42 Piet Vosloo & Tinus Maritz Oorsigtelike artikels • Review articles Landscaping: An analysis of current contracting processes and documentation Peer reviewed Abstract Landscape work, forms an integral part of most land development projects, whether they are building works or civil works. Environmental protection, reha- bilitation and landscape beautification are nowadays considered essential aspects in land developments. Building contracts for the construction industry have been developed over many years through the changing needs of clients and contractors, new levels of technological skills and development of new materials and construction methods. However, the varied nature and wide scope of landscape projects often make them difficult to be reconciled with standard forms of contract commonly in use in the construction industry. This article reviews the problem areas in the field of landscape contracting and landscape maintenance brought about by a lack of suitable forms of landscape contracts/subcontracts. Standard forms of contract generally do not allow for the circumstances that are unique to landscape contracting, and this short coming is regarded as a serious problem facing the landscape industry. This article will, therefore, also attempt to address the issue of how to effectively reconcile landscape work with standard forms of contract that are generally in use in South Africa, all of which have been written specifically for building or civil works type projects. Keywords: Procurement, building contracts/subcontracts, model documenta- tion, landscape projects Piet Vosloo, Senior lecturer, Department of Architecture, University of Pretoria, South Africa. Tel: +27 12 420 4128, Email: . Prof. Tinus Maritz, Associate professor, Department of Construction Economics, University of Pretoria, South Africa. Tel: +27 12 420 2584, Email: . 43 Vosloo & Maritz • Landscaping Abstrak Landskapwerk vorm ’n integrale deel van die meeste grondontwikkelings projekte, hetsy bouwerk of siviele konstruksiewerk. Omgewingsbewaring en rehabilitasie asook landskapverfraaiing word deesdae as onontbeerlike aspekte van ontwikkelingsprojekte geag. Boukontrakte vir die konstruksiebedryf is oor baie jare ontwikkel in reaksie op veranderende behoeftes van bouhere en aannemers, nuwe vlakke van teg nologiese vaardighede en die ontwikkeling van nuwe materiale en boume todes. Die wyduiteenlopende aard en omvang van landskapprojekte maak hulle egter dikwels moeilik versoenbaar met die standaard kontrakvorms wat algemeen in die konstruksiebedryf gebruik word. Hierdie artikel bied ’n oorsig oor die probleemareas in die veld van landskap kontraktering en landskaponderhoud wat ontstaan as gevolg van ’n gebrek aan geskikte kontrak en onderkontrakvorms. Standaard kontrakvorms laat gewoonlik nie toe vir die omstandighede wat eie is aan landskapkontrakte ring nie, en hierdie tekortkoming word beskou as ’n ernstige probleem wat die landskapbedryf in die gesig staar. In hierdie artikel word die saak aan gespreek hoe om landskapwerk effektief te versoen met kontrakvorms wat algemeen in Suid Afrika gebruik word, maar wat almal geskryf is spesifiek vir bou en siviele werk projekte. Sleutelwoorde: Verkryging, boukontrakte/ onderkontrakte, modeldokumenta- sie, landskapprojekte 44 Acta Structilia 2005:12(2) 1. Introduction Pleasant visual effects created by a landscaped environmentcan lead to an increased attractiveness to developers, tenantsand buyers, which in turn can lead to increased profitability for the building owner. It has become the norm in South Africa for office developments in particular to be set in an extensively land- scaped environment and for such landscapes to be maintained at a high level. Landscape work has also over time become specific ‘specialist’ work and within the South African context, since 1935 has evolved into an industry with a turnover of R1.314 billion in 1999 (Staples, 1999) – employing approximately 160 000 people. The way that the formalised building industry structures and regulates itself has led to specialist subcontractors, such as landscape con- tractors, being involved in an ever-increasing way. However, through expedience and a lack of widely accepted alternative forms of contract, the contractual systems developed for building work have been and are still widely used for landscape work. The intrinsic differences of working with live plant material, as opposed to the inanimate components in all other building trades, render the forms of contract and subcontracts typically used in the con- struction industry in South Africa1 to some extent unsuitable for landscape work, which can lead to financial disadvantages for clients, consultants, main contractors or specialist subcontractors. 1 Focus Group 6 of the Interministerial Task Team for Construction Industry Develop ment recommended that only the following forms of contract be used in South Africa to comply with the provisions of Best Practice #2: Features of a modern form of engineering and construction contract. These are: 1. FIDIC (French acronym for International Federation of Consulting Engineers) 1999 2. The General Conditions of Contract for Construction Works (GCC) 2004 (In corporating COLTO General Conditions of Contract for Road and Bridge Works for State Road Authorities 1998) 3. The Joint Building Contracts Committee (JBCC Series 2000) 4. The New Engineering Contract (NEC also referred to as the Engineering and Construction Contract ECC). Whereas the Joint Building Contracts Committee (JBCC), which has been developed in South Africa to suite local practices, is the pre- ferred contract documentation system in the building industry for private projects, it does not have any representation from an orga- nised landscape contractors’ body such as the South African Land- scapers Institute (SALI) or the Institute of Landscape Architects of South Africa (ILASA). The fact that the majority of large landscaping projects, i.e. commercial or industrial projects, are tied to the JBCC system exacerbates the problems experienced when using inap- propriate forms of contract for landscaping. 2. Definition of terms 2.1 Pre-main contract The term is used to describe those contracts that are entered into between a landscape contractor and the client for certain work to be done before and in anticipation of a main contractor to be appointed to undertake the bulk of the development project. Pre- main contracts typically include growing contracts to ensure the required number and species of planting will be available to be used in the main contract, environmental protection and rehabilitation work, and relocation and protection of existing flora. 2.2 In-main contract The term is used to describe those landscape contracts that are entered into between the landscape contractor or subcontractor and the client or the main contractor during the duration of the main project construction contract. 2.3 Post-main contract The term is used to describe those contracts that are entered into between the client and the landscape contractor for landscape work to be done after the main contractor, usually a building or civil works contractor, has completed the principal construction contract and it becomes difficult for him to have the landscape subcontractor under his control for an extended period normally not allowed for in the form of principal contract agreement. 45 Vosloo & Maritz • Landscaping 3. A brief overview of the model forms of contract recommended for use in South Africa In the South African Institute of Architects’ Practice Note No. 1/1999 (SAIA, 1999) the advantages of using pro-forma contract docu- mentation are spelled out as follows: The advantage of using model documentation is that there is a fair distribution of risk between the parties to the agree ment. A further advantage is that the parties become familiar with their obligations and are in a position to enter into the building agreement with confidence. However, the Green Paper on Public Sector Procurement Reform in South Africa (1997) made the observation that there is little uni- formity in contract documentation and delivery systems in South Africa. In works contracts, the tendency is to follow the recommen- dations laid down by professional associations and learned societies and to utilise standard industry documents and systems, which are adapted to suite the need, style and culture of the organisation calling for bids. Consequently the Focus Group 6 on procurement of the Interministerial Task Team on Construction Industry Develop- ment (2000) recommended that the public sector should procure engineering and construction works in terms of a limited range of standard and approved procurement documents (see footnote 1). To assist clients and their consultants in selecting an appropriate form of contract, the Construction Industry Development Board (CIDB) has identified in its Best Practice Guideline C2 (2004: 11-12) the fol- lowing factors to take into account: • The complexity of the works; • Management capacity, capabilities and expectation of the parties and their agents; • Requirements for specific contracting and pricing strate- gies, viz: ° construction management; ° management contract; ° design and build; ° develop and construct; ° activity schedules; 46 Acta Structilia 2005:12(2) ° bills of quantities; ° cost reimbursable; ° target cost; and ° partnering; • Requirements relating to: ° the assignment / management of risk; ° back to back contracts for the engagement of all types of subcontractors; and ° the management of cost and time overruns; • The ability and capacity within the client body to handle different administrative procedures for building and civil engineering contracts, e.g. the use of JBCC on building contracts and GCC / FIDIC on civil engineering contracts; and • Training requirements. Figure 1 illustrates the logic to be followed in deciding which form of contract within a series is required for a specific application. Choosing the right form of contract is a strategic decision that an organisation needs to make. There can be little doubt that the reduction in the prolific number of forms of contract in use in South Africa to the abovementioned four series of documents will assist in the elimination of many of the inefficiencies and losses associated with having to interpret the many varied approaches used to establish the risks, liabilities and obligations of the parties to a contract and the administration procedures associated therewith. The NEC and FIDIC families of contract documents are international series of documents that can be used on all types of engineering and construction contracts. The GCC and JBCC forms of contract, however, have been de- veloped in South Africa, and are confined to civil engineering and building works, respectively. These series of documents, with the exception of the GCC, all contain short versions of engineering and construction works contracts, and collectively cover the commonly encountered contracting strategies that are currently being pursued internationally. 47 Vosloo & Maritz • Landscaping 3.1 An overview of the JBCC Series 2000 suite of documents The JBCC was founded in 1972 and is supported by all the major professional and contracting bodies in the building industry in South Africa. The constituent bodies that form the JBCC are: • Association of Construction Project Managers (ACPM); • Association of South African Quantity Surveyors (ASAQS); • Master Builders South Africa (MBSA); • South African Association of Consulting Engineers (SAACE); 48 Acta Structilia 2005:12(2) Figure 1: The selection of an appropriate form of contract for engineering and construction works Source: CIDB Best Practice Guideline C2, 2004: 13 49 Vosloo & Maritz • Landscaping • South African Institute of Architects (SAIA); • South African Property Owners Association (SAPOA); and • Specialist Engineering Contractors Committee (SECC). The JBCC documents were first published in 1991 and were replaced by the Series 2000 published in 1998. The JBCC documents are com- piled in the interests of standardisation and portray the consensus view of the JBCC of good practice and an equitable distribution of contractual risk. The documents are intended to provide a clear, balanced and enforceable set of procedures, rights and obli- gations, which when competently managed and administered, protect the employer, contractor and subcontractor alike. The Principal Building Agreement is the cornerstone of the JBCC Series 2000 document range, and also contains standard provisions to cater for the requirements commonly associated with govern- ment contracts. 3.1.1 The JBCC Minor Works Agreement The JBCC minor works form of contract is aimed at projects that are comparatively small in extent, uncomplicated and where less sophisticated contractors with a low capital base can be accom- modated. The agreement is designed for use where: • The contract is for minor works of simple content; • The employer appoints only a principal agent to administer the contract; and • The employer appoints direct contractors for specialised work or installations not to be undertaken by the contractor. The agreement is suitable but not limited for use where the con- tractor is a small to medium enterprise, the employer carries the major liabilities related to the works, and the employer is responsible for the primary insurances related to the works. 3.1.2 Using the JBCC agreements for landscaping work The JBCC agreements make full provision for subcontracting, whether for the contractor’s domestic subcontracts, nominated/selected subcontracts or direct contracts. The contracts within its family of contracts suited to landscape work are: • The JBCC Nominated/Selected Subcontract Agreement for use between a main contractor and the subcontractor. The same form of agreement is used for both nominated and selected subcontracts, as the contractual relationship between the contractor and the subcontractor is the same whether the subcontractor is nominated or selected. The differences are dealt with in the Principal Agreement, as they effect the contractor’s liability to the employer for the consequences of the subcontractor’s default or insolvency; and • The JBCC Minor Works Agreement that is a form of contract suitable for a direct contract between the employer and contractor/subcontractor for the landscape works. It can be used with the Principal Building Agreement as a direct contract in terms of clause 22: Employer’s Direct Contrac- tors, or as an independent direct contract on its own, or in conjunction with other subcontracts all using the same form of contract. The principal agent administers the contract, or can delegate cer- tain of his duties to other agents, e.g. an architect or landscape architect, to act on his behalf. 3.2 An overview of the GCC 2004 contract The foreword of the abovementioned document states that the South African Institution of Civil Engineering (SAICE) has a strong tradition of developing, publishing and maintaining forms of contract and has over several decades published six editions of the General Conditions of Contract for Civil Engineering Works. The sixth edition, GCC 1990, was modified by the Committee of Land Transport Officials and republished by SAICE as the General Conditions of Contract for Road and Bridge Works for State Authorities (COLTO, 1998). The GCC 2004 contract replaced the GCC 1990 and COLTO 1998 contracts, but retains the language, style, ethos and current word- ing of these documents. It remains a form of contract primarily for use in contracts where the contractor undertakes construction on the basis of full designs issued by the employer and bills of quan- 50 Acta Structilia 2005:12(2) tities for payment purposes. It satisfies the CIDB requirements for a standard form of contract, and is suitable for use in procurement documents that are prepared in accordance with the provisions of SANS 10403, Formatting and Compilation of Construction Procure- ment Documents. 3.2.1 Using the GCC 2004 contract for landscaping work In the South African Federation of Civil Engineering Contractors’ news- letter No. 20/2004 (SAFCEC, 2004) the following statements are made: COLTO 1998 is basically a revised version of the GCC 1990 document which incorporates certain standard amend ments previously issued together with the GCC 1990 by in dividual road authorities. There are, however, two issues which differ significantly between the two documents, namely the authority of the Engineer and the status of the nominated/selected sub contractor. The COLTO document requires the Engineer to act as the agent of the Employer and does not make provision for a nominated subcontractor. The COLTO document was used as the point of departure, being the most recent edition, for the revision of the GCC 2004 contract and, therefore, follows closely the provisions of the equivalent sub- clauses of COLTO. As stated above, this had the result that the term “nominated subcontractor” has disappeared from the new document, being replaced by the term “selected subcontractor”. All subcontractors, such as for landscape work, will be appointed in terms of clause 6: Subcontracting, the contractor being fully responsibility for their performance. It is important to note that under the GCC 1990 contract, the nominated subcontractor could be selected by either the engineer or the employer, whereas under the GCC 2004 contract, the appointment is the exclusive preserve of the contractor and the employer; the engineer now being pre- cluded from participating in the selection process. There is no short form of contract as the Procurement and Delivery Management Panel resolved that the Short Conditions of Contract (1996) for minor works be withdrawn. The engineer administers the contract, but can nominate a person as his representative, or can delegate certain of his duties to others, to act on his behalf. 51 Vosloo & Maritz • Landscaping 3.3 An overview of the FIDIC family of contracts FIDIC was founded in Belgium in 1913 and is an association of national member associations. At present membership is drawn from more than 60 countries, of which more than 10 are from Africa – South Africa being one of the early members. The documents prepared and published by FIDIC are widely used internationally, mostly for civil engineering and process plant projects. It includes both pro- fessional-driven and contractor design and construct variants. Since its formation FIDIC has addressed a whole range of pro- -fessional issues affecting consulting engineers, but it has become known outside that profession, particularly amongst client bodies, the international financing institutions, lawyers and contractors be- cause of its work in preparing and publishing standard forms of contract, often referred to as the ‘FIDIC Rainbow’. In 1999 FIDIC extended its ambit into other disciplines with the publication of first editions of a new family of contracts comprising four new standard forms of contract: • Conditions of Contract for Construction; • Conditions of Contract for Plant and Design-Build; • Conditions of Contract for EPC / Turnkey Projects; and • Short Form of Contract. In addition to the above documents FIDIC has produced a number of other documents for use by its members. These include: • Tendering Procedure; • Model Services Agreement between Employer and Con- sultant; • Joint Venture Agreement; • Sub-consultancy Agreement; and • Various Guides and Supplements. 3.3.1 Using the FIDIC contracts for landscaping work According to Ahier (2004) the FIDIC Short Form of Contract is parti- cularly well-suited to small construction projects and landscaping work. Being a member of the FIDIC family of standard form con- 52 Acta Structilia 2005:12(2) tracts it uses the same philosophy, format and terminology as other members of the family. It is basically a contract between the em- ployer and the contractor with the provision of an employer’s re- presentative, such as the architect/engineer, an optional extra. It also deals with the provision of design by the contractor, which is often the situation in landscaping contracts. The employer may administer the contract himself, or may delegate any of his actions to others, such as an architect or landscape architect, to act on his behalf. 3.4 An overview of the NEC family of documents The NEC family of documents is an integrated and multi-discipline set of contracts for engineering and construction projects covering both construction and the associated professional services. The documents were first conceived in 1985, when the Council for the London Institution of Civil Engineers (ICE) approved a recommenda- tion from its Legal Affairs Committee to lead a fundamental review of alternative contract strategies, with the objective of identifying the needs for good practice. This recommendation arose out of the belief of many engineering and construction professionals that there was an urgent need for a whole new approach to contracting, in line with modern approaches to project management. A consultative version was published in 1991, which after use and feedback resulted in the issue of the first edition in 1993. The ICE pu- blished a second edition in 1995, which incorporated refinements and changes prompted by comments from the industry and feed- back from projects that had been executed under the first edition. The NEC is the title for the complete family of documents that com- prises: • Engineering and Construction Contract (ECC) – the ‘Black Book’; • ECC Guidance Notes – the ‘Brown Book’; • Engineering and Construction Subcontract; • Flow Charts; • Main options A – F; • Secondary options G – Z; 53 Vosloo & Maritz • Landscaping • NEC Professional Services Contract; • Adjudicator’s Contract; and • Engineering and Construction Short Contract (ECSC). The NEC system is designed to be suitable for use anywhere in the world and by any organisation, whether public or private. 3.4.1 Using the NEC contracts for landscaping work According to Baird (2004) the NEC has four contracts within its family of eight contracts, suited to landscape work. They are: • NEC Engineering & Construction Short Contract (ECSC) that would be used between an employer and contractor for the design and construction of typically straight forward work, which does not require a high degree of project management; • NEC Engineering & Construction Short Subcontract (ECSS) that is a back-to-back form of subcontract for use with the above document, when the landscaping contractor is required to subcontract any of the construction or instal- lation work; • NEC Professional Services Contract (PSC2) that is a form of contract suitable for the appointment of professionals of any discipline. This contract would be used on larger projects where a landscaping professional is appointed to carry out scheme design, and perform services for an employer on a fiduciary basis; and • NEC Term Services Contract (TSC1) that is a form of contract used by an employer with a contractor for the management and/or maintenance of an existing facility for a term of say two to five years. It also includes provision for a certain amount of design during that period. The form most likely to be used would be the ECSC. Being a mem- ber of the NEC family of standard form contracts it uses the same philosophy, format and terminology as other members of the fa- mily. A set of Guidance Notes and Flow Charts is also available to assist preparation and administration of contracts using the form, and its back-to-back subcontract, the ECSS. 54 Acta Structilia 2005:12(2) R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Vosloo & Moritz O Landsc aping AS with the FIDIC contracts, the employer may himself administer the contract . or may delegate any of his a c tions to others. 4. Problem areas en countered in landscape contracts In south Africa the Following problem areas con be identified in the Field of landscape contracting and landsc ape maintenance: A lack of suitable forms of landscape contract. which. allow for the specific circumstances and problems encountered in the landscape industry in respect of pre-main contract, in-main contract and post-main contract landsc ape work - refer to the definition of terms hereinotter; More specifically, there is a lock of suita ble forms of con- trac t between a client and a landscape contractor for landscape work to be undertaken before a main building contractor is appointed and where such landscape con- tractor may eventually be a subcontractor to the main contractor for the further execution of the landscape work; There is also a lock or suitable forms of contract between a main contractor and a landscape subcontractor. Such contrac ts should however be compatible with the standard construction industry Forms or contract generally in use; The lock or suitable forms of contrac t between an employer and a landscape contractor for continuing landscape main- tenance and development work to be done after the main building works c ontract. in which the landscape contractor was a selected or nominated subcontractor. In the absence of a landscape maintenance programme. embodied in on appropriate form of contract between the employer and the landscape contractor. the value or cost of the original landscape installation con be negated within a single season: The c urre nt JBCC and similar Forms of subcontrac t between a main building or civil works contractor and a landscape su bcon tractor do nof cater For the specific circumstances and problems pertaining to landscape work. An example that con be given is the issue of interim landscape main- 55 R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Acta Structilio 2005: I 2{2) tenonce to be done before practical completion has been certified: The current JBCC and similar forms of contract between on employer and a main controct0< and between the main contrac tor and his landscape subcontractor do not allow for the continuation of landscape maintenance work be- tween pra ctical completion and the end of the defects liability period nor ofter the defects liability period had ended: The landscape subcontractor having to complete his work in areas already in use by the employer; and Financial implications for the employer and main contractor when only the landscape portion of work is incomplete and which delays the issue of the practical completion cer- tificate. This issue becomes pertinent if the value of the out- standing landsc ape work is very smoll against the loss of income for the employer a nd late completion penalties for the c ontractor. 5. Proposed conceptual contractual systems for the landscaping industry In South Africa 5.1 Pre-main landscape contracts The landscape contractor may be appointed by the employer to do certain work. before a main c on trac tor is employed. for the fol- lowing purposes: O Pre-main contract growing or procurement of plant material; and Pre-main contract removal, reloc ation and conservation of o n-site flora and other natural features. The awarding of one or both of these contracts to a specific land- scape contractor does not necessarily imply that this contractor will be awarded the landscape installation or construction contract. which normally is associated with the main project construc tion contract. For any of these pre-main contracts, the landscape contrac tor will most often enter into a direct contract with .the employer under 56 R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Vosloo & Moritz • Landscaping the direction of the projec t manager and/or landscape architect on the employer's behalf. The lotter will undertake work inspections and issue payment certificates. 5.1. 1 Growing contracts The objectives o f o growing contract could be one or more of the followi ng : To procure or collect the specified plant species at o lower cos t, soy due to their smaller size. than that of the some species obtainable in retail nurseries shortly prior t o their being planted; To hove the correct species and required number of plants a vailable at the specified time : To hove plants at the req uired size a vailable of the speci- fied time; • To hove the plants a cclimatised to the intended planting conditions: and To provide replacement stock for landscape maintenance on big contracts. In a growing contract the conditions that will require special attention ore: Transfer of ownership: Work/ material insurance: Guarantees/ liability for planting material - ceases on a c - ceptance of material by the in-main co ntract landscape c ontrac tor: and · • Payment conditions - costs o f procurement and plant grow- ing/maintenance costs. In the technica l specific ations of Q growing contract t he essentia l issues to be addressed include: The size plants that will be required on d elivery dote: Specific growing co 0 nditions for plants t o be cold acclima- tised; and 57 R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Acta Structilio 2005:12(2) Specific horticultural requirements. such as pruning. root development, propagation methods, regular replanting to bigger containers and fertilizing. 5. 1.2 Conservation contracts The objectives of a conservation contract c ould include: To conserve existing flora under threat of building/con- struction ac tivities; To relocate. maintain and rep lant existing flora; O To propagate rare endemic species from those that hove to be reloc ated to allow building I civil works a c tivities; and To c reate site conditions before and during site co nstruc- tions that would prevent environmental degradation such as: 0 0 0 0 0 Plant cover loss: Soil erosion; Sedimentation of water bodies and courses; Lowering of water quality: and Increase in stormwater runoff. The following aspects of a conservation contract need to be ad- dressed by means o f appropriate contract conditions: Where necessary, the transfer of ownership of plant material to be relocated: · Work/material insurance; Guarantees/liabilities for plant material relocated . con- served and replanted; and Payment conditions. In the technical specifications of a conservation contract the essen- tial issues to be addressed should include: 58 Authorisations or permits to be obtained from Provincia l Government to remove and tronsp6rt specified rare en- demic species covered by law; and R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Vosloo & Moritz • Landscaping Specific horticultural requirements of existing flora. such as pruning. root development, propagation and regular replanting to bigger containers. 5.2 In-main landscape contracts The types of contracts entered into for landscaping work to be undertaken during the period that the main building or c ivil works contract is executed can be divided into: • Direc t contrac t between the client and landscape con- tractor; Nominated or selected landscape subcontract between main contra c tor and landscape su bcontractor; and Domestic subcontract between main contractor and land- scape subcontractor. Any in-main landscape contract should recognise in its intent and clauses that the installation of the landscape is the first of o two-part p rocess and should allow for o smooth and practical tran sition to a landscape maintenanc e contract being implemented afterwords. 5.2.1 Direct contract between the client and landscape contractor This type of contrac t requires the landscape contractor to enter into o contrac t directly with the client. and not through any main contrac tor. although. normally, a m ain cont rac tor would be work- ing on the site at the some time. The purpose of suc h a c ontract would be for the client to contract directly w ith a landscape subcontractor. · The adva ntages of this form o f contrac t are: For the c lient: no mark up. or attendance. on the landscape co ntrac tor by the main contra ctor; For the client: this contract c on easily be an extension of a pre-main contract; and • For the landscape contractor: d irect and earlier payment of monies certified. 59 R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Acta Structilia 2005: 12(2) The disadvantages of this form of contract are: There is normally no contra-responsibility between the main building o r civil contractor and the landscape con tractor. However, it is possible to make reference and state res- ponsibilities in one contract to the other; It con be difficult to prove liability or responsibility for da- mages to landscape work caused by other con trac t ors working in t he same areas due to the nature and timing of landscape work in typical commercial type develop- ments. Because of the absence of co-responsibility brought about through a main and subcontractor relationship. the various contractors often do not display due care and con- sideration for the landscape work in progress. Examples include trenching through landscaped areas. trampling newly planted shrub beds, and damaging irrigation pipe lines: and ~ For the landscape architect administering the contract on behalf of the client. it creates on undefined, difficult and time-consuming relationship between himself and other consu ltants such as the client's princ ipal agent, architect or project manager. The con trac tor should also be mode aware at tender stage of the fac t that other controcto r( s) w ill be working si multaneously in the some area. The tender documentation could provide on item to be priced by the landscape contractor to allow for this situation and possible ramific ations. 5 .2.2 Nominated I Selected landscape subcontract The use of nominated I selected subcontracts is very common on larger type construction contracts in South Africa. In this regard Finsen ( 1999: l 17 - 118) no tes that 60 emplo yers sow the opportunity of gettin g the best of both worlds. and the nominate d subcontrod was introdu c ed which enabled /he employer lo hove the benefit of a princ ipal c ontrac tor to control the entire building ope- ration fond to assume the risks that went with it) while ye/ b eing able themselves to choose specific subcontrac tors lo und ertake specific work ... R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Vosloo &. Moritz O Landscaping The objective of the nom ina ted/selected landscape subcontract is to facmtate landscape work on a construction project, and where the agreement is made between the main contrac tor and the landscap e subcontractor. In this case it is the m a in contrac tor that desires the landscape subcontractor to execut e the la ndscape subcontract works. but normally under the direction and supervision of the landscape architect. With this form of contract the main building/civil contractor on the instruction o f the client's principal agent. typically the project ma- nager. architect, or occasionally the landscape arc hitect. appoints the landscape contractor. The form of contract most commonly used between main contractors and landscape subcontractors in south Africa is the JBCC. It should be note d that according to the JBCC nominated/selected subcontrac t agreement only the main con tractor and principal agent may issue instructions to a subcontrac tor. This has the e ffect tha t a consultant such as the land scape architect may not issue instructions direct to the land scape subcontractor. The principal a gent may however delegate this authority to the landscape architect. It is a recommended practice to have the main con- tractor countersig n all writt en instructions from the consultant to a subcontractor in order for the m ain contractor to remain up to date with project variations. Nomina ted/selected subcontrac t agreements have been deve- loped for the more ' traditional' building trodes. suc h as masonry, steelwork and c arpentry, and do not cater for the spec ific nature of la ndsc ape work. The following are some o f the inherent differ- ences between these traditional building trodes and landsc ape work a nd the contrac ts tha t govern them : Using ina nimate c omponents as opposed to live matter. suc h as plants: o The defec ts liability for land scape work c annot be appli- cable if the landsc ape constructio n contrac t is not linked to a m a intenance contrac t: For the some reason the standard three-month defec t s liability period cannot be applicable w ithout some form of maintenance contract after practical completion; and Longer-term m a in tenance contracts are not catered for. 61 R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Acta Structilia 2005: 1212) These intrinsic differences seem to suggest that, although contracts can be changed to suit specific circumstances. these contracts have not been designed to deal with landscape work. Advantages of the nominatedselected subcontract are: O The main contractor still retains overall control of the exe- cution of the works; and O The main contractor hos the authority to ensure all subcon- tractors adhere to the construction programme. Disadvantages of the nominated/selected subcontract ore: 62 It is not designed for, nor does it address, the inherent differ- ences between 'building' and 'landscape' worl::. As re- tention or a construction guarantee for landscape worl:: is not really applicable after practical completion, the main contractor often holds these against the landscape sub- contractor and does not pay certified monies. If a three- month maintenance agreement is included in the sub- contract - to coincide with the defects liability period of the main contract - it will, unless special provisions hove been mode, require additional monthly maintenance payment certifica tes, which could conceivably delay the completion of the final account: and The subcontractor often encounters the following problems within the subcontract agreement with the main contractor: 0 0 0 " Late payment of c ertified monies to the subcon tractor by the main contractor; Unfair treatment by the main contrac tor in .the sense of being denied certain rights stated in the subcontract and then through intimidation by the main contractor being unwilling to insist the reon; Main contractors going insolvent and not paying over certified m onies; and In practice, given that landsc ape work is mostly executed at the end o f a building or civil works project, the main contractor will invariably use the period allocated for landscape works to absorb delays caused by other vydrks to the d isadvantage R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Vosloo & Moritz• Landscaping of the landscape subcontractor. thus forcing the landscape contractor to c omplete the work in unrealistic time and site c ircumstances. 5.2.3 Domestic subcontract The objective of the d omestic subcontrac t is for the client to hove landscape work executed under the main contract. Furthermore. the client may elect not to nominate or select a landscape sub- contrac to r due to the fo llowing: Small size/simplicity of the landsc ape work: Insufficient time to follow the nominated or selected sub- contra c t tender procedure; and • Insufficie nt pre-planning of c ontrac t programming. In this form of contract the main contractor appoints the landscape subcontractor directly without any approval by and instruct ion thereto by the landscape architect or princ ipal agent. No prime c ost {PC) amounts are allowed in the tender documents and the subcontractor prices the work from scheduled items. The MBSA non-nominated subcontract. which is compatible with the JBCC Nominated/Se lected Subcontract Agreement. is often used - the JBCC d oes not intend to publish ifs own domestic subcontract. The disadvantages of the domestic subcontract are : The landsca pe arch itect has very little input on fhe appoint- ment of the landscape subcontractor; often fhe landscape architect is not even involved in the contrac t management a nd works inspec tions; In terms of the MBSA non-nominated subcontrac t, instruc- tions issued to the subcontractor by the c lient. or any per- son acting on the client 's behalf. such as the landscape architect. shall hove no authority unless authorised by the main con trac tor: and The main contrac tor loses securities from the subcontractor whe n interim completion of subcontrac t works is certified . which has resulted iQ main con tractors being reticent to use this form o f subcontract. 63 R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Acta Structilia 2005: 12{2) 5.3 Post-main contracts For landscape projects the need often exists for a post-main con- tract after installation of the landscape work to maintain the work through its first critical period. In areas where extreme climatic conditions such as frost and droughts can occur. the survival of the plant material is largely affected by the maintenance care the landscape work receives in this initial period . Examples abound of so-called 'construct-and-run ' projects where speculative developers install the minimum landscaping and on- sell the projects as soon as possible. A typical example of such landscaping is the laying down of instant lawn over soil contami- nated by concrete or other cementitious material or compacted by construction activities. Trees are often also planted in minimal size holes without a proper growth medium backfill. In both these examples the short-term appearance will probably deceive an observer, but the landscaping will soon display wilted and disco- loured grass and stunted trees. The long-term owners more often than not then have to totally re-construct the landscaping, thereby incurring abortive costs. It is clear that such speculative developers will not appreciate the need for any landscape maintenance con- tract after completion of the project. The post-main landscape contract is entered into by the client and the landscape contractor. and is distinctly separate from the landscape installation contract where the land scape contractor was most likely a subcontractor to a main building or c ivil works contractor. The landscape maintenance con tract cannot be a construction type contract, as issues such as liability for damages to plants due to vandalism and insufficient maintenance need to be spelled out. This is especially applicable for projects that ore open to the public and subject to vandalism. It is unrealistic to expect of the landsc ape contractor to give a landscape construc tion guarantee. and to accept liability for the landscape installation if there is no mainte- nanc e contract between the client and the landscape contractor who installed the landscape originally. This post-main or maintenance contract. ideally of l 2-month dura- t ion. must preferably b e awarded to the landscape contractor that installed the landscape work in the fi~t·place. Various reasons can be given for this recommendation. such as: 64 R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Vosloo & Maritz O Landscaping The responsibility for plant defects should be borne by the landscape contractor as he is still on site and cannot dis- c laim liability for potent. latent or maintenance defects: The irrigation systems often require adjustments to cater for differing micro-climatic conditions. such as local swirling winds and overshadowing. The position. direction and height of irrigation emitters also need to be adjusted to cater for growth in plant material: Water features. often constructed at huge costs, are noto- rious for falling into d isrepair if not maintained with due core. A period of core by the specialist installer is necessary. also for training the e mployer's own maintena nc e staff; Constructed ecological systems. such a s artificial wetlands and water purificatio n systems often require man's inter- vention to be sustainable ; o In projects of significant environmental value . long-term environmental maintenance is often an identified environ- mental issue. The planning and construc tion approval of large projects ore usually conditional upon complying with on Environmental Management Pion (EMP) in which the landscape maintenance and environmental auditing ore specified. The landscape maintenance contrac tor is best placed and qualified to ensure compliance with such re- quirements; and O In instances where the employer is able. throug h his own staff and resources, to maintain the landscaping, a reduced maintenance contract. typica lly o f six-month duration is however still recommended. This maintenance con tract ' s specifica tion can so be worded that there is an overlap- ping period during whic h the landscape contrac tor works alongside the employer's maintenance staff to point out the working of systems and a ny specific horticultural require- ments. In the specification that accompanies any landscape maintenance agreement, the following items typically need to be addressed: Upkeep, adjusting and replacing defective irrigation com- ponents; ·. 65 R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Acta Structilio 2005: 12(2) Accepted horticultural practices, such as pruning. fertilising and staking; The required programme of lawn mowing. veld sloshing, cutting and burning: and o Seasonal p lanting of annuals. 6. Recommendations The following advice is offered to the parties that ore involved in landscape work : 6.1 To the developer Consider well in advance of the construction of the project if there could be bene fits or requiremen ts to have plant material grown for the projec t or to protect and co nserve existing flora on the site. If so. a professio nal landscape architect is probably the best independent person to advise on the most appropriate form and conditions of con tra c t; and Consider the issue of landscape maintenance after the construction phase is finished . Allow in the operational budget of the project for landscape maintenance that will ensure a sustainable landscape or risk the chance that all money spent on the land scape installation could be worthless within a short time . There are distinct benefits to hove the land scape contra c tor that installed the land- scape also take on the respon si bility of maintaining it for a certain critical initial phase. 6.2 To the employer's principal agent and/ or landscape architect O Advise the c lienl o f the advantages of appointing a land- scape architect as port o f the consultant team; 66 Advise the client of the benefits o f pre-main landscape con- tracts suc h as growing contracts or conservation contrac ts. Ensure tha t the c ritical issues suc h a s transfer o f ownership. works and materials insurance, and guarantees ore ad- dressed in any suc h contract: ' R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Vosloo & Moritz• Landscaping o If the client con be convinced of the benefits of a landscape maintenance contract. ensure that the tender documents for both the landscape construction and maintenance contracts ore simultaneously let. Tenderers ore to be mode aware of the fact that in evaluating the tenders. a lthough they will be tendering for 1wo separate contracts, the com- bined tender prices will be considered. and that the suc- cessful tende rer will be appointed for both contracts: Advise the client to budget for a post-main landscape maintenance contract in the operational phase of the project; and Consider the implications of the practical interface of a landscape su.bcontroct with a landscape maintenance contract. Issues to be considered are: 0 0 0 Interim landscape maintenance before practical completion; Landscape maintenance in the three-month de- fects liability period; and Cancellation of the performanc e or construction guarantee of the landscape subcontractor and settlement o f the final account between the main contractor and the landscape subcontractor once practical completion has been certified. It serves little purpose for a main contractor to hold a per- formance guarantee or any form of retention on the landscape subcontractor if the lotter hos no mandate to maintain the landscape during the defects liability period. 6.3 To the contractors. both as main and subcontractors Ensure that the responsibility for interim landscape mainte- nance before practical completion is covered with regard to aspects such as cost of water and electricity used and damages to sections o f landscaping already completed; 0 Reach agreement qetween the main and subcontractor on When and under what conditions the landscape subcon- tract will terminate: and 67 R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Ac ta Structilia 2005: 12(2) The subcontractor should advise the main contractor if he would be able to guarantee the landscape work and be responsible for defects if there is no landscape maintenance contract in place. 7. Conclusion From the analysis of the forms of contract for landscape works cur- rently in use in South Africa, and the associated problems that have been identified, the authors conclude that whereas all the researched forms of contract have versions that con be used for specialist subcontract works, the specific requirements for a landscape works con tract have not been addressed. It is suggested that an adden- dum titled General and specific conditions for landscape (sub)con- troct works. be prepared and appended to such contracts. References Ahier. T.B.C . 2004. Personal communication . 22 April. Pretoria. Baird. A. 2004. Personal communication. 11 Moy. Pretoria. Committee of Land Transport Officials (COLTOJ . 1998. General Conditions o f Contract for Rood and Bridge Works for Stole Authorities. Republished by the South African Institution of Civil Engineers (SAICE). Halfway House . Construction lndus1ry Development Boord (CIDB). 2004. Best Practice Guide- line C2: Choosing on appropriate farm of controct for engineering and construction works. Morch. Pretoria. Federation lnterna lionale des lngenieurs- Conseils (FIDIC) . 1999. F/D/C Con· diliom of Contract for Construction for Building and Engineering Works de· signed by the Employer. Lausanne. Switzerland . Finsen. E. 1999. The Building Contract. A commentary on the JBCC Agree· ments. Cope Town : Juta. Institution of Civil Engineers (UK) . 1995. Th e Engineering and Construction Contract: An NEC document. 2nd Edition. Thomas Telford . London. Jo int Building Controcls Committee (JBCC). 200 1. JBCC Series 2000 Minor Works Agreement. Edition 2, April 2001 . Johannesburg. Joint Building Contracts Committee (JBCC) . 2005. JBCC Series 2000 Pn'n- cipal Building Agreement. Edition 4.1 . Morch 2005. Johannesburg. 68 R ep ro du ce d by S ab in et G at ew ay u nd er li ce nc e gr an te d by th e P ub lis he r (d at ed 2 01 2) Vosloo & Moritz O Landscaping Joint Building Contracts Committee (JBCC) . 2005. JBCC Series 2000 Nomi- nated/Selected Subcontract Agreement. Edition 4.1. Morch 2005. Johan- nesburg. south Africa . Depar1ment of Public Works. 2000. Features of o modem form of engineering and construction contract. Reporl o n p rocurement by Focus Group 6 of the lnterministeriol Task Team for Construction Industry Deve- lopment. Government Printing Works. Pretoria . Sou th Africa. Ministries of Finance and Public Works. 1997. The Green Paper on Public Sector Procurement Reform in South Africa. Pretoria: Government Printing Works. South African Council for the Landscape Architectural Profession (SAC LAP) . 2002. Practice Guidelines and Code of Conduct . Pretoria. Soulh African Federalion of Civil Engineering Controclors (SAFCEC). 2004. SAFSEC Newsletter Ref. No. 20 I 04 . Bed fordview. South African Institu te of Architects (SAIA) . 1999. Practice Manual. Johan- nesburg. South African Institution of Civil Engineering (SAICE}. 2004. General Condi- tions of Contract for Works of Civil Engineering Construction (GCC 2004). 1st Ed ition . Halfway House. Staples. C . 1999. Extract from unpublished PhD thesis entitled: Identifying critical success factors for customer satisfactian in the interior and exterior plontscaping industries. Published in Porks & Grounds Issue 125. February/ Morch 2002. 69