BUSINESS AND TRAINING 19
• Suspension is quite powerful … but not always successful !
Note : Suspension lasts until payment is received . When the Works is resumed the Principal Agent must compile a Status Report to record the state of completion of the Works at the date of suspension , any damage , construction equipment and / or materials on site , etc ., to determine the Preliminaries costs incurred during suspension . In the extreme case termination may be the desirable option .
Monitor actions / events outside your control :
• When working in existing structures and / or in excavations .
• Strikes by your staff , or staff of other contractors , exceptional weather conditions .
• Changes in law to be complied with .
• Submit a claim for the revision of the date for practical ( interim ) completion resulting from damages and / or delay due to ‘ others ’ including the contractor , subcontractors or direct contractors .
• Consider exercising a lien over your works by withholding the issue of the Certificate of Compliance until outstanding issues are resolved .
• Documentation – Where the JBCC Nominated / Selected Subcontract Agreement ( NSSA ) is used :
• The Principal Agent issues a Recovery Statement and a Payment Certificate for transactions between the Employer and the Contractor .
• The Principal Agent must simultaneously issue a Payment Notification to every ‘ nominated / selected subcontractor ’ reflecting the amount included in the amount certified for payment to the Contractor .
• The Contractor must issue to every ‘ nominated / selected subcontractor ’ a Subcontract Recovery Statement and a Payment Advice for transactions between the Contractor and the Subcontractor .
• The amount shown in the Payment Notification and the Payment Advice should match – but there may be transactions between the Contractor and the Subcontractor that the principal agent would have no knowledge of or interest in – including ‘ contra-charges ,’ retention and damages .
• This system was introduced some years ago for transparency to keep Subcontractors informed of certified payments to the Contractor – and when payments are due to them .
• The NSSA refers to ‘ Interim Completion ’ by the Subcontractor before Practical Completion for the whole works .
• In the relationship between the Employer and the Contractor the Employer may recover the penalty amount per calendar day from the Contractor if the ( revised ) Date for Practical completion is not achieved . In the relationship between the Contractor and the Subcontractor the Contractor may recover ( proven ) damages from subcontractors responsible for not achieving the ( revised ) Date for Practical Completion . This amount must be calculated for each ‘ guilty ’ Subcontractor . It is common but not necessarily fair to share the penalty amount among subcontractors – without the Contractor paying his share !
Note : The various editions of JBCC NSSA include a clause permitting the Contractor , after Notice the Subcontractor that he has not been paid , to withhold payment to the Subcontractor for 90 days ( 2005 / 2007 editions ) and ( 30 days 2014 / 2018 editions ) whilst he sorts out the nonpayment .
The Subcontractor ’ s contract is with the Contractor and not the Employer – thus try and agree to rescind this clause !
Winding up your first contract as a plumbing subcontractor – what NOT to do Practical Completion – Practical Completion ( PC ) requires a project to be complete except for minor items not effecting the intended use of the facility or pose any safety risks . Such items must be attended in the 90 days defect liability period before Final Completion can be certified – at a time convenient to the Employer .
As a Subcontractor your work would generally have to achieve ‘ interim completion ’ before PC for the Works as a whole can be certified – but you may have to attend to ‘ adjustments ’ of aspects of your works to suit users and or defects that have become apparent during regular use .
Compliance Certificates – The issue of Compliance Certificates ( CC ) for identified trades is a statutory requirement before the facility can be used , issued by the provider of a service – after commissioning of an installation , sometimes in association with the design agent .
March 2022 Volume 28 I Number 1 www . plumbingafrica . co . za