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Do you have problems with contracts, disputes with clients or other legal questions you want answered? Our regular legal Q&A can help provide the answers

I’ve signed a few of these warranty documents and I am intrigued by the terms about independent inspections. Is there anything to this

clause or is it just a ‘housekeeping’ measure?

These ‘simple’ terms appear, at fi rst glance, to be innocent. However, the reality is different. This clause seeks

to absolve the benefi ciary from any effects of their own failings and is therefore inequitable. If the client provides information to the designer, then the designer either chooses or is obligated to rely on the details provided. Any failings, however, in the quality of the information are at the designer’s risk. Fair- minded clients and their solicitors might accept a qualifi cation of the clause that will not absolve the benefi ciary completely – and, if after taking advice the proposed clause is amended, it is important that no other further amendments are contemplated. Guidance on the contents of a specifi c warranty is freely available from the Association’s Commercial, Contracts and Legal Department.

When I select and install materials at my customer’s building, will the ECA Guarantee of Work Scheme guarantee their performance for six

years? I have seen several product recalls recently and I read that the amount of counterfeit material in the market place is on the rise. If I unintentionally install something that’s either counterfeit or less than perfect, will the guarantee ‘cover’ me?

The issue of counterfeit or not fi t for purpose materials is a vexed one. Contractors are often caught between

the two stools of the law (consumer and contract) and the conditions of sale placed on them by wholesalers at the point of sale. Materials specifi ed by members are guaranteed to the period of the product warranty for up to six years and must be ‘fi t for purpose’. However, the guarantee only underwrites the member’s obligation to perform his contract,

56 ECA Today Autumn 2010

not to provide something that will be ‘as-new’ for six years. The issue of the increase in trade of

counterfeit materials concerns everybody; the ECA has recently become a joint signatory to the Electrical Installation Industry Charter on these matters, and co-signatories include BEAMA, the ESC, GAMBICA and BASEC. The guarantee is designed to protect members’ customers and does not absolve members from correcting any defects in their work.

The pace on-site has started to quicken and I’m being asked to work overtime just to complete my contracted works. I know there are

some ‘extras’ needed but I’m leaving them until later. Is there anything I can do to recover more money?

When you contract, you agree to carry out and complete the works in either a reasonable period of time or,

if the agreement so states, in a number of working weeks. Site hours are often longer than those worked, and it is prudent to advise the customer when an instruction to work overtime will incur claims for extra payment. The rates wanted should form part of any early quotation. This will limit the opportunities for dispute. Standard ‘non-productive’ rates are similar

to the daywork rates as published by the ECA. However, non-productive enhancements are lower, as there is no right to profi t or costs that have already been recovered in the contract sum or under the variation rules. Pricing variations correctly means following the contract rules. Value work, performed under any special circumstances and on a JCT style

Your questions answered:

If you have any legal queries or would like your questions answered in ECA Today, please email us at ECA members can receive free advice on commercial contract and legal issues from the ECA Commercial Contract and Legal department by calling 020 7313 4818.

contract, to ‘include a fair allowance for any change in the conditions under which the work is carried out’.

A national client of ours has asked us to complete a project where another ECA member has gone bankrupt. How should we approach

this, and should we tell the customer about the ECA bond?

In these circumstances, the delay between the old contractor stopping work and the new contractor

starting will incur the customer signifi cant expense. He will need the new contractor to speed up the works to get back on programme; also he is unlikely to be able to offset his losses against the original insolvent contractor. So it is important to agree, in writing, exactly what will be achieved and how much it will cost. The new contractor must expect to advise on

the state of the existing installation. The works will need surveying to fi nd out what, if any, of the existing installation is in an acceptable state of repair. The responsibility for paying for survey work and the partial demolition of walls, to gain access to fi nished areas, is often a point of confl ict. This is a chargeable service. When the works are complete, the new contractor must provide the appropriate certifi cates. A periodic certifi cate is the only way to certify work designed and installed by others. However, commercially and legally the new contractor, as ‘last man standing’, will assume responsibility for the new system. Assess the value of this risk during the fi rst visit and include the premium ‘cost’ for carrying the risk as part of the overall charge. There will also be contracts and warranties

to consider. The incoming contractor must review the current project information for example, instructions, drawing revisions and ‘requests for information’. These will need scheduling to understand how the project has evolved. Find out who has ownership of any on-site materials; place them into secure

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