Jbcc Contract Download

[Eloisa Stawasz]

LinkedInand 3rd parties use essential and non-essential cookies to provide, secure, analyze and improve our Services, and to show you relevant ads (including professional and job ads) on and off LinkedIn. Learn more in our Cookie Policy.

The obligation for a Contractor to proceed with due diligence, regularity, and expedition is one of the material terms of the JBCC contract. Can the Employer terminate the JBCC agreement if a contractor fails to proceed with due diligence, and if so, what are some of the practical considerations that contractors and principal agents must take into account?

In the 6.1 and 6.2 versions of JBCC, the following is said under clause 12.2.7: The contractor shall, on being given possession of the site commence the works and proceed with due diligence, regularity, expedition, skill and appropriate resources to bring the works to practical completion and to final completion. (Own emphasis added).

The word "shall" denotes a contractual obligation based on the wording of these clauses. As a result, we can accept that the agreement's intention is to impose an explicit obligation on the contractor. When a party fails to fulfill an obligation, we refer to that party as being in breach of the contract. For the sake of clarity, I have divided the obligation found in 12.2.7 into four parts as follows:

There is an obligation on the contractor to commence with the works; there is an obligation on the contractor to proceed with due diligence, regularity and expedition; there is an obligation on the contractor to use due skill and appropriate resources; there is an obligation on the contractor to bring the works to practical and final completion stages

Parties can mutually choose to end a contractual relationship just as they enter into agreements by mutual consent. No party, however, is permitted to simply avoid liability by terminating a contract unilaterally. Our legal system allows for contract cancellation when there is a serious enough breach of contract to warrant such cancellation. The term "default that goes to the heart of the contract" is used by the courts (see Swartz and Son) (Pty Ltd v Wolmaransstad Town Council 1960).

The JBCC agreement includes a termination clause. Accordingly the courts have agreed that it is not necessary for a party to prove that slow progress is a material term of the contract in order to establish breach. This lex commisoria is contained in clause 29.0, and under this clause, the Employer may terminate the agreement if the Contractor fails, for any reason, to proceed with the works in accordance with clause 12.2.7, which is the diligence, regularity, and expedition clause we discussed earlier.

Such an observation or conclusion could be considered subjective. Consider the contractor who, after being given access to a specific site, has begun mobilizing its resources and acquiring materials. In the background, it's frantically running around and diligently carrying out the work, despite the fact that it's not physically on site yet. Within the first month, a person walking by the site may casually remark that nothing is happening, and a Principal Agent may judge the entire spectacle as a blatant failure by the Contractor to proceed diligently with the work.

Nevertheless, one of the ways in which slow progress can be demonstrated is through a dynamic CPM programme. Although there is no obligation on the Contractor to strictly adhere to a programme, it does not change the fact that non-adherence to the programme can become valid proof that the Contractor is not proceeding with due diligence.

The purpose of the programme, according to Finsen, is to demonstrate how the Contractor intends to comply with his obligation to proceed with due diligence and complete the work by the completion date. This is echoed by the JBCC in clauses 12.2.6 and 12.2.10, which require the contractor to prepare and submit a programme to the Principal Agent... in sufficient detail to allow the Principal Agent to monitor the progress of the works, as well as to update the programme on a regular basis to illustrate progress.

A programme therefore becomes a crucial component of this argument, as it becomes a statement by the Contractor not only how it plans to execute the work to reach completion, but also the tempo it intends to execute at, to reach completion and fulfil its obligation. Because the programme must adhere to 12.2.6 and 12.2.10 it becomes a critical tool to monitor progress, or the lack thereof.

However, there is one important caveat to be aware of. As demonstrated by the principles on display in the case of MSC Depots (Pty) Ltd v WK Construction (Pty) Ltd, the mere existence of a delay by the contractor on his programme may not be enough to secure a breach that warrants termination.

In this case, the principal agent and employer claimed that the contractor violated clause 15.3 (the equivalent of clause 12.2.7 in an earlier JBCC version) due to numerous defects in workmanship that manifested themselves during the project. The contractor was accused of failing to proceed with due skill because the defects were so numerous.

The same principle can apply to working with due diligence. The mere fact that there are delays on a project, or that work is progressing slower than planned is not sufficient reason to warrant termination. Especially in light thereof that the Contractor has a right to claim extensions of time and also that the Contractor may have the ability to remedy such slow work effectively and promptly.

First, ensure that the Contractor's program can track progress and that the information in updates and forecasts is reliable and accurate. If necessary, seek professional assistance with this function. Ask probing questions when work is not being done diligently, such as: is this due to the Contractor's own fault, are there outstanding EOT claims, if not and the delays are solely due to the Contractor, are there clear plans and strategies in place from the Contractor to recoup the time, is the Contractor working diligently to make up lost time? Formally record these discussions between the parties. Where there is a clear lack of planning and diligence on the Contractor's part to recoup lost time, ensure that formal notifications about the breach are communicated and that the expectations and requirements to remedy the breach are clearly stipulated. Seek expert advice on the current status of any recoupment plans to determine their viability and timeliness.

Thanks for reading. I'm Kobus and I'm a PMI-accredited Scheduling Professional, claims consultant and expert witness in Arbitration and Adjudication proceedings where I've acted as both a Forensic Delay Analysis Expert and a JBCC Contract Expert. To schedule an appointment on any of our services, you can reach out to us here.

Philip Haylett introduced a formula to help parties calculate cost escalation on projects in the mid-1970s. His formula was based on cost indices published by the former CBS (Central Bureau of Statistics), which has since been absorbed by StatsSA.

This provision stipulated that the contract value be adjusted in accordance with the CPAP procedure, using an appropriate base month. The value was then calculated on a monthly basis, and the interim certificate was adjusted to reflect the CPAP calculated.

Then we come to clause 25.3.4, which states that each payment certificate must include, among other things, cost fluctuations if applicable. This is also found in clause 26.9.5, where the principal agent is required to adjust the contract value in the final account to account for cost fluctuations, where applicable in terms of the contract data option selected.

If the price of materials increases during this period, even if the increase is significant or exorbitant, the Contractor has no recourse or clear mechanism under the JBCC to claim for such an increase. It is still a risk that the Contractor agreed to accept by opting out of the cost fluctuation option.

The situation changes when the date for practical completion is revised due to valid extension of time claims or when the date is somehow extended beyond the Contractor's control or due to an action or inaction by the Employer or its agents.

Depending on the facts of the case, this situation may warrant a claim under clause 26.5 of the JBCC. Under this provision the Contractor is entitled to claim for expense and loss for which provision was not required in the contract sum.

It is important to note that this must be a proven cost and there is no provision that dictates that the parties use the CPAP or Haylett formula to calculate such increases. The Contractor would have to submit all relevant documents to prove the increase and the actual loss it suffered as a result.

Joint Base Cape Cod (JBCC) is located in Massachusetts and is a full-scale, joint-use base that is home to five military commands training for missions both at home and overseas. In 2023, Bay State Utility Services, Inc., a wholly owned subsidiary of ASUS, was awarded a 15-year contract to provide water and wastewater utility services at JBCC. The contract is the culmination of a collaborative, first-of-its-kind solution to utility divestment under the Exchange Authority for the Federal Government. We look forward to supporting the tenants of JBCC and consider it a privilege to leverage our broad utility expertise to make significant contributions to the Installation and Upper Cape Cod Region in support of the System Owner, Converge.

3a8082e126