Builder’s Liability under S.I.9- part 4

Builder 3

The following opinion piece was submitted by a construction professional on June 10th 2014.

BUILDER LIABILITY UNDER S.I.9- part 4

Builders are reasonably well protected as regards their potential liability under the 2014 Building Control (Amendment) Regulations. As the claims manager for a medium sized contracting company, I would find the situation generally satisfactory. However, contractors should be very careful at certain stages, as follows.

4. Definition of “Practical Completion”

Under clause 31 of the RIAI contract the architect must certify when, in his opinion, the building is “Practically Complete”. This point of the architect’s “opinion” is being considered by some architects as a device to avoid certifying PC until the BCA have validated the Certificate of Completion. This is wrong. The contractor can rely on the definition of “Practical Completion” in clause 31. PC is defined as “the works having been carried to such a stage that they can be taken over and used by the Employer for their intended purpose”.

This definition says nothing at all about the BCA deciding on whether the certificate is valid! The definition is about the works, not about the papers. To minimise his exposure at this stage, the contractor must firmly point out to the architect that he is entitled to a PC certificate, and that if the architect fails to provide this, the architect will be exposed to claims. If the Assigned Certifier makes a mess of the documents to be lodged with the Completion Certificate, the contractor will be well advised to make sure this is the Assigned Certifier’s problem.

 

The first post in this series may be viewed here: Builder’s Liability under S.I. 9 – Part 1

The second post in this series may be viewed here: Builder’s Liability under S.I. 9 – Part 2

The third post in this series may be viewed here: Builder’s Liability under S.I. 9 – Part 3

 

Other posts of interest:

Post 1: Architect’s Ancillary Cert (Design & Completion) –  click link here

Post 2: Architect’s Ancillary Cert (Inspection) – click link here

Post 3: Ancillary Completion Cert – Inspection (by others) – click link here

Post 4: Ancillary Certs Design – commencement & completion  (by others) – click link here

Post 5- Addendum to RIAI Contracts – click link here

Post 6: Draft Client Agreement (architect) – click link here

Post 7: Client & Assigned Certifier agreement (architect) – click link here

We hope this information may be useful to professionals implementing the new building regulations. If there are any registered engineers with similar concerns on ACEI documentation we would be interested in hearing these issues also. At time of writing there are no SCSI/CIF (representative bodies for surveyors or builders) draft documents available to their members. We suggest professionals or contractors  contact their respective professional or representative bodies with concerns or queries.

 

0 thoughts on “Builder’s Liability under S.I.9- part 4

  1. Michael O'Neill

    It is arguable that the RIAI Contract needs to change to reflect recent changes in the legislation.

    If the law of the land has changed to reflect a pressing need for approval of certain items by the Building Control Authority I see no reason for the Architect to expose himself to risk by satisfying the builders need to get money in his pocket with undue haste. Unless there are unwarranted delays there will benefits of surety to both parties.

    Whereas before the Architects Opinion of Compliance, which follows on directly from the issue of the Certificate of Practical Completion, merely stated that the works were unlikely to be the subject of an enforcement action, matters have changed significantly.

    Now it would seem that the building must be “in compliance with” the regulations and that includes Part D “Materials and Workmanship”. Leaving unsealed holes on kitchen with appliances yet to be fitted and connected because the kitchen supplier is “on holiday” cannot be ignored in future.

    As for Architects becoming exposed to claims when they are merely being prudent, that’s not a good strategy. Neither is unfairly withholding monies due to a builder. Tough but Fair is the motto.

    The house must be complete and compliant now before the Certificate of Practical Completion issues.

    Reply
  2. Michael O'Neill

    It is arguable that the RIAI Contract needs to change to reflect recent changes in the legislation.

    If the law of the land has changed to reflect a pressing need for approval of certain items by the Building Control Authority I see no reason for the Architect to expose himself to risk by satisfying the builders need to get money in his pocket with undue haste. Unless there are unwarranted delays there will benefits of surety to both parties.

    Whereas before the Architects Opinion of Compliance, which follows on directly from the issue of the Certificate of Practical Completion, merely stated that the works were unlikely to be the subject of an enforcement action, matters have changed significantly.

    Now it would seem that the building must be “in compliance with” the regulations and that includes Part D “Materials and Workmanship”. Leaving unsealed holes on kitchen with appliances yet to be fitted and connected because the kitchen supplier is “on holiday” cannot be ignored in future.

    As for Architects becoming exposed to claims when they are merely being prudent, that’s not a good strategy. Neither is unfairly withholding monies due to a builder. Tough but Fair is the motto.

    The house must be complete and compliant now before the Certificate of Practical Completion issues.

    Reply
  3. David

    While I can see where this opinion piece is coming from I don’t think it is entirely correct that a contractor can rely on the definition of Practical Completion when;

    RIAI – Clause 31: “The Certificate of Practical Completion is issued when the Works are “practically complete‟ and can be taken over and used by the Employer for their intended purpose and any outstanding items are trivial.”

    BC(A)R-2014: “20F (1) Subject to paragraph (2), a Certificate of Compliance on Completion shall be submitted to a building control authority and relevant particulars thereof shall be included on the register maintained under Part IV before works or a building to which Part II or Part IIIA applies may be opened, occupied or used.”

    Both refer to “works”, BC(A)R says the works or building cannot be occupied until the Certificate of Compliance on Completion has been granted. I would be of the opinion that “practically complete‟ means the Certificate of Compliance on Completion has been granted.

    As it is worded at the moment it is going to cause further confusion. The RIAI need change Clause 31 to reflect BC(A)R-2014.

    Reply
  4. David

    While I can see where this opinion piece is coming from I don’t think it is entirely correct that a contractor can rely on the definition of Practical Completion when;

    RIAI – Clause 31: “The Certificate of Practical Completion is issued when the Works are “practically complete‟ and can be taken over and used by the Employer for their intended purpose and any outstanding items are trivial.”

    BC(A)R-2014: “20F (1) Subject to paragraph (2), a Certificate of Compliance on Completion shall be submitted to a building control authority and relevant particulars thereof shall be included on the register maintained under Part IV before works or a building to which Part II or Part IIIA applies may be opened, occupied or used.”

    Both refer to “works”, BC(A)R says the works or building cannot be occupied until the Certificate of Compliance on Completion has been granted. I would be of the opinion that “practically complete‟ means the Certificate of Compliance on Completion has been granted.

    As it is worded at the moment it is going to cause further confusion. The RIAI need change Clause 31 to reflect BC(A)R-2014.

    Reply
    1. Bregs Blog admin team

      This is a very valid & important observation: however one could say that ‘PC means that a Certificate of Compliance on Completion has been granted’- there is a big difference between the Cert being signed and then being put on the Register and there are no guarantees that it won’t be invalidated and sent back causing more delays.
      The question is how can an architect on the one hand issue a statutory certificate confirming completion and on the other hand refuse the contractor PC because it’s not complete? This may be wide open for substantial claims.
      The revised RIAI contract clauses for S.I.9 are long awaited and should soon untangle this knotty problem.

      Reply
      1. David

        Yes, as it is now it would be wide open to claims.

        Practical Completion should only be granted once the Certificate of Compliance on Completion has been included on the Register.

        I work mainly with the The Public Works Contract’s, they have been revised to reflect this;

        “Substantial Completion of the Works or a Section”
        “all of the following have happened:
        (1) the Works or Section are complete so that they can be taken over and used by the Employer for their intended purpose and there are no Defects other than
        (a) Defects accepted by the Employer under sub-clause 8.5.4 or
        (b) minor Defects to which all of the following apply:
        (i) they do not prevent the Works or the part from being used for
        their intended purpose
        (ii) the Employer’s Representative considers the Contractor has
        reasonable grounds for not promptly rectifying them
        (iii) rectification will not prejudice the safe and convenient use of
        the Works or the part
        (2) all tests that are required by the Contract to be passed before
        Substantial Completion have been passed
        (3) the Contractor has given the Employer’s Representative the
        Contractor’s Documents that the Contract requires be provided before Substantial Completion
        (4) the Contractor has given the Employer’s Representative the collateral warranties that the Contract requires for the Works or part.
        (5) the details in the Certificate of Compliance on Completion of the Works or a part thereof have been included on the Register maintained under Part IV of the Building Control Regulations.”

        Reply
        1. Bregs Blog admin team

          All builders will need to price for this in their tenders; the local authority have up to 3 weeks to put the Completion Cert on the Register or they can send it back on a technicality and the whole process starts again. In the meantime the builder is paying insurance, site security, the utility bills and he’s out of pocket on retention. It can only mean significant claims.

          Reply

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