Construction News recently reported on the theft of tens of thousands of pounds-worth of materials and tools taken in one night from a site in Nottingham. Whilst theft on that scale is relatively unusual, the loss of goods, materials and, in particular, hand tools is sadly common.
Site security is usually the responsibility of the main contractor, but not all forms of contract specify that. Both the JCT DB and the NEC4 are silent, leaving the issue to be dealt with by the parties The responsibility, and the requirements, are usually laid out in the preliminaries. The MF/1 addresses fencing, guarding, lighting, and watching in clause 18.1; the IChemE International Form, at clause 26.2, requires the Contractor to make sure that “all property under his control is properly protected from loss”.
From the client’s perspective, it is up to them to specify exactly what they want, even if the contract terms make the general obligations clear. Unless there is a specific reason for additional security, most preliminaries only require “reasonably secure”, on the basis that a determined thief will get in if they really want to and the general aim is to stop opportunists. If the client wants 24-hour guards and dogs rather than Heras fencing, and is prepared to pay for it, then that’s fine. It’s the client’s project, the client’s money, and the client’s decision.
For the contractor to comply with their contractual obligations they just provide what is stated either in the contract terms or the preliminaries. If the client doesn’t want dogs, alarms and CCTV, and there is a theft, then provided the gates were locked and the fencing intact there is no breach of contract by the contractor. It’s a crime number and an insurance claim, and all main contracts require the contractor to carry insurance against loss of or damage to property. If, however, the gates were not locked, and the contractor knowingly left fencing insecure then not only will they have breached that requirement of the contract, but they may also be looking at a claim for delay. If what is stolen affects the programme, then the client may be entitled to damages for the delay in completion.
As well as the client and the main contractor, there is the position of items stolen from sub-contractors. What happens if their things go missing?
There are two parts to this. First, items being used by the subbies. Sub-contractor’s plant and tools will, regardless of the provisions of the main contract in respect of security, almost inevitably be made by the main contractor to be the responsibility of the sub-contractors, and any loss will need to be claimed on their own insurance. There is no breach of the sub-contract by the main contractor unless the provision of secure storage is specified therein, and the storage provided does not meet what was specified. Of course, there will be an additional layer of complexity if plant is stolen, as it is usually hired, but the hire terms will deal with that, and it is of no interest to the main contractor, or the client if replacements arrive without holding up progress.
Secondly, materials being supplied by subbies. The ownership of sub-contract goods and materials will depend on the retention of title arrangements. Regardless of what suppliers’ trading terms say for account customers, most sub-contracts require title to pass either upon delivery to site or upon some payment for them, whichever is earlier. So, the goods and materials may well actually be owned by the main contractor or the client. Risk, however, may not pass at the same time, so that sub-contractors will need to have materials insured until incorporated into the works.
Insurance is a topic for another day.
If you have any questions or need support with site security, our Construction and Engineering team will be happy to help. Please get in touch for further information.