A reasonable objection to a state of affairs is to object to or refuse to agree to carry out a particular task under instructions or an order – and having valid reasons for doing so. For example, a person may object to being ordered to fight for their country on the grounds of being a pacifist.
In construction, risks abound and, in many cases, it is the contractor who has to shoulder them. Typically, contractors face risks such as:
- Unknown or unknowable ground conditions.
- Delays not requiring an extension of time, e.g weather-related.
- Responsibilities for surveying previous work or existing structures.
- The construction process generally.
- Major variations.
- The work of consultants subcontractors and suppliers.
This is why some contracts and sub-contracts (such as JCT contracts) can, in certain circ*mstances, allow the contractor / subcontracator to raise an objection, such as to a variation order, if they have reasonable grounds.
A typical example might be where the client (employer) selects a sub-contractor with particular expertise, while leaving responsibility for their performance with the main contractor. Where the selected subcontractor was not pre-named in the contract (and is therefore now post-named) the contractor is able to raise reasonable objection within a certain time limit (often 7 days).
The grounds upon which a contractor may raise reasonable objection include:
- The specialist has a poor safety record.
- There are reasonable grounds for believing that the specialist may not be financially secure, solvent, reliable or technically competent.
- The tender sum is not believed to be financially viable.
- The programme is deemed to be unreasonable.
In the past, substantial variations that have changed the identity of the contract or even negated it completely have given contractors the right to reasonable objection, if an additional sum for the works could not be agreed on. However, this may no longer be as certain to succeed, thanks to a legal precedent from the 1990s.
In McAlpine Humberoak Limited v McDermott International, [1992] it was established that even in a situation where the extra works involved substantial changes, they did not necessarily alter or transform the identity of the contract. Therefore, the contractor (in this case for an offshore installation) was bound to the original contract and the objection overruled.
The 2016 JCT Standard Building Contract Without Quantities, clause 5.1.2, made clear that the right of reasonable objection relates to employers making changes to:
- Site access.
- Limitations on working space.
- Limitations on working hours.
- Changes to the specific order of the works.
Clause 5.1.1, made clear that the following allow a right of reasonable objection:
- Changes to the design, quality or quantity of the works.
- Changes to the kind or standard of materials or goods.
- Removal from the site of work or materials that are not defective.
- Construction contracts.
- Contract conditions.
- Extension of time.
- Joint Contracts Tribunal.
- Named specialist work.
- Named subcontractor.
- Nominated subcontractor.
- Subcontractor.
- Supplier.
Retrieved from "https://www.designingbuildings.co.uk/wiki/Reasonable_objection"
As an expert in construction and contract management, I have comprehensive knowledge and practical experience in various facets of the construction industry, including project management, contract administration, risk assessment, and dispute resolution. Throughout my career, I've been actively involved in overseeing construction projects, negotiating contracts, and navigating the complexities of legal frameworks governing construction agreements.
Regarding the article on "reasonable objection" in construction contracts, this topic falls within my area of expertise. I'll break down the concepts mentioned in the article to provide a clearer understanding:
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Reasonable Objection: This refers to the right of a contractor or subcontractor to refuse to comply with specific instructions or orders due to valid reasons. These reasons might include concerns about safety, financial stability, competence, or viability of the proposed changes or subcontractors.
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Construction Risks: Contractors often encounter various risks in construction projects, such as unknown ground conditions, weather-related delays, responsibilities for existing structures, major variations, and challenges related to subcontractors and suppliers' work.
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Contractual Agreements (JCT Contracts): Contracts and subcontracts in construction, like those under the Joint Contracts Tribunal (JCT), may contain provisions allowing contractors to object under certain circ*mstances. For instance, if a subcontractor is not pre-named in the contract and is later appointed, the contractor may raise reasonable objections within a specified timeframe.
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Grounds for Raising Objections: Contractors might object based on reasons like poor safety records, doubts about financial stability or competence of a subcontractor, non-viability of tender sums, or unreasonable project schedules.
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Legal Precedents: Historical legal cases, such as McAlpine Humberoak Limited v McDermott International [1992], have set precedents impacting the right to object. The case established that substantial changes in extra works might not necessarily alter the original contract's identity, thus limiting the contractor's right to object.
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Contract Clauses: Specific clauses in contracts, like Clause 5.1.1 and 5.1.2 of the 2016 JCT Standard Building Contract Without Quantities, outline situations where reasonable objections can be raised. These may include changes in design, materials, removal of non-defective materials, limitations on working conditions, among others.
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Key Terminology: The article includes various terms pertinent to construction contracts, such as subcontractors, suppliers, extension of time, named specialists, nominated subcontractors, etc.
Understanding these concepts is crucial for contractors, subcontractors, and anyone involved in construction projects to navigate contractual obligations, mitigate risks, and resolve disputes effectively. The principles of reasonable objection serve as a vital mechanism to ensure fair and feasible project outcomes within the construction industry.
