agent make a mess of things. He cannot step in and tell the agent how to do his job, but he may see time wasted, unsuitable methods tried and abandoned, errors having to be rectified, and lack of control and proper planning. He may get to hear, in a roundabout way, of complaints from the agent’s men about the way the job is run. He fears that all this indicates trouble in the future and does not know quite what to do about it.
It is necessary for the RE to wait until there is sufficient factual evidence to report to the engineer, such as poor progress and too much work having to be rejected; plus instances of obvious mistakes made by the agent when, for instance, some eccentric method of constructing some work has had to be aborted. But probably the most persuasive information likely to lead the contractor to withdraw an incompetent agent, is for the engineer to provide the contractor with the estimated value of the work done to date, compared with the contractor’s probable expenditure. If the comparison shows an unacceptable loss to the contractor, the RE may be gratified to see how quickly a contractor can act to remove an incompetent agent. But even if the RE’s estimate does not show a clear loss, the estimate will at least cause the contractor to examine what his agent is doing.
Adifficult problem arises for the engineer if too many disputes seem to arise between his RE and the agent. The engineer has power to require the contractor to withdraw his agent under the ICE conditions (Clause 15), but he will be reluctant to use this power unless he has incontrovertible evidence the agent is solely at fault. If he suspects there is a clash of personalities on site, this can put both the contractor and engineer in a difficulty. There is danger that they may agree the problem can be resolved only by removing the agent or the RE. But the decision to remove either is then one of expediency and not necessarily justice, and it can damage the reputation of both the RE and agent.
To avoid such a situation arising, the RE must appreciate how his own conduct can affect the agent’s reaction. One of the most certain ways of losing the agent’s co-operation is to be ‘continually reading the Specification at him’ as if strict compliance with it applies to every situation however irrelevant. The agent will think that unreasonable – which it is. He will also regard lack of appreciation of his difficulties as unreasonable. When the agent faces difficulties and is in need of help, it is up to the RE to relax conditions that are not essential and to permit other ways round to the end result desired. An agent will never resent a call from the RE for especial care with some operation, or for strict compliance with the specification in matters of importance, such as for a top-class finish for those parts of the job which will remain permanently in view; but in return he will expect there will be occasions where the strict letter of the specification is unnecessary and will not be demanded by the RE if compliance presents real difficulty.
The contractor who continuously submits claims for extra payment, and will not withdraw them despite many being obviously invalid, presents a problem.
The subject of claims themselves and how to deal with them is dealt with in detail in Chapter 17. The initial problem is how the RE is to deal with such a contractor. In the first instance, however many claims are submitted, it is essential the RE gives an immediate answer in writing to every such claim, registering any reasons for his non-acceptance of the claim. He must make his answers factual and courteous, and not let his letters show signs of irritation or complaint.
The reason is that, if the dispute should go to arbitration, all correspondence relating to the claim must be put before the arbitrator. Thus if the RE’s letters follow strict fact and are courteously worded, the more will his views impress the arbitrator.
The chief defence against a disputatious contractor who submits many claims is for the RE to maintain extensive records concerning every claim. The site diary, the weekly reports, the daily reports of the inspectors, copies of notes of instruction to the contractor and daywork sheets, and reports of tests, may all help to ensure that decisions on claims are supported by factual evidence.
All must be filed in first class order. When meetings are held with the agent or contractor to discuss claims, minutes of the meeting should be drawn up by the RE, at latest by the day after the meeting, and submitted to the contractor for agreement. Inevitably the submission by the contractor of unreasonable claims is bound to cause a degree of coolness between the RE and the agent.
But care must be taken not to let the situation decline into open hostility.
Under the ECC conditions the project manager ‘may, having stated his reasons, instruct the contractor to remove an employee’ (Clause 24.2). These reasons need to be soundly based and convincing if the project manager is not to sour his relationship with the contractor, especially if he requires removal of the contractor’s agent, because the contractor has no redress if he thinks the reasons stated are inadequate.
The ECC conditions also try to deal with the problem of excessive claims by the introduction of ‘early warning meetings’ to deal with any matter which the contractor or project manager becomes aware could increase cost, cause delay or impair the performance of the works (Clause 16.1). ‘Either the Project Manager or the Contractor may instruct the other to attend an early warning meeting.
Each may instruct other people to attend if the other agrees’ (Clause 16.2). Those who attend ‘co-operate in making and considering proposals’ to avoid or reduce the effect of matters raised, ‘seeking solutions that will bring advantage to all those who will be affected’, and deciding actions (Clause 16.3). Presumably the agreement of the third party to attend must be sought and the aim of the process is to resolve potential claim situations and disputes by agreement.