BUILDING

CONTRACTS
CONTRACTUAL PROCESS
01.

MANAGEMENT

AND

GENERAL

INTRODUCTION
Construction projects can be broadly classified into the following categories;
.01 Simple buildings including housing
.02 Complex developments e.g.

Houses low and high rise can be defined by the functions they are
intended to be utilised for.

Industrial

Office blocks

Hotel buildings

Hospital buildings

Teaching buildings

Churches, mosques, temples etc.

Prisons

3. Civil engineering nature roads, dams, harbours etc.

Additionally, the types of Developers are motivated to undertake construction
by various desirers;
Profit making

Offices, houses etc

Service provision

Prisons, schools, hospitals etc.

Social and religious

Churches,

mosques,

temples,

clubs etc.
Every Developer is motivated by the desire to maximise on;
(i) Delivery of quality building
(ii) Maximise on profit realised at the end of the project.

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02.

AND

GENERAL

PARTIES TO A BUILDING CONTRACT

There are two parties in every contract and at times third parties are given
rights and obligations within the same contract. The two major parties are;

Developer and Financiers

Contractor Main and Specialists

The third parties incorporated in the contract either directly or by operation of

the law of the land between the two major parties are;

03.

Design Team

Local Authorities and Government Agents e.g. NEMA

Local Communities

CONTRACT FORMULATION
A building Contract is formulated after the Developer invites contractors to
make offers to undertake some works.
The Contract/Tender Documents are;
(a) Instructions to Tenderers
(b) Form of Tender and Qualification Information
(c) Conditions of Contract
(d) Specifications
(e) Drawings
(f) Bills of Quantities
(g) Form of Securities

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CONTRACT FORMULATION CTD

There are various parties involved in the formulation of a building contract i.e.
Client, Architects, Engineers, Quantity Surveyors and/or Project Managers
etc.
These parties decide on the salient points to be the framework of the
tendering and subsequently contract agreements and it is at this stage of
decision taking that it is decided whether to:
03.01 Tender or negotiate
03.02 Contract on fixed contract or fluctuating basis
03.03 Fix construction time or make it a competitive item.
Some Clients e.g. Government Departments, Parastatals, Banks etc. have
their professional teams to advise on the contracting process whereas other
Clients rely on advise given by design team.

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04.

AND

GENERAL

CONTRACTORS UNIT RATE COMPILATION

During tender pricing every contractor considers inputs such as materials,
plant, human resources, financing and politics to enable him compute the unit
rate.
Though every project is different from the other, inputs in both materials, labour
and financing charges are similar and contractors are advised to build a bank of
data for their use in future projects with whatever adjustment one needs to sort
particular situation i.e. DO NOT INVENT THE WHEEL ALL THE TIME
NEEDED!
Contractors are also advised to utilise fully materials procured for a particular
project but any surplus should be well stored for next project however, take
care not to over-order perishable materials e.g. cement which will go to waste
after a certain time!
e.g. Materials:

Therefore;

concrete mix 1:2:4 in column bases M3 rate

Cement

266Kg @14,400/= per ton

Sand:

563Kg @ 2,200/= per ton

Ballast:

1050Kg @ 2,100/= per ton

Cost of Materials: 3,830/= + 1,240/= + 2,200/= = 7,274/= M3

Above figures include 5% waste and 25% shrinkage.

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CONTRACTORS UNIT RATE COMPILATION CTD

Labour:

Use of 14/10 concrete mixer which will cost 650/= per M3

including fuel and operator.

Use of human resources

Loaders of cement

Loaders of sand

Loaders of ballast

Transporters of ready concrete

Placers of concrete

A gang of TEN labourers will handle the machine to produce

and lay 10M3 in a day.
Cost in 500/= x 10 = 5,000/= per day = 500/= per M3
Hence Plant and Labour = 650/= x 500/= = 1,150/= per M3
Site management cost 7% x 8424/= = 590/=
Head Office Management cost 8% x 8424/= = 675/=
SUMMARY
Materials
Labour and Plant
Site Management
Head Office Management

Shs.
Shs.
Shs.
Shs.

7,274.00
1,150.00
590.00
675.00

SUB-TOTAL
Add Profit 10%

Shs.
Shs.

9,689.00
970.00

Add V.A.T. @ 16%

Shs.
Shs.

10,659.00
1,706.00

SHS.

12,365.00

TOTAL

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CONTRACTORS UNIT RATE COMPILATION CTD

If the contractor is desperate for work, he will cut on profit and reduce management
charges. This will bring the rate to as low as shs.11,000/= and as high as
shs.15,000/= where the tenderer does not need the job and all he can do is to
overload his rates get the job at any price!
Politics of the day will affect the pricing of construction tenders e.g.

Where is the project located?

When are the next general elections and

Who is likely to win the general elections?

LIFE IS ALL POLITICS AND CONSTRUCTION IS PART OF LIFE!

The Tenderer will also price guided by;

The tender list (knowing his competitors)

The Design Team (If uncooperative team, the Tenderer will price high)

The Developer (If a good paymaster, rates will be competitive)

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05.

AND

GENERAL

CONSTRUCTION INPUTS
There are various inputs (materials, plant, labour and financial) that the
contractor is required to put into building projects. The quantum of each input
depends largely on the projects;

Size

Complexity

When needed (Time)

Location

Financing

Politics of the day

Large high rise buildings will need materials hoists and cranes and less
labour.
Low rise housing estate will need more labour input and less plant.
Factories and Godowns sheds will need less materials than shopping
complex.
The larger the project and the complicated nature of the project dictate
the construction time. The construction time dictate the capital outlay
hence finance.

.01 Actual Inputs

Professional skills in design and construction

Labour both skilled and unskilled

Plant and machinery

Materials Local and imported

Finance during construction and end financing

Politics

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CONSTRUCTION INPUTS CTD

.02 Constraints/Challenges

Sourcing of materials local and imported

Sourcing of human resources

Sourcing of plant and time

Sourcing of financing

Restrictions imposed by potential developers e.g. tender conditions,

contract conditions, performance and bid bonds etc.

Politics of the day may not be conducive to labour availability and

financing etc.
Whereas a prudent businessman/contractor should be able to forecast
likely materials and price changes, he can only do so over a short time
say six months and even that depends on the nature and source of
such materials.
This uncertainty affects materials locally sourced and imported due to
external influencing factors e.g. exchange rates, fuel prices etc.
THE GOVERNMENT IS NOT ABLE TO FORECAST THE PRICES OF
BOTH LOCAL AND IMPORTED MATERIALS.
THE DEVELOPERS INCLUDING THE GOVERNMENT ARE IN
THE SAME SITUATION OF UNCERTAINTY.
SIMILARLY THE CONTRACTORS ARE IN THE SAME STATUS.

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CONSTRUCTION INPUTS CTD

Having stated that NO-ONE CAN REALISTICALLY FORECAST
PRICES, THEN WHY PUT THE TENDERERS/CONTRACTORS IN A
GAMBLING STATUS.
This situation of using FIXED PRICES affects the projects and the
construction industry as follows;

Contractors lose money as they had not built-in enough

contingency in their costing thus resulting to;

Bankruptcy

abandonment

In both cases, the Client will retender and pay CURRENT PRICES IN THE
MARKET.

Disputes are declared as a result of delayed performance and

at times resulting to poor quality of work substitution.

Delayed handing over complete project resulting to Client loss

of anticipated income/utilisation.

This is the effect of INFLATION and the Developer is under falsehood

feeling that he is getting something cheaper than real current price.
WHAT HAPPENS WHEN THERE IS DEFLATION.
The tenderer gets benefits of reduced materials prices and the
eventual loser is the DEVELOPER.

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06.

AND

GENERAL

FLUCTUATIONS IN BUILDING CONTRACTS

06.01

DEFINITION OF PRICE FLUCTUATIONS

The word FLUCTUATE is a verb defined as:(A)

To change or cause to change position constantly

(B)

be or make unstable

(C)

to rise and fall like a wave

In the building Industry the most applicable definition is BE OR MAKE

UNSTABLE.
If materials and labour prices were consistently changing by a known
factor/percentage, then there would be no need of incorporating a price
fluctuation clause in the Contract as the Tenderer/Contractor can
realistically project the likely price changes.
However due to the nature of our economy it is impossible to forecast
the future prices. It is this uncertainty in forecasting that induces the
necessity to introduce a fluctuations clause to operate from a base date
Tender date or any other date so stated.

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07.

AND

GENERAL

WHAT CAUSES PRICE FLUCTUATIONS

In the Agreement and Schedule of Conditions of Contract for Building Works
1999 Edition Clause 35 the following items that are considered to change or
likely to change affecting the rates quoted by the Tenderer are:(i)

Duties which shall include all customs and excise charges, tariffs, taxes
and other duties imposed by statutory or other authority.

(ii)

Local taxes V.A.T., Kenya Bureau of Standards, Local Authorities

cess, National Construction Authority Levy etc.

(iii)

Currency exchange rate fluctuations.

(iv)

Changes in prices of locally available materials and labour i.e. local

inflation in materials and labour prices.

In most third world or developing countries, the major contributor to price

fluctuations is the instability of local currency vis-a-vis the hard currency which
is very erratic at times and can induce an inflationary rate of over 100% in a
very short period.
e.g.

In early 1993, and due to varied factors, our Kenya Shilling fell from
Kshs.35.00 = U.S.$1.00 to Kshs.85.00 = U.S.$1.00 i.e. by 143% fall.

Due to the import component of our building materials and other products
indirectly used in construction industry e.g. plant and fuel the cost of such
inputs had to rise as well by a factor related to import component of each
product.
Materials inputs are classified into two categories Locally available and
imported.
Most of materials used in this country have some element of import
component

(even

it

means

petroleum

and

machines

involved

in

transportation) and as such external economic and political forces affect

supply of materials to building industry.

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WHAT CAUSES PRICE FLUCTUATIONS CTD

Labour (skilled and semi-skilled) is another major factor to be considered
when projecting the likely construction time of a project. To obtain regular
supply of quality labour and in quantity there must be good level of pay and
emoluments and above all assured supply. This is achieved through relevant
training, Trade Unions and Industrial Court.
Historically, the Fluctuations in the Building Contracts (as it is today in Kenya)
was introduced in early 1974 to try and help Clients obtain realistic Tenders.
Prior to 1974, materials availability was steady and prices predictable but
during 1973 oil crisis, everything went out of control in the World market and
infact some Contractors went bankrupt and Kenya Government introduced
Ex- Gratia form of increase in cost reimbursement to Contractors in Contracts
that were not tendered on Fluctuation basis to try and save the industry.
In Kenya the guide rules as to whether to include Fluctuation in a building
Contract are:Time:

Is the projected construction time likely to be over six

months? If yes, then include Fluctuations clause (it is
assumed that there are not so much radical changes in
a period of six months and in any case advance buying
for such project can be made).

Value:

If a project construction time is likely to be over Shs. 50

Million, then it is likely to be constructed in a period of
over six months hence Fluctuations clause to be
included.

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WHAT CAUSES PRICE FLUCTUATIONS CTD

This guidance rules were formulated in 1974 and are still operational with
project value adjusted.
It is worthwhile noting that not all material fluctuate that erratically and also
some material are less in quantum input in the buildings- hence the materials
included in Fluctuations clause e.g. cement, sand, aggregate, steel, concrete
blocks, roofing sheets etc. do not constitute 100% of materials as fixed in the
building.

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SECTION TWO THE JOINT BUILDING COUNCIL

01.

WHAT IS THE JOINT BUILDING COUNCIL

The Joint Building Council is a limited private company registered under CAP
486 Kenya Laws. It came to be in operation in 1974 (though it was registered
in 1980) as a result of problems arising from world wide oil crisis in 1973
(which caused inflation over a period of six months to reach over 100%) to try
and prevent possible collapse of the industry. It was initiated jointly by the
Government, KABCEC and the Architectural Association of Kenya.
Its main objectives (as in memorandum of Association) articles 3 are:(A)

To promote the consideration and discussion of all questions affecting the

building industry (which expression in this Memorandum includes the trade
of builders and Contractors for the execution of public and private works,
the practice of the professions of architect, surveyor and engineer, and all
ancillary and allied trades and professions, and every branch of such trade
and professions).

(B)

To arrange and promote the adoption of equitable forms of Contracts and

other documents used in the building industry, and generally to promote
co-operation within and the stability of the building industry through the
Contract and sub-contract procedure and the adoption of model forms of
contracts, and in particular to take all measures necessary and incidental to
the production of such particulars as may be required from time to time for
the Fluctuations Clauses contained in any agreement.

(C)

To promote and encourage the settlement of disputes by conciliation or

arbitration and to act as or nominate arbitrators, experts and umpires and
to assist and participate in the formation, development and maintenance of
Boards of conciliation and Arbitrators upon such terms and in such cases
as may seem expedient.

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SECTION TWO THE JOINT BUILDING COUNCIL

WHAT IS THE JOINT BUILDING COUNCIL CTD
(D)

To advance the science and art of planning and building, and to

promote excellence in the construction of building, and just and
honourable practice in the conduct of business, and to suppress
malpractice.

(E)

To give members of the Legislature and other public bodies facilities

for conferring with and ascertaining the views of persons engaged in
the building industry as regards matters directly or indirectly affecting
the industry.

(F)

To furnish to persons engaged in the building industry information on

all matters affecting the building industry and to print, publish, issue
and to circulate such papers, periodicals, books, circulars and other
literary undertakings as may seem conducive to any other objects.

(G) To subscribe to, render support to and to promote any society,

organisation, movement or other body the objects of which are, in
the opinion of the company such as to be of benefit to the building
industry directly or indirectly.
There is pricing sub-committee which monitors monthly price changes
and prepares all necessary practice notes to ensure that all parties
work on the same basis.

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SECTION TWO THE JOINT BUILDING COUNCIL

02.

EXTENT OF FLUCTUATIONS COVERAGE

Not all materials incorporated in the buildings are covered in the J.B.C.
Fluctuations monthly list.
02.

THE MONTHLY PRICE LIST

Constitution
The monthly list contains the bulk of MAIN CONTRACTORS building
materials (at least 85%) which are likely to be incorporated in most
building projects and which change regularly.

Cement

Sand

Aggregate

Steel
H.T. Square twisted
Round mild bars
Fabric mesh reinforcement
Structural steel

Concrete blocks
Solid
Hollow

Building stone

Clay products

Asbestos cement sheeting

G.C.I. sheeting

Resincot I.T.4 and L.T.S. sheets

Vinylex floor tiles

PVC drain pipes and fittings

Galvanised mild steel pipes and fittings

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SECTION TWO THE JOINT BUILDING COUNCIL

EXTENT OF FLUCTUATIONS COVERAGE CTD

THE MONTHLY PRICE LIST CTD

Timber
Softwood
Hardwood
Blockboard

Paint
Emulsion
Enamel

Precast concrete roof tiles

Bitumen and mastic asphalt

Labour

A typical building tender is currently broken down as follows;

( J.B.C. Fluctuating items
Materials

80% )

( Non-J.B.C. items

60%

20% )

Labour 19% of builder's work (Approx. 19% of 60%)

11.5%

Plant (not forming part of Preliminaries)

9%

Preliminaries

6%

Overheads

8%

Profit

5.5%
TOTAL

100%
This is after excluding specialist services which are executed by others and not
subject to Fluctuations.

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SECTION TWO THE JOINT BUILDING COUNCIL

EXTENT OF FLUCTUATIONS COVERAGE CTD
THE MONTHLY PRICE LIST CTD
.01 Exclusions are specialists items

Lifts

Sanitary fittings

Electrical works including wiring and fittings

Specialist finishes to floors, walls and ceilings

Metal doors and windows

Communications wiring and fittings

However, labour component can be assessed and be made to fluctuate

like the rest of fluctuating items!

Above items have very high IMPORT COMPONENT and the items are
excluded because either there is not enough data available to enable
smooth management of price changes or such items are tendered for just
about when needed for installation or fluctuations is INCORPORATED in
the tender.
The criteria used when deciding what to include or exclude is;(i)

The weighting factor of the material as part of finished building. If

the material is of insignificant overall value, then it is excluded e.g.
ceramic tiles

(ii)

Frequency of price change if the material price does not change

frequently then it is excluded e.g. glass

(iii)

Specialist items which can be included as P.C. Sum and tendered

close to incorporation date excluded e.g. ironmongery.

(iv)

Shelf life of material materials that can be bought early and

stored without damage excluded e.g. sanitary fittings.
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SECTION TWO THE JOINT BUILDING COUNCIL

EXTENT OF FLUCTUATIONS COVERAGE CTD
THE MONTHLY PRICE LIST CTD
.02 Foreign Exchange Rate
All items in the construction industry have a certain element of foreign
exchange incorporation in
Transport
Fabrication
Plant and equipment
Prices of oil affects the price of electricity raises the cost of fabrication
and site assembly.
Some materials e.g. copper has increased in prices hence the price of
electrical wires. Kenya cannot control this situation as it is external.
Kenya is just a consumer of situations created by the G/8 etc and soon
the collapse of world economy will soon be with us!

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SECTION TWO THE JOINT BUILDING COUNCIL

02.

SOURCES OF PRICES
The Joint Building Council collects prices from various manufacturers and
suppliers and meets monthly (PRICING SUB-COMMITTEE) to update the
monthly price list and it is important to indicate the basis of the prices so
included.
KABCEC collects the price lists, the JBC also collects price lists and any
other interested person within the industry may provide the JBC with
pricing data e.g. Developers, Consultants and even price control/price
regulatory bodies.
e.g.
Cement

Paint

Ballast

Timber

Bamburi Portland Cement Co.

Athi River Portland Cement Co.

Crown-Berger Kenya Ltd.

Saddolin

Orbit Enterprises

National Concrete

Timsales

Wood Makers

The source so chosen must be reliable and has a fairly large share of
the market.

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SECTION TWO THE JOINT BUILDING COUNCIL

SOURCES OF PRICES
The practice notes issued from time to time dictate the price included in
the list.
Factory price
Delivery charges within Nairobi City Centre
Waste/breakage factor during delivery
Taxes e.g. V.A.T.
e.g.
190mm Solid Concrete Block
Price ex-quarry

Kshs.

48.00

Transport

Kshs.

15.00

Breakage during transport (5%)

Kshs.

3.00

Kshs.

66.00

Add 16% V.A.T

Kshs.

10.56

Price of each block

Kshs.

76.56

TOTAL

The current Agreement and Conditions of Contract for Building Works

1999 Edition Clause 35.4 nominates the Joint Building Council to be
acceptable body to DETERMINE THE SCHEDULE OF BASIC RATES
to be used by all Tenderers and also to PUBLISH ALL CHANGES TO
THE SCHEDULE OF BASIC RATES AT ALL TIMES.

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SOURCES OF PRICES CTD
This situation puts the Joint Building Council in a contractual obligation to
contracting parties i.e. the Developer and the Contractor to ensure that AN
ACCURATE monthly list is ALWAYS AVAILABLE AND UPDATED
REGULARLY!
e.g.
Steel being a major input in construction industry and also having a very high
import component value is both affected by world steel market and exchange
rate of Kenya shilling.
e.g.
July 2007

shs.60/32 per Kg

January 2008

shs.67/28 per Kg

February 2008

shs.78/88 per Kg

April 2008

shs.84/10 per Kg

September 2008

shs.83/23 per Kg

November 2008

shs.76/40 per Kg

December 2008

shs.69/41 per Kg

July 2009

shs.69/30 per Kg

August 2009

shs.75/40 per Kg

August 2010

shs.75/40 per Kg

February 2011

shs.92/80 per Kg

December 2012

shs.80/93 per Kg

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SECTION TWO THE JOINT BUILDING COUNCIL

SOURCES OF PRICES CTD
The base data at Tender stage commonly referred to as TENDER LIST must
be named and preferably included with tender documents.
Any changes after Tender opening date constitutes Fluctuations whether
contract signed or Tender validity extended i.e. if a Tender is opened and the
Client does not accept the Tender for even as long as one year, then all
changes in J.B.C. Fluctuations list will ne contractual.
The effectiveness of Fluctuations list cease at practical completion date and in
detail as soon as materials have been paid for by the Client. The logic in this
approach is that after practical completion, no further materials are necessary
for the works (and any new instructions are executed at new/current rates)
and also as soon as the Client pays for materials, why should he suffer
subsequent Fluctuations (he is already suffering from interest on such money
borrowed to effect early settlement of materials included in interim
certificates).
Fluctuations Clause considers materials prices available ex-suppliers or
manufacturers. The effect of currency Fluctuations on the import component
of locally available fluctuating materials is assessed at supply point as usual
when changes occur.

However currency Fluctuations can be made

contractual so long as the base data is established at Tender stage and all
other changes so agreed just like the materials Fluctuations.
The detailed calculations of all contractual (Tender based) Fluctuations
(materials, labour and currency) are worked out interparties between the
Architect and the Contractor or at the direction of the Architect between the
Quantity Surveyor and the Contractor.
Reimbursement is as per certificate (on certificate basis) as events take place.
Materials not included in the Tender Fluctuations list do not attract
Fluctuations even when incorporated in the subsequent lists.

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CONCLUSION
From the foregoing, there are more advantages in contracting based on Fluctuations
Clause because the Client obtains a competitive Tender and minimises the
frequency of claims by contractors to try and catch on weak points from Clientscaused delays.
if neither the Client nor the Contractor can accurately foretell the future why demand
the Contractor to foresee future price changes and include the same in the Tender?
they are both reasonable human beings.
.01 Current projects that were contracted prior to December 2007 todate have
been affected by;

High inflation worldwide especially caused by crude oil multiplier

effect are enormous.

High increase in imported materials caused by fall in Kenya shillings

value.

High cost of locally assembled materials resulting from effects of oil

and low exchange rate e.g. sand, steel and aluminium.

THESE

PROJECTS

NEEDED

SPECIAL

ATTENTION

TO

MITIGATE

CONTRACTORS LOSS ELSE ABANDONMENT OR SHODDY WORKS WOULD

RESULT.
THE DEVELOPER NEGOTIATED AND GAVE EX-GRATIA PAYMENT TO
CONTRACTOR TO SAVE THE PROJECT.

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CONCLUSION CTD
I pray and hope that one day all building components shall be included in the
Fluctuations Clause but who knows when? Let us all work towards that goal and as
we do so we also encourage contractors to be less claims-conscious and work with
the Design Team and the Client as partners and evolve the construction process into
a more honourable profession
ALL future projects to have basis of tender extended to bulk of items that are not
currently in JBC list e.g.
Electrical wiring 100% August 2010
Fuel cost 100% ($70.00) August 2010
Aluminium items 100% August 2010
Foreign exchange rate US$1 = 71.00 August 2010
It is also recommendable to seek the services/inputs of CENTRAL BUREAU OF
STATISTICS so that the cost of living index can also be incorporated and make it
part of fluctuations operations for small and large projects!
MINIMISE SPECULATION
MINIMISE DISPUTES
ACHIEVE PROJECTS COMPLETION IN TIME AND IN A RELAXED MANNER
PRICE CHANGES AFFECTS BOTH THE CONTRACTOR AND DEVELOPER
ALIKE AND NO-ONE SHOULD HAVE AN ADVANTAGE OVER THE OTHER
BECAUSE ALL PARTIES TO A CONTRACT ARE EQUAL.
This is the paramount objective of JBC to minimise disputes both ways and
eventually establish a stress-free industry.
GIVE IT A TRY!
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SECTION TWO THE JOINT BUILDING COUNCIL

CONTRACTORS CAPACITY BUILDING
As stated earlier, all good businessmen learn from others as well as own experience.
For a Building Contractor, he must treasure experience from past jobs and tread of
economy and political climate.
For one to grow and rise in categorisation (NCA Categorisation) one has to invest in
the business both in plant, owned workshops and offices and a reliable backup of
professional/technical staff.
For one to survive lean days of workload, one has to set aside some profit for that
rainy day!
Access to finance from banks and access to credit of materials from suppliers are all
assessed on the financial stability of the Contractor and above all attitude towards
payment of debts as and when they fall due!
As one starts on a new project, one has to plan how to complete the old ones and
also how to get jobs for the near future.
This assures continuity of business and that is the aim of each and every
businessman!
LET US ALL AIM AT CONTINUITY AND GROWTH AT ALL TIMES!

Prepared by:

QS. ONESIMUS MWANGI GICHUIRI, HSC

(B.A. (Build Econ) Hons, FAAK(Hons), FIQSK, MCIArb,MKIM,
AKISM),FICPMK
CHAIRMAN (1990 2007) THE JOINT BUILDING COUNCIL, KENYA

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