Know how your contract counts days
Calendar days, working days and the Construction Act's own count can put the same deadline on three different dates. Under the Act, weekends count but Christmas Day, Good Friday and bank holidays don't, so check which count each deadline uses.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
Why it matters
A 5 day period can end on three different dates. It depends on whether it is counted in calendar days, in working days or by the rule the law sets for construction contracts. The gap is usually a day or two, which is exactly the margin by which notices are missed. The trap is that one person reads the contract once and decides it is working days. Everyone then counts that way for the rest of the job. A notice counted in working days can land after a period that was really in calendar days. Nobody finds out until the miss has fixed a sum.
How to do it
- Read the definitions in the contract and note whether each payment period is in days, working days or business days.
- Check whether the contract says how days are counted. Then check whether the rule in section 116 of the Housing Grants, Construction and Regeneration Act 1996 applies to any of the periods.
- Write the counting rule against each deadline on the payment schedule so nobody has to remember it.
- Count out on a calendar, not in your head, any period that runs across a bank holiday or Christmas.
- Work to the earlier date wherever two readings give different ones.
Example
Illustrative example. The scenario and figures are invented.
The facts
A subcontract gives the main contractor 5 days after the due date to issue its Payment Notice. It sets the subcontractor's own deadlines in working days. The due date falls on the Thursday before a bank holiday weekend. The subcontractor's QS wants to know the last day a Payment Notice can arrive.
What happens
- In working days, the 5 days would run Friday, Tuesday, Wednesday, Thursday and Friday, ending the following Friday.
- Under the Act's rule, the weekend counts and the bank holiday Monday does not. The period ends on the Wednesday.
- The QS checks the contract. The Payment Notice period is in plain days, counted the Act's way, so the Wednesday is the date.
- The QS writes the Wednesday on the schedule with the rule beside it. The tracker is set to flag silence after that day.
The outcome
No Payment Notice arrives by the Wednesday, so the subcontractor knows on the Thursday that the deadline has passed. It does not wait until the Friday and lose 2 days of a position it can rely on.
To have this set up for you, see our Underpayment Prevention service.