Contractual and Legal
As well as our vocal stance on unfair payment practices, FIS members can access a range of services to support them in managing the complexities of contracting and supplying products into the construction market, this includes template contracts, guidance on standard terms, support in dealing with disputes and a raft of best practice advice.
Contractual and Legal Matters
What is a Contract?
There are three ways in which a legally binding contract can come into existence:
• Written (signed underhand)
• Written (deeds)
The pragmatic difference is that there are further requirements for the execution of a deed. Also an oral contract although perfectly legally binding in theory is notoriously difficult to prove in practice – adducing evidence as to the terms of an oral contract is not only fraught with difficulty but also a costly and timely process.
What Contract Should I Use?
Setting out your contractual arrangements for your projects can be difficult. FIS does not produce an FIS contract, but recommends the use of the JCT contracts, depending on your circumstances. Since 1931 JCT has produced standard forms of construction contract, guidance notes and other standard forms of documentation for use by the construction industry. Today JCT provides a larger and more comprehensive range of contract documentation than any other contract-producing body in the UK construction industry. JCT became a Limited Company in 1998 and the organisation is comprised of seven member bodies. The members of the company represent the sectors of the industry who are the key participants (i.e. signatories) in the contract process. FIS maintains membership through BuildUK and our helplines and support is primarilly aligned to working with JCT (and the Scottish Equivalent – the Scottish Building Contract Committee (SBBC).
What is a Collateral Warranty?
A collateral warranty gives its beneficiary a direct contractual link to the specialist contractor so that should the specialist contractor be at fault and the beneficiary suffers loss as a direct result of that fault, the beneficiary can sue the specialist contractor directly for breach of the terms of the warranty to recover its loss. A collateral warranty is therefore a form of security against the risk that any of the party(ies) between the beneficiary and the specialist contractor becomes insolvent.
What is Design Resposibility and why must a contractor be alert to the Risks?
As a specialist contractor you may increasingly become involved in not only installation, but also design of the work which you are installing. Significant legal obligations arise from your work as a designer. In many instances you may undertake the same legal liability as an architect or other professional designer – possibly an even greater liability. Therefore, if your installation fails to work because of a fault in your design or an error in its concept, you may find that the client looks to you to rectify the failure.
What is a Parent Company Guarantee (PCG)?
A PCG is an agreement whereby a parent or sibling company guarantees to the employer or main contractor that its subsidiary/sibling will properly perform its contractual obligations. A PCG is designed to givesthe beneficiary additional security for the specialist contractor’s performance.
When is visiting site a provided under the main contract (i.e. when can I charge)?
Depending on the form of contract being used, attendances may or may not be provided under the main contract. Specialist contractors working as sub-contractors need to be aware of those attendances which will be provided to them free of charge and other attendances which they will need to cost into their contract during the tender stage. For example, within the accompanying Articles (DSC/A) to the JCT Domestic Sub Contract Conditions with Sectional Completion DSC/C/SC 2002, Article 3 provides (in Clause 3.14) for a number of items of attendances which the contractor shall provide free of charge to the subcontractor.
From time to time contractual disputes will arise. These can be solved through legal recourse, or more commonly in construction through Alternative Dispute Resolution (ADR) options such as mediation, adjudication or arbitration. It is vital before you enter into a dispute that you understand your rights and responsibilities. The mechanism by which a dispute can be resolved is often determined within a contract, but FIS is onhand to advise members on disputes and to steer you towards the most appropriate option. We can also offers access to an Independent Advisory Service on problem installations, covering all matters relating to suspended ceilings, partitioning, drylining, plastering and access floors. This covers materials, ancillary equipment, systems, their application and installation.
To access specialist FIS Dispute Resolution Advice phone the FIS Team on 0121 707 0077 or Email: email@example.com
The Regulatory Backdrop in the Finishes and Interiors Sector
A key role for FIS is to represent and support the members in regulatory matters, through our own in-house team and by virtue of our membership of umbrella bodies such as BuildUK and CPA, the organisation is uniquely placed to advice you on all things legal and regulatory in the sector. We do this through our specialist helplines listed below and a regular flow of information through our newsletter.
FIS Template Labour Only Sub Contractor (LOSC) Contract
Free model LOSC contract for use between FIS members and their labour only subcontractors.
The contract has been designed to help members who employ labour-only subcontractors to ensure that both parties to any contract fully understand their responsibilities, particularly with regard to heath and safety, quality and payment of national insurance and income tax.
FIS Specialist Contractual and Legal Helplines
SpecFinish Magazine Articles
The setting for the case of Kilker Projects Ltd v Rob Purton t/a Richmond Interiors (Purton) was the Dorchester Hotel in Park Lane. Purton entered a Word of Mouth Contract with Kilker for specialist joinery works at the hotel. A dispute emerged between the parties was about the sum due in respect of final accounts. Prof Rudi Klien Barrister in this article focuses on the legalities of final account applications.
As we all probably know, contractors – including employers, employees, installers, designers, manufacturers and any construction site worker – have responsibilities under the Health and Safety at Work etc Act 1974 (HSWA) to look after the health and safety of employees and non employees and to ensure that they are taking reasonable care for the health and safety of themselves and others that are affected by their acts or omissions at work. This article explores the, now very real, installer being prosecuted as a ‘producer’ under the General Product Safety Regulations 2005 (GPSR) for supplying an unsafe product by virtue of its installation.