Sargent's Solutions: Alan Sargent on speeding up payments and contractor troubles with weather-related delays

Alan Sargent - image: HW
Alan Sargent - image: HW

Q: How can I ensure faster payment of the last instalment on a contract? Even when the job is complete, I still have to wait long after we have finished.

A: Terms of payment should be clearly laid out in your terms and conditions. I know that most firms have proper documentation, but there remain many that do not undertake fully comprehensive wording in their quotations. I am not referring to the small print, which some companies include, usually on the reverse of the quote, but easy-to-understand, clearly set out terms, including payment.

All works should be properly specified, with dimensions and a full description, and quantified with working drawings, even on the simplest of jobs, to avoid any misunderstandings. Equally important are the payment terms, which are as follows:

Mobilisation payment - This should take the form of a pro forma invoice sent with the quotation. This is usually 25 per cent of the project total, including VAT at the current rate. No work or orders should be placed until that money has been cleared and in your bank. At that point - not before - a VAT invoice can be raised and sent to the client.

Interim payments - These will vary in number and are assessed and agreed against a clear framework of works completed and/or materials on site.

These should be raised in the normal manner, for example, not pro forma but at regular preordained times, usually fortnightly. These must be paid within a certain time scale and provision made in your contract to leave the site if payments are not made in a timely manner. Any costs incurred in leaving the site and returning to continue work must be paid by the client - this should be clearly stated.

Final payment - This is the usual time when problems occur. If the client is not completely satisfied, the only hold they may have over you is to withhold final payment until they can find no defect. They may not be able to identify the reason for their wariness yet remain reluctant to settle your account.

If all your documentation has been properly presented and explained, and you have carried out your work diligently and all other payments and obligations have been met by both sides, there is a phrase on which you can rely that should be included in all contracts: Final payment must be paid in full within x days of practical substantial completion.

The words "practical substantial completion" are used to recognise that few if any landscape projects are ever "finished". There are always items that are included in and shown on the specification and working drawings that may not appear at the time of completion. For instance, bulbs may have been planted but are yet to show; fish ponds need time for the water quality to be suitable for the introduction of fish; and final adjustments made to pumping systems.

These and many other items should be treated as additional works that may be carried out by the client or their agent/gardener, or subject to an additional paid visit by yourself. These matters should not be permitted to hold up your payments.

Q: I am being held liable for delays in carrying out landscaping works on a commercial project due to extreme weather conditions. Can I be ordered to carry out works under the wrong conditions?

A: This may be summarised in the following true case. A landscape contractor was tasked with seeding and turfing a school complex under a subcontract in which the builder was the main contractor - receiving 2.5 per cent main contractors discount (MCD).

The builder had experienced difficulties in completing the main works because of the amount of heavy rain over several months and naturally wanted to finish the job as soon as possible.

The landscape contractor's start date had been delayed several times by the main contractor. Several false start dates had been given and postponed over two or three months, until mid December.

The main contractor instructed the landscaper to attend site and complete his works before Christmas, even though the ground was literally under water.

The landscaper refused because he could not move around the site, no turf was being cut by his suppliers and grass seed should not be sown on top of liquid mud - certainly not in the winter months.

The main contractor issued a notice of determination, effectively cancelling the contract, and tried to sue the landscaper for breach of contract, with a huge claim for damages. The landscaper counter sued in the small claims court for a lesser sum for some preparation works carried out in the early stages of the project.

Because this was a small claim, it took precedence in the court system - to mitigate time and costs - and was heard fairly quickly.

The court not only ordered the main contractor to settle the landscaper's account but made some strong remarks against the builder, basically to the effect that the reason for employing specialist subcontractors on projects was to take advantage of their expertise and skills. If you employ an expert contractor, you listen to their advice and do not ride roughshod over that advice.

Bear that in mind when dealing with such situations.

I have not heard of any case at variance with that ruling, which is just common sense.

Email your questions to: alan.sargent@haymarket.com

Alan Sargent is an independent gardens consultant with 40 years' experience as a designer, contractor and head gardener. His book The Landscaper's Survival Manual will be published in spring and can be ordered via www.alansargent.co.uk.


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