Problem: I work for a well known retailer as a building surveyor in the procurement department. I have recently read an article on delays in the construction industry and the importance of having a well-thought out construction programme from the outset, including identifying the activities on the critical path of the programme. I am now eager to start insisting on such detailed programmes from our contractors.
However, given all my work is small works (ie, below £250,000), and the contractors tend to be SME’s, is it realistic to expect these contractors to understand the likes of critical path, critical path analysis, as-built versus as-planned, etc? I am also thinking about having programmes included in the contract documentation – is this a good idea?
Response: Firstly, it is vital to understand the implications of including a programme as a contract document – if one was to be included, then every bar in that programme becomes a term of the contract and if a task is not carried out in accordance with the programme, that is a breach of contract; therefore, it is sensible to only include a start and completion date, and then to ensure that the contractor produces a master programme from the outset, which is then agreed and updated on a regular basis (the obligation of which can be included in the contract).
That said, although I do agree that CPA programmes are few and far between on small projects, that is not an excuse for the employer’s contract administrator to sit back and do nothing. Pre-tender qualification should include interrogating potential tenderers and contractors as to their management competency including the understanding and production of a properly constructed programme with logic and a CPA. If a contractor cannot demonstrate such a degree of competency, then the employer’s professional team has a duty to advise its client as to the risk such a contractor would be if it was awarded the contract.
As to SME contractors really understand critical paths etc, if a SME contractor is operating a building company that carries out work where the duration is counted in weeks as opposed to days, then the contract management staff of such SME contractors should have a good understanding of the value of programming and critical path, otherwise questions need to be asked by the employer’s professional team as to the risk such a contractor would pose if awarded a project – there should be no excuse from any size contractor (save for a one-man band), especially bearing in mind programme software is readily and cheaply available.
The professional staff (in-house or external), have a duty to ensure its clients or its employer always selects a competent and experienced contractor relative to the work it is being asked to price for. If the work is merely maintenance, competency and skill levels of the contractor’s management will be different to a contractor working on a £250,000 refurbishment contract.
© Michael Gerard 2021
The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.
Michael is a Solicitor, Chartered Builder & Registered Construction Adjudicator, and is a director at Michael Gerard Law Limited, a solicitors practice regulated by the SRA.