Beruflich Dokumente
Kultur Dokumente
2011
LOCAL DEMOCRACY, ECONOMIC DEVELOPMENT AND CONSTRUCTION ACT 2009 THE NEW CONSTRUCTION ACT A GUIDE TO THE CHANGES
FC Construction
Somecontext...
Housing Grants, Construction and Regeneration1996(theOldAct). Amended by Local Democracy, Economic Development and Construction Act 2009 (the NewAct). NewSchemeforConstructionContracts. No opting out for qualifying construction contracts.
When:
Appliestoallcontractsenteredintoafterthe effectivedate. 01October2011(EnglandandWales) 01November2011(Scotland)
Summaryofchanges: Adjudication: Oralcontracts; Costs; SlipRule. PaymentNotices: Section 111 Withholding Notices are replaced; PaywhenCertifiedunenforceable; NewPaymentNoticeregime; Introduction of Notified Sum for payment.
Section110APaymentNotice Payment Notice required in respect of any payment. Contract must nominate who will serve the Notice:
Payer; SpecifiedPerson; Payee.
Noticemustbeservedwithin5daysofthedue date.
Section110APaymentNotice Mustsetoutthesumdue. Must set out the basis on which it is calculated. Whatdoescalculatedmean. Notice required even if the amount is 0. The amount identified in the Notice becomestheNotifiedSum tobepaid.
NopaymentNoticeserved? The New Act provides for a party receiving paymenttoserveaDefault Notice. WhataretherequirementsofaPayeeNotice indefault? Mustidentifythesumdue. Setoutthebasisonwhichitiscalculated. Incentivetoserveearlyduetopostponement ofthefinaldateforpayment.
PayeeNoticeindefault Ifthepayeeisrequiredtoserveanapplication thenaseparatePayeeNoticeindefaultisnot required. Silentbutdeadly... The amount identified as due in the application becomes the Notified Sum for payment. Unless: APayLessNoticeisserved
Paywhencertified No longer possible to link performance and the issue of certificates on one contract to paymentunderanother. RetentionandSubcontractors.
Insolvency Theoneexceptiontopaywhenpaid The right to withhold payment only if the contractexpresslystatesthisright. Still required to comply with Notice provisions. So must serve a Pay Less Notice if the insolvency is after the Due Date but before thelastdaytoserveaPayLessNotice.
Adjudication Contractsnolongerinwriting. Section107oftheOldActnolongerapplies. All the case law on what was and wasnt a contract evidenced in writing no longer applies. Moreadjudication? Increased challenges and uncertainty in dealing with oral/part oral contracts in adjudication.
Adjudication The Agreement to refer disputes to adjudicationmustbeinwriting. IfnotthentheSchemewillapply. Adjudication Agreement must include a slip rule. IfnoslipruleisincludedthentheSchemewill apply.
AdjudicationCosts TheOldActsilentoncosts. NewActsaystheAdjudicatormustbeableto decidewhowillpayhisfees. Only exception is if an agreement is made in writingafter thegivingofaNoticeofIntention toRefertoAdjudication. Parties still able to allocate who should pay partycosts e.g.consultantorlawyertime. So called Tolent clauses only enforceable if they refer generically to Referring Party or RespondingParty.
NoticeProvisionsandcalculatingtimeperiods Expresscontractualprovisionsonservice:
How? Where? When?
Calculatingtimeperiods TheOldActprovisions: When a period of days is specified then time begins to run immediately after the point in action e.g. if Notice of Suspension is to be
given(7daysisrequired)theniftheNoticewasreceivedon Monday the 7 days starts on Tuesday and suspension can takeplaceonthefollowingTuesday.
BanksHolidaysarenotcounted.
Materialsavailable: TheNewConstructionAct FCGuidetotheChanges. LegalSurgerydayinyourBusinessUnit. Mansells Subcontract Conditions (amended to provided for SubcontractorserviceofthePaymentNotice) Mansell NEC Subcontract amendments with update to provide for the New Construction Act and Subcontractor service of the PaymentNotice. JCT Design & Build Subcontract 2011 version with bespoke amendments to provide for Subcontractor service of the PaymentNotice. JCT Standard Building Subcontract 2011 version with bespoke amendments to provide for Subcontractor service of the PaymentNotice. Track changed copy of the Old and New legislation to identify thechangesmade.
Thankyouforyourtime