Importance of contractor progress payment terms

It has been said that an army marches on its stomach. Contractors and subcontractors in the construction industry run on cash. Lord Denning many years ago made the oft repeated phrase that cash flow is the lifeblood of the construction industry and this sentiment is still relevant today. Estimators when preparing tenders usually concentrate on building profits into the price. Of equal importance is the amount of working capital required to fund the contract and the need to keep the amount to a minimum. The payment terms are therefore crucial to every contractor and subcontractor. Certification and payment should be the subject of careful strategy and planning.

Mobilisation payments are common on overseas projects and should be considered by estimators on home based contracts and proper provision where appropriate included in the tender. The cost of manufacture is often greater than onsite erection but many standard contracts do not provide for certification and payment until the goods have been delivered to site. The reasons are historic in that when these contracts were first drafted many years ago there was very little offsite manufacture and fabrication. Many contracts drafted more recently however recognise that there are substantial costs which may be incurred prior to a start being made on site. The same principle applies to the design costs.

Many years have passed since Architects designed work undertaken by specialist subcontractors. Collateral design warranties became widespread due to the design of specialist installations being passed down to the specialist subcontractor. These early design costs need to be recovered as soon as possible usually long before onsite erection has commenced. When preparing a tender it is therefore essential for proper provision to be made for certification and payment for design and offsite manufacture when the costs are incurred and not many weeks of months later. The specialist subcontractor needs to stand firm when these provisions are challenged by the main contractor or the Employer’s consultants.

In contract negotiations price and performance are usually of more importance to the Employer as the money to pay for the project has usually already been allocated and it is a matter of timing as to when it is called down.

Improving On Going Contractor Payments

Most standard forms of contract provide for monthly payments which are based upon the value of work completed in the previous month. The process of valuing work on a monthly basis can be time consuming and therefore in recent years there has been a move to introduce milestone or stage payments whereby a pre-agreed sum is paid only when work has reached a certain stage or milestone. This information is usually provided at tender stage by the tenderer who needs to invest time and effort into ensuring that the stage or milestone payment plan is calculated to maximise cash flow. Employers who use the normal JCT forms of contract are rarely advised of the risk allocation which is prescribed in the contract.
No provision is usually made in Employers budgets for the possibility of cost overrun. When as a result of variations and delay and disruption claims this becomes a reality the payment shutters come down and receiving money for this type of item becomes very difficult. Contractors and subcontractors often do nothing to help themselves.

Final valuation of variations and delay and disruption claims isn’t given a priority status and can be very damaging to cash flow if left until the work on site has been completed. Time is often saved if variations are finally valued at the time the work is being carried out and delay and disruption claims at the time when these events occur. Getting the additional cost of variations and delay and disruption claims agreed and paid has created a problem for contractors and subcontractors for as long as anyone can remember.

There is no need to suffer for very long in view of the provisions of the Construction Act 1996 which came into force on 1st May 1998. Adjudication which is provided for under the Act is now available at any time to both parties to a construction contract. It takes less than a week to have an adjudicator appointed and his or her decision must be published within 28 days thereafter. With a few exceptions these decision are enforceable by the Courts. In excess of 6000 adjudications have been heard since the Act came into force, the majority of which have been commenced by specialist subcontractors who consider they have been underpaid. Often the threat of adjudication is sufficient to enable meaningful negotiations to get under way.

Remedies For Late or Non-payment

The Construction Act has been a blessing to specialist subcontractors. Not only does it provide facilities for referring disputes to adjudication but it outlaws pay when paid clauses. These clauses allow the main contractor to delay payment to the subcontractor until the money is received from the Employer and to avoid payment to the subcontractor entirely if the money isn’t received from the Employer. Since the coming into force of the Act the only pay when paid clause permitted is in respect of non-payment due to the insolvency of the Employer. A further benefit included in the Act provides that if payment is not forthcoming in accordance with the contract terms the contractor or subcontractor may subject to proper written notice suspend work until payment has been received. When money is in short supply often the companies who threaten to suspend work are the ones who receive payment first particularly if the work is on the critical path. If payment is made late interest becomes due on the outstanding money in accordance with Late Payment of Commercial Debts (Interest) Act 1998 which applies to all contracts as from 1st November 2002. The rate of interest payable is 8% above bank minimum lending rate unless the contract itself provides a substantial remedy for late payment. This contractual remedy to be regarded as substantial would have to be in the region of an 8% interest rate. If properly applied these statutory provisions can often substantially improve a specialist subcontractor’s cash position.

Benefits of Partnering

It has been argued that many of these problems are removed on Partnering Contracts. If this is the case many specialist subcontractors are still still waiting for the benefits to filter down and in the mean time may prefer to apply the “Cash is King” policy.

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