16 BUSINESS AND TRAINING
Write it down !
By Uwe Putlitz
Uwe Putlitz is a registered professional Architect and Construction Project Manager , a Fellow of the Royal Institute of Chartered Surveyors ( RICS ) and is a visiting lecturer at the School of Construction Economics and Management at the University of the Witwatersrand . Having recently retired as the Chief Executive Officer of the Joint Building Contracts Committee ( JBCC ) he specialises in the avoidance of construction disputes by way of lectures , technical articles dealing with aspects of contract administration for various industry publications arising from the use of Standard-form Contracts including the Federation Internationale des Ingenieurs-Conseils ( FIDIC ), the General Conditions of Contract ( GCC ), the JBCC or the New Engineering Contract ( NEC ) to find an acceptable settlement without resorting to legal processes , where possible . info @ buildstrat . co . za
Almost every transaction in life involves some form of record or documentation , from the slip printed by a credit card payment machine to voluminous contracts .
The old dictum of ‘ my word is my bond ’ generally remains valid in legal terms – but can become cumbersome if one of the parties no longer adheres to what was agreed , or his / her recall of the terms of the agreement . It is good practice for the parties to write down what they have agreed upon and sign the document – and to ensure both parties retain a copy thereof without later alterations .
The concept of ‘ writing down ’ includes creating a record using a conventional pen and paper and / or the recording of data in an electronic format – governed by the Electronic Communications and Transactions Act 25 of 2002 in South Africa .
Writing down the terms of an oral agreement sometime after the event often results in the addition of information not originally mentioned that may not correlate with the other party ’ s interpretation – referred to as the ‘ parol evidence rule ’. The two most common examples are for a ‘ contractor ’ to agree and to undertake work without a written contract specifying the extent and quality required , when it must be completed and when and how much money is due – and in the same vein , to implement an ‘ contract instruction ’. In both cases the contractor is less likely to get paid fairly and / or on time .
Who is the signatory ? In most countries the law prescribes that a person must be over 18 years old . For ‘ private ’ matters no other formalities are required . But if the parties have agreed to respective obligations they should record their respective identity numbers , mobile numbers and their permanent addresses . Another person may be authorised in writing to sign as a ‘ proxy ’ or as an ‘ agent ’ on a document only where the contents are known to the 1 st party and have been agreed , referred to as ‘ power of attorney ’. The authorised signatory signs the document over his / her printed name as “ pp ” ( Latin ‘ per procurationem ’ or ’ procuration ’ in English ) next to the name of the party he / she represents . This procedure applies equally in business transactions . For example , in the construction industry persons fulfilling different roles on site in accordance with the Construction Regulations 2014 must formally be appointed for their health and safety obligations as an ‘ 8.1 ’ as the Construction Manager ( Pr . CM ) or ‘ 8.2 ’ assistant
CM ( also applies to subcontractors ) or a ‘ 16.1 ’ or ‘ 16.2 ’ as executive in charge of a project . ( Occupation Health & Safety Act 85 of 1993 ).
Procurement of a ( sub ) contractor ’ s service To procure a ( sub ) contract service professional consultants typically issue tender document describing the nature of a project , its location in drawings and specifications to be completed within a given time to the specified quality – drafted in accordance with international drawing standards and the Standard System of Measuring Building Work published by the Association of SA Quantity Surveyors to avoid confusion arising from non-standard graphic representations and an unambiguous choice of wording .
The form of contract will deal with aspects including the authority to issue instructions , sign documents , when payments are due , processing variations and dealing with possible disagreements / disputes . On conclusion of the tender process the preferred ( sub ) contractor should be appointed using industry Standard-form Contracts that generally allocate risk to the party best suited to manage it . All of this may seem obvious but is often ignored at high emotional cost to the parties concerned and frequently involving delays and an increased monetary cost . The contract must be signed by the parties in accordance with an attached power of attorney form authorising the signatories .
During the execution of building / engineering contracts generally drawings , instructions and certificates are issued .
In the title block drawings should ( must !) include space for the author ’ s name and signature , a space for another ‘ competent person ’ to sign as ‘ checked ’ with his / her qualification and the status of the drawing be it ‘ preliminary ’ or ‘ for construction ’ to prevent the contractor working from ‘ wrong ’ drawings .
The common practice to provide a ‘ site instruction book ’ on site should be limited to the clarification of matters raised during construction , not to add , omit or make any other changes to the extent of work described in the contract .
The need to ‘ change ’ specified work must be formally instructed using a “( sub ) Contract Instruction ” ( JBCC
www . plumbingafrica . co . za @ plumbingonline @ plumbingonline @ PlumbingAfricaOnline March 2023 Volume 29 I Number 1