- What is a performance security schedule?
- What must a performance security schedule include?
- When must a performance security schedule be served?
A person who has received a performance security claim made under the SOP Act may either:
- If you agree with the progress payment claim, release the claimed amount in full, on or before the due date, or;
- If you disagree with the claimed amount, serve a performance security schedule on the claimant within 10 business days after the performance security claim is taken to be served, or if the contract provides a shorter time, within that time (See notes below regarding date taken to be served).
If you do not do either of these things, the claimant may:
- Apply for adjudication
- Apply to the court for an order that the respondent must release the whole or part of the performance security to which the claim relates
What is a performance security schedule?
A performance security schedule is a respondent’s written response to a performance security claim which must be served on the claimant if the respondent does not intend to release the full amount of the performance
security claim, on or before the due date for release.
What must a performance security schedule include?
- A performance security schedule must:
- Be in writing
- Identify the performance security to which it relates
- Must identify the amount of the performance security that is proposed to be released if it is not the same amount of the performance security that relates to the performance security claim; (the scheduled amount)
Must indicate when the respondent proposes to release the performance security, or any part of the performance security
- If the respondent proposes to release less than the amount of the performance security that relates to the performance security claim, the schedule must indicate why the amount to be released is less, and the respondent’s reasons for this.
A respondent must include ALL their reasons for withholding release in their performance security schedule.
If a claimant choses to apply for adjudication, a respondent must not include in their adjudication response any new reasons for not releasing all of the claimed performance security that were not included in their payment schedule, and an adjudicator is prohibited from taking into account any new reasons.
If the claimant applies for adjudication, a respondent who has not served a performance security schedule may not serve an adjudication response.
When must a performance security schedule be served?
A performance security schedule must be served on the claimant within 10 business days after a performance security payment claim is taken to have been served, or if the contract provides a shorter time, within that time (see notes below regarding date taken to be served).
Critical note: date a performance security claim is taken to be served – time to
provide a performance security scheduleIf a claimant serves a performance security claim on a person before the earliest date (as provided for in the contract, or if the contract does not make express provision, calculated in
accordance with the Act):
- The performance security claim is NOT invalid.
- The performance security claim is taken to be served on the earliest date.
- The time within which a person may serve a performance security schedule does not commence until the earliest date.
What is the earliest date that a performance security claim can be served?
A performance security claim under the SOP Act may be served:
- A day that is at least 20 business days after the end of the relevant defects liability period for the construction work carried out or related goods or services supplied under the construction contract to which the performance security relates;
- On or after a day, or on or after the day of the occurrence of an event (if any), specified in the construction contract
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DOWNLOAD
Performance Security Schedule – Sample Form
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