1. CLAUSE 33 - RIAI CONTRACT AUGUST 2017 EDITION DETERMINATION BY EMPLOYER
EMPLOYER’S RIGHTS – COMMON LAW AND CONTRACTUAL
DETERMINATION
PROCEDURE
POST DETERMINATION
FINAL ACCOUNT
Dispute resolution

2. EMPLOYER’S COMMON LAW RIGHTS
FUNDAMENTAL BREACH ALLOWS REPUDIATION OF THE CONTRACT (Dundalk S C v Roof Spray 1979) – Contract Law in Ireland, Robert Clark
REPUDIATION CANCELS THE NEED FOR PERFORMANCE OF CONTRACT
MUST BE A FUNDAMENTAL BREACH
INJURED PARTY ENTITLED TO DAMAGES
REPUDIATION IS NOT MANDATORY
CONTRACT PROCEDURE EASIER TO FOLLOW
ESSENTIAL TO CONSULT EMPLOYER
Dispute resolution

3. DETERMINATION IN CLAUSE 33 – REASON 1
33 (a) (i) – (iv) DEFAULT BY CONTRACTOR
wholly suspends work without reasonable cause
fails to proceed with reasonable diligence
ignores notice to remove defective work or improper materials
doesn’t work per contract
is in serious breach of obligations in Architect’s opinion
Dispute resolution

4. 33 (a) (i) – (iv) SOME DEFAULT IN DETAIL
wholly suspends work without reasonable cause
“suspends” means “stops temporarily”
“wholly” means “completely” or “totally”
“reasonable” means “sensible”, “fair”, “logical”, “moderate”
fails to proceed with reasonable diligence
“diligence” means having “care and perseverance”
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5. DEFECTIVE WORK OR IMPROPER MATERIALS
MIGHT INCLUDE
strip foundations instead of piles
change to unsuitable roofing materials
MIGHT NOT INCLUDE
change in skirting material
wrong colour paint
CONSIDER ALTERNATIVES IN THE CONTRACT
defects – clause 31 or other contractor per clause 2
Dispute resolution

6. DETERMINATION IN CLAUSE 33 – REASON - 2
CL. 33 (b) INSOLVENCY
Bankruptcy
Liquidation
Receiver
Petition for an Examiner
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7. PROCEDURE 33 (a) DEFAULT
FOR DEFECTIVE WORK OR IMPROPER MATERIALS 33 (a) (iii)
written notice from the Architect requiring removal
no specific contract requirement about delivery of the notice
ALL DEFAULTS IN 33(a)
1st NOTICE FROM ARCHITECT SPECIFYING THE DEFAULT
by registered post or letter delivered to Contractor
DEFAULT CONTINUES FOR 10 WORKING DAYS
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8. PROCEDURE 33 (a) DEFAULT
2nd NOTICE EMPLOYER DETERMINES CONTRACTOR’S EMPLOYMENT
within 10 working days (maximum)
by registered post or letter delivered to Contractor
NOTICES CAN’T BE GIVEN UNREASONABLY OR VEXATIOUSLY
NOTICE IS VOID IF EMPLOYER IS IN SERIOUS BREACH AT TIME OF NOTICE
DOESN’T PREJUDICE EMPLOYER’S ANY OTHER RIGHTS
DETERMINES EMPLOYMENT BUT NOT THE CONTRACT
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9. PROCEDURE 33 (a) DEFAULT AFTER 1st NOTICE IS GIVEN
CONTRACTOR CAN’T REMOVE HIS PLANT, MATERIALS OR GOODS
EMPLOYER HAS LIEN ON THEM UNTIL CONTRACTOR COMPLIES
LIEN EXPIRES AFTER 1 MONTH UNLESS EMPLOYER TAKES POSSESSION OF SITE AND WORKS
LIEN NOT ON SC’S PLANT, MATERIALS OR GOODS UNLESS CERTIFIED AND PAID
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10. PROCEDURE 33 (b) INSOLVENCY
NOTICE FROM EMPLOYER DETERMINING CONTRACTOR’S EMPLOYMENT
by registered post or delivered to Contractor
MOST COMMON REASON FOR DETERMINATION
NO PREJUDICE TO EMPLOYER’S CONTRACT RIGHTS
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11. PROCEDURE AFTER DETERMINATION 33 (c)
EMPLOYER CAN EMPLOY AND PAY OTHERS TO FINISH THE WORKS
CAN USE ALL PLANT, MATERIALS, ETC. ON SITE
CONTRACTOR ASSIGNS BENEFIT OF SUB-CONTRACTS, IF REQUIRED
EMPLOYER PAYS ASSIGNED SCs FOR WORK DONE AFTER DETERMINATION
CONTRACTOR REMOVES HIS THINGS WHEN SPECIFIED BY THE ARCHITECT
IF HE DOESN’T, EMPLOYER CAN SELL THEM WITH NETT PROCEEDS HELD FOR CONTRACTOR
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12. PROCEDURE AFTER DETERMINATION
EMPLOYER CAN PROVIDE SITE SECURITY – 33 (d)
if in Architect’s reasonable opinion existing security is not adequate
can be done after 1st notice per 33 (a) or determination per 33 (b)
done at Contractor’s cost for maximum 1 month
Dispute resolution

13. PROCEDURE AFTER DETERMINATION
PRACTICAL STEPS
secure the site ASAP
consult bondsman
consider how to replace the Contractor
liaise with principal SCs
Dispute resolution

14. FINAL ACCOUNT CLAUSE 33 (c) (iv)
NO PAYMENT TO CONTACTOR UNTIL COMPLETION WORK IS DONE no certificates or payment of outstanding certificates
COMPLETION COST VERIFIED IN A REASONABLE TIME
ARCHITECT CERTIFIES EXPENSES PROPERLY INCURRED
NOTIONAL FINAL ACCOUNT FOR ORIGINAL CONTRACTOR
SETTLEMENT BALANCE PAYABLE TO CONTRACTOR OR TO EMPLOYER
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15. BOND NOTHING IN CONTRACT – FOLLOW BOND CONDITIONS
ESSENTIAL TO LIAISE CLOSELY WITH BONDSMAN
INSOLVENCY MIGHT NOT TRIGGER THE BOND
INFORM BONDSMAN ASAP WHEN DETERMINATION IS STARTED
AGREE HOW TO PROCURE REPLACEMENT CONTRACTOR & SCs
SCSI GUIDANCE NOTE ON CONSTRUCTION SECURITY AND PERFORMANCE DOCUMENTS
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16. PRINCIPAL SUB-CONTRACTORS
SCs WITH ORIGINAL CONTRACTOR MIGHT BE DETERMINED
MAINTAINING COLLATERAL WARRANTIES AND BC(A)R
DEAL MIGHT BE NEEDED
AGREE WITH BONDSMAN
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17. THANK YOU
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