GCC ADVICE NOTES

In terms of the GCC 2015 Edition, if any risks that are classified as “accepted” in terms of Clause 8.3 other than damage or physical loss to the Works, causes delay and/or additional costs to the works it may be claimed as a Contractor’s entitlement in terms of Clause 10.1.

A simple understanding of a variation order (“VO”) is when the Employer’s Agent (“EA”) makes changes to the form, quality or quantity of the works, or any part thereof. It is general practice that a VO must be in writing, but what happens if the EA made a verbal VO?

Under clause 8.1.2 of the Guide to the General Conditions of Contract, the Contractor is obliged to take every reasonable step to restore access and full enjoyment of private properties to persons affected by pollution or other interference emanating from the construction site. This means that the Contractor must have plans in place to combat pollution and its impact on the environment as well as being aware of how their activities impacts their neighbours.

For example, if noisy construction equipment is proving bothersome to a school, business, or other private property nearby, steps must be taken to mitigate this (such as attaching silencers to noisy equipment or working during non-problematic hours).

If a construction site hinders reasonable access to, or visibility of, a business, steps must also be taken to prevent this, as confirmed in Minister of Community Development v Koch 1991 (3) SA 751 (A). In this case, “the Contractor so severely obstructed or hindered access to the said property that (respondent’s) potential customers were unable to gain access thereto and/or were deterred from attempting to gain access thereto” and took no steps within reason to lesson or remove such obstruction or hinderance. As a result, the Contractor, Employer and Employer’s Agent may be found jointly negligent.

Contractor’s remedies for the Employer’s failure to make necessary payments in terms of the GCC 2015

Clause 6.10.6.2 of the GCC 2015, states that the Contractor shall be entitled to demand payment of any amount due from the Employer along with interest at the prime overdraft rate, compounded monthly, with retroactive effect from the due payment date (e.g. withholding payment of a Payment Certificate).

In the event that the Employer refuses to make the aforementioned payment, the Contractor’s alternative remedies include:

· Suspending the works in terms of Clause 5.11.1.

· Imposing a contractor’s lien upon the site.

· Approaching the Court for a provisional sentence or summary judgement.

· Terminating the Contract in terms of Clause 9.3.1.2.

It is important to note that each of these remedies have distinct advantages and disadvantages. These factors should be weighed up carefully before making a decision to implement a remedy to ensure that the Contractor reaches an effective solution.