How Do Suppliers Fit Within the New Prompt Payment Regime?

  • April 06, 2020
  • Jackie van Leeuwen, student-at-law at Glaholt Bowles LLP, Andrea Lee, Partner at Glaholt Bowles LLP

The lag between a subcontractor completing its work on a project and the subcontractor being paid has been a longstanding source of tension in the construction industry. In the past, subcontractors typically had to wait for the contractor to be paid by the owner before money would flow down to them and, even then, there was no guarantee that they would be paid within weeks or even months of completing work on a project. Adding to the tension was a desire to preserve the working relationship with the contractor, which sometimes prevented subcontractors from pursuing what they were owed. On October 1, 2019, the prompt payment and adjudication provisions of the new Construction Act came into effect. The provisions establish a new dispute resolution process, adjudication, and contain strict timelines for payment, which aim to ensure that those who provide services or materials to a construction project are paid on a timely basis.

The prompt payment timelines are triggered by the contractor’s submission of a “proper invoice” to the owner. Unless the contract provides otherwise, proper invoices must be given to the owner on a monthly basis. Upon receipt of a proper invoice, the owner has 28 calendar days to pay the contractor in full. After being paid, the contractor has seven days to pay the subcontractors whose work was included in the proper invoice and so on down the chain. At each level, a party can give a Notice of Non-Payment of to the party it owes payment to.  Such Notice must specify the amount being disputed and provide all the reasons why payment is not being made in full or in part. Disputes that are the subject of a Notice of Non-Payment can be referred to adjudication. Provided no Notice of Non-Payment is issued, it would take forty-two days for payment to flow down the chain from an owner to a sub-subcontractor. Some in the industry are hopeful that the new regime will increase transparency and help to mend the relationship between contractors and subcontractors by ensuring timely payment of invoices; others are less optimistic.

There is uncertainty about how suppliers fit within the new regime and concern that this uncertainty may create a new tension between suppliers and contractors. Suppliers are not defined in the Act. A subcontractor is defined in the Act as “a person not contracting with or employed directly by the owner or an agent of the owner but who supplies services or materials to the improvement under an agreement with the contractor or under the contractor with another subcontractor and includes a joint venture entered into for the purposes of an improvement or improvements”. Based on this definition, it appears that suppliers can be subcontractors for the purpose of the Act and that prompt payment applies to them. Therefore, if suppliers are contracting directly with a contractor, then the trigger for prompt payment obligations runs from the date the contractor’s proper invoice is received by the owner, which will presumably include amounts owed to suppliers under that invoice.