'ith #ro#er "onsideration of health issues%
Designers also need to take into a""ount other rele!ant health and safety
re+uire&ents 'hen "arrying out design 'ork% 0here the stru"ture 'ill ,e used as a
'ork#la"e 1for e2a&#le fa"tories) offi"es) s"hools) hos#itals3) they need to take into
a""ount the #ro!isions of the 0ork#la"e 14ealth) 5afety and 0elfare3 Regulations 1662
'hi"h relate to the design of) or &aterials used in) the stru"ture%
0here a #ro$e"t is notifia,le) no designer shall "o&&en"e 'ork 1other than
initial design 'ork3 in relation to the #ro$e"t unless a CDM "oordinator has ,een
a##ointed for the #ro$e"t% (he designer shall take all reasona,le ste#s to #ro!ide 'ith his
design suffi"ient infor&ation a,out as#e"ts of the design of the stru"ture or its
"onstru"tion or &aintenan"e as 'ill ade+uately assist the "lients7 other designers)
"ontra"tors and the CDM "oordinator to "o&#ly 'ith his duties under these
Regulations) in"luding his duties in relation to the health and safety%
Intera"tion of CDM "oordinator role 'ith the role of the -r"hite"t8
(he CDM "oordinator shall ensure that suita,le arrange&ents are &ade and
i&#le&ented for the "oordination of health and safety &easures during #lanning and
#re#aration for the "onstru"tion #hase) in"luding fa"ilitating8
Coo#eration and "oordination ,et'een #ersons "on"erned in the #ro$e"t in
#ursuan"e of regulations 9 (Cooperation) and : (Coordination)
(he a##li"ation of the general #rin"i#les of #re!ention in #ursuan"e of
regulation 7 (General principles of prevention)
-ny design de!elo#&ent 'hi"h &ay affe"t #lanning and &anage&ent of the
"onstru"tion 'ork% 123
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Legislation I Part B 2 of 4
Regulation 20 1General duties of CDM coordinators3 states that the CDM "o
ordinator shall8
(ake all reasona,le ste#s to identify and "olle"t the #re"onstru"tion
infor&ation7
Pro&#tly #ro!ide in a "on!enient for& to? 1i3 e!ery #erson designing the
stru"ture)
(ake all reasona,le ste#s to ensure that designers "o&#ly 'ith their duties under
regulations 111Duties of designers) and 1=123 (Additional duties of designers)%
(ake all reasona,le ste#s to ensure "oo#eration ,et'een designers and the
#rin"i#al "ontra"tor during the "onstru"tion #hase in relation to any design or
"hange to a design%
2. Tender Documentation
(he Code of sti&ating !ra"ti"e 1#u,lished ,y the CI@B3 states .(he
"ontra"tor*s su""ess in o,taining a "ontra"t "an de#end u#on the +uality of the
+uotations re"ei!ed for &aterials) #lant and ite&s to ,e su,"ontra"ted*
Most en+uiries "onsist of "o#ies of the rele!ant #ages fro& the "ills of
#uantities$ specifications and an% related dra&ings.
An+uiries &ust ,e sent #ro&#tly ,ut not at the e2#ense of a""ura"y% 0rong or
in"o&#lete infor&ation 'ill lead to delay in re"ei!ing "o&#ara,le +uotations% -n
orderly #resentation 'ill do &u"h to a!oid &istakes%
(he C@AP #ro!ides a list of the details to ,e gi!en in a "ontra"tor*s en+uiry
letter to su,"ontra"tors8
5ite address and lo"ation 'ith a &a# if ne"essary%
Ba&e of e&#loyer) and #rofessional tea&%
Rele!ant details of &ain and su,"ontra"tor%
-ny a&end&ents to the standard "onditions) in"luding ,onds and insuran"es%
- re+uest for day 'ork rates%
Date for return of +uotations%
Ceneral des"ri#tion of 'orks%
Details of a""ess) site #lant and other fa"ilities a!aila,le%
0here full "ontra"t details and dra'ings "an ,e ins#e"ted%
Contra"t #eriod) #rogra&&e and any #hasing re+uire&ents%
-ny dis"ounts to ,e in"luded%
('o "o#ies of the rele!ant se"tions of the ,ills of +uantities%
Co#ies of dra'ings and s"hedules 'here a##li"a,le%
5er!i"es and attendan"es to ,e #ro!ided ,y the &ain "ontra"tor%
- "lear state&ent of ho' flu"tuations 'ill ,e dealt 'ith%
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Legislation I Part B > of 4
If the su,"ontra"tor has enough infor&ation he "an a!oid guess'ork) in"lude all
the i&#ortant ite&s in his tender and 'ill not need to add glo,al su&s for #oorly
defined ele&ents of 'ork%
'. (e% factors of a valid contract
Constru"tion "ontra"ts are the sa&e as any other "ontra"t) and in the end) 'ill
de#end on general #rin"i#les of la'% - short definition of a "ontra"t is an agreement
between two or more parties which is intended to have legal consequences. - "ontra"t
is an agree&ent not a #ie"e of #a#er%
(he key fa"tors in a "ontra"t are the ones that &ake the "ontra"t !alid% (o &ake
a "ontra"t !alid and legally enfor"ea,le) "ertain rules are a##lied) as follo's8
(here &ust ,e a definite offer ,y one #arty and a "lear acceptance ,y the other
or others%
(here &ust ,e an intention to "reate legal relations%
(here &ust ,e so&e for& of consideration8 ea"h #arty &ust "ontri,ute
so&ething of !alue to the other*s #ro&ise7 a "lient is res#onsi,le for &aking
#ay&ents and the "ontra"tor &ust "o&#lete the "onstru"tion%
!erformance &ust ,e #ossi,le%
Aa"h #arty &ust ha!e the legal capacit% to &ake a "ontra"t%
(he #arties &ust ha!e e2er"ised their o'n free &ill) 'ithout for"e or #ressure%
- "ontra"t "o&es into e2isten"e 'hen an offer has ,een un"onditionally a""e#ted% In
"onstru"tion the offer is the .tender*) .esti&ate* or .,id* and su##liers and su,
"ontra"tors so&eti&es refer to their offers as .+uotations*%
). Contractors contractual Responsi"ilities
(he "ontra"tor*s duties are s"attered o!er the 5tandard Dor&s of Contra"t% In
EC( 09 there are o!er 60 se#arate instan"es 'here the "ontra"tor is &entioned% (hese
are e2#ress duties and take no a""ount of the i&#lied res#onsi,ilities% (he "ontra"t
should ,e "onsidered a 'orking tool) not so&ething to ,e thro'n into a dra'er on"e
signed%
@n"e a "o&&en"ing date to the ,uilding 'orks has ,een agreed the "ontra"tor
&ust "arry out the 'orks in a""ordan"e 'ith the "ontra"t do"u&ents% (he "ontra"tor
&ust as 'ell) doing so) "o&#ly 'ith all the Legislation and Regulations%
*. Design C+anges (variations)
Buildings are "o&#le2 and "hanges are often re+uired to ,e &ade ,efore they are
"o&#leted% It is rare for designs to ,e "o&#letely detailed at the ti&e of tender and as a
result of this "hanges ha!e to ,e &ade in order to &ake the ,uilding 'ork%
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Legislation I Part B 4 of 4
Fsually ,y inserting a variations clause 'hi"h allo's for "hanges) the e&#loyer
"an alter the 'orks as and 'hen ne"essary% It 'ill also usually in"lude a &e"hanis& for
e!aluating the finan"ial effe"t of the !ariation and there is nor&ally #ro!ision for
ad$usting the "o&#letion date% In the a,sen"e of su"h a "lause) should a !ariation to the
'orks ,e re+uired) the e&#loyer "ould find hi&self in a diffi"ult #osition% (he
"ontra"tor "ould either refuse to "arry out the 'ork or undertake the 'ork and insist
u#on #ay&ent on a #uantum meruit, or fair !aluation ,asis%
Bot'ithstanding the e2isten"e of su"h "lause the e&#loyer is not entitled to
&ake large s"ale "hanges to the nature of 'orks% A!en 'here a "ontra"t in"ludes the
usual !ariations "lause there &ay ,e "ir"u&stan"es 'hi"h "ould lead to additions or
"hanges introdu"ed ,y the e&#loyer 'hi"h falls outside the !ariations "lause%
(his situation arose in the FG "ase of Blue Cir"le Industries ! 4olland Dredging
Co 116=73% (he 'orks in!ol!e dredging in Larne Lough in Ireland to ena,le larger
!essels to do"k% (he tender referred to the dredged &aterial ,eing de#osited in areas
a##ro!ed ,y the #u,li" authorities) the intention ,eing to dis"harge the &aterial
e2"a!ated in suita,le areas in the Lough% Resistan"e to the #lan "a&e fro& se!eral
+uarters in"luding the Larne 4ar,our Board and as a result an alternati!e #lan 'as
agreed to use the e2"a!ated &aterial to for& an artifi"ial "ird islandH% It 'as argued ,y
the "ontra"tor that this 'as not a !ariation to the 'orks 'ithin the "onfines of the
"ontra"t ,ut a se#arate "ontra"t in its o'n right% (he $udge in the "ase "onsidered that
the "onstru"tion of the ,ird island 'as 'holly outside the s"o#e of the original dredging
"ontra"t and therefore "onstituted a se#arated "ontra"t%
(he -r"hite"t should ad!ise the "lient that failing to "o&#ly 'ith either the
ter&s of "ontra"t or the La's that a##ly the ,uildings #ro"ure&ent "an result in a
,rea"h of "ontra"t%
H-uantum meruit is a Latin #hrase &eaning Ias &u"h as he has deser!edI% In the "onte2t of "ontra"t la') it &eans so&ething
along the lines of Ireasona,le !alue of ser!i"esI%
,.ird Island &ight ,e a s&all artifi"ial island #art of a s#e"ial #rote"ted area 'here 'ater ,irds and 'ild life should ,e #rote"ted%
Antry is usually #rohi,ited during ,reeding season%
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