Senior Reporter
derek.achong@guardian.co.tt
Pay attention to the terms of a contract and keep accurate records.
These were the two main pieces of advice given to local contractors and employers at a conference on the management of construction contracts at KR Lalla & Company in Port-of-Spain, yesterday morning.
It was sponsored by contractor Junior Sammy following his landmark legal victory against the Estate Management and Business Development Company Limited (EMBD) for over $83 million in outstanding fees from a contract, in October.
The conference, which attracted dozens of contractors, employers, bank representatives and officials from state companies, focused on issues with FIDIC contracts which are frequently used for local and international construction projects.
British King’s Counsel David Thomas, who led Sammy’s legal team alongside Senior Counsel Ramesh Lawrence Maharaj, noted that from his experience, numerous issues arise when specific terms of a contract are not shared with staff on the site of the project.
“It is actually quite astonishing,” Thomas said.
He also suggested that keeping accurate records would assist contractors in ensuring that they are not underpaid or held liable for delays and variations, which are contemplated under a contract.
Asked about the inclusion of arbitration clauses in contracts, especially in those in which the State or state agencies are the employer, Thomas suggested that contractors could negotiate to exclude such before entering into them (the contracts).
“It is not mandatory,” Thomas said.
Dealing specifically with Sammy’s claim, which was upheld by the local courts and the United Kingdom-based Privy Council, Thomas described it as a “great win”, which set a major legal precedent in local construction litigation.
“It was a very much deserved win. You were badly treated by your employer under that contract and it was a fair and just result we managed to get for you,” he said.
Thomas also commended Sammy for being present throughout the litigation that ended in his favour and advised fellow contractors to follow his example.
“It is always a good idea to go to the hearing and not leave it up to your lawyers. If you go, you are saying to the tribunal or judge, whoever it is, this matters to me. It makes a real impact, I can tell you,” he said.
Sammy’s other lawyer Robert Strang warned contractors about ensuring engineers, who are appointed to certify work and approve interim payments, are independent and competent.
“The engineer, although selected and paid for by the employer, is expected to be non-partisan, to be independent and to make fair determinations,” he said.
He stated that he was involved in several local cases in which employers nominated their employees to fulfil the important role.
“To my mind, it raises a serious doubt whether the engineer can make an independent and fair determination,” he said.
Like Thomas, Strang advised that parties pay close attention to the terms of their contracts and meet deadlines as they may be unable to raise issues in subsequent litigation if prior notification is not given.
“Predictably and certainty are favoured over flexibility,” Strang said.
“You need to give prompt notice of a claim. If you are not careful, you can lose your entitlement to claim,” he added.
Attorney Om Lalla, whose law chambers hosted the conference, expressed hope that it would assist contractors going forward.
Stating that a lack of knowledge is a constant issue, Lalla said, “Contractors can’t afford losses in terms of time and delay; the expenses are far too great.”
“The more we are empowered in terms of having this kind of knowledge, it allows contracts to be more efficiently run,” he added.
