COCA Submission to the Expert Review of Prompt Payment and Adjudication on Federal Construction Contracts
March 27, 2018
Bruce Reynolds & Sharon Vogel
150 King Street West
PO Box 24
Toronto, ON M5H 1J9
Dear Bruce and Sharon,
The Council of Ontario Construction Associations (“COCA”) is a federation of 29 construction associations representing approximately 10,000 general and trade contractors that perform work in the industrial, commercial institutional (ICI) and heavy civil construction sector in all regions of Ontario. COCA is the largest, most diverse and most representative voice for the non-residential construction sector in the Province of Ontario.
COCA has advocated for prompt payment in Ontario since 2011. We were active participants in the Construction Lien Act Review carried out by the government of Ontario. COCA publicly supported the general principles outlined in Striking a Balance and the end result as embodied in Bill 142 Construction Lien Amendment Act 2017 t. We are now taking steps to prepare our members for the implementation of Bill 142.
In our view, Bill 142 got prompt payment and adjudication right. Bill 142 achieved a reasonable balance between the competing interests of owners, contractors, and subcontractors. We would like to see more of the same at the federal level.
Our answer to most of the questions in the Information Package is that the federal government ought to enact legislation that follows the model of Bill 142 right down to its specifics. Set out below are our comments on the questions to which Bill 142 does not supply a direct answer:
- Certification should not be permitted as a pre-condition of delivery of a proper invoice.
- In our consultations with our members during the lien act reform process in Ontario, many expressed an urgent need for an electronic system to make the flow of funds from the top of the construction pyramid down to the bottom transparent. While that may have been difficult to implement within the construction industry as a whole at this time, it strikes us as an achievable goal on federal construction contracts. Ideally, practices and technologies that get developed on federal projects can then be adopted within the construction industry as a whole.
- In addition to those professions identified in the draft regulations to Bill 142 who may act as adjudicators, COCA believes that contractors and subcontractors with the requisite experience and training should be eligible to qualify as adjudicators.
- COCA takes a dim view of amendments to standard form contracts as an alternative to legislative reform. The elongation of the payment cycle often occurs in spite of the terms of the contract. We feel that a legislative solution is necessary to reduce the payment cycle on federal projects.
- If prompt payment and adjudication modelled on Bill 142 is not suitable for the country as a whole, then our fall-back position is that the federal government should defer to provincial prompt payment legislation where it exists.
We appreciate the opportunity to participate in the review process pertaining to prompt payment and adjudication on federal construction contracts and we look forward to our meeting on March 29, 2018.