Sargent's solutions: Why landscapers are better off keeping overall control of a project

Dividing up contracts can make it harder for landscapers to retain control of their projects, Alan Sargent warns.

There is a worrying trend creeping into landscaping and other projects that is creating many concerns, low-level disputes and problems for gardeners and designers. It is of special concern to landscapers and it is manifesting itself in a variety of different ways.

With clients becoming ever more aware regarding costs and prices, and designers looking to increase their share of a profit on a project, contracts are being divided and shared among more than one  person when it comes to the supply of materials.

Designers have for years supplemented their income by removing the supplying and installing of plant material from a design, and provided that all parties — client, contractor and designer — agree to divide the contract into two parts, one for the "hard" construction, the other for "soft" planting, then problems of responsibility and warranty should not arise. It is only when the designer does not enter into a separate contract — including matters such as plant selection, transport, delivery costs, planting labour, removal of old plant pots, etc — that the need to provide a written warranty to the client, leaving the contractor to pick up any subsequent issues with aftercare, that problems occur.

Put simply, if the designer or client wishes to supply and plant the garden, then the landscaper must have a cut-off point written into their contract. This is called reaching a stage of "practical substantial completion". It is the trigger date for project completion and production of the final invoice. Any warranty period that the landscaper has written into their contract must start at that date, not the date on which the project is complete — i.e. fully planted.

Complete control

The landscape contractor should have complete control and therefore responsibility over the project from start to finish. This is where the current trend for others to become involved starts to cause problems  for all parties, although primarily for the contractor. As a consultant, I am called in to sort out a wide range of problems, some more complicated than others. No two cases are ever the same, but in order to illustrate the potential extent of difficulties, I will condense a couple of cases into one imaginary story.

The contractor carries out a full survey, producing an itemised schedule of works and materials, including paving, walling and plants. They provide a breakdown of the materials into the various parts of the project to enable the client to see where the money is being spent, and to allow for reductions in cost to be made if necessary without compromising the project or contractors’ profits and efficiency.

This openness is welcomed by the client, who now understands how the price has been calculated. They can see certain fees are payable for preliminaries — toilet hire, rubbish removal, etc — that are not generally recognised by a paying customer. They can also see the costs of materials, and this is where the problems start to manifest.

The customer looks at the cost of paving — £30 per square metre plus VAT. Online research shows that the same product may be obtained from a local builders’ merchants at only £25 per square metre including VAT, without appreciating that the product may be described the same as by the contractor but failing to understand that the quality and regular sizing of the material may not be the same. They are not comparing like for like, except in a superficial manner.

I am only taking one product as an example, although on some projects the customers have insisted on paying for all of the materials, which only increased problems. By removing that item from the bill of quantities, they reduced the amount included by the contractor — i.e. not the amount they paid, thereby saving themselves the difference between the two prices.

Having removed the need to supply the product from the contractor, they are not willing to take responsibility for the actual supply and delivery. The contractor is obliged to wait for delivery and still arrange to offload, stack and store the product without payment because that item has been removed from the bill. Any damaged paving or shortfall due to such defects and the attendant costs in resourcing replacement products will suddenly fall to the contractor. Natural stone products vary in shade, and colour matching may not be possible.

The client has saved money only to potentially load more costs onto the contractor, who will probably be blamed for selecting the product in the first place.

Product ownership

Another aspect to this subject relates to ownership of the product. In some cases, the contractors ask the client to pay for the chosen product to help with their cash flow. The customer duly arranges payment by credit card and the materials arrive on site. The contractor reduces the price by the amount paid for the materials so that the sum payable by the client remains the same.

If any defects show up in the product, the contractors can then unfairly claim that they were not liable because they did not supply the materials. By doing a favour to the contractor, the customer suddenly finds that they have taken on a responsibility that should never have been theirs in the first place. You can see just how messy this subject can become. Try to avoid creating problems by being firm with your customers. You are the contractor and you are in charge of the project. 

Alan Sargent’s latest book, Employing a Gardens Manager or Head Gardener, is now available (email sargent396@btinternet.com).


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