Hi Ray

In simple terms yes as the client cannot contract out of its statutory responsibilities.

Such matters are usually expressed in general 'industry' contract terms - not specifically a "CDM" matter.

Perhaps I should add that the Housing Grants, Construction and Regeneration Act 1996 also impact on the sharing of construction risk. The action may thus be illegal

Bob

Well I'll disagree with you all - the client is not failing to allow for inclement weather, he is simply requiring that the contractor prices in the risk of it. Nothing wrong with that, the contractor prices will simply be higher than if the client was willing to share the risk.

Contractors price for risk all the time. This is just affecting what's in and what's out in this particular contract - where inclement weather risk falls differs from contract to contract.

If the particular contractor did not recognise that he had to include inclement weather risks in his pricing, that's a commercial error on the part of the contractor. He might lose money. I can't see it as an illegal action on anyone's part, however - it's not a legal duty on the client to make sure the contractor has not made any errors in his pricing.

The client needs to be satisfied the contractor is competent (reg 4), but a competent contractor still makes commercial errors.

The client needs to allow sufficient resources (reg 9), but it would be very hard for a client to know that the contractor hasn't provided sufficient resources to address weather risks - there's no duty on the client to ensure the contractor priced it to make a profit, for example - it might be a loss leader, or a project done at cost to keep turnover up at the expense of profit. Especially in the case of pricing risk, the contractor might have made a more scientific (or less scientific) estimate of the risk or might have translated the risk to money in a different way. The client cannot know that the contractor has not priced it in. He is therefore not in breach of his duty to take REASONABLE steps.

That depends upon the form of contract, and it's rare (in my experience at least) for a project to be procured on a pure standard form. So as I said, where inclement weather falls differs from contract to contract.

Inclement weather is never a fixed known quantity, and certainly not as far as the client knows. The contractor does not know what working time he will lose. The client does not know what time will be lost. The client does not know what down-time costs (note - costs - not is charged at) the contractor. Standard contract forms try to regulate and distribute the risk, yes, but by its very nature it's not a fixed known quantity, and even if it were they don't enforce equality of pricing it.

What is 'fairness in pricing'? Do you maintain that a contractor shall not be allowed to make less profit than his competitors? Why should a contractor not choose how much profit (or loss) he makes on a contract? Why should he not make a commercial decision that his profit on a contract will vary in the event of varying weather?

All parties always want to remove all risk from contracts. I'm not sure what your comment that this is detrimental to safe working on site means. The extrapolation would seem to be that you're calling for all contracts to be open-book cost-plus?

Capitalism opens the playing field to all sorts of practice which could be ultimately detrimental to safe working on site, but I don't know of a social system or form of government that is both practical and less bad. (Benevolent dictatorship is less bad, but doesn't seem to actually exist in practice.)

Bob&achrn, some interesting comments, unfortunately most have passed over my head. From my limited knowledge in this area I can't see how the client imposing penalties if work was not completed on time due to inclement weather would not be detrimental to good safety practices?

It may be detrimental, but not fundamentally more detrimental than the practice of having a tender and choosing your contractor partly on the basis of price he quotes.

As I said - the same argument would hold that capitalism is detrimental to good safety practices. Should capitalism be illegal?

achrn

Some valid points but the UK is not Siberia and one cannot compare apples and lemons. Do not underestimate QSs as they are well aware how a price has been structured from the Bill of Quantities responses. Even I as a mere safety man could spot some of the obfuscations in price build ups from a contractor. Nope, I think a half decent QS will spot things if they are asked to consider something. All those I have asked in the past gave me an answer within the hour. Just consider it

50 operative site, ie 400 employee hours per day with an average of £20 per hour day rate and 8 days under the contract equals around £64k to be identified under the BoQ heads. Not that easy to hide and pretend it is done.

Bob