Contractor and sub contractor insolvency: What to look out for and action to take

The number of insolvencies in construction is on the up according to figures from the government's Insolvency Service. In fact analysis by law firm Shakespeare Martineau shows that the construction industry accounted for 16% of administrations in 2022. The figures are a reminder of the impacts on architects.

There are short term concerns – making sure practices don’t have project financial liability if a contractor (whatever tier) goes bust and managing the work pipeline if contractor insolvencies stall projects. Longer term, these insolvencies don't help with the chronic and accelerating construction worker shortage; company insolvencies may make people move out of the sector. Forecasts of recession are not helping. So how can practices manage this?

Afloat in choppy waters

In addition to these supporting incentives, on 26 June 2020 the government also introduced the Corporate Insolvency and Governance Act 2020 (CIGA) in an attempt to protect businesses in financial distress as a result of the pandemic. There were some important permanent reforms from this. 

Permanent reforms consist of three strands. First is the restructuring plan, which gives a company in financial distress the opportunity to agree a restructuring arrangement with its creditors. Secondly, a moratorium is available, a ‘freeze’ which is intended to provide companies with a formal process to explore and develop a viable restructuring plan. Importantly, this also offers the company in question legal and enforcement protection. It is worth noting that, while the company remains under its own management during the moratorium (initially 20 business days but extendable by agreement or as ordered by a court), an insolvency practitioner is appointed to help protect creditors and provide some supervision. Finally, the statute seeks to limit the ability of a supplier to terminate the contract in the event that a company becomes insolvent.

Moreover, the government has also attempted through the Construction Playbook to reinforce the principle of prompt payment to all suppliers, and in turn their supply chain, to safeguard the delivery of public sector projects and programmes.

In support of this fundamental provision, public sector employers such as Network Rail have led the way by implementing other methods of relief for at risk businesses within their supply chains on a case-by-case basis. Such measures include immediate payment terms, advanced payments, increased frequency of payments, relaxation of relevant contractual terms and the payment of reasonably incurred additional costs arising as a direct result of Covid-19.

The walking dead?

While such support and protection provided by the government and enacted by public sector employers should be applauded, there is a danger that some measures have only delayed the inevitable. Are a number of these businesses unlikely to recover from the pandemic with low growth rates verging on recesssionary, and, have they in fact, become zombie companies?

Protective measures

It is important that businesses remain alert and monitor their supply chain to protect themselves from any failures within it. In terms of protective measures, it seems that employers and contractors alike are seeking appropriate guarantees, warranties and bonds throughout their supply chains. A greater level of financial due diligence and scrutiny is also being imposed throughout the market to validate the financial wellbeing of suppliers.

Monitor for financial distress

Also, as a consequence of its financial hardship, certain actions by a company to improve its cash flow may be a cause for concern. These may include: requests from the contractor for changes to the payment mechanism, inflated applications for payment and/or unsubstantiated claims, complaints from sub-contractors regarding payment, a lack of response to correspondence, and late filing of statutory accounts and annual returns.

Any company seeing these warning signs, and a rise in the risk of insolvency, must act quickly to protect itself. It can adopt some simple ‘do’s and don’ts’ to help safeguard its position and avoid various pitfalls.

Safeguard: do’s and don’ts

Things to avoid without taking legal advice include: terminating, novating, or assigning contracts, appointing a new contractor to carry out relevant work, paying sub-contractors directly and making advance payments or paying for off-site materials.

Pre-emptive steps

There are pre-emptive steps that a company could adopt to prepare and ready itself. There are at least six such steps, for example, a company should ensure it has a complete set of contract documents (including warranties and guarantees) as these are often not conveniently stored and /or are incomplete. It should also establish a full list of the contractor’s management team, identify sub-contractors that are critical to the timely completion of the works and check whether collateral warranties are in place, and clarify its rights and obligations in the event of an insolvency, such as seeing if it has step-in rights.

While it remains unclear how the construction sector will respond to the challenges of the current climate as the government support is eased, it is imperative that firms remain vigilant.

Paul Cacchioli is a chartered quantity surveyor and director of HKA Global. Additional analysis by Adrian Malleson, head of economic research at the RIBA