Free movement of project resources a common practice

The Editor: The Rowley Affair has generated many  statements in the media about the transfer of materials from one building site to another. Most are generalisations which may mislead the uninformed public. As someone with experience in the construction industry, I offer the following comments on the subject in the hope that they may help to clarify the issues involved. On a normal  building project, all resources brought to the project site are owned  initially by the contractor. Typically, these include materials,  plant and labour. Until ownership of those resources passes from the contractor to the building owner, the contractor is free to remove any of them as and when he sees fit.

Ownership of the materials passes from the contractor to the building owner when the materials are incorporated into the works and/or when the building owner pays the contractor for unfixed materials on site as part of an interim payment. Thereafter, the contractor no longer owns the materials and cannot remove them from the site without the permission of the building owner. Such permission is given by the project consultants if circumstances so warrant such as when  some materials are not immediately required for use on the project and the contractor undertakes to replace them in good time. If such replacement is not due within a reasonable time, a cost adjustment in the owner’s favour is made in the next interim payment to the contractor.

No one is on record as denying that some materials were transferred from the Scarborough Hospital site to the Mason Hall  site. Therefore,  the first question which needs to be asked is: Who owned the materials at the dates they were transferred?  If the contractor owned them, he could move them at will, therefore, “end of story.” If the materials had been paid for and therefore owned by Government,  the  question to be asked is did the contractor have permission from the project consultants to “borrow” the materials for another project? If the answer is yes, the other question to be asked is whether or not the contractor replaced the “borrowed” materials to the hospital site. 

In practice, this becomes a moot point because, if for example blocks intended to build a wall at the hospital were removed to the Mason Hall site, the contractor remains contractually bound to build the wall at the hospital in accordance with the project’s plans and specifications and would have  to supply the blocks necessary to complete that work. If the answer is no, the project consultants should be asked to explain why materials were allowed to leave the site without their permission. The issues raised in this matter are quite common on building projects and the facts should be discovered easily  in any investigation.

Victor  Hart
Port-of-Spain