Cash retentions are money held back by larger contractors and clients from subcontractors in issues of non-performance arise such as defects arise on work undertaken.

Money is deducted by clients from payment to their subcontractors, who then consequently hold back similar figures from their own subcontractors.

In theory, if there are no defects, then the monies are paid in full to the subcontractor in a timely manner. However, the system is known to be widely abused.

Retentions are on average worth 5% of a contract’s total value, but can be up to 20%.

Cash retentions are deducted from payments owed in respect of labour, materials and works already delivered and carried out, and therefore legally belong to the companies that carried out the work.

Thousands of SMEs in the industry wait 2 - 3 years to recover outstanding retentions, which despite the Construction Act routinely get linked to decision, certificates and events, under contract above, but they can be kept for as long as 10 years.

The value of cash retentions is often higher than the profit margin for work undertaken and sits at an amount which is; a) over the small claims threshold and therefore not viable under the courts system, and b) not necessarily viable under an adjudication.

Retentions are held by private and public sector clients against their subcontractors, with over £10.5bn of SME working capital locked in retentions annually. Some £7.8 billion of this has been unpaid in the last three years.

Over £1 billion in cash retentions is owed to 12 of the largest construction companies, according to research from SEC Group.

Construction giant Carillion held around £800m in retentions at the time of its insolvency (although in total Carillion owed subcontractors around £2 billion).

Some 84 per cent of public bodies, including local authorities, apply cash retentions on businesses within their supply chain.

The amount of retentions held by public bodies ranged from 1.5 – 10% of the value of the work.

Of the public bodies holding cash retentions: 20% invested the cash, 51% used the cash as working capital, 27% left the cash untouched, and only 2% did not draw down the funds until needed.

Deprivation of working capital leaves businesses unable to grow (bid for new work), invest (engineering R&D and investment in digital transformation), recruit (new workers and apprentices), pay tax bills, and therefore precludes productivity improvement.

As retention monies are not protected, ring-fenced or held in trust, if a contractor goes bust, the money is lost by subcontractors, and goes to other creditors, often outside the industry.

In the UK, recent government research shows £700m of retentions were lost from upstream insolvency in the last three years. For each working day, the industry loses almost £1m, £4.5m a week or £20m a month.

Research has found that SMEs spend on average 130 hours per year chasing late payment from larger firms. 34% of SMEs borrow to cover cash flow issues caused by cash retentions.

Often this is written off as bad debt, due to the resource implications of chasing monies due.

Cash flow issues leave businesses unable to: bid for new work, take on new workers and apprentices, pay tax bills, and improve productivity.

The knock-on effects of cash retentions can also include stress and mental health issues.

The current system is also a causal factor in bringing about a less efficient public procurement system and results in lower tax receipts for the public purse.

The ‘Aldous Bill’ is a ten-minute rule bill introduced in the House of Commons by Peter Aldous MP. Its full title is the ‘Construction (Retention Deposit Schemes) Bill’.

The first reading of the Aldous Bill went unopposed on 9 January 2018, just 6 days before the collapse of Carillion. The second reading is scheduled for 22 March 2019.

The Bill aims to change retentions practice and protect monies from insolvency, by holding the retentions in third party bank accounts.

BESA and ECA are in regular discussion with Government and the Construction Leadership Council and have raised the Bill directly with Business Secretary Greg Clark.

Abuse of retentions has already been legislated against in countries including the USA, Germany, France, New Zealand, Australia and Canada.

Reform of cash retentions in construction is supported by a broad range of politicians, business bodies, construction trade associations, and professional bodies.

Business bodies in support include the Federation of Small Businesses, the Institute of Directors and British Chambers of Commerce.

There is broad cross-party support for reform, with supporters from Conservatives, Labour, Liberal Democrats, SNP, DUP, Plaid Cymru and the Green Party. Supporting MPs represent 18 million people in constituencies covering the whole of the UK.

Some of the senior MPs supporting retentions reform include: Ken Clarke, Vince Cable, John McDonnell and 15 select committee chairs.

The BEIS select committee published a report on ‘Small businesses and Productivity’ in December 2018, calling for cash retentions to be held in independent accounts.

The more support the Aldous Bill gets the more chance we have of making this important change in legislation happen.

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