Question 1

Is there any way under MMCD that the lien clock can start ticking for work that has been completed and is actUally already in use?

Accepted Answer

QUESTION

My understanding is that it's not allowable to release part of the lien holdback during the life of a project. In my particular situation, a project comprised of one major water/sewer scope and another major electrical scope is dragging on. The project itself is 18 months along and the water/sewer work has been done for several months now. What remains is some connection work in the electrical scope (substation replacement, requiring multiple shutdowns, reconnections etc.) that is dependent on BC Hydro reviewing as-built documentations, scheduling time for a shutdown, etc. That could be another 3 to 5 months from today.

Clearly the contractor is getting anxious about the way he is essentially financing the project with the 10% holdback. Is there any way under the MMCD that the lien clock can be set to ticking for the work that has been completed and is actually already in use?

COMMENT

The Contract Considerations Video should provide the answer (which is generally “No”). This is due to the Builders Lien Act, not our document. The video suggests a work around. Check out “Contract Considerations" video, “Partial vs Staged Substantial Performance".

Question 2

Is there recourse for the Contractor when an Owner Caused Delay affects Substantial Completion?

Accepted Answer

QUESTION

On a regular MMCD utility rehabilitation contract between contractor and municipality, the project is near completion, but not within the strict definition of Substantial Performance. The Owner has told the contractor to not go ahead with the remaining work, as it is at a separate site and the site is not ready. There is no schedule for the site to be made ready. The contractor wants Substantial Performance granted on the work completed to date, as it is at a separate site and is now being used by the Owner. They want the lien holdback clock to start so they can get their 10% back on the work completed. Is there any recourse for the contractor?

COMMENT

"The Contractor wants substantial completion on the work completed to date as it is a separate site and is now being used by the owner. They want the lien holdback clock to start so they can get their 10% back on the work completed."

Reference GC 10.3.2 Delays which are the Owners’ responsibility Section 3 page 45 05 52 User Guide

The User Guide (10.3.2.1, 10.3.2.2) suggests that Owner caused delays (per GC13.1) entitle the Contractor to reimbursement for costs and lost time. In this case, the CA must act impartially and issue a Change Order for the proven impact, even if the CA was the cause of the delay.

The Contract Considerations video “Partial vs Staged Substantial Completion" discusses methods of reducing the work remaining under the contract and processing a request for substantial performance. A new contract for the balance of the work may be required (see video).

Is there any way under MMCD that the lien clock can start ticking for work that has been completed and is actUally already in use?

Is there recourse for the Contractor when an Owner Caused Delay affects Substantial Completion?

Not many results?