Builder issues - advice please

[JugglingChaotically]

So all went well for first 2 months. Ahead of schedule.
Architect monitored and confirmed regular valuations.
Then any variations became very highly priced
Then windows paid for not delivered
Turned out when we asked for proof of order (given none appearance and cash in advance) than they were only just ordered.
Ditto floor.
Now the work on site has slowed to almost snails pace.
Only plasterer there today.
Only electrician other day.
Was forecast to run 6 weeks late a week ago.
On Friday that was revised to 8 weeks.
What had been agreed was that we would move back 2 to 3 weeks before completion and remaining work would be external or around us.
What best to do?
There are penalties in contract but it seems to have no effect.

[Slowdownsally]

Only your contract administer can issue variations, not the builder... And those are usually requested by the client.

This all sounds very upside down and like the architect has utterly lost control of the project.

What you say about the builder's motivation sounds about right though if they were silly enough to under quote to get the tender. Really poor practice though.

Your first thoughts about using this job to subsidise other work is also a good guess too based on what you've said.

[HappyGoLuckyGirl]

Re. variations - your contract administrator has the power to value works, including variations. Your CA can say no we don't agree with your rates, you're getting £x price in line with fair market rates or pulled from SPONS 2014.

[HappyGoLuckyGirl]

Sally - either party can add a variation to the Schedule of Works but a variation must be instructed by the Contract Administrator, in this case the Srchitect, so an Architect Instruction needs to be produced for every variation.

[Slowdownsally]

Happygolucky - yes, you're right re: AIs and variations. I completely garbled what I meant. Apologies.

[JugglingChaotically]

Will go through variations and documentation thereof with the architect ahead of the (I hope) meeting.
What is SPONS 2014?

[JugglingChaotically]

Thanks both.
Some have been instructed by architect with revised drawings.
Others have been vaguely discussed then done without agreement or price and arrived priced on next valuation.
Which has been flagged as unacceptable.
But we need to go through these one by one.
I am not a fan of letting them build up in case we are deemed to have agreed by not objecting.
Architect suggested an alternative to list at end rather than constantly picking and risking him downing tools.
Or simply increasing something else to compensate

[Slowdownsally]

Just another thought. Is your builder using subcontractors, and if so is it possible the builder has stopped paying them which is why they aren't on site?

Might be worth investigating that a little too as a route to breach of contract.

[HappyGoLuckyGirl]

SlowdownSally - You're forgiven seeing as it's 9.50pm on Monday night.

Juggling - Spon's Architects and Builder's Price Book. It's a big book full of rates (hourly and fixed) for various materials, labourers, trades, etc.

It's what Quantity Surveyors, Architects etc. use to price Bills of Quantities. Or any building work really.

[HappyGoLuckyGirl]

Under the terms of the JCT Minor Works the Contract Administrator needs to confirm Instructions in writing, no more than 2 days after being verbally agreed.

Your CA is doing himself no favours.

[JugglingChaotically]

Subcontractors - will see if we can check
Variations in writing - noted
Pricing - noted
Thanks so much to you both

Architects view is that the risk is builder may walk if we take too strict a view and corner him.
But would he? We would pursue all contractual remedies and he is no "fly by night"?

[HappyGoLuckyGirl]

He may well do. There's nothing stopping him. But make sure you make it clear that you will adhere to the terms stipulated in the contract and terminate his employment. Then you will seek to recover the monies you have paid him for work he hasn't done.

You may potentially be able to pursue your Contract Administrator for that money too as he should never have valued it as work done, therefore, he has failed to uphold the terms of his employment within the contract too.

[JugglingChaotically]

Only one trade on site and doing work not in original spec but agreed to as a day rate. So all contract works have stopped. I think he is in breach and was yesterday also?
If he is in breach and we follow due process and terminate his contract, can we also claim for loss if the replacement contractor charges more to complete?
What else can be claimed. Our expenses will be huge.
Ongoing rental - assuming agreeable to the landlord, ongoing insurance on both proprieties, on going party works insurance, double council tax (our council offers no rebate for empty properties or second homes), ongoing additional commenting costs to work (rental further away) etc etc etc.
What to do?
Oh and legal fees of course.

[HappyGoLuckyGirl]

Okay. Under section 6.4.1.2 of The Conditions of the contract you can terminate employment "if the Contractor fails to proceed regularly and diligently with the Works".

Your CA has to serve a notice detailing the Contractor's default(s) on the contract. If the contractor continues this default for 7 days after the notice has been served then the Employer can serve another notice terminating the Contractor's employment. This termination notice has to be served no more than 10 days from the expiry of the default notice.

[HappyGoLuckyGirl]

Under section 6.7.3.1 of The Conditions of The Contract, the Employer can draw up an account (within 3 months of Practical Completion) detailing the amount of expenses incurred, including the costs of engaging another contractor to complete the works, any direct loss(es) to the Employer for which the Contractor is liable (arising as a result of termination or not), plus the amount already paid to the Contractor. If this total amount is greater than the original Contract Sum then the difference becomes a debt payable to the Employer by the Contractor.

I'm paraphrasing but basically, if the cost of terminating his employment, engaging another contractor and all associated costs, plus the amount you've already paid the contractor exceeds the original Contract Sum then the Contractor will owe you money.

Example; after termination and engaging another contractor (including for any damages like paying for alternative accomodation, etc plus the money you have already paid the Contractor) the build comes to 250,000 and the original Contract Sum was 200,000 then the 50,000 difference becomes a debt payable to you by the Contractor - under the contract.

You can pursue this debt through mediation and adjudication if necessary.

Hope that makes sense.

[JugglingChaotically]

Thanks. It makes perfect sense.

Thank you!

I don't want it to come to this and can't believe he will either. Hopefully reminding him of both parties rights and obligations will suffice.

[HappyGoLuckyGirl]

Hope all goes well and you get back on track. If you need anymore help then give me a shout.

[JugglingChaotically]

Thanks Happy
Have emailed architect and called but he's out at another site. Hopefully back shortly.
Hoping that this will be the wake up call that the builder needs.
Can't believe that it's gone off track so quickly but it's is a classic tale of woe I guess.
Appreciate the help.

[lalsy]

OP, we had very similar problems a couple of years ago. You've had some great advice here and I hope it gets sorted.

In case our experience is useful - we did claim liquidated damages for over-running and I was very clear that we would continue to do so, all variations were in writing, and the architect would come and do a valuation and issue a valuation for work carried out (ie each bit of the contract was assessed, he said 32% for plumbing or whatever, add it all up, and we'd pay up). The architect would definitely not let us pay for something that hadn't been done. He said some legit builders do need money upfront for supplies as cashflow can be an issue but if that is the case (it wasn't for us) it is best to place the order yourself and pay the supplier directly.

The builders did sort of finish but there were a couple of times when our architect warned us that pushing them could make them down tools, starting again with someone else would be messy and expensive and we might never get straight money-wise with the original lot. Sometimes they only had one trade on site, and things seemed to have ground to a halt, but then when that was done (eg the electrics) suddenly it was full steam ahead - for a bit. Again, the architect as very useful on that because he could say yes, that's fair enough, or nonsense, I'll send a warning email.

Our architect said our builders were not bad. Urgh. As well as the liquidated damages, they lost their contingency as they never finished/supplied documentation, but I don't think it mattered to them if by messing us around a bit they can take on a bigger job at the same time.

I didn't mean to write an essay but maybe another experience is useful!

[JugglingChaotically]

Builder has now said no cash no moe work.
Architect reluctant to serve formal notice as he thinks that is a one way street to termination of contract.

[JugglingChaotically]

Lalsy - thanks. Really helpful to know that you got through this but also got liquidated damages.
How did you do both?
Architects advice is best to continue if we can.
But he is refusing to work so how to get it started again?
Like you a couple of weeks ago one trade on site was ok as things then cranked up again but this time advice is that he is taking the p....
And of course the builder then confirmed it by email

[RandomFriend]

No advice, only sympathy. You must be using the same builder that I used a couple of years ago.

I hope you can get proper legal advice and that the work gets done.

[JugglingChaotically]

Oh dear. His latest is that he is not in default as he has kept one man on site! Not what the contract says as I have told the architect!

Random - dare I ask how you got yours resolved?

[RandomFriend]

I think my job was smaller than yours (refurbishment, not a new build), but it was exactly the same in that good work at first then onto the next job before completing mine, just one (not terribly competent) person left on site.

In the end, the builder - after adding on lots of extras and not completely finishing things - left. In the end I paid up everything he asked. I should have asked mumsnet for advice and maybe could have fought him. The thing is, builders have lots of experience at ripping clients off, but usually we as clients have only one experience of working with a builder. So you are doing the right thing by being here.

My suggestion would be to meet him (I saw that you tried that) and try to pin him down to dates that he can stick to. Any money paid has to be linked to work completed. Meet with the architect and try to keep a positive, "let's get this job finished" attitude.

Can you get a friend to look at things with you (contract, details, etc) in a non-emotional way? That approach helped me at a later point - someone who can see just the practical and logistical aspects of the situation.

The economics of the situation are that it is not always in the builder's interest to really complete the work, as lalsy's experience suggests. Sorry if that doesn't help. and good luck.

[cheerupandhaveaglassofwine]

If the builder says the one man left on site is fulfilling the contract then he shouldn't be on day rate for whatever he is doing

Surely if he is to keep within contract terms them he should be covered within contract costs

[funambulist]

OP, what a nightmare. We have been thinking about getting building works done for a while and this just makes me dread starting them.

Most of my friends seem to have had some awful experiences with builders, with even those who are described as good taking far longer than anticipated to complete the works, slowing down drastically towards the end, going off to do other jobs and trying to get away with charging more for supplies than they cost. Like the OP my friends have had to order supplies direct so that they aren't ripped off. It's so depressing.

I have, however, recently arranged for a smaller job (repair of a flat roof) to take place and am now a bit concerned that we've paid a "deposit" of 40% of the total cost before we've even got a date for the works to start. As RandomFriend says, I have no idea what is normal and we were just presented with their standard terms and conditions to sign which said that they wouldn't start work until the deposit was transferred.