Sargent's solutions - pay attention to detail to avoid contractual pitfalls

A focused and thoroughly professional business approach can help to prevent potential disputes, says Alan Sargent.

One of the most disconcerting elements of working as a gardens consultant, drawing on almost 50 years of practical experience, is that of repeat problems. Since the early 1990s I have written and spoken thousands of words of encouragement and as a warning to generations of contractors who have suffered through their genuine belief in the goodwill of their customers.

I have always thought that we are the luckiest of people, working in an industry that produces plants, designs and creates beautiful gardens and open spaces for private and commercial grounds, bringing joy and pleasure to many. It really is the most interesting and rewarding of careers. How many office workers would love to change places with us, working in the sunshine and open air, surrounded by beauty?

Yet there is always a more serious side to our business and it is one that is so often neglected or ignored in our daily working lives. It is the side that involves the law, contracts, finance and responsibilities. In our pleasurable buzz, we sometimes spend too little time on the "business" of running a company, hoping everything will be alright.

Too many times though, I am commissioned to deal with legal situations, complaints and disputes that have arisen solely because of neglect of one type or another. Negligence takes many forms. It involves all exponents - garden contractors, garden designers and landscaper contractors - and it begins with inadequate or incomplete tenders. I have copies of dozens of quotations or estimates that are little more than a general chatty letter, offering to carry out nebulous works with no specification, no payment terms and conditions and no agreement on how the work will proceed.

Other issues include garden designers who start work on projects with no clear instructions or, crucially, a budget; customers who refuse to pay when design proposals are shown because they do not accord with their wishes; and customers who state that they never commissioned work but were just getting ideas in case they wanted to landscape their garden in the future.

Warning signs

Some of the warning signs include the legend often seen on architect drawings "do not scale from this drawing" at the same time as stating "all dimensions must be taken from this drawing", hence the vital importance of including dimensions and quantities in your contract quotation. Note too that a quotation is usually held to be fixed price as opposed to an estimate, which is deemed to be just that.

A planting schedule bearing the phrase "plants may be substituted for others of the same colour, growth, height and value" is a recipe for dispute and not the comfort it may appear at first glance. Sending such a schedule to a grower/supplier is offering carte blanche and renders the document irrelevant.

Somewhere in the documentation mention should be made of variations and how to cope with any alterations, additions or reductions/deletions. If a tender document states a particular type of paving slab, it should also include a full description of thickness, dimensions and colour. Include a catalogue/product reference number if at all possible to avoid any potential complaints or misunderstandings.

I recall a mentor once saying: "Never assume, always ascertain." If you bear this phrase in mind at all times, and ensure that everything is put down in writing - with a copy to all parties, numbered and dated - you will greatly reduce the chance of getting into disputes.

Another of my favoured sayings is: "If it isn't written down, it didn't happen." Even if the contract documentation is in order, it is wise to keep it up-to-date by means of a regular report. Usually this means a weekly project update, taking the form of a letter or email setting out everything that took place since the last report, including works completed, partially completed with an estimate of progress and plans for the following week - a complete storyboard of the contract to date with a diary for the next phase.

This formula may also be used when contract gardening or undertaking maintenance works. Clearly set out the programme for the season to date, together with the proposed schedule for the next week/month. This discipline shows the client that you are acting in a professional manner, with their best interests in mind. It will also highlight any maintenance issues including the need for additional works, mulching, lawn treatments etc that may not be part of the main contract and may provide you with out-of-season additional works.

Aftercare package

Finally, do not neglect the "job handover" element of a contract. On completion, ensure that you provide an aftercare package to the client, with each document named and numbered. These may include warranties, product leaflets and information provided by the supplier or manufacturer. It should also feature product descriptions, with colours, types and suppliers' names and addresses, including nurseries, builder merchants etc, to enable them to order extra materials for repairs or additions in the future.

The aftercare package should be handed over with the final invoice as part of the handover process. Depending on the nature of the contract, it may be necessary to provide practical instructions and training references - for example, pond pump cleaning and maintenance - to enable the client to take ownership of their garden. Never assume, always ascertain.

Alan Sargent is an independent gardens consultant at the School of Garden Management.



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