Citation, commencement, application and interpretation

1. —(1) These Regulations may be cited as the Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (England) Regulations 2011 and come into force on 1st October 2011.

(2) These Regulations only apply to construction contracts entered into after the coming into force of these Regulations.

(3) These Regulations do not apply to construction contracts to the extent that they relate to the carrying out of construction operations in Wales.

(4) In these Regulations—

“the Act” means the Housing Grants, Construction and Regeneration Act 1996; and

“the Principal Regulations” means the Scheme for Construction Contracts (England and Wales) Regulations 1998( 2 ).

Amendment to regulation 3 of the Principal Regulations

2. In paragraph (b) of regulation 3 of the Principal Regulations, after “section 110”, insert “or by section 110A”( 3 ).

Amendments to Part 1 (Adjudication) of the Schedule to the Principal Regulations

3. —(1) Part 1 (Adjudication) of the Schedule to the Principal Regulations is amended as follows.

(2) In paragraph 1(1), before the words “of his intention”, insert the words “at any time”.

(3) After paragraph 7(3) insert—

“ Upon receipt of the referral notice, the adjudicator must inform every party to the dispute of the date that it was received ” .

(4) In paragraph 9(4), for the second sentence substitute—

“ Subject to any contractual provision pursuant to section 108A(2) of the Act, the adjudicator may determine how the payment is to be apportioned and the parties are jointly and severally liable for any sum which remains outstanding following the making of any such determination ” ( 4 ).

(5) In paragraph 11(1), for the third sentence substitute—

“ Subject to any contractual provision pursuant to section 108A(2) of the Act, the adjudicator may determine how the payment is to be apportioned and the parties are jointly and severally liable for any sum which remains outstanding following the making of any such determination ” .

(6) In paragraph 15(b)–

(a) insert the word “the” after the word “as”; and

(b) for the words “be justified”, substitute “justify”.

(7) In paragraph 19(1)–

(a) in paragraphs (a) and (b), for the words “the date”, substitute “receipt”; and

(b) in paragraph (c), insert the words “receipt of” after the word “after”.

(8) In paragraph 20(b), for the words “section 111(4)”, substitute “section 111(9)”( 5 ).

(9) In paragraph 21, omit the words “in accordance with this paragraph”.

(10) After paragraph 22 insert—

“ 22A. —(1) The adjudicator may on his own initiative or on the application 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 must be made within five days of the delivery of the decision to the parties.

(3) As soon as possible after correcting a decision in accordance with this paragraph, the adjudicator must deliver a copy of the corrected decision to each of the parties to the contract.

(4) Any correction of a decision forms part of the decision. ”

(11) Omit paragraph 23(1).

(12) Omit paragraph 24.

(13) In paragraph 25, for the second sentence substitute—

“ Subject to any contractual provision pursuant to section 108A(2) of the Act, the adjudicator may determine how the payment is to be apportioned and the parties are jointly and severally liable for any sum which remains outstanding following the making of any such determination ” .

Amendments to Part 2 (Payment) of the Schedule to the Principal Regulations

4. —(1) Part 2 (Payment) of the Schedule to the Principal Regulations is amended as follows.

(2) In paragraph 5–

(a) omit the words “the expiry of”; and

(b) insert the words “the expiry of” before the words “30 days following completion of the work”.

(3) For paragraph 9, substitute—

“ Payment notice

9. —(1) Where the parties to a construction contract fail, in relation to a payment provided for by the contract, to provide for the issue of a payment notice pursuant to section 110A(1) of the Act, the provisions of this paragraph apply.

(2) The payer must, not later than five days after the payment due date, give a notice to the payee complying with sub-paragraph (3).

(3) A notice complies with this sub-paragraph if it specifies the sum that the payer considers to be due or to have been due at the payment due date and the basis on which that sum is calculated.

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

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

(4) For paragraph 10, substitute—

“ Notice of intention to pay less than the notified sum

10. Where, in relation to a notice of intention to pay less than the notified sum mentioned in section 111(3) of the Act, the parties fail to agree the prescribed period mentioned in section 111(5), that notice must be given not later than seven days before the final date for payment determined either in accordance with the construction contract, or where no such provision is made in the contract, in accordance with paragraph 8 above. ”