The recently opened Sandals Whitehouse European Village and Spa in Westmoreland. - file
The Heads of Agreement states that "Gorstew shall bear the cost of any overrun which is due to instructions given by Gorstew for a change in the design or design brief after the design or design brief has been agreed and signed off on by the parties prior to the commencement of the project".
Based upon the numerous documents which we have perused, it is the considered view that the changes in the scope of works, quality of workmanship, types of finishes and the types and qualities of materials which were utilised, were substantially the dictates of Gorstew Ltd. since they are to be attributed primarily to the change in the project's initial Beaches concept to a Sandals concept.
What is unclear, however, is to what extent, if any, the overruns in cost and in time and the parties' decisions and agreements regarding the change in the scope of works, have impacted, varied or adjusted their original contractual arrangements, inclusive of their liabilities for the subject cost overruns.
Overseas-based architects
The architects, Sant Associates, who are based overseas, were employed to carry out architectural services for the client, Newtown. Gorstew Ltd., are partners and equity participants of Newtown and Sant Associates have been engaged on numerous occasions to carry out architectural services for Sandals Resort International (SRI).
Having established that the cost overruns which are associated with this project were largely due to changes in the scope of works, it must be noted that the terms of the contract which govern the administration of the project required that these changes be issued to the contractor through the 'architect's instructions'. The contract recognises the architect as being Mr. Christopher Shaw of the Urban Development Corporation.
This means, therefore, that the UDC, through the architect's instructions, must have first certified all payments which were made for varied or additional works, before these could be certified for payments by the quantity surveyor.
It is also expected that before the architect confirmed these changes, they would have been discussed and agreed by the Newtown joint venture partners and, if possible, conveyed to the project manager.
Good practice would have also dictated that the quantity surveyor would have provided the cost implications of the proposed changes before they were agreed and issued.
Having regard to all of the foregoing, it is therefore difficult to accept that variations in this project to the tune of approximately US$40 million, inclusive of substantial variations in the scope of works, could have been made without the prior knowledge of the parties to the Newtown agreement (viz. Gorstew Ltd., UDC and NIBJ) or, at a minimum, without the prior knowledge and approval of the UDC, Gorstew Ltd. and NEVALCO, or that these actions only became evident upon the completion of the project. We would view the suggestion, if it were to be made, to be inconceivable, if not unequivocally ludicrous.
