Sargent's solutions - contract variations

Contract variations can leave you open to criticism even if you have the compliance of the owner. Alan Sargent advises how to avoid the pitfalls.

Q: I have been a landscape contractor for more than ten years, yet I still seem to get into difficulties on projects. It seems very hard to protect myself.

A: The story you tell is not unusual. Having quoted to extend a low retaining wall constructed in a particular brick, your work to match the existing work as far as possible, "all new brickwork to be jointed into existing walls, carefully 'toothing' each brick to maintain the pattern" was the description in the architect's instructions.

You managed to source the correct brick, sand supplier and laying mix, but the method of stitching or toothing the new work to the old proved very difficult because the existing bricks were crumbling and did not allow a clean job. In agreement with the client, you persuaded him to change the joining method by constructing a pier, built to appear to have been integral to the original work. Photographs of the end result look clean, neat and well executed.

Having completed the job, the architect arrived and condemned the work as "jarring and not in keeping with the whole ambience of the scheme". You were therefore required to take the pier down and complete the job as specified.

Although you were aggrieved at the architect's decision, immediately you decided to move away from the contract - even with compliance with the owner - you left yourself open to criticism, fairly or unfairly.

Because each instance of this problem is different, and we try hard to please our clients and offer the best end result, we often overlook the fact that we are contractors. By the very definition of the word, we operate under contracts.

In many instances, these are little more than a few words of agreement written on a piece of paper - together with a sum of money to carry out the works. The nebulous nature of these words can lead to misunderstandings and it is always preferable, for all parties concerned, to have a fully specified, detailed written quotation and contract.

I have dealt with many such cases as a consultant and expert witness, although these rarely go to a court hearing because both parties agree a compromise, which can take a lot of time and effort to formulate.

Examples that come to mind include the contractor using a different type of screw to that specified by a designer of a timber-decked garden project. Similarly, changing the manufacturer of a particular paint - both equally expensive and the same colour - without agreement, altering the underlay protection system to a butyl-lined pond, substituting a thick layer of sand rather than a geotextile sheet - again, equally expensive, with no thought of cheapening the job but altering the specification without written agreement.

It is often completely impractical to expect to make such alterations to contract documents on a day-to-day basis and these may be dealt with in a simple fashion.

First of all, in your contract documentation, only one person should be able to agree anything to do with the contract. That person may be the architect, designer or one of the owners. The sole nominated person (only for the sake of ease, your clients may wish to allow any number of people to be authorised to act of their behalf - it matters little provided their names are on your list) is the only person permitted to instruct you in any matters of contract variation.

Variation orders

Secondly, you need to operate a type of variation order. This may take the form of a number of printed sheets or a book, with each page numbered in sequence. Each must be given a date of issue, together with any other relevant information tying that variation order with that project.

The variation to the contract may take several forms. Perhaps the area of turf agreed in the contract may be increased or decreased. Plant sizes may be altered - notes regarding plants and possible substitutes are normally dealt with under the standard terms and conditions of the main contract and may be excluded from variation orders.

Hard-landscaping materials may be changed for a variety of reasons, including non-availability or even a change of name in the case of some of the sandstones on the current market. Excavations for water features may prove the need for greater protection from sharp objects in the pool floor. A whole range of different matters that only come to light during operations that must be dealt with formally yet in a timely manner - without disrupting site progress.

Failure to handle these alterations in a professional contractual manner can lead to a great deal of financial difficulty. Once completed, it may be hugely expensive to have to revert to the original specification on the insistence of an architect - or person responsible for the original words for which you supplied a quotation when tendering.

Finally, ensure that the variation order forms are signed by an authorised person, noting any variations or possible variations in prices and costs. The cost of reducing a lawn area may not simply be that of the original price because other allied works such as clearance and preparation may have been carried out. Similarly, the area will require some treatment - grass changed to shingle, gravel to ground-cover planting, etc.

Protect yourself. Remember that you are a contractor. Remain friendly and helpful but professional in your contracting business.

Alan Sargent is an independent gardens consultant. His latest book, The Landscaper's Survival Manual, is now available from www.alansargent.co.uk.

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


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