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Posted: Wed Jun 25, 2008 12:36 am

You have awarded a contract to Company A for the supply of a thing, by issuing a purchase order against their quotation.
Company A has met and been paid for 90% of their obligation under the contract but now faces receivership, which you weren't aware of at the time of award, and despite much communication refuses to, or can not pay their own sub-contractor Company B, to finish the thing (which would then allow them to claim the final 10%).
In order to meet your obligation to your client, you need to engage Company B to finish the work, in the process terminating the initial contract without prejudice.

How would you describe, in simple terms, the state of the 90% completed thing?

"As found at such and such a date"? "As is"?

Confused

Posted: Wed Jun 25, 2008 12:52 am

callum wrote:

... How would you describe, in simple terms, the state of the 90% completed thing? ...

I know this isn't the answer you're looking for, but I'd describe it as somewhere between 'normal,' 'not surprising,' and 'a major headache in litigation which will end up in a settlement you're not happy with.'

Btw, look into the legal term "pro rata temporis."

Baiting Guru Joined: 03 Mar 2006 Posts: 7103 Location: Yes

Give me a context for why you are describing the 90% completed job. Is it for a new P.O. for Contractor B?

Posted: Wed Jun 25, 2008 1:03 am

^^^ JMR, the switched on pony

My aim is to prevent the receivers coming to me and taking said thing or part thereof to recover the 10%. The thing is already in my possession, but needs remedial work and commissioning which was written into the contract as 10% of total value.

My intention is to have contractor B give me a quote for the outstanding amount, which will be claimed back from company A, accompanying a formal cancellation of contract on the basis of willful non-performance or whatever it's called (they've been given ever opportunity and even assistance).

kd, I don't think our native Rata tree, well it's a vine actually, will be much use unless it falls on someone.

Baiting Guru Joined: 03 Mar 2006 Posts: 7103 Location: Yes

"[THING] in its unfinished condition as of [DATE]"

or

The other, more complicated way, would be to describe the components of a finished THING. Then state that the THING is unfinished and needs the following remaining components in order to be completed so it's clear what value B is adding to the project and that A left it in such a state.

If you're looking to protect the value of B's services, and be clear to the creditors of A that the work B is doing is not attachable, and more importantly, B's services rendered the THING complete, which really gives it its ultimate value, you could argue that A's work really is less than 90% from a valuation perspective.

Of course I have no idea what THING is so that may or may not be true.

Posted: Wed Jun 25, 2008 1:49 am

I may go with "as delivered to (here) on (date)". The outstanding work is already well itemised and I will simply pull it together into a single list.

Thanks.

Not quite a Newb Joined: 14 Jul 2005 Posts: 41

@JM

I think that would have been sexier had Eight explained it.

Baiting Guru Joined: 03 Mar 2006 Posts: 7103 Location: Yes

No doubt. However, I never promised sexy legal advice (come to think of it, I never promised competent legal advice either)....

Posted: Wed Jun 25, 2008 3:19 am

That's ok, I never promised to listen Laughing

Posted: Wed Jun 25, 2008 10:28 am

Which is (a) what makes you a typical client and (b) why I don't do civil. Very Happy

@ TS and JMR. I don't know any more which of you is my favourite mod. Please don't make me choose. Very Happy

Posted: Wed Jun 25, 2008 11:42 am

I do collections work if someone needs sued.... of course I am not licensed "down under" so that might not be of use Smile

Can you get some kind of release from Company A that states you are the owner of the 90% complete "thing"? Any idea how much more than the 10% remaining to be paid to "A" that "B" will charge to complete the work? Assuming "B" will charge the same 10% you are really not in a position to have a loss. Of course as is always the case B will probably charge you a couple times the 10% so you will end up paying more for the finished thing than originally contracted for and A will finally declare bankruptcy allowing you to recover $0.03 on the dollar.

Ain't the law grand?

(and how many lawyers do we have here anyway?)

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