Clifford Gouldson Lawyers

Foundations Data - Do I really need it pre-contract?

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The short answer is yes.  The long answer is: 

It can seem like just another administrative burden to have to enter into an early works type contract just to obtain soil tests or engineering designs before you enter into your actual construction contract.  However, if a contractor fails to obtain appropriate foundations data in circumstances where they should have, the contractor will not be able to claim any variation or increased costs from the building owner if that increased cost could have been calculated prior to the parties entering into a regulated contract had the required foundations data been obtained. 

What is Foundations Data?

Schedule 1B of the Queensland Building and Construction Commission Act 1991 (the Act) defines ‘Foundations Data’ as:

“the information about a building site a building contractor exercising reasonable care and skill would need to have to prepare -

(a) an appropriate footings design for the site and, if appropriate, an appropriate concrete slab design for the site; and
(b) an adequate estimate of the cost of constructing the footings and, if appropriate, concrete slab”.

This information includes “relevant information contained in, or obtainable from reports, surveys, test results, plans, specifications or calculations prescribed under a regulation”.  The Act leaves it open for the regulations to be amended to specify any other information however at this time, no additional information is prescribed in the QBCC Regulation 2003.

This means that you may need more than just a soil test prior to entering into your contract.  Depending on the site, what is considered ‘appropriate’ data could include a full geotechnical report and engineer designed footings. 

When is Foundations Data Required Pre-Contract?

A contractor must obtain Foundations Data before the contractor enters into a regulated contract (which includes every domestic building contract over $3300) that will require the construction or alteration of footings or a concrete slab for a building or include work that may adversely affect the footings of a building or a concrete slab forming part of a building.

The Foundations Data that needs to be obtained by the contractor is that which is “appropriate for the building site” having regard to the BCA, whether or not a drainage plan, engineering drawings/calculations or information about the fall of the site is required. 

The two exceptions to the requirement to obtain Foundations Data are:

  1. the data already exists, and it is reasonable for the contractor to rely on that data; or
  2. the contractor is not lawfully entitled to enter the site to obtain the data before entering into the contract AND the contract guarantees that there will be no increase in the contract price because of the Foundations Data.

Consequence of Failing to Obtain Foundations Data Pre-Contract

If a contractor fails to obtain Foundations Data in any of the circumstances outlined above the contractor: 

  1. will be unable to claim from the building owner any amount not already provided for in the contract - so no variations will be allowed where the need for the increased amount, and the calculation of the increased amount, could reasonably have been established had the contractor obtained the foundations data as required by the Act prior to entering into a contract;
  2. could be fined up to 100 penalty units.   One penalty unit is currently worth $110 so the fine could be up to $11,000; and
  3. could be issued with up to 4 demerit points by the QBCC.
Copy of the Foundations Data to the Owner

The contractor must give a copy of any Foundations Data obtained by the contractor to the building owner when the building owner pays the contractor’s costs in obtaining the data.  A failure to do so could lead to a fine of up to 10 penalty units and the issuing of up to 2 demerit points by the QBCC.  This of course does not apply in circumstances where it is the owner who has given the Foundations Data to the contractor. 

And so the core of the long story is:

Yes, you should obtain Foundations Data pre-contract.

For more information contact our Construction Law Team.

Kylie Howell, Senior Lawyer

Brian Conrick, Senior Consultant

Harrison Humphries, Lawyer

Sharne Lategan, Lawyer

Ben Gouldson, Director

Stacey Barton, Paralegal

Contact Us

Phone 07 4688 2188

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