Civil Engineering Reference
In-Depth Information
right to certify under JCT 2011 contracts?
In JCT contracts prior to 2011, the key factor in determining the final date for payment was
the date of issue of the architect's interim certificate. The date was specified in the contract
particulars. The only sanction if the architect was late in issuing the certificate was the con-
tractor'srighttointerestfromthedayafterthefinaldateforpaymenthadthecertificatebeen
issued at the right date. However, when the amendment to the Housing Grants, Construc-
tion and Regeneration Act 1996 came into force in October 2011, the contracts had to be
amended to reflect the changes. The key date now is not the issue of the interim certificate,
butratherthe'duedate'.ThefinaldateforpaymentinSBC,ICandMWis14daysafterthe
due date. The due date is specified in the contract particulars and is to be monthly thereafter
or on the nearest business day. MW specifies the due date in a slightly different way, but the
principle of payment is the same.
Each contract states that the architect must issue the interim certificate not later than five
days after the due date. Each contract goes on to state that if the architect fails to issue a
certificate withinthatperiod,thecontractormayissueapaymentnoticeatanytimeafterthe
five-day period. The payment notice must state the sum the contractor considers to be due.
Thenthatisthesumpayablebytheemployerunlesstheemployergivesthecontractorapay
less notice no later than five days before the final date for payment. In the case of SBC and
IC,thecontractorisentitledtosubmitaninterimapplicationforpaymentnolaterthanseven
days before the due date. If the architect fails to issue the interim certificate within the five
days,theapplicationbecomesthepaymentnotice.Thefinaldateforpaymentismovedonto
allow extra time equivalent to the number of days from the end of the five-day period to the
date the notice is issued. Therefore, the architect has a period to issue the interim certificate
of only five days, after which the interim certificate cannot be issued. If issued late, it is not
a valid certificate.
A similar, but potentially worse, situation arises if the architect does not issue the final
certificate within the period specified in the contracts. The final payment due is the sum in
thecontractor'sfinalpaymentnoticeunlessapaylessnoticeisissued.Moreover,inthecase
of SBC and IC, there would be no conclusivity in respect of the final sum, extensions of
time, loss and/or expense and the architect's satisfaction. The absence of a conclusive effect
of the architect's satisfaction would not be of concern to the employer, but the other matters
would be of great concern. However, the final certificate under MW is not conclusive about
anything, and some other contracts do not have conclusive final certificates. Therefore, the
absence of a final certificate may be less of a problem under those contracts.
