Contractual Aspects
Introduction
If you plan to build a house and
prefer to appoint an architect, it is the easy
route. Your house will be custom designed, the
building plans will be drawn accordingly and approved
with the local authority. Your architect will
advise you on finishes and related detail, compile
a tender document, appoint a contractor and manage
the total building process on your behalf, until
completion. Hassle free! But it will add 8,5-15%
to your building cost. If this is the preferred
route for you, consult your local telephone directory
or the Institute of SA Architects for the names
of reputable architects in your area.
It is also advisable to appoint a quantity surveyor,
especially on projects exceeding R1,000,000 in
value. Refer to our Business Directory for a list
of consultants
If you have chosen one of the inhouseplans.com architect designed houses, you will receive a
full set of building plans within 5 working days.
You can also order a List of Materials and Quantities
of any plan that you order on the inhouseplans.com website. Then you are on your own! This website
is designed to assist you to manage the building
process by yourself with advice, hints and tips
every step of the way
If you have decided to do it yourself, there
are two options
| 1. |
Owner Builder.
- You act
as the main contractor and appoint sub contractors
for every trade and installation.
- Although you will be saving anything from
5-30% on building cost, it is important to
realise that you will spend a considerable
amount of time everyday on the building works,
managing sub contractors, ordering materials
etc. This must be weighed against possible
losses due to neglecting your business, or
damage to your career if you are an employee.
Further downsides:
- Even though inhouseplans.com will assist
you along the way, nothing beats the experience,
knowledge, organizational skills and infrastructure
of a reputable building contractor.
- A reputable building contractor is already
registered at the NHBRC, a requirement of
all banks when building with a home loan.
An amount is to be paid to the NHBRC when
registering. (Refer to section on the NHBRC)
- You will most probably not be able to negotiate
the same discount from suppliers as a builder
with a large turnover.
- A reputable builder normally has a long relationship
with efficient, loyal and dependable sub-contractors
which will result in good quality work, completed
on time. Being a once off owner builder, it
might be difficult to find the same level
of service.
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| 2. |
Appointing a Building Contractor
- Provided that you appoint a reputable
contractor and enter into a proper written
agreement, this is the easier of the two options.
- However, you will still need to spend some
time on site, making decisions, holding regular
site meetings, assessing progress payments
etc.
- Even though this option will initially cost
you more, the experience, knowledge, organisational
skills and infrastructure of a reputable building
contractor will most probably result in your
house being of a good quality workmanship
and completed in a shorter period of time
than in the owner builder option.
- It is important to do some homework and check
the references of the contractors before making
a decision. Ask people directly what their
experience was of a particular contractor.
(See section on Tender Document.)
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Once you have made your decision, you will need
a tender document, a contract document and related
documentation to protect you and minimize your
risks during the contract period.
Contract Management
There are a number of different
types of contract documents available. (Refer
to the section on Contract Documents)
One of the most important fundamentals of a building
contract, is the basis on which the contractor
tenders for the building work. It is important
for the different tenderers to have sufficient
information when tendering. Whenever there is
uncertainty in the documentation, the contractor
add to the cost in order to cover himself - who
can blame him? It is also important to ensure
that the tenderers have a uniform basis for competitive
tendering, in other words to compare apples with
apples when judging the tenders.
Contract without quantities with schedule of
rates: The contractor tenders for the work on
a lump sum basis using only the building plans
to determine the tender amount. It comprises of
the building work which includes the setting out,
the foundations, the brickwork, plasterwork etc.
as well as the various sub-contractors which goes
out on separate tenders as the work progresses
like for instance the roof structure, aluminium
windows, kitchen fittings, carpets etc. It is
advisable that the contractor provides a schedule
of rates for the building items. It makes it easier
and forms the basis to calculate the cost of any
changes to the building work (which there always
are!). As part of the tender document, there is
a list of so-called "provisional amounts"
for the various sub-contracts included. For instance
a calculated provisional amount for carpeting
is included in the tender amount, which will be
finalized when quotes have been received for the
carpeting. This is to ensure that the most competitive
prices are paid for as many items in your house
as possible.
When making changes on site during the construction
period, insist on a quote for the additional work
from the contractor before instructing him to
go ahead. No matter how good your relationship
with the builder is, this always leads to arguments
at the end. It also avoids overspending on the
budget. It is easier to control the costs when
a schedule of rates is available.
An example of a standard Tender Document which
includes a list of possible provisional amount
items, is included in the documentation you receive
when buying a house plan from inhouseplans.com.
Contract with quantities: A contract with quantities
means that a quantity surveyor or one of various
companies specializing in providing this service,
is appointed to calculate and prepare the bills
of quantities, listing all the work, trade by trade
and in accordance with a nationally recognized system
of measurement. This is a very accurate way of determining
the building cost and a sound basis for the calculation
of monthly payment certificates, as well as for
cost analysis and cost control. There are various
companies specializing in providing this service
at a very competitive price. (Refer to the section
- Business Directory, Bills of Quantities). Chances
are good that the additional cost of this documentation
will be off-set by good cost control.
Cost-Plus contract: This contract consists of
an agreement between yourself and the contractor
whereby the final building cost is determined
by the proven costs for material and labour with
a fixed amount or a percentage (normally between
8%-15%) paid to the contractor for overheads and
profit. It is important to determine a ceiling
amount on this type of contract. Due to the fact
that amongst others, cost control on this method
is very difficult and material wastage is for
your account, this type of contract is not recommended.
General: It is important to communicate regularly
with your building contractor and build a good
relationship of trust. It is important to hold
formal site meetings and record items discussed,
instructions to the contractor and decisions made
in a set of minutes. For this a pro forma agenda
for site meetings is available when buying an
architect designed house plan from inhouseplans.com.
Do not hesitate to put pressure on the contractor
if he falls behind on his program, or if the quality
of work is not acceptable.
It is important to hold some sort of guarantee
from the contractor to ensure that the contractor
will complete the work, either in the form of
a so-called construction guarantee, or a retention
amount which is held back on the progress payments.
This normally amounts to a total of 5% of the
tender amount. One word of advice - do not spend
this money on the final finishes, and go looking
for all sorts of excuses not to pay the contractor
even if he has performed reasonably well. The
purpose of the guarantee or retention is to cover
the owner in case the contractor fails to complete
the work satisfactorily and another contractor
needs to be appointed to complete the work. Remember
the contractor needs to be given reasonable time
to perform and the contract makes provision for
the process to manage matters in this event
Tender Document
If your tender process is handled
properly and correctly, it will be a good start
for a successful building project. With your sets
of building plans when buying an architect designed
house plan from inhouseplans.com, you will
receive a pro forma tender document with a list
of possible provisional amounts as well as a tender
form. The contractor must complete the tender
form and submit it to you on the stipulated time.
Where do I find a good building contractor to
tender? Ask around. Word of mouth is always the
best reference. Drive around in your area of town,
check out the building work and find out the details
of the contractors. Lastly refer to the section
on Building Contractors (Regional) in the inhouseplans.com'
Business Directory section. We cannot guarantee
the quality of the contractors in our directory,
but we have a system in place whereby we omit
the name of a contractor from the list when we
receive a legitimate complaint from our inhouseplans.com clients. Please assist us, by letting us know
of a bad experience with a contractor.
Useful hints on the tender process
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Tenders should be submitted
in a sealed envelope and opened on a pre-determined
date, time and location. The tenderers can
be present at the opening of tenders. Late
tenders can only be accepted if other tenderers
agree to it. Tenders received by fax or e-mail
can be accepted with prior arrangement, although
this could lead to complications. |
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Ensure that the tenderers have
completed the tender form correctly and provided
all the information requested. |
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It is common law, unless otherwise
agreed, that the lowest or any tender need
not be accepted. |
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Check all the references of
previous projects of the lowest tenderer by
phoning the architect and/or the owners. Enquire
about the contractor's level of service, quality
of work etc. and whether the contractor could
be recommended. Remember, all the good references
is still no guarantee that your building process
will run smoothly, but at least it minimizes
the risk. |
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Contact the references provided
for the bank, suppliers and sub-contractors.
This should indicate whether the contractor
is financially sound and will not go bankrupt
whilst building your house. The suppliers
and sub-contractors will indicate the contractor's
ability for financial and contract management.
If he has worked with his suppliers and sub-contractors
over a period of time and have built a good
relationship, paying them promptly etc. chances
are good that he is a reliable contractor. |
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If you want to negotiate with
a tenderer for any reason, it is good ethics
to choose a contractor and start negotiations.
Do not negotiate with two or more at a time.
Rather go on to the next one when negotiations
fail with the first. |
Contract Document
There are a number of different
types of contract documents available. The document
recommended by inhouseplans.com, is the
Joint Building Contracts Committee (JBCC) 2000
Minor Works form of contract. This contract document
can be ordered with the set of building plans
on inhouseplans.com.
This document is supported, amongst others by
the following constituent bodies:
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South African Institute of Architects |
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Building Industries Federation
of South Africa |
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Association of South African
Quantity Surveyors |
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South African Property Owners
Association |
Also published by the Association of South African
Quantity Surveyors is the Housing and Minor Works
Contract intended for small building work.
Progress Payments
Progress payments are a very important
part of managing the building process. Although
it is advisable to appoint a quantity surveyor
to assist you especially on contract values exceeding
R1,000,000, it is possible to do this yourself
with the help of inhouseplans. If you finance
your building work with a home loan, the bank
will send their valuator to the site and determine
the amount of progress payments to the contractor.
That is a great help, as the banks tend to be
very conservative. However, they expect you to
spend your own contribution to the total building
cost first. The golden rule here is to never overpay
your contractor, as that puts you at risk. The
other side of the coin is that it is important
not to underpay your contractor either. Contractors
specializing in house building projects are very
often small companies. They do not have a big
capital base and rely on the cash flow provided
by the progress payments to keep going. By underpaying
him could slow down progress on site and start
a chain reaction which causes all sorts of other
delays and potential problems. On the other hand,
you don't pay for work that is not done to specification.
To assist you in this crucial part of the building
process, a pro forma schedule is included in the
documentation you receive when buying a set of
building plans of one of our architect designed
houses from inhouseplans.com. This schedule
provides a list of all the building trades and
an easy- to-use formula to calculate the value
of work done on site. If you order the List of
Materials and Quantities, with any set of building
plans, you will have a schedule of building items
with unit prices to further assist you in the
calculation of progress payments, as well as the
cost of any revisions.
Dispute Resolution
What is building a house without
a little dispute with the builder? The secret
is to accept that there will be differences and
to resolve it as soon as possible. It is also
here that building a good relationship with your
contractor will be to your advantage. Remember,
in settling a dispute it is almost inevitable
that both parties need to make concessions. If
you cannot reach an agreement on the dispute,
most contracts make provision for either mediation
or arbitration or both. In both instances, a third
and independent person is involved to act as a
broker to assist in settling the dispute. Mediation
is quicker and an informal process while the ruling
of the mediator is not binding on the parties.
Arbitration is governed by the Arbitration Act,
with the arbitrator, a qualified person, recommended
by the Association of Arbitrators. Due to the
fact that attorneys and advocates are normally
not involved, the process is significantly less
expensive than going to the Court, but equally
binding
The best advice is to settle your disputes before
it becomes major issues and thereby jeopardize
achieving your goal to build your dream house
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