Emcor's 'bad form' draws CCS's wrath

Emcor Drake & Scull's subcontract form is "a particularly lopsided and wilful piece of work which fails to understand how to treat specialists fairly", according to the Confederation of Construction Specialists (CCS). Emcor said the criticisms are misleading.

In its latest review, the CCS has run its rule over Emcor's Conditions of Order (B26-30 September 2002).

This is an updated version of the form reviewed last November, when it scored 65% compliance with the Construction Act; this time round the score has droppedto 55%.

The CCS's criticisms include the form's failure to define what "maintain the works" means and how long the subcontractor is to maintain the works. "This creates uncertainty and expands the risk," according to the CCS.

Subclause 2.1 notes that all stages of the works must be to the satisfaction of Emcor, but the firm will not be satisfied unless the client, planning supervisor and principal contractor are happy.

Subclause 3.3 states the subcontractor is liable in damages under contracts made by Emcor of which the subcontractor knows nothing. "The range of this liability is breathtaking," the CCS noted.

The Confederation also adds that subclause 3.7 is "unenforceable nonsense" that can be ignored.

The subclauses that offend the CCS the most appear to be one stipulating pay when paid, "some four years after [it] was outlawed", and another in which Emcor "seeks, quite improperly, to defeat the 8%-over-base-rate rule relating to the late payment of debts".

"This is a dreadfully drafted contract that is heavily in favour of Emcor. This type of short-term view always ensures that every job let under this contract will turn sour," the review concluded.

An Emcor spokesman said: "We have thoroughly reviewed and substantially amended the Conditions of Order B26 so as to comply unequivocally with the Construction Act, in particular by providing for clear payment terms and for dispute resolution by adjudication.

"However, we feel the CCS article to be misleading. For example, B26 does not breach the Construction Act's embargo on pay when paid.

"The CCS's comments fail to appreciate that there are usually two layers of conditions above B26, one between the ultimate client and the main contractor, and the second between the main contractor and Emcor.

"Responsibilities and liabilities are variously defined in those conditions, and the specialist sub-subcontractor has to be prepared to work under compatible rules. B26 reflects this flexibility, as it must," the spokesman added.