Council tree felling...

[Cyclone]

The contract between Scc and amey won’t have penalty clauses in it.

 

It certainly should, if it doesn't then that's another demonstration of incompetence.

[Guest makapaka]

That's a massive over simplification

 

http://www.fieldfisher.com/publications/2016/02/important-changes-to-the-english-law-rule-on-penalty-clauses-what-does-it-mean-for-franchising

 

 

---------- Post added 19-12-2017 at 17:00 ----------

 

 

Are you trying to argue that the failure to negotiate a reasonable contract, leaving the council with it's pants down and the commercial sub contractor running the show was actually a cost saving measure?

Why include the engineering solutions at all if it was clear that for cost reasons they would never be used?

Or were the council perhaps hoping that Amey would use them out of the goodness of it's heart?

 

The contract isn't fit for purpose, whoever wrote and agreed it is negligent, lacking due diligence and incompetent and whoever signed it off as well.

 

No I’m not saying that.

 

I’m saying that when people talk about the contract that they would like to see in place, it usually includes all the risk sitting with the contractor. The cost of which would likely be prohibitive.

 

I’ve not seen the contract and neither have you - we also don’t know the procurement strategy or budget that sat behind it.

 

Im just highlighting this fact.

 

---------- Post added 19-12-2017 at 17:07 ----------

 

It certainly should, if it doesn't then that's another demonstration of incompetence.

 

Why?

 

A redress for loss via cost or liquidated damages would the most appropriate for the parties wouldn’t it?

[Cyclone]

The risk sitting with the contractor is entirely commensurate with all the profit sitting with the contractor.

They also have the option to not bid for the contract in the first place, but once they've signed it, pulling out should never leave the taxpayer out of pocket.

 

And a clause in the contract that details the consequences of missing targets is of course preferable to having to go to court, for both parties as there is no uncertainty and no additional cost of taking legal action.

 

We have seen part of the contract, it's not my fault if you've failed to look. It's been partly redacted, not entirely. The council have also made numerous statements about it, including the fact that they have entirely no control over the use of the engineering solutions regarding trees and that they cannot stop Amey cutting down any tree it wishes, no matter what the arborists say.

They have also stated that the council will suffer financial penalties if Amey misses a target, they've said it, you can't pretend it didn't happen.

 

We do know the budget, we know the duration of the contract, we actually know quite a lot of details. Although the 'we' appears to be lots of people, with the exception of yourself.

[Guest makapaka]

The risk sitting with the contractor is entirely commensurate with all the profit sitting with the contractor.

They also have the option to not bid for the contract in the first place, but once they've signed it, pulling out should never leave the taxpayer out of pocket.

 

And a clause in the contract that details the consequences of missing targets is of course preferable to having to go to court, for both parties as there is no uncertainty and no additional cost of taking legal action.

 

We have seen part of the contract, it's not my fault if you've failed to look. It's been partly redacted, not entirely. The council have also made numerous statements about it, including the fact that they have entirely no control over the use of the engineering solutions regarding trees and that they cannot stop Amey cutting down any tree it wishes, no matter what the arborists say.

They have also stated that the council will suffer financial penalties if Amey misses a target, they've said it, you can't pretend it didn't happen.

 

We do know the budget, we know the duration of the contract, we actually know quite a lot of details. Although the 'we' appears to be lots of people, with the exception of yourself.

 

Your post shows a lack of understanding. The fact that the contractor makes a profit does not mean they have to assume all risk. The amount of cost they may incur as a consquence of holding the risk is the important thing.

 

The "quite a lot of details" you claim to know does not extend to the clauses for late delivery, the original procurement strategy and the original budget, which is what I made reference to.

 

As for the statement made by the councillor, I would hazard a guess that he was talking about the Contractor's ability to recover costs/damages for delays outside of their control, not penalties.

 

This discussion actually started as a poster stated that they believed Amey were purposefully seeking to delay works to claim penalties from the council.

i.e. benefit from their own breach via a penalty clause in the contract. I find this highly unlikely.

[onewheeldave]

Your post shows a lack of understanding. The fact that the contractor makes a profit does not mean they have to assume all risk. The amount of cost they may incur as a consquence of holding the risk is the important thing.

 

The "quite a lot of details" you claim to know does not extend to the clauses for late delivery, the original procurement strategy and the original budget, which is what I made reference to.

 

As for the statement made by the councillor, I would hazard a guess that he was talking about the Contractor's ability to recover costs/damages for delays outside of their control, not penalties.

 

This discussion actually started as a poster stated that they believed Amey were purposefully seeking to delay works to claim penalties from the council.

i.e. benefit from their own breach via a penalty clause in the contract. I find this highly unlikely.

I don't think his post shows any lack of understanding- it's very focused and concise, especially this part-

We have seen part of the contract, it's not my fault if you've failed to look. It's been partly redacted, not entirely. The council have also made numerous statements about it, including the fact that they have entirely no control over the use of the engineering solutions regarding trees and that they cannot stop Amey cutting down any tree it wishes, no matter what the arborists say.

They have also stated that the council will suffer financial penalties if Amey misses a target, they've said it, you can't pretend it didn't happen.

 

Why don't you address those points Makapaka? They clearly indicate that there are serious issues with this contract.

[Guest makapaka]

I don't think his post shows any lack of understanding- it's very focused and concise, especially this part-

 

 

Why don't you address those points Makapaka? They clearly indicate that there are serious issues with this contract.

 

I already have in the main if you read my previous posts.

 

The poster also raised issues which I’ve not called into question - presumably because there is an assumption that I am seeking to defend a particularly party which I’m not.

 

I’ve just pointed out what I think are inaccuracies in some posters comments / arguments.

 

The comments regarding risk / profit do seem to indicate a lack of understanding of how risk is managed / costed into building projects but maybe that’s just how it came across.

[Cyclone]

Well, one of us shows a lack of understanding, but then again one of us thought that we hadn't seen any details of the contract...

Your guesses about the councillors comments don't explain them in the slightest.

Why would Amey be able to reclaim damages for IT NOT COMPLETING work it's contractually obliged to do? You appear to be thinking about this backwards. Should Amey be delayed by (for example, the weather), then Amey is in breach of the agreed contract. Yet the councillor says that the council will have to pay Amey... For it's failure to complete.

Does that sound even remotely equitable?

 

Perhaps in the next contract I form, I'll suggest a clause that has a company pay me extra if I fail to deliver the work I'm agreeing to, by the agreed date. I can imagine that they'll jump at the chance.

Edited December 29, 2017 by Cyclone
Removed apostrophe

[Guest makapaka]

Well, one of us shows a lack of understanding, but then again one of us thought that we hadn't seen any details of the contract...

You're guesses about the councillors comments don't explain them in the slightest.

Why would Amey be able to reclaim damages for IT NOT COMPLETING work it's contractually obliged to do? You appear to be thinking about this backwards. Should Amey be delayed by (for example, the weather), then Amey is in breach of the agreed contract. Yet the councillor says that the council will have to pay Amey... For it's failure to complete.

Does that sound even remotely equitable?

 

Perhaps in the next contract I form, I'll suggest a clause that has a company pay me extra if I fail to deliver the work I'm agreeing to, by the agreed date. I can imagine that they'll jump at the chance.

 

You're just demonstrating a further lack of understanding.

 

It's perfectly normal for a contractor to have the ability to recover costs arising from delays outside of it's control, not generally for weather, but for a number of of other heads.

 

Using your own example - what if you rented specific equipment to deliver the work you have agreed to do, for a fixed price, and that work is reliant on you receiving a document from your client in January.

 

The client sends it you in December, despite telling you throughout the year to not return the hired equipment because the arrival of the document is imminent.

 

You have had the equipment on hire for 12 months whilst being unable to complete the works. Would you expect that additional hire cost to form part of your original price?

Edited December 20, 2017 by makapaka

[Jeffrey Shaw]

None of us knows what the Contract says nor whether it does or doesn't contain a penalty clause.

So, er, what's the discussion going to achieve?

[lottiecass]

Is SCC responsible for the delays in tree felling? or is it down to amey?