In today’s news, we will look into the workers who uncovered an ancient Roman villa with mosaic-tile floors while working on the construction of a supermarket in the United Kingdom, which brought the project to a screeching halt. Meanwhile, as an employer, what kinds of safeguards are able to be included in the contract in light of the recent reports of rising bankruptcies in the construction industry? On the other hand, ETIM UK has confirmed its participation in the Digital Construction Week panel. Furthermore, in Scotland, preparations have begun to build a massive new frigate from scratch. Moreover, in a construction dispute in the UK, the terms and fees of the arbitrators are being investigated.
After discovering a Roman villa with mosaic-tile floors, construction on a U.K. supermarket halted
Work will continue despite the placement of protective measures over the mosaic to prevent any further harm from occurring.
After discovering an antique Roman villa and bath house with a well-preserved mosaic floor with “vibrant colours and exquisite ornamental patterns,” one English town delayed the construction of a new supermarket.
According to the BBC, a team of archaeologists investigated the site on Warrington Road in Olney, Buckinghamshire as part of an expedition commissioned by developers Angle Property due to the location’s proximity to another Roman site during the preparations for a new Aldi outlet.
John Boothroyd, Oxford Archaeology’s senior project manager, remarked, “Because to the site location we anticipated some important Roman remains, but the finding of this wonderful mosaic well exceeded those expectations.” “To retain this quality and value of remains is brilliant.”
The red, white, and blue tiles around the mosaic’s borders were well-preserved, according to his team. David Neal, a mosaics expert, thinks the design may be from the east Midlands Durobrivan group.
The work will be protected in situ after agreement with Milton Keynes City Council and Historic England. To safeguard the mosaic, the projected Aldi will be built. Angle Property has pledged to document and disclose the findings.
An adjacent bath house is suggested by the discovery of stone cisterns near the mosaic. The crew was unable to investigate whether the old structure extends under Warrington Road’s built-up areas.
What protections can I include in my contract as an employer amid rising construction sector insolvencies?
As increasing interest rates, inflation, and a predicted domestic recession limit demand for housing and new commercial projects, we are often asked what protections an Employer may include in their contract to help if their contractor goes bankrupt.
These risks should be considered while entering contracts, and we have provided some helpful measures below in case of project insolvency. These are:
- A clause allowing the employer to “step-in” to subcontracts if the principal contractor goes bankrupt to keep the project on track.
- Even if you have paid the contractor for subcontractor materials, be cautious of retention of title clauses that may be triggered in the event of the contractor’s insolvency or failure to pay. It’s helpful to understand supply chain risks before challenging such clauses. To minimise confusion, specify the material position in the contract.
- Performer bond. A performance bond guarantees a contract party’s performance. While it is desirable for the bond to clearly indicate that it will be activated in the event of insolvency, there is authority that such a bond will respond in an insolvency situation as the contractor’s failure to pay the sum due on completion of the works by a third party constitutes a breach.
A precise written contract at the outset is the strongest insurance against a contractor going bankrupt. This can guide party relationships throughout the work.
ETIM UK panels Digital Construction Week
Original Source: ETIM UK confirms panel for Digital Construction Week
ETIM UK announced its four Digital Construction Week 2023 panellists. The panel, chaired by Dame Judith Hackitt, will explore building safety as a driver for digitization and the need for common product data to speed it up.
Digitalization demands all construction stakeholders, represented by the four panels, to participate:
Stephen Jeffery, Mace’s chief technical officer and Group Board member, oversees technical services delivery for construction, develop, operate, and consultancy projects. He emphasises digital transformation, off-site manufacturing, and other new construction technologies. He co-chairs Mace’s Digital Transformation Group, Health, Safety & Wellbeing Leadership, and Innovation Board.
Frank Elkins is Travis Perkins’ Group COO, overseeing operational and strategic development for Toolstation, BSS, Keyline, and CCF. Modernization, skills development, and health, safety, and welfare standards are his passions for improving the consumer proposition. Frank oversees skills and people development on the BMF Board.
Signify UK and Ireland CEO Nico van der Merwe (formerly Philips Lighting). He has led and transformed international businesses for 20 years, inventing and executing new business models and achieving lasting outcomes. Nico promotes UK electrical firms. He chairs Voltimum UK, a prominent digital media business and sales enabler for the electrical industry, and directs ETIM UK.
Galion, a South-West property development company, was founded by Angus Macdonald. Galion builds eco-friendly homes. Angus launched British Solar Renewables Ltd. in 2010 to reduce global fossil fuel use. He delivered 600 MW of solar power in six years and continues to fight climate change.
The BMF and EDA will throw a reception and lunch at the Sunborn Yacht Hotel after the panel discussion on May 18 at the London ExCel Centre.
Scotland begins building a massive frigate
Original Source: Work starts on construction of huge new frigate in Scotland
Today, Defence Procurement Minister Alex Chalk inaugurated HMS Birmingham’s development at BAE Systems’ Govan shipyard in Glasgow.
Apprentice burner Ciaran Baillie and fabricator-plater Jamie Finnegan cut the steel for the fourth of eight Type 26 frigates.
BAE said the operation supports 1,700 Scottish and 4,000 UK maritime supply chain jobs. The initiative will add 400 craftsmen and 200 apprentices in 2023.
HMS Glasgow at BAE Systems’ Scotstoun shipyard for systems installation, HMS Cardiff being assembled, and HMS Belfast in early construction are the first three Type 26 ships. The Ministry of Defence’s £4.2bn deal for the remaining five ships—including HMS Birmingham—shows its trust in the program.
The Type 26 program creates jobs and works with industry partners to build sophisticated Royal Navy warships, according to Defence Procurement Minister Alex Chalk.
The Type 26 program has reached another milestone, sustaining thousands of employment in Scotland and the UK supply chain. Working together with our industry partners, we are bringing in a cutting-edge class of warships for the Royal Navy, boosting our maritime capabilities into the next decades.”
Simon Lister, Managing Director of BAE Systems Navy Ships, complimented the staff and thanked customers and suppliers.
“This is another proud moment for our brilliant UK employees who designed and built these critical boats. HMS Birmingham will benefit from investments that will modernise our digital and physical infrastructure and establish a UK shipbuilding centre of excellence. Together with my colleagues, I’d want to thank our customers and suppliers for their expertise and commitment as we move this program forward and deliver the Royal Navy’s next-generation City Class frigates.”
The Type 26, one of the world’s most modern warships, is capable of anti-submarine warfare, high-intensity air defence, and humanitarian and medical missions.
BAE Systems is also establishing a £100m contemporary shipbuilding hall on the Clyde and a £15m Glasgow Applied Shipbuilding School to train workers.
Australia and Canada chose the Type 26 design for a 32-ship program that benefits all three nations.
UK construction dispute investigates adjudicators’ fees
Original Source: Adjudicators’ terms and fees probed in UK construction dispute
In construction disputes, UK law requires adjudication, but adjudicators’ payment conditions and charges are unregulated, which can put pressure on parties seeking speedy settlement.
Arbitrators can withhold awards until they are paid under the 1996 Arbitration Act. Adjudicators cannot exercise control over their rulings, thus some use inventive payment mechanisms to secure their compensation.
“An attempt to exercise a lien over the delivery of a decision within the statutory/agreed time restrictions is invalid and that such an attempt may well render the judgement once delivered unenforceable,” the High Court said in Nicholas James Care Homes Ltd v Liberty Homes (Kent) Ltd. In this case, the adjudicator’s first demands for considerable advance on-account payments did not violate this lien requirement.
The case raises significant questions about the rationale and scope of the lien rule. Why are liens illegal but adjudicators’ attempts to get advance fees legal?
Adjudicators’ lien bans
The first two adjudicator lien cases stressed the incompatibility of imposing a lien with the obligation to reach and issue a decision within 28 days (or any agreed extension) as required by section 108(2)(c) of the 1996 Housing Grants, Construction & Regeneration Act (96 Act) and paragraph 19 of the Scheme for Construction Contracts (the Scheme).
The Scottish Court of Session heard a 2003 dispute in which the adjudicator’s terms and conditions allowed her to hold the verdict until her costs were paid. Lord Wheatley said, “Neither can it be maintained that the adjudicator is allowed to delay communication or intimation of a judgement until her fees are paid.” It is not permissible in my judgement for such an arrangement to disrupt or impede the process of the statutory arrangements for resolving these contractual issues.
In 2006, England’s Judge Peter Coulson QC found an adjudicator’s contractual lien “contrary to s.108 of the 1996 Act, which envisages both completion and communication within the 28 day term.” I suggest that the adjudicator’s open-ended extension violates the 1996 Act’s adjudication principle.
In Mott McDonald, the English court applied this concept to advance fee payment by the referring party for the first time the following year. Judge Thornton QC suggested that such a condition violated the Schema’s paragraph 12(a) provision that the adjudicator “act impartially in carrying out his obligations”. An adjudicator’s terms must not make them “financially beholden to one party, particularly the referring party, or place himself in the position in which he might appear to be more partial to one side than the other”—a clause requiring only the referring party to pay on-account fees would seem to violate this principle.
In the 4th edition of his premier construction adjudication textbook, Sir Peter Coulson concluded: “…it appears safe to presume that an adjudicator has no power to enforce a lien over his due fees, if to do so would result in any delay to the execution or communication of the judgement. In light of the 1996 Act’s important emphasis on speed, there is nothing that can be done to alleviate adjudicators’ business challenges in paying their costs.
Coulson did not address whether Judge Thornton was correct that a condition mandating advance payments from the referring party would violate clause 12(a) of the Scheme’s impartiality requirement.
It’s natural that many adjudicators won’t accept Coulson’s “issue” and risk non-payment. One method is to require a deposit or advance payment before and possibly during an adjudication. This method was used in Nicholas James’ adjudicator’s terms clause.
Nicholas James case
In the Nicholas James case, the adjudicator again required the referring party to pay. The adjudicator wanted a £10,000 deposit (plus VAT) from both parties the day after his nomination. His terms just required the referring party to pay. Both parties complied.
11 weeks later, the adjudicator requested a £15,000 (plus VAT) deposit from both sides. Nicholas James, the referring party, paid this additional cash immediately, but Liberty Homes took five weeks to do so. The adjudicator chased Liberty at least five times and constantly set short deadlines for compliance that Liberty missed. Liberty received the balance of its payout on 15 February 2022 after the protracted adjudication finished on 8 February 2022. After almost four months, the adjudicator’s verdict was issued three days later on 18 February 2022.
The judge called the adjudicator “tenacious and relentless” for upfront payment. He noted that the demands did not say that the adjudicator’s decision would be postponed until payment. The judge also considered Liberty Homes’ solicitors’ failure to protest payment requests. He denied Liberty’s enforcement challenge because he found no lien.
This result is unexpected. But, the adjudicator had no contractual power to seek advance payments from Liberty, only the referring party, thus he could not leave if Liberty did not comply.
The judge also noted that there was no submission to him supported by authority stating that “is impermissible for an adjudicator to ask for and indeed to obtain security for fees from both parties during the course of an Adjudication Reference irrespective of whether those are agreed as part of an adjudicator’s terms and conditions”.
Hence, adjudicators cannot require on-account payments. Simply said, requests made of both parties without any consequence for non-payment and to which both parties agreed did not constitute an unlawful lien.
This affects adjudication parties.
The verdict may suggest that adjudicators can request advances from both parties. Yet, this method is impractical. Why want an advance if the adjudicator cannot delay his ruling or retire if not paid? If only one party pays the advance, usually the recommending party, the adjudicator risks becoming “financially bound” to it and violating their impartiality.
Liberty’s counsel probably didn’t resist because they were worried the adjudicator would look poorly on their client. They also feared that refusing to provide the advances might have led to the adjudicator requesting them from Nicholas James as per his stipulations and prolonging the adjudication.
Some adjudicators request advance fees from the referring party solely. The latest verdict does not help determine legality. Mott MacDonald suggests otherwise. The Nicholas James adjudicator may have ignored his rules of engagement and requested both parties for security.
The 1996 Act mandates adjudication in the UK, although it doesn’t regulate adjudicators’ fees. TeCSA’s daily cap and the low-value dispute schemes are the main exceptions to the Adjudicator Nominating Bodies (ANBs)’ inaction. Responding parties should be more safeguarded.
Adjudicators rightly hesitate to adjudicate without fee security. But at a time when there are waiting lists for new adjudicators to join each ANB’s panel and a dire need to boost diversity, it may be time to examine a more prescriptive approach to such adjudicators’ payment conditions and rates.
Summary of today’s construction news
Overall, we discussed one English town that postponed the building of a new supermarket as a result of the discovery of an ancient Roman villa and bath house with a well-preserved mosaic floor that had “vibrant colours and magnificent artistic designs.” The floor was found in the bath house.
Meanwhile, we are frequently asked what safeguards an Employer may put in their contract to help if their contractor goes bankrupt when rising interest rates, inflation, and an anticipated domestic recession reduce demand for housing and new commercial developments.
Furthermore, four speakers for ETIM UK’s 2023 Digital Construction Week panel have been announced. The discussion, moderated by Dame Judith Hackitt, will discuss the importance of standardised product data and how it relates to building safety as a key driver of digitalization.
On the other hand, HMS Birmingham’s construction at BAE Systems’ Govan shipyard in Glasgow was officially launched by Defense Procurement Minister Alex Chalk. Fabricator-plater Jamie Finnegan and apprentice burner Ciaran Baillie shaped the metal for the fourth of eight Type 26 frigates. BAE claims that 1,700 jobs in Scotland and 4,000 jobs in the UK maritime supply chain are supported by the operation. By 2023, the program will have added 400 skilled workers and 200 trainees.
On top of that, adjudication is mandated by UK law in construction disputes, however the payment terms and charges of adjudicators are unregulated, which can put undue stress on parties trying to reach a quick resolution. Awards can be withheld until arbitrators are compensated under the Arbitration Act of 1996. As arbitrators have no say in the outcomes, some resort to creative means of ensuring that they are financially compensated for their work.