Garry Winter’s Case notes

Traditional Structures v H W Construction Technology and Construction Court, May 2010

make? Again, the progress we’ve made so far points the way ahead and the collaboration vendors’ huge experience. The project teams working via online

information from 3D project models. However, 2D CAD still dominated, clients were often wary of trusting their data to a contractor, and many supply chain members were hesitant about using the internet or concerned about compatibility. So in 2000 I set up 4Projects. Its systems, and other products from

competitors, quickly won supporters in the post-Latham, post-Egan era. Once clients and project teams began using more transparent communications, they didn’t want to go back to email or paper-based processes. And it soon extended beyond online sharing of CAD and other information. Vendors added collaborative functionality to support project and contract processes (NEC3, for example), to support different phases of the asset lifecycle (eg: tendering, FM), and to integrate with other applications. Looking ahead, BIM-based collaboration

is the inevitable next step. But in practice, how do we allow multiple users simultaneous access to our building models and reconcile the changes they

collaboration tools are now used to the idea that project IT doesn’t have to mean a local server in every location. Instead, they’re buying “Software as a Service” (SaaS). Web-enabled BIM model sharing could help integrate whole supply chains, and it is conceivable that by the 2020s we could be deploying “BIMaaS”, using superfast broadband links and centrally- managed servers with which members of our supply chains can interact in real-time. Financially, the BIMaaS model also appeals. Collaboration has shown that project or programme-based pricing — a fixed monthly fee for the duration of the project — is easily understood by customers. Plus, remote hosting reduces risks, requires no investment in new in- house servers, and overcomes neutrality issues. Moreover, browser-based platforms mean there is no software to download and fewer software compatibility issues. Today, SaaS construction collaboration

platforms are routinely used by construction managers on most of the UK’s leading projects. BIM could reach that stage within a decade if we can tackle the key challenges and respond to current trends in people’s use of technologies: easy-to-use applications that allow us to create, share and re-use data seamlessly, while also accessing it via our mobiles. By adapting our technologies, processes and industry structures to meet these requirements, collaborative BIM could become the core of an integrated new construction world by 2020.

Richard Vertigan is chief executive of collaboration vendor 4Projects

H W Construction was tendering as main contractor for a business development centre. Part of the project required steelwork and cladding and Traditional Structures was invited to quote for the work. Traditional supplied a quote in

time for H W to submit its tender for the project. However, the copy sent to H W varied slightly, but significantly, from the quote Traditional retained on file. The fax sent to H W should have quoted £37,573.43 for the steelwork and £32,365.83 for the roof cladding. Instead, it only provided the price for the steelwork and Traditional was unaware of this omission. After a fortnight H W wrote to

Traditional to ask how long the quotation of “£37,573.43 plus VAT for the floor support beams and the roof structure” remained valid for. A few days later, H W informed Traditional it had been awarded the main contract and accepted Traditional’s quote for the “steelwork and roof cladding”. When Traditional was asked to

price some small variations to the works, it sent the revised prices to H W in the following terms: “Steelwork £41,873.00 + VAT, Roof Cladding £34,815 + VAT.” H W responded that it couldn’t

be right that costs had doubled. Traditional said the original quote was for a combined price of £69,939.26, and sent a copy of the quotation from its file. H W replied that its copy had one price

and Traditional’s copy had two and stated it was not responsible for Traditional’s errors. Traditional undertook both

steelwork and cladding, with both parties reserving their rights to bring an action, and with H W limiting the order to the original steelwork price. Accordingly, Traditional sought rectification of the contract by inserting the missing price. The judge found in favour of

Traditional, as the facts of the case matched those required for rectification to be made: namely that Traditional erroneously believed the contract to include the price for the roof cladding; that H W was aware of this omission; and knowing that it was due to a mistake H W had not drawn Traditional’s attention to it which was to the benefit of H W. Crucially, the judge found that

on the proper construction of Traditional’s quote, it was clear that it referred to more than one price and so should have prompted an enquiry from H W. Furthermore, the judge found that the inconsistency in the terminology used when asking how long the price would remain open for was deliberate — H W’s request appeared to relate only to the steelwork not the cladding. Similarly, the judge found that

in accepting Traditional’s quote, H W specifically did not refer to the contract sum, yet the other six sub-contracts it placed all included such detail.

Garry Winter’s analysis

Most people believe that where commercial parties enter into a contract they are bound by it, no matter what. This is generally true. But where it can be shown that the facts exist to invoke rectification, the court will make good the contract as though it did not contain the error. The most difficult part is to

• If there is more than one cause of delay but one cause is dominant, then the non-dominant cause should not be factored in to the EOT claim. If the dominant cause is a Relevant Event, the claim will succeed.

• Where there is concurrent delay derived from two causes, one a Relevant Event and the other an event for which the contractor is

liable, and neither could be described as the dominant cause, the EOT claim will not necessarily fail. The contract administrator should apportion the delay in the completion of the works resulting from the concurrent causes of delay between the events on a fair and reasonable basis. Andrew Weston is an associate at Taylor Wessing

prove that a party was aware of the omission. In this case there was incontrovertible evidence that not only was H W aware of the omission, but it also had knowledge that it was due to a mistake by Traditional. Not all cases will be so clear

cut. Estimators and contractors’ quantity surveyors frequently receive quotes containing errors or omissions. Such errors are more easily noticed where

elements of work are itemised or where the rates and prices appear far too low. However, there is a fine line between what may be seen as an error and a deliberate tendering tactic. Other cases have shown that where companies have taken a risk and priced items low in the hope that they will not be required, they will be bound by the price. Unsurprisingly, in this case,

the judge concluded H W’s behaviour was unconscionable. This case shows that where

the relevant circumstances exist, the court will not tolerate sharp practice or the deliberate shutting of eyes to the obvious. However tempting that cheap quote looks, check it — it may be cheaper to play fair.

Garry Winter is a senior consultant at Knowles, a Hill International company. He can be contacted on 01928 756 600 or 07900 277890

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