The Scheme for Construction Contracts (Scotland) Amendment Regulations 2011

Citation, commencement, extent, application and interpretation

1.—(1) These regulations may be cited as the Scheme for Construction Contracts (Scotland) Amendment Regulations 2011 and come into force on 1st November 2011.

(2) These Regulations only apply to construction contracts entered into on or after 1st November 2011.

(3) These Regulations extend to Scotland only.

(4) In these Regulations, “the Scheme” means the Scheme contained in the Schedule to the Scheme for Construction Contracts (Scotland) Regulations 1998(1).

Amendment of regulation 4 of the Scheme Regulations

2.  In regulation 4(b) of the Scheme for Construction Contracts (Scotland) Regulations 1998, for “by section 110 of the Act” substitute “by section 110 or 110A of the Act”.

Amendment of Part I of the Scheme

3.—(1) Part I (adjudication) of the Scheme is amended as follows.

(2) In paragraph 20(2)(b) for “section 111(4)” substitute “section 111(9)”.

(3) After paragraph 22 insert—

“22A.— (1) The adjudicator may on his own initiative or on the request of a party correct his decision so as to remove a clerical or typographical error arising by accident or omission.

(2) Any correction of a decision shall be made within 5 days of the date upon which the adjudicator’s decision was delivered to the parties.

(3) Any correction of a decision shall form part of the decision.”.

(4) For paragraph 25(2) substitute—

“(2) Without prejudice to the right of the adjudicator to effect recovery from any party in accordance with sub-paragraph (1), the adjudicator may determine the apportionment between the parties of liability for the payment of his fees and expenses and such determination shall be binding upon the parties unless any effective contractual provision in terms of section 108A(2)(2) of the Act applies.”.

Amendment of Part II of the Scheme

4.—(1) Part II (payment) of the Scheme is amended as follows.

(2) For paragraph 9, substitute—

“Payment notice

9.— (1) In relation to every payment provided for by the contract, the payer shall, not later than 5 days after the payment due date, give a notice to the payee complying with sub-paragraph (2).

(2) A notice complies with this sub-paragraph if it specifies—

(a) the sum that the payer considers to be or to have been due at the payment due date;

(b) the work to which the payment relates; and

(c) the basis on which that sum is calculated.

(3) For the purposes of this paragraph, it is immaterial that the sum referred to in sub‑paragraph (2) may be zero.

(4) A payment provided for by the contract includes any payment of the kind mentioned in paragraphs 2, 5, 6, or 7.”.

(3) For paragraph 10, substitute—

“Notice of intention to pay less than the notified sum

10.   Any notice of intention to pay less than the notified sum mentioned in section 111(3)(3) of the Act shall be given not later than 7 days before the final date for payment determined—

(a) in accordance with the construction contract, or

(b) where no such provision is made in the contract, in accordance with paragraph 8.”.

(4) In paragraph 12 (interpretation)—

(a) omit the definition of “claim by the payee”; and

(b) after the definition of “contract price” insert the following definitions—

““making of a claim by the payee” means the giving of a written notice by the payee to the payer specifying—

(a)

the sum that the payee considers to be due from the payer;

(b)

the work to which the sum relates; and

(c)

the basis on which that sum is calculated;

“payee” means the person under a construction contract to whom a payment is due;

“payer” means the person under a construction contract from whom a payment is due;”.

ALEX NEIL

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

27th October 2011