Many troubled subcontracts follow the same pattern. The building is not ready when you are due to start, so you begin with a small team and work where you can. Variations arrive late and in pieces. Then, with the completion date close, the contractor demands more labour and weekend working to recover “your” delay. When the job finishes late anyway, the final account arrives with contra charges and a deduction for delay. Each step is easier to deal with at the time than at the end.
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Do Not Let the Clock Start Quietly
Visit the site before your start date. If areas are not ready, say so in writing that day, with photographs, and keep giving notice of delay while access is restricted. A token team on an unready site is easily blamed later for delay it did not cause.
Record the Big Picture as You Go
Most subcontractors record their own progress but not the state of the building around them, such as the roof, the weathertightness and the other trades in their areas. That wider picture is often the best answer when the contractor later says you caused the delay. Correct minutes and progress reports that misstate the cause, and confirm every verbal instruction in writing.
The Demand to Accelerate
An obligation to use your best endeavours to prevent delay does not usually mean recovering someone else’s delay at your own cost. If you are asked to add resources, reply in writing. Agree a price before you incur the cost if you can. If you must comply at once, do so under protest and record the extra resources daily. Longer hours and bigger gangs reduce output, so the true cost is always more than the extra wages.
Contra Charges
Charges for cleaning, attendances, damage or labour often appear in bulk at the end of a job, supported by old daywork sheets you never signed. Ask for the clause that allows each one, the notice that was given, and the evidence of cost. Remember that nothing can be deducted from a notified sum without a valid pay less notice. Handover records signed when you finished each area are the best defence against damage charges.
Delay Damages
Most subcontracts do not contain liquidated damages, so the contractor must prove that you caused the delay and that it suffered loss as a result. Where main contract liquidated damages are passed down, it must also show that your delay caused the delay to completion of the main works. Your delay notices and records are the answer. Without them, you are arguing from memory.
The Final Account
Many contracts make a final statement or final payment notice conclusive unless it is disputed, or adjudication is started, within a short period. Diarise those dates the day the document arrives. If the account is being squeezed, a short, factual response that sets out what is due and why, followed by adjudication if needed, usually achieves more than months of negotiation.
How We Can Help
We act for subcontractors on delay, acceleration, contra charges and final accounts, from a single letter to a full adjudication. Our subcontractor notice pack contains the letters for each stage, and our claims and dispute services cover the rest.
About the Author
Benjamin Bjork
Benjamin is a quantity surveyor with a master’s degree in construction law and arbitration, awarded with distinction, and is a Fellow of the Chartered Institute of Arbitrators. He founded Mill Court in 2009 and works on claims, adjudications and contract management on power, energy, infrastructure and building projects.
