Problem: Contract Administrator says I should have known that this was going to happen
My Company specialises in shop and office fit-outs and we have recently commenced a fit-out to a unit on the first floor within a small shopping complex. The complex is a modern brick and block construction with retail on the ground floor and office space on the first floor.
Within hours on the first day (Monday) that we started work, the manager from the Spa business on the ground floor came up and stated that we had to stop as the noise from our works was affecting her business. I said that we had a really tight time schedule and although I was sympathetic, unfortunately, I had to continue.
A few hours later, the Estates Manager for the complex came up and said that we had to stop all noisy operations during the hours that the complex is open for business, effectively meaning that we can only carry out work that is noisy between the hours of 6pm and 8am Monday to Saturday and all day on Sunday.
I subsequently telephoned the Contract Administrator who said that I should refrain from carrying out noisy work until he could discuss the matter with the client and the Estates Manager. On the Wednesday, the Contract Administrator issued me with a written instruction to only carry out noisy work outside normal working hours, and stating that the cost was nil! When I challenged the Contract Administrator on this, he said that from experience I should have known that this was going to happen!
We are now in the third week of the project and it is costing me a fortune in overtime etc. I am very close to walking away from the project. Any advice would be most welcome.
Response: Walking away risks committing a breach of contract
It sounds like a nightmare although I am very surprised that you have allowed this to happen.
The Contract Administrator is talking rubbish. Unless there is a term within your contract that actually restricts when noisy operations can be carried out, any instruction for you to restrain noisy operations must be treated as a variation meaning that you are entitled to at least recover your costs.
My guess is that the Contract Administrator has not done his homework and omitted any reference to noisy operations from the tender documents and/or the contract itself, and has subsequently been found out and is attempting to shift the blame.
Whatever you do though, do not walk away from the project otherwise you put your company in serious risk of committing a fundamental breach of contract.
© Michael Gerard 2015
The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.