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Page 1: Which Contract

RI BA Publishing

Page 2: Which Contract

Which Contract?

Page 3: Which Contract

f ̀ I K

vi H

riginal

Page 4: Which Contract

Fourth Edition

Hugh Clamp, Stan

RIBA Publishing

3

Page 5: Which Contract

61L

First Edition (1989) by Stanley Cox and Hugh Clamp Second Edition (1999) by Stanley Cox and Hugh Clamp Third Edition (2003) by Stanley Cox and Hugh Clamp Fourth Edition (2007) by Sarah Lupton

Published by RIBA Publishing 15 Bonhill Street London EC2P 2EA

ISBN-13 978 1 85946 237 9

Stock Code 58319

The rights of Stanley Cox, Hugh Clamp and Sa

of this boo

, Desig

All rights reserved. No part of th transmitted, in any form or by a

otherwise, without prior permissi

British Library Catalogui A catalogue record for

Publisher: Steven C

Commissioning Edit Project Editor: Anna Design and ty,

Printed and

ss

in PO

is boo

T,Kompso

iesettiA

ound by MP

omplet revi

riting:

hile

s

le

003. F

ould Iwa ake the

Millbank

Fou

ents iri rms of

publics i .nay be repi u

mean , electronic, mechani p of th copyright o

a

ced, s

I, phot

cati s Data

s avails e from Briti Libra

ComW

Editi

madet

,,missta ements made in i

pd by s

hecks.

isunde

Lu pto

which first appeared in 1989 and which was e Second Edition was published in (1999) and the

eferred to are those believed to be current at the time

heck the accuracy of the information given in this book, readers ether the Authors nor the Publisher accept any responsibility tandings arising from it.

4

Page 6: Which Contract

Contents

Foreword

Introduction

1 Thinking about contracts

2 Establishing a contract prgfil

3 Which procurement me

4 Which type of contract?

5 Which contract fo

6 Traditional procu

JCT Major Project Co

JCT Standard

GC/Works/

NEC Eng

uil

With

eering

7 Traditiona

JCT

J

ontra

s of Con

153

159

162

168

172

179

8 Traditional procurement: consumer contracts 185

JCT Agreement for Housing Grant Works HG(A) 2002 Edition 187

JCT Building Contract for a Home Owner/Occupier 194

JCT Contract for Home Repairs and Maintenance 200

5

truc

ac ntr

antitie

ilding

st-Andard 16

on Contr 2

005

Contract T

racts 2

JU Reoal andlMaAenanc

:C Engineering

LI Aareerrientfor

ontra `t (Commercial) 2006 Edition

age 7

9

15

23

31

53

61

67

69

83

96

107

117

119

130

139

(Third Edition 1998, 2003 Revision) 143

Page 7: Which Contract

W

W

Contents continued

Architecture and Surveying Institute Mini Form of Co

and Mini Form of Contract (Home Improvement A

9 Traditional procurement: measurement for

JCT Standard Building Contract With Approxi

ICE Conditions of Contract Measurement Ve (September 1999)

ICE Conditions of Contract for Minor W

JCT Measured Term Contract 2006 Edi

10 Traditional procurement: cost p

JCT Standard Form of Prime Cost C

11 Design and build procurem

JCT Design and Build Contr

ICE Design and Construct C

GC/Works/1 Two Sta

12 Management pr

JCT Standard For

JCT Works Contract Standard Fo

JCT Contt

JCT Trad

13 Partn

`tract (

ncies)

tities 2005

i~tion

Framewo

Fra

Par:`nering Option

dard Fo rfi

ion Seve

itio`(200

itiori tract

;t 2005

nditi ns o Contract S

Des

urem

of M

nd 2 and 3

greeMent C/

Build (1

998 trac

(1999)

emertrrorms

ntr1998 E

enera

292

297

307

partneringreements 313

A) 315

315

318

act for Project Partnering PPC2000 321

335

347

349

6

13

221

227

237

239

249

251

ion (2001) 265 r

273

273

279

281

Page 8: Which Contract

Foreword

This is the fourth edition of the popu that edition the book has increased Sid

in the number of standard formsth whereas this new edition inclu new 2005 suite of JCT forms,. an

writing (the cut-off point included. In addition the b

for example NEG and the Cl

The first three editio Clamp, and much is still relevant toda developments and chronology of

Sarah Lupt

989. Since uge growth

15 contracts, ed to cover the

lished at the time of opular ones are all

er publishing bodies,

by Stanley Cox and Hugh ers has been retained, as it

been added to include recent ocurement, together with a

contract.

7

Page 9: Which Contract

8

nal

Page 10: Which Contract

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Introduction

The last twenty-five years have seen forms of contract available for use in th range of forms currently availabl development and refinement. Conditions of Builder's Contrac Builders Society. Subseque 1895, intended for tradit effectively only one standard revised, expanded a

manifestation bein available in three v

In 1945 the Institut for use on a

Constructio Contract Contrac forms.

r

Contr'

the 200 riants.

d, to

provi

t on e r ad

and new m

nd build procurement, the Intermediate Form of Building form of Management Contract, and the Measured Term

This upw curv is reflected in the activity of other publishing organisations. ng the p blic tion of its first edition of the Conditions of Contract in 1945, the

ICE wen on publi a further three forms, including the New Engineering Contract in 199 . FIDIC pu ished its first form in the 1950s, the Government published GC/Works/1 3, and the ACA first published its form in 1982. The first edition of Which Contract? in 1989 covered around X forms of contract.

The Latham Report (Constructing the Team, by Sir Michael Latham, HMSO (1994)) has

had a considerable effect on contract forms and procedures. This was a wide ranging look at the industry as it then existed. It recommended better project strategy, more

es follo ng th ecb in stry, u ing fro

olo re ent a

act in 1967

Engineer measure

rence the e

stand d

u

men to b(

r Hu

f standard ts. The wide of invention,

first 'Heads of BA with the London tions of Contract in

ifty years, there was his document has been

ew editions, its current ndard Building Contract,

andard form, the first available basil' The first edition of Keating on

h the ICE and the JCT Conditions of on's Building and Civil Engineering

legal corn entary on the interpretation of these

World War there were extensive changes in

an increased volume of construction, new thods of working. From the 1960s alternative

d forms began to appear. The JCT published the e Agreement for Minor Building works in 1968,

ew forms in the 1980's; the Standard Form 'with contractor's

9

Page 11: Which Contract

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Introduction

F-

N u

,lade and co ibuna

nd t a

m

rs

s

u

Oe five y near o ner/ ccu r, an simer protection legi

ent mar ey

Par

era

q on-

rocur

isatio the f g ch

acts Tribunal ecam - and a egiste oidate th d cumen

i-tegration o ive eff

db

blic

of

I L'

tween

indin

ludin, trod

ion of

e

h

rs an owi p

ntrac ontra

ati

g ving plan

on pr

ith rt II of t lowe as a dir t res

en etho and he to ications at foll

, and dis

o

the

e in

u

it ce of p

,t

, built on rea

sts,

o Coh

o poi fficiy.

truction of tom, ding clef

i a re

u re ro

icu

in the thinki

rmanc onsis

l l f

no

on

er

d an

ent.

m

pro duress cl' nts the ere Ion

II partleVin an mosph of ns. It laid e fo o

O neq, an he enefits

see

a n

payme t of e plZns

to be i

d i

me

srn

It

t i

uc

m

n

ra

Tas

ide th

integrated ways of working, fairer tendering, improve d rapid resolving of disputes by adjudication. It stressed force, the importance of a full brief, design quali lowest price to determine best value, fair dealingtfo mutual cooperation, and the outlawing of unf for new thinking about procurement, the pl long-term relationships.

The Egan Report (Rethinking Constructio, chaired by Sir John Egan, HMSO (199 Latham Report, and took further the c

the need for improvements in con concerning delivery, and a reductio the elimination of wastage through lea

site accidents. The idea of benchmarking as aids to ach changing climate of opinion

These two reports, together Regeneration Act 199 significantly affected The initiatives, org reports are listed

In 1998 the Joint Con Joint Contra ribu was to up Contracts Grants A resulted in t

In

st

0 con impro published a documents for u

At around this time

ced to 1998 edit

f

Force

by the it stressed

edictability ts: It called for he number of

nt indicators and ment, reflected a

hts, Construction and ofthe Latham Report, have t of current contract forms. wed the Latham and Egan ssed further in Chapter 3.

body with a distinct legal persona, The ness address. Its immediate concern

previously published by the Joint he changes required by the Housing

ct to Latham's recommendations. This of all its forms.

999 and 2004 the 1CT published a further five new Three of these (the two contracts for Home

for Repairs and Maintenance) took account of d were a response to the boom in the home

nded for domestic work only. In addition the JCT

nering Charter for a Single Project, and the suite of tion management procurement.

her publishing bodies produced new contracts. The ICE

publishing the third edition of the NEC form, considerably expanding the earlier suite. The ACA published PPC2000, and subsequently SPC2005 and TPC2005. The Reading Construction Forum published the BeCollaborative form of contract.

The most recent revision to the JCT suite of forms took place in 2005. Most of the

Page 12: Which Contract

r+..

Introduction

then current forms were republished, with n

numbering, and with extensive re-drafti addition two new forms for Framework variants of the existing Intermedi incorporating provisions for contrac new editions of JCT forms are still t Constructing Excellence form is to be

There are currently over 40 s

emanating from eight publis contract, including variants contracts, warranties and around 15 forms, including

gui

suite of 23 documents, and list of contact detail

Figure 1 .1

Chronology of dev

Dates show:

first pu first ound

icati,on ions

of in

ndar'

r de

and green nts,6ppead, tether

d Mift& Wo s bu di n. t the ti of w tin

be issuA

o uildi

a

ing sources

riants,

two Pro

ACA bodie

t of stand

an t is un r ood th

J w p evrk a e ent

forms-(r luding ks and rep

itutes a

Advisor

ract 'hA is

ph

e Civil Estate publish contracts, plus the NEC

s, including PPC2005. A appendix A.

18 8 tit of Ci Engi eers 1 34 Roya ns ute o itish Ar itects 870 ads Co itions of B ilders' Contract

09

1931

RI A wit the Lo on ilders' Society udson' Building a Civil Engineering Contracts

RIBA/ BA Form of Contract A / LB Form of Contract r tives contracts with and without quantities included

RI=,o itio of Contract tra s Tribunal

RIB Sta dard Form of Contract 1939 Stan and Form of Contract 1945 ICE Con itions of Contract 1955 on Building Contracts 1963 JCT Standard Form of Building Contract 1963 edition

Two versions, private and local authority, each with alternative editions for use with or without bills of quantities

1967 JCT Prime Cost Contract 1968 JCT Agreement for Minor Building Works

11

Page 13: Which Contract

.-f

Dog

;::

V)+

12

Introduction

first edi onstrung th it Mi aelIT tho

,sting earn

^ag Construc

over

ions in i

ecomm to exist in June throughhe-IC

ition Grants, Co

in the

Utant ArE

the F I

ors I

oru introd

blic seMTor borro rtions of Co

to ons u(

itect stitute

tr ce In'

on red gn and

t dec sign and

nt

ent Gontra`

(CI

entm

ct

'city

trac racer's D

e built

uildiw co 1973 GC/Works/1

The first government sponsored standard 1973 Association of Consultant Architects (A 1979 JCT SFBC With Approximate Quantitie 1980 JCT Standard Form of Building Contr,

Six variants, private and local auth 1981 JCT Intermediate Form of Building C

1981 JCT Standard Form of Contract 1982 ACA Form of Building Agree 1987 JCT Standard Form of Manag 1988 Construction Industry Cou

pan-industry forum repr 1989 Which Contract? 1989 JCT Measured Term 1989 Association of Con

Amalgamation o

Construction Surv 1990 GC/Works/2 1991 Reading Co

1992 Private Fin

Emphosi 1992 ICE De

(governm 1993 G 1993

1994

1995

1996

1996

1997

1997

on Forum -6 best practice guide to partnering try Board (CIB)

ent, mainly concerned with the implementation of e Latham Report and the Egon Report, ceased initiatives now mostly run by the Government

sec

Housin Partne CIB Election of Tony Blair PFI emphasis shifted to 'value for money' Lean Construction Institute

Page 14: Which Contract

=ti

Introduction

1998 The Seven Pillars of Partnering Reading Construction Forum

1998 JCT Ltd formed 1998 JCT standard forms

Revised to comply with H CR

1998 Rethinking Construction Government sponsore revs

identified five drivers or n which was partneri the supp

1998 Movement for Innov 'on (NN

Established to ve e i le

recommendoti 1998 Construction Best ctice

Working a learnt fr

1999 JCf Buil

1999 Achievin Govemme

lent, Guid

CIC, c tain.

ons ation t for Ho

ence launch( 6onse to E

indu g amour

in

of

CPB

ving

roject Owne

an, r4cus th effi

recom

t Tea r ering ted heads of tJ

editio 20 2 del P oject P.

win Prime

long-term s

fishes

tractor Handbook of Supply Chain Management ategic supply chain alliances

Aril I I key performance indicators) Health

NH r

Introd es

NI

of its estate

rtnering framework for the Department of Health and the

New part ering contract published by Association of Consultant Architects, veto d by the CIC partnering task force

2000 GC/Uorks amendment Supplemental clauses: risk assignment, value engineering

2000 Confederation of Construction Clients (CCC)

Formerly the construction Clients Forum, aims to encourage clients 'to achieve value for money through best practice'

tinge of initiatives to improve the NHS's planning, procurement,

13

Page 15: Which Contract

f_1

tap

+.,

LL.

iii

+''

+,+

Introduction

2001 JCT Practice Note 4 (second series): Partneri 2001 Construction Clients Charter launched

Construction Clients Forum 2001 Strategic Forum Replaces CIB

2002 JCT Building Contract for Home Owner/occ ier'With consultants agfeeergen 2002 Accelerating change

Strategic Forum. Sets out measurable rg

%t1o

' g p erlorman in construction, including client em egr ng e teorr)l and people issues

2002 JCT Contract for Home Repair' 2002 JCT Construction Manage 2002 Architects and the Chan

RIBA 2003 Be (Collaborating for

Reading Constructn Forum erg with sign uil oundation 2003 Be Collaborative c ntracta ing Con uctio oru Working Group 2 2003 JCT Major Projects 2004 Constructing xcell

Includes: R esikq, Bui Foun tion, Construction Best Practice Programm , Mli, e sing ethin ng Construction, Be, LGTF Construc

2005 NEC3

O Rice o f vernrravft Com erce recor sends the use of NEC3 by public sect tr tion proc ers on hh' construction projects

2005

2005

2006

by Constructing Excellence 20W JCT)Cons fiction` ,:ccellence Contract (forthcoming)

14

Page 16: Which Contract

n-0

--K

S'^

r)'

.^-+

V),

odern

ct doe

iod bntract. Li ke

hd

enera

ally b

network of construction

ese relationships ateral (ie with two Often 'chains' of

ervice-provider-main 't-sub-contractor, sub-

coined to describe this ely described as a network.

network of bilateral contracts,

rac al re tionships from managerial links, and m this is ometimes far from easy. A contract

onal offer i unconditionally accepted (for a full ch as F cus on Contract Formation). A legally

evidenced in writing, although it is good practice

Act 19 the constructi

cha

en mo

gs, legislation such as the Housing Grants 6 only apply to contracts in writing. It has

on industry to use standard forms of contract, itten cume s are equally binding, and are often used on glow).

professional consultants will be primarily concerned with two ose under which professional services are provided and those

tion ork is carried out.

i ppdse, the two categories are essentially complementary. The tions of the professional acting for the client during the

fight be significantly conditioned by the wording of the ise, the part played by the professional during the pre-contract

ermined largely by the contract for services, will be influenced by the type of procurement to be adopted and the role to be played by other professionals and by the contractor. To this extent at least, the choice of the one contract might be influenced by the content of the other.

The term 'procurement method' relationships which are forme companies, to enable a buildin are formalised by entering in

parties), but are occasion contracts develop, for ex

y m ple c

ialist- contractor, main contractor-so contractor-supplier. relationship, but in r

In any given project with each individual

It is important in complex is usually f explanati

ries of

rmed see a

binding cont to en

(Co

b

a

larg

ArcWii

e

rocur

nt led not h

is. Amo

Although different g hori and bli

u pN pa em is o -1 en there will

into sever-ar

15

Page 17: Which Contract

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Thinking about contracts

16

Contracts for professional services

Leaving aside the fact that many architects offer directly building specific, it is for this latter rd Nowadays, architects increasingly find thems partial service, or a service which is not 'tradi be the lead consultant. Sometimes they s

eventually becoming part of the contracto '

gladly rise to the challenge of an entre re

suited to a construction management r

services need to be covered by an ap,r p o

can be adap CIC

ting.

rocure

ntment is f k-to-b

bly eement i

nditi poi*Qe

eying charters or col tobligati s e no

uilding

IS

o refe dition

quire ti increas ndme

ith its

e app ntm t -d to ende ui amending if

roced

onal' i

rt out a

o ssi I to le eve

le. But wh to c tracf

becau

mbh,tt 'nd cl

to n

ervic ny c contra ointin =ondi

rta es

poi ther

wit

for ar o uments

ions of Enga e

n that the to role

d is co atib io

gn lea

use inmost situ i tment, but

Vage il ls t alv re mmis r

itial on provid they/(night nse th

Some forms of appointment may the services to be provided, and it on their own forms or who will this book it is assumed that one of the RIBA standard ap or Letter of Appointment, Schedule of Fees etc. Itis im whether the commi administrator, or de

It might be that stage, and will n

agreement will req

shifts in the flexible an propose time of

he nature of nts who insist

ms. However, in

s is likely to be on dum of Agreement

dule of Services, and ment clearly identifies

s lead consultant, contract the procurement method.

p to a defined Plan of Work roceeds. It might be that the

the Architect changes, or if there are tandard appointing documents are ions. An alternative from may be the

is document is not yet finalised at the

r services as dsub-consultant, it is vital to check that the k form as far as terms are concerned, and that the

patible with those of standard RIBA forms of forms are proposed, whether these relate to anties, then a careful check is essential to ensure

more onerous than those which arise from the main

Building construction -to-day often entails complex and intensive site operations, with huge sums of money locked into development programmes. Contractors may have partial or total design responsibilities, and in addition may undertake demanding management and coordinating roles; patterns of working have never been so diverse. As outlined in the introduction, this change of emphasis, together with the

Page 18: Which Contract

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Thinking about contracts

T e

Iter bst of t tt ns art

Non-standard a

there ay

ui ents .trend towa

eneraiiy eof d

intena

ring of

9, u msta n

0 op

re o

,fore

courts:

eadi that

the i

o be

w av rk on`

th

ocu ents isles ce nd repair rrangeme

n eased in

ran these an ext uit a r

'All parties in the construction process should Forms without amendment' and this is

bke am ndments can easily impair the balance of the e m ning of t e contract conditions could be a matter for

een la ers. ere is also the practical point that if a contractor wing that is proposed to use a special or amended form of

toy's first action will be to pass it to its legal advisers for checking. I en be reflected in the tender. It is sound advice to resist ndme s wherever possible.

rt recom use t

ice. Be

more co

ritati

rto a pros se dried.

orm of tuildin ern ttoa

e

increasing range and scale of work, has inevit forms of building contract, both standard

There are many advantages to using normally be less expensive and genera to arrange for one to be specially draft relevant guidance, which is in tur through having been tested in

For the majority of building standard printed forms are and have the unique distinct is representation of the professio these documents are parties. A whole ran from jobbing or m

contracting and part by other bodie offering suc adapted to

ave a stated role, lar are widely used,

ibunal on which there dies. As a consequence

ed in the interests of the over a variety of situations

one hand to management Many of the forms published

rity Ever recent years. Although not en flexible documents that can be mple the NEC suite of documents.

instances where no standard form of building contract fits the and a specially drafted agreement is needed. There is an

ds non-standard agreements on commercial or larger contracts. should be entrusted to a lawyer with the appropriate specialist

knowledge, and he or she should always be engaged directly by the client. Architects without legal training and experience in such matters are strongly advised not to attempt even seemingly minor changes to standard wording or drafting of additional clauses which might make published documents non-standard.

1

17

Page 19: Which Contract

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Thinking about contracts

18

ffecf ilitv for

's has the cludinaJi

regarding `aid s amp

ells go i the rse

kno to elle pa

is a

41. e con iti th

for t urpose. I

ed b

reason are li

tracts :work

in

rk and term

wit act.

consi

na erials, into contracts fo

th

orma

raises

is ca r+ out i connect person t ing o %to see e wor

ofessio elling wj

respect t( service

Ulpt era I g ba ersta.Rd th e rule ,and

en

em in exclud quivalent under the

e liabili o ale o the equiva ent der he

operating again t any perso exclusion clause oid in s far as they fail to satisfy a test of reasonableness, for example liability for ne igence other than liability for death or personal injury, and liability for breach of Sections 13, 14 and 15 obligations in contracts which do not involve a consumer.

Standard forms of contract are drafted taking int common law and statutory rules. It is generally usef they give insight into why many aspects of a for way, and aid the interpretation of these forms.

The Sale of Goods Act 1979

Implies terms into contracts for the sale of goo description, quality and fitness for purpo 14 implies a term that where the seller buyer, expressly or by implication, mak for which the goods are being bou supplied under the contract will be.

in which these rights can be exclude

Applies to contracts for w contracts for services. Impl to the SOG terms listed abo been transferred uncle,

and skill, time of pe

Applies where wo work, and st a dwelling workman so that

ith ction

and the purpose

the goods rcu mstances

hire of goods, and d materials' equivalent hich the property has

ct implies terms regarding care

th a dwelling, including design in connection with the provision of which he takes on is done in a

al manner, with proper materials and befit for habitation when completed.

ng various exclusion clauses void including: any clauses

ersonal injury resulting from negligence; any clauses e of Goods Act 1979 Section 12 obligations (and Goods and Services Act); any clauses attempting

Goods Act 1979 Sections 13, 14 or 15 obligations (and upply of Goods and Services Act) where they are dealing as a consumer. It also renders certain other

Page 20: Which Contract

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Thinking about contracts

Provides f r

commercia of the Secr eta

deaZcy g rate. I r

re for late p

abloersons who

e Con

spec

a-benefit on the the contr+ust

rcula

c Contracts

a

a third

inter e

su

f State, th ossibl

(mos de th sta n

rty rig

of th eir con he S

e A ith

purchaser

con

e righ end

ttoa will i

ction

e n t r trac , the Abt, em for Const t is of b r

esidenti oc

or pur n ' nfai

t detri e ing

ege-r otidi ct 1

Iling in the dii stNe p ts, th

non

ion.

curren

Zten r uppr

i dividua :onsum is defies

Unfair Terms in Consumer Contracts Regul

Applies to terms in contracts between a s

services and a consumer, and where the ter (this would generally include all standarr

who, in making a contract, is acting which would include a home owner: significant imbalance in the partiesi-sights regulations state that any such t

C

The Housing Grants, Constructs

Requires that all constructio certain provisions including amount to be paid, the right any dispute arising o these provisions in t 114) by means of Regulations 1998. construction c

on the late payment of debt in a

ervices. The rate of interest is set by Order being 8 per cent per annum over the official right unless a contract contains a 'substantial' rd forms contain their own remedy).

ds and tiated

person business'

t causes a

er, and the mer.

h in the Act contain right to notice of the

t, and the right to take the parties fail to include to provide these rights (s.

ntracts (England and Wales) but does not apply to a

are not party to a contract (termed 'third parties') to be able to inst a person who is a party to that contract. It is possible to

is if a contract expressly agrees that a third party may that third party or where the contract purports to confer

. The third party who is being given the right to enforce her identified in the contract as a member of a class or

description. The contract may expressly exclude or limit liability.

Regulations 2006

Sets out never- s for public procurement of contracts for works, services and supplies. These Regulations implement the European Commission's Consolidated Directive, adopted in March 2004, into UK law, and cover the tendering and award of public contracts. Strict rules now apply to frameworks agreements, for example, they must not generally exceed a term of four years and the terms of any framework must be determined at the outset.

1

19

Page 21: Which Contract

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Thinking about contracts

20

However it is frequently the case that services, it may be his or her duty'to co form of contract to be used' (Huds Edition, 1970). These words mig today, and it has been said that the b the Employer to make the cho) of contract refers to the cli to administer its terms'. Th on the Appropriate JCT Fd

interests of the clientin m downloaded from th

/ record whioh w

to daf a disconc

nts a in?

have sl

d and

ucti ng in vheth

Archit owledae

visi

ems can arise in co'

hich btai

ng on proje in another cou and erhaps the law of the contract has not been clearly established. Many standard forms can be adapted for use under the laws of Northern Ireland or Scotland but not all. Some specifically state that they are not for use in Scotland. The Scottish Building Contracts Committee has published its own range of forms specifically for use under Scots law.

Recommending a contract for a particular set of circumstances is not something to

nslat

orms o

here th ult vvi

c

choice ed will ha

ite ovi andvis Erri

C gin ohd B

our the ma aive t an

rsem ult

t cour t fessio

iteQ and a

ished t,

fit eng J CT h

-m of

ite.

of an -&r hitect held not to

ag m a p lished a

Main Contrac ke Practic

case

ontra rms Nnc(easin

d to be pu

ct may/be d erh ple th rld B

er f6 millio or e Olyr

bi__w selec

Ak now ,andj is c nstru

befor

quire

being successfully sued for ave been appropriate. But the (particularly in the case of JCf

eep them current and consistent. Just n a taxing business. Also, there is such V timn the publication of authorised e, particularly by bodies in the p ublic luencatters. Advising on the edition of a

r partents are to be incorporated extends are in carrying out this duty and requires a thorough

a rt.

Advising the client

In some procurement contexts, the choice of contr, factors, such as requirements of the funder. For ex the FIDIC forms of contract to be used on pro as if the NEC form may be the preferred programme. In such cases the form to be u

Architect and other consultants are appoipted.

There are very fe recommending a

range of availab forms of contr. keeping up sometim amend sector w form th

k

essional ydr as to the tracts 10th

of architects

gainst' leaving many JCT forms

t to advise on and ctice Note: Deciding

early written with the lated diagrams can be

likely to be easy in the wider European context. he meaning of provisions which may have been

ay be subject to interpretation under a different legal s in the courts of England and Wales. Problems can also is overseas, where the contractor or suppliers are based

Page 22: Which Contract

Thinking about contracts

be undertaken lightly: it requires a knowled contract in question should first be studied and conditions, and also for its appropriat

There are still a few architects who min*

referring to the importance of trust. T e

being the one which is put into the dra e

An appropriate contract, fairly an44; mly ensure that things do not go wr

Despite the Egan Report's state measurement and bring reli n

situations the cautious a ice

'handshake' agreement. Mil confidence is desirabl ' to been fully document and prop quite different uncle stand i

As architect Ronald G en o ce p

Architectural P (19 exis to depends on e con ue

h conside&ion t

ement exe

Recomme e us

i

y bla r and on

e! milli terel

ambi n t rukpla

m

t cane

rly e

f what

rmal Zcuments a i n rver prd

cuted'

ointed difficu'

e of

contrac

ntracts r pro ssiN iplica n for ea

d documenta

ocu re

al

enieh an a

d me odic bot res

he own ircu

ome tp

bf con Dest ki

Oith performance , for most present

on the basis of a

osphere of trust and rstanding' that has not

ple can have genuine but

itect's Guide to Running o job, entleman's agreement is that it

tlemen'!

and choice at the earliest possible time.

services and building contracts, although other. The method of procurement has

ion.

hod has not been decided before the architect consultanSt may be the architect's duty to advise on the If so, do not allow this to be left to other consultants.

ements and conditions are set down in writing and the work starts.

f ``t ndard forms of contract whenever possible.

ces require specially drafted or extensively amended contracts, advice is taken.

If particul irc msta tial that leg

Before recording a form of contract, study its contents and understand its

implications. It is important to set up a control system which ensures that stipulated procedures are followed.

1

21

Page 23: Which Contract

22

Page 24: Which Contract

fl'

fl,

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((

D

Establishing a con profile

st b so-O 'and c

set u p f r unt alance

ilable re con respects cos

ges mig als suggest where design responsibilities are to rest

d the most uitable procurement methods and construction turn will affect tendering arrangements and the amount and iaton needed.

much tim

rofile

re 2.1 isarr in terms of contrac

an

visu

propriate c

lure t of

ncP

e fact sh

whe anc and

tfor'

a u

ecorded. Ther

or simi

rice,

,the

s bal r&ed in

urem ecog n

visual pres ndicator

ra ' rgon, k

a gar cry

ct. Th' prior iE

be

Figure 2.1 in-d*&t6s the contract priorities for a project at the minimum capital cost to be built in the shortest possible time. There must be reasonable certainty over cost and timing, and all this combined with the desire for reasonable design quality from the client's consultants!

There may be clients who choose t increased efficiency and think that, it is

at breakneck speed for a knock- be dispelled at the outset.

The reality is that although t usually cost, time and qual some compromise or consci balancing of priorities Constructing Excelle

and careful though

all this mightj professiona considere exercise t any propose the

ho

ich presents the three elements of cost, time, and quality s. Even where they are not in conflict, these elements need

ideally balanced. Asking the right questions at the right time I profile which allows quick comparisons, and help in arriving tract.

Taking these three elements in greater detail:

s for any client are nt invariably calls for

This need for careful or example the useful

es adequate thinking time

such management tools as

as become part of life. To some n increasing number of construction eful reminder of key points to be

fore it might prove an interesting r diagrammatic analysis in advance of

could be simply a manual exercise to help focus or example what level of quality is required, truction and for operations on site, and to

considerations are paramount.

23

Page 25: Which Contract

`D-

2 Establishing a contract profile

TIME

QUALITY

Priority (0 lowest-5 highest scale)

1 2 3 4 5

we ossible pital expenditure

C2 Certkty er co tract price, no fluctuation

C3 st val for oney overall

T1 t I est po Bible start on site

T2 Certainty,/over contract duration

T3 S o est possible contract period

Q1 Top quality, minimum maintenance

Q2 Sensitive design, control by employer

Q3 Detailed design not critical, leave to contractor I /I

24

Page 26: Which Contract

fl, h(

0

Establishing a contract profile

r"nal sour

Is the co-r9ract

for a figure

"set li

e clien height isk of fluct

recis'Wthe co at the wo

use o

ration

rte. usisvT',a

dr strin`nt fina s contracts

ost tertai v. Desrtln

en let on

rice

hiftih

clarify so

the outs'

`ave lirnite ation

motion ' no le ri s wh

. Des nefs h e oft et, ometimes e en fail'

os The q ntityurve

ulting in I

rtant ient

Contract Su

ometim a`lte

minis

facto In this country, at least until quite recently,

contracts. The repercussions are well kno to unrealistic cost constraints from the between initial capital outlay and to

assumed greater importance becau throughout the project. To man attractive because they promise management contracts have sum, although the design Ofor tendering. Despite the con all too frequently the lowe

Now the emphasis ap greater efficiency r

being encouraged.

It is particularly imp such questionVtothe to raise:

building ubject nguish

s role has

vial control ave seemed and build or

considerations, by addressing e the lead consultant might wish

unding and require the reassurance of a fixed

of the work before operations start on site? needs to be measured and described in detail

firm quantities.

s signed, in the event of variations is the client authorised to enditure?

at the client has to rely heavily on some 'once and for all' or other funding, and there may be conditions attached.

awarded to the lowest tenderer regardless of other

money will not always be achieved by this process. Designing ight mean excessive running and maintenance costs later on,

should take into account. There might also be stipulations quality, imposed by a grant aiding body where this is conservation work.

Q. Is the tenderer expected to allow for any increases in labour and materials etc. when pricing? Comment: it may be in the interests of the client to forgo cost certainty and accept

2

25

Page 27: Which Contract

O+

,

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Z Establishing a contract profile

a price based on known factors, assuming that fair dealt with under fluctuations provisions. Much will d at the time, on the anticipated duration of the jo

Q.

recovering the capital expenditure.

Is total accountability an imperative? accounted for? Comment: public bodies in particular are are also understandably sensitive about

Q. Does the client have rules or sta competition when sub-contractor. Comment: commercially minded Tents

lierse invited

ny aHegat1Rns4ubi

kng or ers -toich

edobe derri

' Capi

opportunity for the best deal has been lists for selected items.

Q. What is understood by 'c maintenance and life cycl Comment: the lead consul implications.

Quality

No one really exp are clients who c

pay for. It is essen tia and the finis example t

Q. Are con the degre Co

m

Q. Is i Co m

spot suc conditions. On t retailing or indu

serva-uon

dto d Might

ercl

ations de o be tak

a duty tom into

Ft

o

oroi ted eans

the c

e for the pric of a family saloon, yet there the fac is meai

s world you only get what you by 'quality' both in respect of services

at rr surable standards are to apply. For

to rais

restig

questions such as:

and public image likely to influence

s have a hose style which expresses the efficiency or ce of the company, and which they would wish to see

materials? profit might be located in an environmentally sensitive

ea, or perhaps subject to stringent planning permission d, the project might just be an envelope for some

'trial proces

Q. Is this a listed or building where alterations or extensions will require higher than average standards of craftsmanship? Comment: it may not be possible to establish how much work is likely to be entailed, or to describe and measure it before opening up. Yet control by the client as work proceeds is essential, and any body responsible for funding might impose conditions.

`rket-com nd

verloo

'st consi costs nt h

cts to y a ofts venien o erlook

o agree what{

their bui

implant to use high yent: : for example, the

26

Page 28: Which Contract

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Establishing a contract profile

ign stage i

and possibly to iarodu n o Nnfor

ing

song ment:

provisi

lSo radin

b cycle

eed fo

ood com ercial e motor th cont ctor'

cont t allow expected

rel

or

my

sucf;

ht 13e,

:e thro

?&icatio are ly s or

tans

e respons he3ead

ign to ithout th lit

ti on is n obkiq ied u e andar

nsib bmi

ctor

ly to ractor

esigns

ided to be relative an at inable

at' the ected

aII Tle e spy

illdu or a face-lift event aliti be

ponce o an

re acing. th oJer

ibility. ven din ion ar

Q. Is it essential that all matters of design control of the design team, and that sp named or otherwise selected by the ch Comment: where the architect is lead

contrary, this is likely to bring at first i

work is to be undertaken by others, t into the overall design will remain wit

Q. Is it safe to entrust certain d (with agreement to sub-let) being impaired? Comment: unless a cont building contract, this is un where the contractor or sub-c6 be essential to make is actually carried o

Q. Is the building int

y referred to in the forms of contract. Even

e design input, it might to the client before work

ce-free? at can be achieved is minimum

n? When will major components be in

II appearance intended to last for a

ich will not involve structural change? rammed at the outset?

e for the client to provide for a constant site ontrol of quality?

for this, and if so by what means will it be the contractor in terms of quality management

ant KPI information?

he work only be performed by a firm with specialist expertise? t mean selecting a contractor after interview and negotiation

ye tendering. It might result in appointing the contractor at efit from advice on construction methods and materials,

specialist design input. It would probably affect the ation. It could result in appointing a specialist firm as the main neral builders' work to be sub-contracted.

Quality and speed are not obviously happy bedfellows. Where fast construction relies

on the use of numerous prefabricated major components and systems, much will depend on whether manufacture has taken place under monitored and controlled conditions, in order that specified performance can be guaranteed.

z

27

Page 29: Which Contract

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rim

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2 Establishing a contract profile

28

Q.

Q.

Q.

Clients, who sometimes take a long time understandably disappointed when an Whatever method of procurement is ad for all the relevant matters to be properly and build, for example, depends requirements have been carefully The overall time of a project from ince than the time taken for site o industry has a poor record of,

time. Predictability is an im

Time considerations can sig explored thoroughly. questions such as:

Is there time for detailed require Comment: this will submitting remeasu re

of restori

a bo e start,

full br nts cab prop b ssential for th rsu price.

e eve

ment: as

liest Dessi

they commen lete by a certain

tch is al

etion date

candy affect t e, thlead cd

nythi

mm pted, it is

side its

`_t

prema

e Lha thei sta on si

rta alto at tyre- o ract

s ss on e r

tim Id be tionls tre

all t fail strua

for mos

ig le rapid

hand-to-m

sub-c tractor nd omes th ugh f ti

sheds I

V

stage d tailed ecessari

choice

sulta`rat m

matically dev)

nstru

procee

Good supply-chain management can reduce both Savings can also be achieved through overlapping stages, where the contractor controls the flow of the contract allows the contractor freedom in th substitutions. Real savings in overall proj management, and not by taking short cuts Ii

are

sable.

nt time ge. Design he client's

lowed for this. er significance

he construction

loped, so that the client's he tender documents?

ering who need full information when could bring the uncertainty of

lion being required, say in the case th approach might be unavoidable.

mpletion to be an overriding objective? ht be an overriding consideration which justifies the

ting the probability of some uneconomic working.

external pressures which make it imperative

easonal trade for instance, or to be completed in time eady programmed and immovable. In such a case a

ght be needed despite the contractor pricing for the risk.

Q. Is phased or sectionmpletion necessary? Comment: for example, to allow some office units to be occupied, or parts of an industrial complex to be commissioned, ahead of completion of the whole contract. Not all contracts will allow for this, and to be effective it needs to be included in the contract conditions as a programmed requirement.

Page 30: Which Contract

('1 Establishing a contract profile

Q. Is it desirable to phase possession by an limit ' tove parts of redevelopment of the Works, in rder t at bass con ue during

Comment: during redevelopment with' si is it esentia to co oi'ing and also to accommodate some decantin of o pa s and p cesse duri site work? Is it necessary to restrict operations certain es f day i termitt nt periods? Many standard building cont;e s ap ar ass e clusive pos ssion by the contractor, and with small do sti rod is arts lar is is n t practical and

the building work?

some allowances may be nee

z

29

Page 31: Which Contract

0 enal

Page 32: Which Contract

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Which procureme method?

od is Fikely to rove the most appropriate in a given situation natu and sc pe of the work proposed, how the risks are to and wh sponsibility for design is to be placed, how the

ated, and on what price basis the contract is to be awarded.

remember is that the choice of form (or forms) of contract led til the procurement method and the type of contract have

twill can considering the following:

d as devising an arrangement, then specifying the components `s defin realise t at arrangement, and lastly detailing a method of joining or

ponents. Design can mean the overall concept or form of the building, it can relate to the component parts including specialist installations, or can

be the result of meeting specified criteria for durability, performance etc.

It is important to establish:

how, if at all, design responsibilities are to be apportioned between the Architect as

In some instances the procurement m architect is appointed, either as the resu

or because circumstances or co choice has already been made the Architect.

It is generally accepted th practised in this country. Th

in theory design and which implies a mor client or a contract addition many varia have been many r

procurement procuremen agreement methods. on a desig differe rece

For e

hich

thod wil of mpa

tra s I ve lirri `y the clie a ise a le

raditid constructi integra

1 ap

is it is freq

r assumes he cen

imilarl sand b

po rta n

,nageme cipal i

its, h rid and compnc cent developm s, w

mig more cu

Cam e mo part ring comDa one or er

ra ial co

ree ethod

roach;

onv ti al app epar

nag

ready bee( decide,

uthority laid tions,

su

curement currently ach, in which at least

ents, design and build, ent, by which either the

responsibility. There are in

hese methods. Moreover there Ithough possibly termed a

described as an approach to

arrangements are an over-arching tracts let under one of the three key

ently possible to identify contracts let It is therefore useful to start by clearly

ods, before moving on to discuss some more e three prj

been established'

31

Page 33: Which Contract

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lead designer, other consultants, the contractor and suppliers; what contractual provisions will apply to the desi

Coordination responsibility

This might include responsibility for workm

thods of

methods, programming, ordering, general coo

It is important to establish:

what contractual arrangements will ap whether the Works are to be car,

combination of separate contracts

A contract might be let on t desired, then measurement Alternatively a cost-plus app the final figure could di

tendering methods ar rest on the choice o

Plan of Work

The procurement for the 'plan RIBA in the 960s

n The Outli e Plan

design a d con Period) acts ies.

fees

m

Itho he contrac

muc

e appointed professionals are involved throughout uction work stages are separated as is usual with

is in a linear pattern (see Figure 3.1).

gh similar work stages are still present, they are not so

r will normally be involved at design stage, to an extent he is responsible for scheme design as opposed to

developing a design already produced by the client's consultants and embodied in the client's requirements. Some of the work stages are arranged in a different sequence, permitting parallel working or fast tracking to save time overall. The contractor will normally continue detailed design during construction stages (see Figure 3.2).

Plan of Work is still relevant to management procurement, whether management

an

u

It Ives

procu

procu r

thod fbe ad is logical

Work ti n (Pr

i

either

nship, g

sum e basis of o som ach

tly fr' gr

sui

men

ince be

ight be appro m the fire! and what

move

altho

fort c

t

is not possible or inly practical option.

h there is the risk that The questions of what

ocuments will be needed, will

d a d type of contract will have implications n f roject into stages was devised by the accept d throughout the building industry.

from re-design stages (Feasibility) through Cons ction P iod) to post-construction (Construction (widely a t as the basis for calculating consultants' I description of work stages, particularly in traditional

been

very usef ent.

but the desi

i,Q,nal procure

32

Page 34: Which Contract

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Which procurement method?

contracting or construction management. simplified picture of operations. On a large or more works or trade packages and t complex. There needs to be considerable consultants and the managing contra and abortive work can easily occur.

Procurement using traditionaleth In the traditional approach, th design, cost control, and con responsible for carrying out workmanship and material

in some cases the client will sele

contractor (variously r the contractor may responsibility may be

client and sub-contr competitive to contractor ca

partial or n

be a

4ional i

erred IV as the an run i

raditio

erred -t ake full res

limite ctor

nd d ea e

o stage

nts, oiigations. If th erforma n

y retains co

inclu

some ed, n

for t hich

con

client a th ons ion, d t

Th onsibili rk b contra

ct atminis`

onsibiNY- me way, in

ill be esse

o uments r, eit

t sing e AcceI

parallel'

nu re roject operA

ere ,bight;

7b n cz

orati i allel vv6

beco

le,

tw

appointed for

the contractor is

atter extends to all and suppliers.

s to be engaged by the re-selected). In such cases

ance, or the contractor's e a collateral warranty between ractor is usually chosen after

ete information. However, the ugh negotiation or on the basis of

endering or negotiated tendering, is

r`aditional Method'. By this variant, design imited extent. Whilst this allows an early start

cost.

m approlrr quires the production of a full set of documents vited. Adequate time must be allowed for this.

ment method assumes that design will be by appointed of generally imply that the contractor has any design e case, for example with specialist sub-contract work or

k, express terms should be included in the contract.

oints consultants to advise on all matters of design, and cost, trol over the design and quality required.

There is certaty-ecost, to the extent that a lump sum is known before work begins,

even if it has to be adjusted during the construction period as provided for in the contract.

The contractor depends heavily upon the necessary information and instructions from the architect being issued on time. There is a risk of claims if they are delayed.

3

33

Page 35: Which Contract

3 Which procurement method?

Information release dates are sometimes agreed contractually binding can cause problems.

The client may decide which specialist firms the contractor will require certain safeguards relati

All matters of valuation and payment are the

If it is impossible to define precisely the qntit still possible to adopt a traditional met provisional sums or cost reimburse solution: the fuller and more accurate the of the lump sum approach.

There are widely accepted codes tendering, whether competitiv, be used whenever possible.

Figure 3.1: Plan of Work4stages'fi-iditional

Pre-design /"DXesn Pre onstr ion Construction

1 AB

3 F

4 5 H

6 J

7 K

L

Consultan s

Contractor

Key 1 Appraisal and strategic briefing work by consultants 2 Outline and detailed proposals by consultants 3 Final proposals and production information by consultants

34

Page 36: Which Contract

Which procurement method?

4 Tender documentation by consultants 5 Tender action - appointment of contractor 6 Mobilisation by contractor 7 Construction to practical completion and after comp

Procurement using design and b

The client may need to appoint consult costs, if he does not have this,

responsible to a greater or lesser

and may appoint its own consu construction, or for design scheme design supplied by

Figure 3.2: Plan of Work sta

ments and contractor is

g out the work fc,'r'total design and

ation based on a

Pre-design Desig XPre-nstru- 'o Construction

1 AB 2 C

__ D 5 H T E

6 F 6 F

7 J

8 K

L

Consultants

Contractor

1 Appraisal an tegic iefing work by consultants 2 Outline proposals/client's requirements 3 Detailed proposals by contractor 4 Tender action including contractor's proposals 5 Final proposals by contractor and specialists 6 Production information 7 Mobilisation by contractor 8 Construction to completion and after completion

Key

3

35

Page 37: Which Contract

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36

The contractor may be appointed either by comp negotiated agreement. Where a design and build agr,

contractor, it is sometimes referred to as 'Single approach is made to a number of contractors, ev

only the most promising proceeding to the sec

referred to as 'Competitive Design and Buil

usually results in a more developed design and

Frequently, in deign-build procurement appoint some or all of its consultants at into. This process is usually referred complex tripartite agreement to contractor. In addition to the c

appointment published by the RIBA, th collateral warranties.

Watchpoints

In the most straightforward a single point of respo si ility. to deal with - and e fi client's requireme s are contribution, an theref

The client lacks c

acceptable relatively le,

Constru proceed opera

There is

investigating sit significant chan and are likely to pro'

-certain

rm to ten

re lick

ponsibilit littl

is oon on t c h

ation is one of the

of c

a-n-c Jb-soi s in the cli

. It tend

e cn

e time the vati

into

he req i a uild

r co ulta t itchi,

een cli

d c ctor-a' ita b

ee t-arch

IC pu

de 'gn and burnt he cli t there re ha 15.

me i ings o wr de led to extent lit, is diminished.

road lin trol or detai

early as a

contr,

eti ve ten er or the t ent ne ate c errs

rect D ign nd 'Id'. ere is is a o stag opera io it e, he agree ent is om

o f e sligh I ger, b cost and timid

cont tra i

ctor to is entered

t requires a

sultant and itect terms of

or novation and

theory there is usually thevantage of only one firm

ng. In practice, however, the that the contractor's design

ects T design; however, this might be eme are satisfactory and the detail

reat deal of detailed design work can ctor, however, who benefits from the

on time rests wholly with the contractor. There should allegations that information from the client is late.

to be responsible for the flow of his necessary active features of design and build.

st, even to the extent that, if required, responsibility for conditions can be made entirely the contractor's. Any

nt's requirements will affect the Contract Sum however,

Often the client requires that the contractor appoints the client's consultants to develop the design under a consultant switch agreement or by novation. If this is not the case, it is always advisable to ask for information about who the contractor intends using as

designer. Adequate professional indemnity insurance should always be a requirement.

Page 38: Which Contract

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is organisatio on t of th

Id be ider,

?fovisio that a/

ectively where both med of the criteria to be

tion.

to work closely together. The and delivery times can ensure

editiously.

ected with great care. He or she can a professional consultant, a project

ork, a clerk of works. The extent to d to for power, e client needs to be clearly established.

T re are ral v ian of managem nt procurement practised in this country, but nage nt ontra is an onstru ion management are the two most common.

it ana ent ntracts lent usually starts by appointing consultants to ject dra tings and a project specification. The management contractor is are ro

roces f tender and interviews, and paid on the basis of the scheduled seec td by e e sts an management fee. es

nag the execution of the work, and he is not usually directly Its role is literally involved in g t a of the construction work, which will be done in 'packages' un en or ontractors usually appointed by the management contractor. ks

o ment In some arrangements, the management contractor might also accept a design management contracting', works contractors are directly and ability. In '

contractually nsible to the management contractor. Its coordinated approach and potential for flexibility results in greater operational speed and efficiency.

Where the management contractor's obligation is total - where, that is, it accepts responsibility for both design and construction - the arrangement is sometimes referred to as 'Design, Manage, Construct'. It is usually featured as a contractor-led

Which procurement method?

The client should appoint consultants to advise and it is important that adequate time is all

The requirements might include specific generally it is prudent to prescribe pe reliance is placed on the contractor.

In the absence of any stipulations to the are absolute. However, they are u

of the professional's duty of us

Valuation of changes by the the client has no quantity s

It is often difficult to evalua schemes and prices ar used, and whether

Benefits can arise fro contractor's awaren that a contract

pTeparatTaQ OT t req hese a-be oerly

g reason le' kiIIX)-4 carte

rsentir'

desig

the rr pon`sftkty o

erve

ender

3

37

Page 39: Which Contract

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3 Which procurement method?

38

This method of procur There is unlikely to be on site, and the d

estimate on proje

The manageme therefore put the cli

It is essenti stage, s

throug

'ration's

arts on sit b-c

lient has a consider usted as

wore

costTy abor

`ision t infor

contr toVconstr is interests

anag"e contr and experti

tion per)

work care left to proceed in parallel with the site ackages, thus reducing the time needed before the project atdeal of detailed design will need to be left to specialist

methods a

Lion i

ig

t pri as to s go

atiork

edit onst

to poss

esi a c

rk,

or o

ordination tra ontrs.

clie e constr gist the'd takes

ited t e best able.

ds upon i cont

ead ally

ction irst thr,

t anno quail weft d ou nde irect des

of a ain ntr tor, t a how er, dem d 4

procurement method, but there is no real reason architect-led. Indeed, where small works are someti contracts and coordinated by the Architect in the comes close to being such a procurement mtho degree of highly specialised expertise and e

operations which most architects are unlikel

With 'construction management' agreem is usually a lead designer responsible responsible for the management and c

for directing the project and entering are directly and contractually resp o some ways less accountable for time

Watchpoints

Management procurement projects where early compl

there anager

ponsible contractors

anager is in

the greater risk.

f confidence and trust. before the work actually starts be taken on the basis of an

for/construction manager at an early are available to the design team

be of flexibility on design matters. The design can proceeds, without sacrificing cost control. However, for components or elements can be difficult, with an ve work.

Specialist contractbrrscai:i-be selected and appointed and materials on long delivery ordered in good time without any of the uncertainties and complexities which attend traditional nomination procedures.

Although the project proceeds on the basis of a contract cost plan only, effective cost control is still possible with the help of an independent quantity surveyor.

Page 40: Which Contract

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Which procurement method?

A competitive tendering element is retained usually account for most of the overall pri normally be on a lump sum basis.

This method of procurement is most a

that only large construction firms suitable. At present these are relat management is only likely to b

expertise to undertake the high

A management contractor's sta

in adjusting to the idea of providing a service in t appointment of a managem involved.

Above all, a manag because of his or h

need to use and be

coordination istic

nager should be appointed bility to manage. He or she will ted techniques to deal with the

rks contracts.

'th the ely i

int est'Ao ex

egret ay la the` e ess

FtRq a s le vvork-

ment cont actor o

th nt. Be

rien

le, co ex nce re lik

ce and have difficulty eri

motive in favour of ofi r6' recommending the interview the key staff itise e It

onstr r assu e r preferab

milia with a vari

at ofte a large ?Nmb

Wor*,,stage's a age

Pre ign esign re-construction Construction

1 A 2 CD

5 3 J

4 EF 6 F 6 E G EFG

7 H

8 K

L

Consultants/Managing Contractor T I

Managing Contractor /Works Contractors

rove

3

39

Page 41: Which Contract

3 Which procurement method?

Key

1 Appraisal and strategic briefing by consultants and contractor 2 Outline and detailed proposals 3 Appointment of contractor and agreement on trade or works a

4 Final proposals and production information (continuing pr,

5 Mobilisation 6 Production information and coordination of works pac 7 Tender action and adjustments (continuing process)

8 Construction to practical completion and after co

Contractual relationships

The pattern of contractual and func the procurement method adopte

fta

11

0 Figure 3.4: Contractual relationshi

Contract for services

Consult

Domestic sub-contractors

suppliers

arranty

cording to

Client selected suppliers

In the traditional approach, the client is in direct contractual relationship with the consultants on the one hand and the contractor on the other. Any contractual links

(lateral

Collateral

e eem

-aqreemen ant

nt cted

uilding sub-contractors

co act

tractor.

tionss shifts or

traditiori

40

Page 42: Which Contract

'm'

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sign ) ild

Contract for services

e Architect ontract may be

's interests, ntractor's

Consultants

Sub-contractors suppliers

With de gn a d buil , it is likely that in the absence of in-house professional staff, the clie will wish o engage outside consultants to advise on the preparation of requiremen to evaluate and select tenders etc. Often one or more of these consultants will switch from being appointed by the client to being appointed by the contractor at the time the contractor is engaged. The main contractual link is between the client and the contractor and if the client's agent or representative has only a

limited role. The contractor might also have a contractual link with his own design consultants, and with sub-contractors and suppliers. As the contractor is wholly

Which procurement method?

for sub-contracts or sales contracts will be b

question. The consultants have no contract or another consultant may be named administrator'. Where the client selectsny advisable to recommend collateral particularly in respect of matter responsibilities.

Figure 3.5: Contractual rela

)6tween he co actor I link th th,ntr t, the ildi con act

. b-con actor' or su

en to proZu t the clie rqh ie idhe

3

41

Page 43: Which Contract

3 Which procurement method?

responsible for their performance, both in terms of might be less need for collateral agreements betwe

Figure 3.6: Contractual relationships: management contracting

Contract for services

Consultants

Manageme contra

Client

esign aAd co tructi n them/and e clitot.

nage

Ilat I agr

0

epa proAure

en

ks

contrac s

t

Works

tract

Sub contractors Nominated/

domestic suppliers

42

Page 44: Which Contract

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Which procurement method?

Figure 3.7: Contractual relationshi construction management

in a management contract is between the client and the { with all works contractors in direct relationship with

o be desirable to establish a contractual relationship between the clie n eac works contractor by means of a collateral agreement. In

constru tion manag ment the contractual relationship is between the client and the construc ' man er, with all trades contractors in direct relationship with the former.

Assessing the risks

In every building contract there is some degree of risk. People may be injured or property damaged. This category of risk, often referred to as pure and particular risk, is usually covered by the appropriate insurance. Contract conditions often make it a contractual

3

43

Page 45: Which Contract

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3 Which procurement method?

obligation to take out the cover required (for exam damage to property due to fire, storm, water, collap

Another category of risk is fundamental risk. This nuclear pollution, supersonic bangs, etc. Such in

liability, and no insurance cover is normally av

often referred to as speculative risk, is somethin as decided by the parties to a contract. T,

which are the result of unexpected groun unforeseeable shortages of labour or beyond the control of the contractor, It bear losses arising from such event

With traditional lump sum contracts t balance of speculative risk be required, but obviously the higher the tender figure is I

parties also varies considera

As can be see from Fig

with the contractor i

package is supplied management pro

the' onver

reme

con

able - which ca

nr include

againjA pel on encepyibra` Qn, et

ill inc e amag due war, is re all t e sub' ct of situ

or n ded. T

Lt %hl aterials, sen

intent arties'

reater th e`

kely to

lance o

se T a a

al -ely, te pat is o

risk`t -he app

to out

be a

at alan

ionrri ending on the ty

ance e d.

pec buil st on

of co

third cate ortioWin adva

ses ' time or a erse w.

by

sually be a fair be adjusted as

e contractor, the `sk accepted by the

ract.

tive-,rAk will lie almost wholly contract, where a complete ous for the client where the

44

Page 46: Which Contract

vii

Which procurement method?

Figure 3.8: Speculative risk

Contract Type

Design and build Complete 'package' by supplier

Design and build Design input by contractor

Traditional lump sum Fixed price

Traditional lump sum Fluctuations

Traditional measure Bill of approximate qua

Traditional mea Fixed fee prime wosi

Traditional Percentage

Mana nt c

ent

ities

men

Ment cost ,

isk

Client ont ctor

0

3

45

Page 47: Which Contract

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3 Which procurement method?

46

Not the fastest of methods. Desirable to have

all information at tender stage. Consider two stage or negotiated tendering.

Relatively fas

method. Pre-ten large)

on

de

time s

t of dep

e amou ail in th

ient's sauireme

uction fime ecause

design b ilding l. in p llel.

on site

9 is poss

before ten have-even b

r so

orks

packages.

Basically

straightforwa but complicai can arise if clieri requires certain sub-c are useo.

tractors

n efficient single ontractual

ngement ing

ar

integ

esign a

ruction within

co

erti accoun

ganisatipR.

requires ndards

or

Clie ain

ow c

to b

scribed III con ctor is

olly nsib fob

achie th

d quality

lient ha

dir t contr I

er th o tractor's

rmance. actor's

)den expertise be limited.

Client has little say in the choice of specialist sub-contractors.

and

ions to large extent,

Client c rrKrols

desig ri

Virtually none for the client once the contract is signed, without heavy cost penalties. Flexibility in

developing details or making substitutions is to the contractor's advantage.

invited

Speed Complexity Y Qgr'ahty Fle ility

Design and Client requires Client can modify nstruction skills certain standards or develop tegrated d at an to be shown or design

early stage. described. requirements Complex Managing during management contractor construction. operation responsible for Managing requiring quality of work contractor can sophisticated and materials on adjust techniques. site. programme

and costs.

Figure 3.9: Comparison of procurement metho

Page 48: Which Contract

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Certainty Competition Respo ibility Risk Su ary

Certainty in cost Competitive Can cl -cu 14

Generally air and i in cost and time before tenders are divi on of de n etwee lanced uality commitment to possible for all an onstruction.

a arties. t the P build. Clear items. Negotiated Confu n of time. eense

accountability tenders reduce p ble ere and cost competitive there is m

monitoring at all element. desig inpu stages. m co ctor

or cialist trac s an

sup rs.

There is a Di cult for the Can be a cl r n lie almost Benefits in cost guaranteed cost clien to co are divisi , t oily with the and time but and completion ropo Is whi con ed w re contractor. at the expense date. inc de both the clie is of quality.

pri and d n. uire ents ar

D. ect d ' n a detailed as this uild v ry di ult educes relian

t v uatefor on ctor

competitive ss. design or o benefit asses pert ance.

to nt if Limite role for ntra r seeks

gre ter the cent's re esentative co

com etitivene ring for ecialist work construction. a materials.

Clie is anage nt Success depends Lies mainly with Benefits in time fitte to co ractor is on the the client - and quality

start building on poi d management almost wholly in but at the cost plan, be use o contractor's skills. the case of expense of cost.

prod rawings man gement An element of construction and Specifi ti exper ise rather trust is essential. management. only. tha because his The professional

fe is competitive. team must be

However, well coordinated competition can through all the be retained for stages. the Works packages.

3

47

Page 49: Which Contract

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3 Which procurement method?

48

to res.

ehicl

reisawi mm ptra ed design

r authority first sign sect

(S

f a-Uuilding contra

leas a

i' priva

pe *ng fl , h ev re tly t

o GMP sta fo of c 'rtdS a ed s

here are for ac

re sbe ses

ri

act tracto

iling. (or iri

t exte act. T

articu

&s int funde

df each practice ?s which`

to

ontractor. the t , but

clau

initi ve PFI) w,'

rojec s, to urpose

nstru FI is'-

of buil.

are funded ector

outl' l l . 1,

er etails eader

Recent developments in procurement.

Some of the more recent developments in procure in order of their appearance. The outline is very bri consult the references in the bibliography.

'Guaranteed maximum price' (GMP) cont

GMP contracts have been around for some as the design build procurement meth something of a resurgance. There are silver book is the closest), so contrac sum form, or on the client's or con arrangements, but normally the c

plus a fixed fee, subject to an agree construction cost are passed any overrun is borne by the be determined by examinin all risks to the contractor, contracting companies or exceptional circu

enable major capita Governmen public sect.

operatio governor or P3.

T

c

c

sec

'Oper "special purpose usually made up As well as signO with other companies

time ienced

he FIDIC

dard lump of possible

cost incurred w a stipulated

ared) but the risk of assumed can only

frequently claim to pass

arly those drafted by ional payment in limited

the government in 1992 to without initially requiring the input of

deliver all kinds of projects to the ings and the provision of associated

nd operated through a partnership of ompanies, sometimes referred to as PPP

e way PFI projects are organised, but they have some ortia, usually involving large construction firms, are

some cases manage new projects. The public t with a private sector "Operator". Frequently the

consortium which forms a special company called a

V) to build and maintain the asset. The consortium is

contractor, a maintenance company and a bank lender. with the government, the SPV will enter into contracts

esign and/or build the facility and then maintain it. The PFI

contract will typically last for 30 years, during which time the building is leased by a

public authority.

In return for providing the service, the Operator is paid for the work over the course of the contract, linked to its performance in meeting agreed standards of provision.

Page 50: Which Contract

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Which procurement method?

This payment is frequently above the price tha the service. If the Operator fails to meet any,

lose an element of its payment until stand after an agreed period, the public sector a

Constructing the Team

Sir Michael Latham's report Constructiri the dissatisfaction among client construction industry. In particu ran over budget, were not of th turnover was spent on disp of the client's role, the ne d for procurement and contracts, efficient ways of dealin

Partnering

Partnering had alrea above report wlch benefits by im series of rep Partnering 1995; Pa

ro

is fall Con

nering and in 199

It is a

p

parent

he R up report

d morageme fundo

uti

tes.

the eam

>u nc sec r coura< ree an ds it

ove. sta and c 2 led to erminate

se ce a

high a proportion of d the importance

adversarial forms of the team, and more

given greater impetus by the `ortnering can bring significant

completion whilst reducing costs. " A Team - the Best Practice Guide to ading Construction Forum (RCF) in

onstruction Industry Board in 1996, even Pillars of Partnering.

g as follows:

t approach to facilitate team working across entol components are formalised mutual

methods, and on active search for continuous

efinition that partnering was not intended as a particular type ent or procurement method, but an approach to

curement, ai e t im roving performance over time, through team working, early identf.i tion nd olution of problems, and measurement of achievement

obje tives. Many organisations developed partnering charters or framewor men s, and some publishing bodies produced standard versions of these, s ch as the non-binding partnering charter, all intended to be used alongside a ing contract, which could be based on any of the three principal procurement methods. One standard form, PPC2000, was developed by the CIC

Partnering Task Force, comprised both the partnering objectives and elements of design build procurement, and was uniquely a multi-lateral agreement (see the later chapter on this form).

y em rged prior to 1994, ted e are c n fi t

q lity timely ess o

'ved i cludin rusts g the

ctip lished y the R r u

ea

r, it not

kdd

cts e n-t

ualit at to in laim ort asi

roveer mwan ctin s tip

iced by th follo

am d

3

49

Page 51: Which Contract

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3 Which procurement method?

The Construction Industry Board

The Latham recommendations were put into Construction Industry Board, set up in 1995; implement, monitor and review' the recom Although no longer in existence, it has had securing 'a culture of co-operation, teamw industry's performance'.

Rethinking Construction

The work of the CIB was given furthe_r (DETR, 1998) prepared by the Cons report echoed the Latham Report comparisons with other industries, sue

to be more efficient. It point site, and in the defects whi significant improvement procurement involving partri for change, and four process chain.

The Movement implementation of of demons Demonstr honest, people case histof In

can be found on its website.

The Egan report e licit nd measurable targets for improvement. In 1999 M41

devised and pu ished a set # Key Performance Indicators (KPIs), which were refined and re-publishe ril 2 00). Eleven KPIs covered several aspects of the process of construction but did not cover the performance of the product. In April 2000 the M41

piloted a set of Sustainability Indicators, which went some way towards redressing the balance between process and product. A wide variety of organisations have now developed KPIs, most recently Constructing Excellence has launched the 2006 Construction Industry Key Performance Indicators.

,Construction n Egan. This

tion, and made cesses were felt

tion in accidents on It also called for a

erative methods of t identified five drivers

as partnering the supply

d in 1998 to coordinate the recommendations through: the use

ups and knowledge exchange. nchmark performance, be open and standards in safety and respect for

ork to the rest of the industry through It had v®r ing groups covering: Key Performance

g; the Knowledge Exchange; Partnering the Supply Chain; Training and Research; Sustainability and Respect for

o Constructing Excellence, and information about

50

Page 52: Which Contract

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pto

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+

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Which procurement method?

In May 2000, Ministers launched 'Sold on H and the Public Services Productivity Panel, as

on Health sets out a range of initiatives t operation and disposal of its estate. T

a partnering framework for the Depar

LIFT is an initiative of the NHS fo (at a larger scale than those u

with principles of partnerin schools called 'LAPP'.

Prime Contracting

Prime contracting is

and other governme for an integrated pro relate to a Prim

first is a cont region (the the design which mu Capital Pr colla deli

ct for egiona

nd co be cd

system lau

t dep<

ss. (

eo he`c

Prime tructor

Prime Cont

rat i

2003

Ther

e Cori is. som

ntly it er testy 'Achi ing Ex IIE

NHS's annin ro

lS ProC re21, hich

major projects ing arrangements e procurement of

y the Ministry of Defence ctor, is the single client source what confusing - it does not

o types of Prime Contract. The nance of the entire estate within a aint

ntract)L: secon

compliance period (the Stand Alone

type is a stand-alone contract for a planned through-life cost model,

intention of the initiative is to foster a more e Estates and the Prime Contractor and to e i p b'e weeq( Me brativ6

er better val

Prim Co ractd e clie

i

se inc ent of H

the procur b

bi FI fu CU VZO, t initiat N1qu

hched nts. The Pri

e use of tl ontract.

'an a -

e projects wi

Yi thro

ct). T¢

Althou efense Est

h the supply chain forms a partnership with `tes are not part of that partnership.

3

51

Page 53: Which Contract

52

Page 54: Which Contract

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rement

rms exten als co

ost reimburseme tic cost of lal rof it.

contrac

empo rt fro

it has`

xpres

ign he b

ntract./

be exten

onsib dard

of

to all s nsible for any

ise fro

tract qua

ntract

for workma of the co`

hantab me plie ormal

for wi

ibutabf ulty d

mainAfaining

in the c

types bf contr

For traditional procurement

Under this method, with design se

are strictly work and material co is to carry out and complete th supplied by the client, and i

include the design of any achieve the desired result. A contrary expressly in the wording may of cours by the contractor.

The contractor is res

complying with of satisfying i

etc. This will The contr directly at responsible expre,

ing contracts the contractor

the documents thods. This might

e the contractor to e of anything to the

r design. The contract limited design obligation

terials and this is in respect of workmanship is concerned and

ty etc. concerning goods and material rs of whatever description or status. efects, other than those which are

misuse. The contractor is not normally ing: any such requirement would have to be

available with the traditional procurement

here theyr Tract Sum is determined before construction starts, htered in the Agreement;

where the Contract Sum is accurately known only on surement to some agreed basis;

cts: where the Contract Sum is arrived at on the basis of our, plant and materials, to which is added a fee to cover the

The contractor undertakes to carry out a defined amount of work in return for an

agreed sum. This can be a fixed amount not subject to recalculation, in which case

there would be no opportunity for the client to make variations after work has started on site. The sum is more likely to be subject to limited fluctuations, usually to cover tax etc. changes not foreseeable at the time of tendering. The sum may be subject to

53

Page 55: Which Contract

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4 Which type of contract?

54

fluctuations in the cost of labour, plant and materials provisions. Recovery may be by use of a formul checking vouchers, invoices, etc.

Lump sum contracts 'with quantities' are pric bill of quantities. Items which cannot be acc approximate quantity or a provisional sum,

Lump sum contracts 'without quantitie, another document. This may simply b

case the lump sum will not be itemise Contract Sum is the total of the pri described by Schedules of Work, In the latter cases, an itemised break valuing any additional work. Schedule of Rates or a Con

Tenders can be prepared o replaced by firm quantities contract.

These are also so work which the accurately measure substantiall quality of measur drawing

etime refer ed

ontra r ndert re before to

d that req e i give

desig 'what is

ent

nd ap cts, mate

ntracts ca

e clie there

ntity

ces prepar, e ap

anti r where

Obvi isly the clienJJ4ks to agcep f`ie risk involved in starting work with no accurate idea of the totak-est*and this type of contract is best confined to small jobs.

A variant of this /s the meas red term contract under which rates can be established for categories o ork, al ough instructions or orders will be required before any single job in the anticipated programme is carried out.

uantiti

a specifi

rately t these sh

d the Zn Sa at i the

b might eore sum total Iup s be

end

fro

,ekes to'

ering reaso

tended to

wn o lump

will b

antiti

act Sum A

the b

,itisi

emeasurem

f notional

nably the

Inq least ri

calle ull flu aThc, -

the Xediou usin o

rings e coy

Cost reimbursement contracts

gs and in which

tent that the atisfactorily

priced items. useful basis for

en a supporting the tenderer.

t' contracts. This is where the of for some good reason be

presumption is that it has been ccurate picture of the amount and

nderer. Probably the most effective to the client, are those based on

also be based on drawings and a Schedule of Rates or for the tenderer to complete. This type of contract might

not enough time to prepare even approximate work is very uncertain.

These are sometimes referred to as 'cost plus' contracts. The contractor undertakes to carry out an indeterminate amount of work on the basis that it is paid the prime

Page 56: Which Contract

tea,

Which type of contract?

or actual cost of labour, plant and materia agreed fee to cover management, overhe which are directly related to the Works is r

fee, which should be agreed beforehan basis of the fee can give rise to man to be the most appropriate will dep

Cost plus percentage fee

The fee charged is directly relat but it can also be on a slidina s c work at maximum efficien requirements are particul

Cost plus fixed fee

The fee to be charg the amount and ty

sin p

to work efficiently s

ends on th tinder st

tion is that if,

i var is only Ii I o

en th

ithin

ftion th contr profi . hec g th rin rat tfo rd. varia

s ng pre isely w at co )st olu contr ts. ich

rate percentage, no real incentive to

e considered where

appropriate provided that contractor has an incentive

e agreed fee.

between the estimated cost and the the latter cost increases due to the

fee will be reduced accordingly. This a realistic chance of ascertaining the amount and

`st reimbursement

is is a fight variarl act I prim ost ab type o ntract isi

sed oWa targe,

L n t revio type. The fee is related to an agreed target. The e or be e target affects the fee earned. On the whole this

of popular, and is likely to prove complex to administer.

isAf cours lways pIap,+ re -c

tKe execution o

en to the client to pay direct for the cost of labour, materials, etc., W

he or the contractor receiving only an agreed fee for managing

This pro/ur-eTrrdnt m hod gained acceptance in the early 1980s with the introduction of a 'wi contracto s design' variant of the standard JCT form. It was endorsed by the public secto preferred procurement option, and most publishers of standard forms now produce documents which allow for a contractor's design responsibility.

The contractor may have responsibility for some or all of the design of the project. The

contract wording must expressly refer to this, and the extent of the design obligation needs to be set out as clearly as possible.

e cos

d is tender der e of i

as t

d to the p os L I

l. Ho ver, for

bporti They

`varia

d on the

bye largely

remain prof

to p - tract.

cto r. eseea

to t iff rence'

is su ose ineffi

4

55

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56

The requirements of the client can be stated briefly a

little more than a site plan and schedule of accomm likely to be stated in a document of several hundre accompanied by a well worked out concept design. might even be restricted to developing des information based on the design informatio

Unless the contract states otherwise, it see

liability under which the contractor However, usually standard design and of the contractor to the normal profe Independent consultants engaged greater than normal. An indemnity unless backed by adequate indemnity in

checked before a contractor is

designers and intends to us

before a tender is accepted

Generally it is better to to prescribe in detail, firmly with the cont example) the more out with the fixe shell designs.

It is claimed bring cost relative fr most effe just how co

O

cl

pr

ade

and sc

operation depend in the first place contract is signed; opportunity to comme`n

the matted of s

How e1

ate set of requireme Premes fro

r acce ra nce,

re the their

porn outside co

in to s of th erf is lea s the r pons

ve e with me ypes c

nts the ess likel

ietary co

sultan

ecz

ctor. recise

intenti

tnteg rb n of d o use its p

d of

supplie

he ' ility rran fit ss the

uild forms ess it t duty exer re o ble

ctor herefor n r,

f lia i 's likely

dais is s n

or

s

f

'How er, fhare ith recis peci

role o the contr d prep ring podr 11

for

tt

olute

nded.

liability re and skill. liability no

o be worthless that should be

s not have in-house uld be established

quirement rather than ility-for design and selection

development (housing, for it is that a tenderer will start

ponents or its own standard

certainty on the Contract Sum and gn and working methods, and the

chasing power and market knowledge ately, it is often very difficult to find out

uld be possible to ensure a quicker start on site, and the d construction should result in more effective

ded for the client's consultants to prepare an me is also needed to compare and evaluate offers

tenderers. The success or otherwise of a design and build ent on the client properly setting out the requirements

c4efully evaluating the contractor's proposals. Once the s are likely to prove costly, and the client has little further

on how the requirements are to be met.

It may be possible to modify a traditional 'work and materials' agreement where it is

desirable to make the contractor responsible for design of part of the Works. For example the Standard Form of Building Contract (SBC05) now incorporates provisions for a Contractor's Designed Portion. Work such as piling, roof trusses etc. could well

Page 58: Which Contract

vi,

Which type of contract?

manage

uctid

nrrdi- q cases, deve requir

part o should preferabl can advise-she

pro

The ma agement co tractor will normally make a written submission which includes a propose ana ment fee, and will be appointed after interviews with the client and the professional team. The fee will include for the total management service,

expressed as a percentage of the total project cost, and for a service to cover pre- construction stages should the project not proceed to site.

suitab nts,igin

faith larg

es

eptM of a

Q the i

ill hav

forms av

appoi ,,The c

in

actor' am, and d

works n

tors.

it is possible xibility

a

involve ring c

ntra

nt profess

;h thoug the c tractor Jes pt ponslit'

of a a wa f intr bv ffectivaw n.d

be made the subject of such an agreement, wish to sub-contract such work, it would design. These provisions, however, should design obligations for a substantial part original contract into one of a design

Basically such contracts concent contractor and are particula requirements. There are man designed by the client's pr major design role, to also out and maintain the operati perhaps playing a sub the majority of such drafted to suit their

pertise of the with complex

ement of a building addition playing a

ement obligation to fit cific period, and even

ing of the project. Clearly in

orms of contract specially

nal team, and also a management pre-construction stages will be as an

ruction it will be responsible for executing the

o make an early start on site and achieve early it allows the client to develop the design during matters of detail can be adjusted and finalised

ract to be successful there must be trust and good teamwork professionals and the management contractor. The latter

ted no later than the outline design stage. The contractor signrogramme, tender action, delivery of materials and goods,

ra m m es.

4

57

Page 59: Which Contract

.-r

fl,

,n'

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4 Which type of contract?

The management contractor undertakes the work on prepared by the quantity surveyor, project drawing client accepts most of the risk because ther programme. Competitive tenders for the Work usually, though not always, be lump sum coq

There is a Standard Form of Management Co

the Standard Works Contracts and an Agr works contractor.

Construction management

Again, the construction manager i

paid a management fee.

One basic difference from a ma

arranged and administered and the trade contractors. of control, it also means tha manager is a coordin or, a

e proje, risk. 0

gaaeme the constr

Ithou he or he a

d us ally

tract issu

ana ctior sense t

ccepts vi

canny

k aives

t an th likely

viou o expertise is

mentems t have Construction many contracts, b experience standard

commerce orms available

rk by th proc rerr

:l1 is usi b poke a

struction ma

crease

all of

si of a c tract sfpf roje ec - ation. The

ert ya t sts

o tht

lat ,and an bills f qua

irec

ntracts, although between the client

t a greater measure risk. The construction

e hat the project will be

in popularity over management nt method has been undertaken by

reements. There are now also a few agement.

nage; or}struc

fal integra me

ore rece

ice fro

a

development of the management approach, offering a

a single source. It can be led by the contractor, or by

The la is only likely when the design aspects of the project

svailable as yet, and developers or contracting Ther are no

TisJ organisa ially drafted forms. Architects involved in this kind of work should elist lawyer to check forms, and advise on the terms.

nd is the subject Maintenance is de the scope of building contracts, a

of facilities maher special agreements.

Contracts where the Architect administers a series of separate trade contracts where there is no main or general contractor, may also fall into this category. As well as

being the designer, the Architect assumes the managing and coordinating roles for the project. This arrangement sometimes occurs with fairly small projects and is a

58

Page 60: Which Contract

Which type of contract?

t docu

etimes o

there mme

made'-crh the instructi

is ar roj ec

S

ent: is or schedules includes

ne

des at is

of conflict

Q. What is t et d of selecting the contractor? Comment: is it to be by a direct negotiated approach, or by competition? Will competitive tendering be straightforward single stage, or is two stage tendering the only practical answer? This might affect the information to be prepared and will affect the time needed.

act to` stions:

uilding istina one

orrn in =r' rk? fish

Is it of a oricuil alter ? Is its allj

of b which olvin

th th be dir

ign

'nsible for sibility ea m -

re to

allow// and

esign. st entirely-*

the ccnnrr e signifi

ture

`mighie desir of be possi

ome e

t after

prepare fu,

ecessi

rile to carrr

le in gar

sera

ordinarily be diet b`e

itect

quite traditional way of working. Trades cont client and the firms concerned.

Choosing the type of contract

In trying to decide which type of con or herself (or others) a number of q

What is the nature or category Comment: is it predominantly building or an addition to an specialist nature such as re

uses for an old building, i

on a 'one-off' basis, or maintenance program

Q. Who is to be resp Comment: is respo professional design aspect of desig P is

or suppliers?

completely new ork, maybe of a

ncerned with new bbing work, perhaps

form part of a term

rchTtect as lead designer and the ctly involved in any important

t from specialist sub-contractors

exploratory work before going to tender, ent. With work to existing buildings, problems

ite operations have started.

information at tender stage? for an early start on site mean that it will have

or approximate information, to be replaced later

eeded for a particular type of contract? hich can best be shown mainly in a drawn form? Are bills

uld the specification be a composite document which riptiVe sections, some scheduled and itemised, and some with

en to be the status of the respective sections or documents in

r discrepancies?

4

59

Page 61: Which Contract

20'

3(D

v.`

v4=

E

4 Which type of contract?

Q. Is the client able to state his requirements precisel Comment: is it desirable or necessary to allow for during the course of the work? What flexibility is

times for final decisions?

Q. Does the client need to know a precise Co Comment: is construction cost of second

a

(because, say, large sums of money are tiedo premises, or because of dependence on

Q. Who is to be mainly responsible for c Comment: is responsibility to rest pri to reserve the right to nominate s

tract

befo adjust eeded{

Kv import p

cono

Q rdina#g w the

o cialis8 have work carried out by others whils

a

c

T wor, ents

he nd

tarts: des n

tan cha e th

es

critic

ore st rts? '

r

ce

e deal ur

0 o

ear omple rental of

tracfor, o

sit th

purch sin

on

sting

client wish deals, or to

is stilt inl Qsses e con on of the site?

60

Page 62: Which Contract

,-«

-ti

((D

D

r-.

;,o

='O

iderable mbina

r

tend is to The resp

o7ndust has ay

an be c on o

d

hd the is likely to b

fficult`to make.

blishe

ments, r be proje ed fo

ecent

orms

as b

more A ecent le

ec

ncy

ake ,

standard form which will satisfy the requirements, or will a

went be needed? eded, or if a specially drafted document seems advisable,

e referred to the client for appropriate legal advice. An small job in very straightforward circumstances which could be

adequate ov red b an exchange of letters. Even so, such a task should never be

undertZe n lid a standard form which uses widely understood terminology might ble. The in dustry has addressed the need for agreements which can be used by consumers on domestic work where no consultants are involved during construction, and the JCT home owners contracts, for example, are true consumer contracts. In all cases care is needed to ensure that contract provisions satisfy the requirements of relevant legislation.

Q. Is th re a

iallt- ff_axfensive am dry

then the matter e%cepti mig t be

idera

egon

s of co

s in whi

Decisions on the preferred procurem on the contract types which might be contract to be used should d

particular project, which need described in the contract form events which might arise needs therefore to be base of prejudice, doctrinaire alleg

Some contract arran novel procurement use of specially dra

For most buildi involved, one However, t suppleme situation constructs of fo co

c

onclusions ual forms of

rounding the and procedures

ons and foreseeable he choice of form

rVand not be the result e familiar.

ments which might involve xity, could well require the

y of architects are likely to be of contract should prove satisfactory.

en to introduce option clauses and table for use in a wider range of

slation and changing practices in the a-Fout a considerable increase in the number being standard. As a result there is now a

ecision about which form, or even which the most appropriate, becomes increasingly

61

Page 63: Which Contract

30)3

=` ((D

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5 Which contract form?

62

Q.

Q.

Q.

ontra

it fa ly r r c sth

110, out under one o

ar ent of

the Eur Unio now identifies three categories of authorities: central government de artments hich seem to include NHS Trusts); sub-central government bodie hic include local authorities, police authorities, universities etc.); private bodies subsidised by government (e.g. Arts Council or English Heritage grant funded projects). Secondly, there are apparently no absolute rules about whether these authorities should use the GC/Works contracts in preference to other forms and the question is left fairly open-ended. The Latham Report clearly wished to see their use reduced in favour of the New Engineering Contract, but there is a

r ses

rt recomr dto use s

for s

b follovJ tract

sector 4 egar

pu

tabl f sec

public sec

ever t

rms

he Ark en

orm ocumen

ly ar d

ndNoe risk

o a s darfor and could f aame is w

he

ies i

andard ch amendments,

is the ris

is the p ctic rs-

ender

ificant in`f'nce, a

esult of t fficia

in alt

mesa matter over which there is little mply with the standing orders of an Procedural matters. Several standard rsions, for use by either the private or

The esent tre d is for forms in only one version which or, ande di inction between what is permissible for r use is no ecoming more fluid.

6 ce on

ative v

d is some need

uid

What standard forms are published, and whic appropriate? Chapters 6 to 13 below set out and compare, un features of the forms most commonly in use today:

What if the contractor wants to use its own The client should be advised to pass any suc for an opinion. Even simply worded and a

weighted in favour of the contractor's ow the client.

What if the client wants alteration This might in effect make the cont as contra proferentem. The basic rule unintended effects on othe document. The Latham Rep

process should be encoura there are exceptional reason that the client is aware of an by his or her legal advi often lead to inflated

authority, or,

forms of c

the publi can be use

priva

e construed ich might have

of the whole the construction endment. Where

tect should make sure should be dealt with

point that ad hoc alterations ices the risks.

rk for government departments was invariably orks contracts, then the responsibility of the

nt. Today the situation is less clear cut.

Page 64: Which Contract

,-+

rip

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Which contract form?

tant, en 96nsi it its pro ions.

es time a

fects tract a

make sure

becotne out

Personal prefer

lic se

nts of for

c

appropri

ents a

ar

;'the ment

also tmen

e

x

ly revi

in. They a

wolf inoth t

I au ritii`bk .as fd ow now th

t/the o ract AZ

com e d

ing miliarity s

effo to

;ua there m

the particular de what a nd m

on ning c tr

use o ne vorKs-zo

discretion ver w ther to

rprocur

ount X

evit bly some subjective element in choosing a form of contract. An architect eel a )personal allegiance to one or other of the professional bodies. For exa le, ACA m hers might understandably incline towards an ACA form, while ASI membe feel a brand loyalty for their published forms. A majority of architects, mindful of the RIBA representation on the JCT and of its leading role historically, might instinctively turn to the JCT's range of standard forms.

Of course, equally it might be the client body which has strong preferences not only about the procurement method but also about the choice of form. Developers and

considerable body of opinion in favour of co would appear that most departments have JCT, NEC or GC/Works forms.

The GC/Works range of forms has been and all the forms have been extensiv,

recommendations and recent legislat Office, and the forms can be used

Local authority requirements

The public sector (or, more own version of the JCT Sta

the contract is referred to provisions peculiar to local gove and public versions h

In work for the pu published requirem views on the ch

which are to

many years had its rson administering

inistrator', and some nt, the need for private

to take into account the r client body. Some have firm

insist are made and procedures administration.

to form of contract, to be thoroughly never of course be the justification for

ep abreast of changes to published forms and ministration procedures.

hat the editions of the contract forms and any urrent issue and compatible. Checks are also

ure that 'contract administration forms are current and form of building contract being used. Pads of forms can quickly

d it is unreasonable to expect office staff to check these things . It is for the contract administrator to check such matters.

5

63

Page 65: Which Contract

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a"'

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5 Which contract form?

members of organisations such as the British Property forms which contain certain conditions. A project a form 'based upon' a well respected standard powerful funding body might require terms, in necessitate considerable changes to those in t

Notwithstanding, the advantages of using overstated. Modern forms drafted by expgrts should result in fairer conditions and faj surrounding the choice of form, it sh

analysis of the situation - an exercis

As discussed above, the choice of buil for the contract for professio s

plete fa recommendation for a co matrix of interlocking cons Itant '

building contract forms a o p v

agr documents including c ulta t present seem to pr fer po tin professional bodies

The form of buil overlooked when

ing co ract hos aIculatl the f

administratio be far mor contract, into acc known in

s proposed to use, needs to be taken ys assuming that the contract choice is l l

Eve with ar tly strai tforward traditional lump sum contracts, there could be s cial facto whit eed t be borne in mind. For example, it might be expedient t arr ge f eli nary enabling contract to cover investigation work, de oliti ork, advan d . e wor etc. ahead of the main contract, and this should not overlooked when a es

.

fees; or again, it might be decided to have work carried a nu ber f parallel trades contracts with the Architect assuming a management ordi ating role, and charging an additional fee for this

The services provided acrd-andfee appropriate will always depend on the nature of the work. For example, work on the preservation or restoration of historic buildings might warrant a considerable departure from the Outline Plan of Work stages, with a great deal of investigation and reporting needed in the earlier stages followed by unusually frequent and detailed inspections both before and during construction.

mil

le, SBCO

tha

derati nanager rm

colla

might stipu mig adv theme ally airl oos !), ora

I agr ement ich

a standa

ntract.

foi canno d hoc alter

th circum.7ta d

Id be the hou

of

fess a

e Lat

dard d con ements

ide comp - merits ocu

mn for

dema thosE

have sig

ve implications ognised this by its

including a total cts' Publishers of some

u b-c6 tracts, and ancillary ajority of consultants at

blished by their respective

ficance which should not be al services relating to contract

airly sophisticated procedures likely to d under, say, MW05. The type of

Kt formivhich it

g

id - alwa

64

Page 66: Which Contract

vii

Which contract form?

Another matter which often brings close lin contract for professional services is design I

design liability to an extent agreed an

professional indemnity insurance purpose, any liability that is more onerous, for incautiously entering into some coll when acting for a contractor involved

5

65

Page 67: Which Contract

66

P

nal

Page 68: Which Contract

The Joint Contracts Tribunal Ltd Major Project Construction Co

The Joint Contracts Tribunal Standard Building Contra

The Stationery Office GC/Works/1 With Q

The Institution of Ci

NEC Document Engineering a,

antities 0

r roject C nstru ' n I 9N, proach. seem like)

also b ght of wocurement.

f the of itional

eers

tract 2

Contra

tract is pTaced first i

ally, though n

a form

listed a

sum. T

the list because it is a relatively new and necessarily, it will be for a lump sum

ri-satile enough for use with either traditional or

ve, the last two are also suitable for use with y are listed under this heading for convenience, and

osition as majo orms of contracts

67

Page 69: Which Contract

68

Page 70: Which Contract

hET

O_(

L.0

(CD

)and' a hig

C05 o D /are of altogether helpful. However, it should s likely Iteto those well tried forms of contract, if used

nstan for is intended. In other circumstances the two might s o appropriate option, and it appears they will

gside the Major Project Construction Contract (MP05).

open and flexible but demands such attributes of its users. The itfo and language, and clear procedures make it immediately

is li y to be an appropriate choice only for parties who are OD ations of a major scale, and who fully appreciate the nature rocedures. They may be relatively brief and uncomplicated, but

1)

level of understanding and involvement by the parties.

MPF05 is much shorter than SBC05. This relative brevity is due in part to the use of enabling clauses which avoid the inclusion of that which might be irrelevant for the particular project, and allow the parties to include their own detailed project-specific requirements on matters such as insurance.

Traditional procurement: standard lump sum forms

JCT MP05

The Joint Contracts Tribunal Ltd

Major Project Cons 2005 Edition Background

it appears that for some time th no longer entirely satisfied commercial developments. T,

cut reality than it traditions

took t

take responsibility for some det and allowing the Emp of major projects has

for both design and and with incentives f

"yer to frequently :onstr

savi

employers forms of con

elate re

att(active. How

espects i

already expp ced

sive

e se

was, a

fed desi

a m e sscessit

d , in payme

s in time odificat ns

p eskefor

n th

act (JCT98) had dertaking major

ion is less of a clear .shes the contractor to ime requiring flexibility

The extended time scale phases, in parallel working

to progress and performance, past this has often resulted in

nditions in otherwise standard b

to f introducing a entirely new standard form to take f t market. )is quite a significant departure from

y JCT an in ormat, style and language, it breaks new might ee to be something of a hybrid, although direct

the c rent eec

ously lishe

ocume

e

pro

s relat

6

69

Page 71: Which Contract

6 Traditional procurement: standard lump sum forms

70

JCT MP05

Employe

suraince arr

im payments to theln s the T

o ret6ntio

mation.

r may na

e for tar per

er m no ate t respo Bible f

the co

su ra

ontract to

Cont uire proj i be i icate i, l

e icula ec as a

Th arty Righ of t der, a

t,.

an h ricin ctor i

aser

gove elatin

analy

inl,grestir key i

ponsib

ikion p ure en

ntractor's d

cialist

ultant

ub-con,

E m pJgye r';s,,R eq u i re m e n ts;

u res

ional) desid

in ryhation es require ire-follow

0 onven

ntract egin ith 4etion.

nal ides ondi ons hich a un all II

icularsappe aft ific

It is logically structured, but interestingly there are n

and the document goes immediately into the 43 out under nine Section headings. The Conditions definitions including the meaning of practical

Unlike most other JCT forms, in MP05 the Conditions, at the back of the form. These r

entered, and the choice of option clau relating to completion by Sections, and i

Attestation. Understandably, this is a

The document also includes two s

of third party rights from the cont from the contractor in favour of a pd last document includes the rWe--,-whi Contractor, and pricing inf Progress Payment schedul relevant.

there are provi ions for benefits of saving va

e in respect d party rights

Document. This

payment to the ce payment bond,

be attached where

previously appointed and the contractor their se performed pursuant to the Requirements;

Factor access to the site, rather than possession;

e parties to agree upon;

will usually be made monthly, but may be to any ere i no provision for retention, but bonds or security

could be created if required;

eration, bonus for early completion, and sharing of improvements;

the Employer must appoint a sole representative who has authority to act in all matters under the contract. Other consultants appointed by the Employer can expect cooperation from the Contractor, but will have no authority under the contract to act for the Employer.

Page 72: Which Contract

L.0

y.,

0

00) fl,

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Traditional procurement: standard lump sum forms

W fort

Vtdiscrepan Employer which to proceed ofherwi

-arrWwithi vision sho,

ependen quired under he he Empl er's

for a

ons r

actor.

s obliged t pletio of thg clesid

that it has th or, and

e contr dinat

or wa it ipal

er is re

ontra

a in f rac it is

o h rele

is,t-obe s

is c&M include

ricin- agr

execut.

eq

se in th analysi

on

nd i

ontra n

g6is is

alto CI u

JCT MP05

For the purpose of comparisons, in this book t employed for notes on the other forms of,

reflect the structure used in the actual con to be found in MPF05.

The form is published in one version in both the private and public s

large commercial development

It is for a lump sum contracan Particulars. The Employer' is no specific reference to th accompanied by a Contract Su

and the Proposals ar

There is no provisio administrative func Employer or the Cont and function

able for use

mainly with Fl projects.

ted in the Contract uantities, but there

tor's Proposals must be

tion. The Requirements ment is founded.

contract administrator, and are to be taken direct by the

ative may exercise all the powers

complete the Project, that is for construction (7.1).

competence and resources to act as CDM Co- esigner as required under the CDM Regulations

onsible for the Requirements, and the contractor is not responsible se, or for the adequacy of design contained in these (11.1).

Requirements is found, the contractor must notify the t intends to follow. If the Employer wishes the contractor

, that instruction is treated as a Change (10.2).

If a discr which (10.3).

Where the contractor takes over design, it warrants that it will perform to the standard of reasonable skill and care appropriate to a competent professional, and does not warrant fitness for purpose (1 1.3).

Should it be thought necessary to stipulate a fitness for purpose obligation, then the

the Proposals is found, the Employer will instruct the contractor Id be adopted and that instruction is not treated as a Change

6

71

Page 73: Which Contract

Traditional procurement: standard lump sum forms

72

o exe to ork oworate , and

The coif

esign repares is

ntractor must oroc

s cr ompl es of da

in acc

pleti

repara for re

nts to

as shown 12.2).

ction

Wing design Zion' (12.1

execut

he Empl to wofk mar

be by the i foyer and subsequently incorporated into still responsible for ensuring that any design document kith all the requirements of the contract (1210).

rkec

furth tractoi

!will it-

crib

fit f6

cur ble t d th Itern

ed Cha

Iurtr sign

ra m

ds 'n the he tended urpos;

b le rding n c

arise wit this d o

JCT MP05

JCT Major Project Construction Contract Guide sugg gives a reminder of some of the practical problem provision (footnote to 1 1.3).

Materials and goods are to be of the kinds and

Where described goods and materials are not alternatives of an equivalent or better stand standard, and acceptable to the Employe

The contractor is responsible for the these are to be submitted to th as identified in the CP's, an

Requirements or Proposals

The Employer is to respond either 'A Action', 'B Ac

The contractor is t accordingly (12.6.

The contractor i

comments are inc

submitted to

The contract allo (together with Particulars.

provided that the Employer's copy of the document is immediately

ect to be paid accordingly (12.6.2).

d 'C Action', but must resubmit a

er's comments (12.6.3).

arly and diligently to achieve practical completion (15.1).

tion by Sections, and completion dates for each Section ages and bonus) are to be entered in the Contract

The contractor must use reasonable endeavours to prevent or reduce delay to progress or to completion (15.3).

Page 74: Which Contract

M--

0-00

6:_

RID

Traditional procurement: standard lump sum forms

No adjust_mRQt to

Howeve , the Empl yer can investigate the possibility of acceleration by inviting proposa om th ontractor. The contractor must either make proposals or explain why it is impracticable to achieve an earlier date (19.1).

If the date of practical completion is earlier than the completion date, then the Employer is liable to pay the contractor a bonus at the rate entered in the Appendix (20).

ontra pporti

s of r'eipt of ent to t

asons

r dor in ay!

iously, an

rform gly, advers

ctor

e to Ikel

tha revise this a

or cons

ect o

to any non-

is no

ecomes awar ny caus it

ye ct upo se

Et the m in, an u th ' sue

t e pa 17

tract, t s. Of t

uch n

comd tifica

anion actic Co'

ertificete o actic

'he co/MKIet the ntra

JCT MP05

The contractor must notify the Employer whe occurred and, if it agrees, the Employer will (15.4).

If the contractor fails to achieve pra

becomes liable for liquidated damag (16.1).

With the consent of the Contr Project prior to practical compl part, the date, and the value o

Unless there is anything to to an extension of time in r

causes', and the other four rela

valid suspension of Employer. Interesti

Whenever the cont likely to be delayed cause of the

actor will be entitled se four are for 'neutral y other persons on site,

acts of prevention by the

ss of the Project is being or is

ith notify the Employer of the eticin of the Project (18.2).

used by one of these events, it must necessary (18.3).

on, the Employer must notify the contractor date as he or she then considers fair and pletion date should not be adjusted (18.4).

practical completion of the Project, the contractor may provide n to support any further adjustment to the completion date, and

g that information the Employer must review decisions made m or adjust the completion date (18.6).

cmpletion date to bring an earlier completion date is possible (18.8).

6

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74

3 Control

The contractor may not assign either the benefit the consent of the Employer, and this would app design work (35.1).

However, the Employer may assign the benefi and furthermore the contractor consents benefit and burden of the contract to the at any time (35.3).

Rights of third parties in general are e

part of the contract, in respect of th

The contract has no provision for a co are to be administered direct b

the Employer is required to a

powers and functions of th

The Employer may appoint o the Contractor, have no,,Ntho

JCT MP05

Where the contra Employer may enga liable for th

eive

s rrse

i\exten

gations u

eE findlrs show all t

e. If the work mate

Where work, m eriairs or gods are not in accordance with the contract then the Employer may in uct their emoval, or may allow them to remain but with a price reduction. The contrac r will not be entitled to loss and/or expense or extension of time. The Employer may also instruct additional work necessary as a consequence, and may also instruct further opening up and testing relating to similar work materials or goods elsewhere (22.2). No such instructions shall be treated as a Change (22.3).

During the 12 months following Practical Completion (termed the Rectification

of the c

the Emp amdint

buThir da

is S

aser or Tent act "Istrato

ctor

tive

entio er an

is Rep

ontra

assur.

nen s

e effea

visers who, er the cd

oint an Emplor

be inting)and with suc`f) instru

iplo`y

nder th

mploy

or others to gi

z,3).

to ai'Chang ion of ti

h(

o,'burdeviof tVe-tontr'

d

and the terms tively. However,

o will exercise the

d of cooperation from the Employer (21.2).

this may entitle the contractor to . However, not all instructions will be

e the contract states this, the contractor This will not relieve the contractor of any

tractor to open up and test work and materials. If rdance with the contract, this will constitute a

goods are not in accordance with the contract, it

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Traditional procurement: standard lump sum forms

1CT MP05

Period), the Employer may instruct the contr,

Where the contractor does not remedy de engage others to give effect to the instru

After expiry of the Rectification Period,

issue a certificate to that effect (23.

Consultants may be pre-appoin appointment will be novated appointment and the propos Requirements. This also requ

The Model Form of Novat (24.2).

The Employer may a

subcontractors or contractor may ch design or carrying

be

hinted

6o recl ui

nsulta nts) e, in

t of

pro to e

the nWct and Mod I For

ontra th in

P y inclu

e quirement orks (24.3)

solely sponsi

g a

Such

e un !und

struztec then

ediatel

tified

tion that the f their original

e included in the ct Particulars (24.1).

named specialists (that is,

`st of names from which the ointments may be in respect of

er the contract for services provided by

taken by named specialists (24.4).

depends upon the novation of pre- e Employer `to the contr ctN consu sand

ithe eforE

mu no ' 1

day in whic

i contracto e

specialists, and e it

`tract Sum,

Tne app releva

of specialists being carried out in the contract clauses (24.5).

ppoirdconsult ctor without he prior written consent of the Employer (24.6

ediately fo'WWing termination of such contracts, the contractor loyer of the proposed replacement, and the Employer has seven

reasonable objection (24.8).

ns fu liable under the contract for replacement consultants or e ponsible for any delay and additional cost incurred (2410).

AT exclusive, is entered in the Contract Particulars (31.1).

The Pricingr6ent identified in the Contract Particulars is part of the contract, and

should contain the rules which will determine the method of payment, the Contract Sum Analysis, and pricing information such as rates, preliminaries, and overheads which can be used in the valuation of Changes.

Changes are alterations in the Requirements or Proposals which affect either the

Fred under th

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76

gs

a bo fy bene daily

limited right Change

ide an Within 1

t and

essmen

aiu

Employer

esult ents

lue i

a able

s

is re

ompl as stared in the

table in t

by f Employe

itio

nt deletions in the iv.Q payme aer

ule If no Rule i

essay 3 amo

pleti spect

+ew rele

adjustments nd Prop ftprovem

f6rearly

to rei

If the

hould b

ent

bas o

ag

ense

co etiord q p

on fair a atio 3 to 26.

e Pr

han

mo

dered that ar6nstru

ultin

Zt-j

r th e ontra -on

te exce ing maip9v to ratio

JCT MP05

substance or manner of what the contractor is to pro contractor is responsible for all further design discrepancies and statutory requirements, Chang required by the Employer.

Each party is to notify immediately the other if i

rise to a Change, or any event occurs which Change (26.1).

Valuation of a Change and any adjus agreement, or by the Employer on Contractor, or, if no quotation is re

valuation is to be inclusive of any I

No later than 42 days after practical c

provide particulars of any furth of receipt of the particulars th

Other factors which may amendments to the Require which will be cost savi

the Employer (25), a

the proportion of a

latter will be at t

The contractor has

the inclusive timely noti informati Employe included in

ma

Rele

to rece (Progress Payment Pricing Documen

ontractor may and within 42 days s valuations (26.9).

ontract Sum include `ted by the contractor

in a financial benefit to ion (20). The former will be ontract Particulars, and the

Contract Particulars.

rsement of loss and/or expense outside ctor wishes to claim, it must give of the loss and/or expense with

days of receipt of information, the otify the Contractor. Payment will be

advice. ,-rayclaim for further ascertainment must be in 42 days after practical completion of the Project, and

hese particulars and notify the contractor of any ithin a further 42 days (27).

r articulars will indicate whether the contractor is

40(interim valuation), Rule B (stage payment), Rule C

(some other method). These Rules are described in the selected then A will apply.

The contractor is tolra-e detailed application for payment not later than seven days before payment is due, and the Employer is to issue a payment advice on the day of each month as entered in the Contract Particulars (28.1).

After practical completion the Employer will issue further payment advice at monthly intervals, always provided that the amount due is not less than the figure entered in

Page 78: Which Contract

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JCT MP05

the Contract Particulars (28.2).

Each interim advice is to state the amo accordance with the Pricing Document), th of any reductions. It should be noted t materials or cost fluctuations, althou

The Employer may withhold p

notice is given not later than se

states the grounds for withh

If payment is not made in

Final payment beco the Employer consi taken place. The E

binding on the part referred to ad

ligati

requir

orI

t these

n days befdre-die fi

corda

ificati

th co ract ny Ch ges, an

th6. ontra

ounce's attNb able

thract, iN am n 30

d that effective ment, and which

each ground (29).

as been certified, or when ea nable time us issue a fina

elation ration w in

tions a6 dertakWs regu

mployer,

Lng the for,

requirements (9.2

announ (10.5).

es in stat

Ompk,w.Ah all s

ept for that

bligations that arise after the Base Date and were not previously ken into account and will be treated as giving rise to a Change

The contractor is appointed as both CDM Co-ordinator and Principal Contractor for the purposes of the CDM Regulations (1.2). The Contract Particulars also allow for the name of a CDM Co-ordinator previously appointed by the Employer to be entered, and if this person is to be retained then the contract would need amending (7.2).

ees due w rs that r loye

Fes in

nd 11;

wed for rectification to have certificate, and this is final and

! subject to any dispute being days (28.7).

tutory requirements and warrants that the ontained in the Requirements) complies with

make any alications and give any notices required by statute of relevant documents to the Employer (9.1).

en te that specific fees and charges are the responsibility of trwill pay all fees or charges in connection with statutory

6

77

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The contractor indemnifies the Employer in respe damage to property other than the Project, alway course of carrying out the Project and are not the Employer has responsibility (32.1).

The Employer indemnifies the contractor aga' st ens lia lity, loss, clai or proceedings arising under statute or co la in ect f p sonal in' ry or death and damage to property other t an the e a s as mi t t these arise in the course of carrying out the Pr 'ect arare to e ac r neglect for which the Employer has responsibili

Most major projects are likely to contract requires the relevant documen Contract Particulars (33.1).

Either party may be require to pro ' nd main in cov an`dAhe other party may request documentary eviden e (33 2). Failure to p o e sati ctory evidence within seven days will allow tl, e of r pa to tak out sur c and recover the costs involved (33.3).

Where compliance requires remedial

t provision and the insurer ement these and this is not

treated as giving

Where cover, ga -tterorism is requir d ceases to be available, the party responsible or that in ra must-n of y the o per party (33-7). The risk then rests with the

Where pr ssion in mnit insura e is r quired, a relevant deletion is required in the Contract rticulars, an the limit o demnity is to be entered. The contractor ma be req ' e take ut and maintain cover until 12 years from the date of pr ctical co pletion the ect, always assuming that cover remains available at co m cia so le tes ( -2).

The Emp iiay, by sui a further notice, terminate the employment of the contractor if, afte ' g giv n the contractor 14 days' notice of a material breach, the contractor s failed to emedy the breach (38.1 and 38.2). The contractor's employment may a terminated in the event that the contractor becomes insolvent (38.3).

Material breach by the contractor is defined, and includes failure to proceed regularly and diligently, failure to comply with an instruction, suspension of the Project, breach of the CDM Regulations, breach of provisions relating to named specialists or pre-appointed consultants (1).

78

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Traditional procurement: standard lump sum forms

JCT MP05

Upon termination, the contractor must documents, and must not remove any mater,

permission. The Employer may then make Project (38.4). Only when the Project has

for completion have been made, withi issue a payment advice (38.5 and 38`

The contractor may, by issuing a

having given the Employer 14 failed to remedy the breach (3

employment in the event th

Material breach by the E

Upon termination, t equipment from sit

Either party may ter suspended for

include force

a

nation s, rem

ccou

ntracto eaves

as the Project (1

ns o man-made obstructions encountered by the contr give rise vhere they could not have been foreseen (14.2).

Copyrig in all desi n documents prepared by the contractor remains vested in the contractor a e Employer is given an irrevocable licence to use them for the purposes of the Project. Where the contractor does not own the copyright in any design document it shall procure a licence from the copyright holder (13.1 and 13.2).

The stated period in which acts are to be done will commence immediately after the specified date. Christmas Day, Good Friday and bank holidays are excepted (3).

e contra

'six r-6

ays no L1 and 39.

without delay, a

plo

inateVhe contractor' pkiod st ted in tie Co

ecifie eril, ciXI co

the ,con actor

t if the Project is substantially rticulars due to causes which

t pro ide the Employer with all design ant or eq pment from site without delay, and

gs aAfully to letion, R

led. Note in particular Design Documents, uirements and Proposals (1).

n are set , ncluding a gender bias clause, and that a 'person' I, firm, partnership, company, and any other body corporate (2).

ccess (not exclusive possession) to the site or parts of the site, Dloye ree to have work undertaken by others at the same time

actor will only

/ir mee enge ents t r,

tion, o oth

termi r/k

a' ateria e c acto

eco es iftsOivent

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All communications between the parties relating to or may be made electronically by the procedures sp

(5.1). Any notice under the Third Party Rights Sche

be given by actual delivery, registered post or r

9 Disputes

Disputes or differences between the parties in r do to th Pro' ct (nole not s ply the customary 'arising under this contr t e s 7itte to ediatio if the parties agree, or referred to adjudicati n a ce the ro ko of the relevant Scheme for Construction Contr

Although the contract states that /he o ecti of tion shbu( to reach a

binding agreement, the only final re lution f di utes o appe r to be by legal proceedings. There is no provision for

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This contract?

If considering using MP05 remember that:

It is intended for use where both the Em

respective teams of specialists and s

commercial projects. The Employer is

exercise all the powers and func advisers may be appointed but on behalf of the Employer.

The Requirements and the important that both are fu be remembered that this cont what is to be delivere considered for inclu

The contract provid Requirements, with stipulate that under a nova be covere

Req u i rem Normally could i

diffi

I fit of pu rpo i imi o

e

some of the matters which need to ich should become part of the

using the CIC Novation Agreement). e care and skill, but the Requirements

bligation although there might be practical

loyer, ntr

contract, and it is

-format ormat but it should ements stating clearly

is points which may be

e for this contract.

shown and described in the tor. The Requirements may

antspre-appointed by the Employer onsu e lis

nt, w

atter in the case of PFI projects.) rta nt

articulars re uires entries on matters such as the Contract S m, Re ire ents, Propo Is, Prig g Document, names of Planning Supervisor, Fun adju ator, ntries rely to the application of option clauses such as those 0 ou conditi s, liquidated damages, bonus rates, pre-appointed consultants

cost savings, payments, insurances, professional indemnity, and ame eciali an orxuff

This is a form whi e tailore

becaus

r and shorter than either SBC05 or D1305, and which can

of the project. However, it should be approached with alth ugh the openness and apparent brevity of the Conditions is

admirabl , prb-ression I and sometimes legal advice might be advisable to produce a

reasona balance set of documents. The contractor assumes more risks and responsibilitie under other JCT forms of contract, but provided that the risks can

be fully identified and priced for at tender stage, this should not present a problem for experienced operators. What effect this admirable document will have on the use

of the more traditional JCT forms remains to be seen!

rion agr

on are hel

s for u rth

in th no

t is ve

to r a the Contr tor, t er th their i-contr for , are e rie ed in bstantial

uir d to poi t a Re esentat' e who will o he plo r u er the c tract. Other fa o horit n the ontract to act

are e heart ' rescri ere t on e eqi,

nner de in e J

esign by the design

re ngages cto

agree isb to conside nts (th part s rr

li i ty is t fitness for,

iaht be

6

81

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6 Traditional procurement: standard lump sum forms

JCT MP05

JCT Major Project Construction Contract 2005 JCT Major Project Sub-Contract 2005

References

JCT Major Project Construction Contract Guide

Commentaries

Note: these relate to the previous edition of the

Sarah Lupton Guide to MPF03 RIBA Enterprises (2003)

Neil F. Jones

The JCT Major Project Form Blackwell Publishing (2004)

82

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Traditional procurement: standard lump sum forms

1CT SBC05

The Joint Contracts Tribunal Ltd

Standard Building Background

The original agreed Standard Form Form. In many respects the JCT

a direct descendant through a se

and 1998, although now pubs Limited OCT).

JCT80 was drafted to overcome the 1963 Edition, and,

particular those relat that JCT80 had strut and others involved.

re

gto t he tr a fair nitiall

its being much longer th quickly gaine United King and, secti contracto

acce

om. S

hal co and s

eas th Opleme pled ?1; ther with d

t to 18 A/rhend n

commend ions in the h Nrt f the ousin

co

reco t of

so

sed

as the RIBA

on (SBC05) is

39, 1963, 1980 Contracts Tribunal

appeared over time in

the Banwell Report - in

rs. At the time it was felt rests of the contracting parties

some who saw the form as

emanding to administer, yet it d for major building projects in the ble to cater for contractor's design umentation for nominating sub-

the last of which was an attempt to meet Latham Report of 1994, and to ensure

Grants, Construction and Regeneration Act ayment provisions. The 1998 Edition of the

olidated version of JCT80 which subsequently

nt edition of this long standing form. It constitutes a radical mat, layout, language and content. The clauses have been

rt-g ouped and -n ber and the language has been clarified throughout. The provisions of the cti Completion Supplement and the Contractor's Design

pple ent ave been incorporated in the form, as have the fluctuations isions omin ted sub-contractor provisions and the performance specified

work pr isions hav been omitted. The form contains a new design documents submission e e, and provisions for Third Party Rights and warranties. For a full analysis of the changes see the references at the end of this section.

Nature

SBC05 runs to over 100 pages. The Articles of Agreement include Recitals, Articles, Contract Particulars (to be completed by the parties) and an Attestation. The

rious se

atme ce betwe

concern wa-s, edecess,

orm

the i

is wer avail

tion and,

6

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84

numbering of Recitals and Articles may vary depen SBC05, and if incorporating any separate amend to achieve consistency.

The Conditions are set out in nine Sections interpretation of the form. Section 2 sets o including its obligations with respect to adjusting the completion date. Section 3,

the giving of instructions. Sections 4 an 6 with insurance, Section 7 with assi

termination, and Section 9 with dis the back of the form, which cover insurance options, bonds and fluc

Obviously such a contract is n

considered with great care. consideration of whether category. Many of the cla procedures and rules. some payment, might app and should be foll iculo

and co ple : y,N Joe late ition,

erial under r with 1

t flag

The Without Q ntities ver on also requires preparation of a full set of drawings to be accompanied ei a Specification or Schedules of Work. In order to give valuation of variations and fluctuations a substantive basis the contractor is also required to submit a Schedule of Rates or a Contract Sum Analysis; this should be provided, and the measure of detail required of the contractor is often stipulated at tender stage by the Employer.

t the c

ogrammi rs he ntro

5 de wit va ion a

ment nd Pa igh )ms oluti Ce v Sc les a

as sign su

ve

tions:

asy'read'an the)

ontra ri `a, into

I con y th

re in

basically si

mpl , the ses co

lude not onl especi

ut they

ratio popu

,An par hedu

e int

xne par t cariee

iorl,1 deals witV defin

n

T e W ua es sion s uld only be used where the Employer, through its p fes consultan prove d at the time of tender a full set of drawings and bill of quantities to S M Information Release Schedule is part of the docu tatio a t an tte to identify responsibility for any further information which might be ness to mplify the contract during the carrying out of the Works.

JCT SBC05

Despite its lengt the changes to grouping of so

predecessor,

towards r

n s,

for

uding Section

n 8 with included at procedure,

ptions need to be equire very careful

ies/does not apply tions but also detailed rning extending time or

nded to secure sound practice

ple in its overall structure, and more logical layout, with the

ake it much easier to navigate than its f new provisions, may go some way

rity.

e versions use with quantities, without quantities, or s.

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All three versions now incorporate sectional Portion, both optional provisions. The first completion of the Works, and for setting each section. The second allows for the c

of the Works, and includes a new pr information for comment. The parties as to scope, format and timing of such

In response to the Employer's Contractor's Proposals and a C

relates to the Contractor's D

variations.

?mrat ly with al

chifect's sat

SBC05 requires the appointmm terms. The Employer w II

this role, and such a rson ll b

provides for the Em loyer t of the Employer. A f otnot

for is

st comp tions

(2.2

'M 6 Archi The c

re of a

wi regax

oint an emphasises

equir Anal Ys is

Po rtf

edu

hould b

bmission

th ontr at Offof t

. Thi ,Jatt I as

to g ct itect

den

oint a

ed as

ploye ndam

rryt and comp

ate for li idat dam r to ign a identif' d r

D ubmitti its d ve in

a r I to se u any rep,

t Contract Par

pleti Ilows f parat

and -ct-Contrak4o'r

the various contract ntract administrator to

and impartial. SBC05 also

esentative' to act on behalf tal difference in roles.

an and Statutory Requirements (2.1).

of any Contractor's Designed Portion, and ct relating to the integration of the Portion

ntractor's liability for design is limited to the rchitect or other professional person.

goods an workman are to be to the standard set out in the bills, equire ents or Contractor's Proposals as relevant. If stated to be to the

action, hey are to be to the Architect's reasonable satisfaction. Where are to be a standard appropriate to the Works (2.3). r

slue directions to the contractor to make certain that the be integrated into the design of the Works as a whole (2.2.2).

liabili y for design is limited to exercising reasonable care and skill owever, y/here the contract is for housing work which is subject to the

ve Premises Act 1972, then this limit of liability might not apply.

The contractor must be notified if the Architect detects a defect in the contractor's design, and the Architect must be notified if the contractor considers that its design will be adversely affected by an architect's instruction. The contractor's obligations for design work are otherwise not reduced (3.10.3).

6

85

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6 Traditional procurement: standard lump sum forms

JCT SBC05

The Contract Documents are to be read as a

Conditions and Appendix prevail (1.3).

In the case of discrepancies in or divergence instructions must be given (2.15).

The provision for dealing with a discrepan Requirements, the Contractor's Proposals an

Contract bills, except where specifica accordance with the Standard Metho

The contractor must be provided wi Information Release Schedule by t

here

provided with such further drawings The contractor must keep on 5ite_b

The contractor is required relation to the design (th Contract Documents, or a

The Employer is to Action', 'B Action; or 'B Action', in

ie CDM R

The contractor mu ̀ executing an

espo n

or 'C A e cas

o submit d

'Cor reas

or dive he Apalys

Xy stated the 'se, of Measu t, Editi

e stat detai

ies e refe (2- he cont

a o Docu

nably necesa 42). k 1 (2:

by tion the I

e su

1).

ed to in the must also be

ecessary (2.12). d (2.8.3).

ents it prepares in

n&), as set out in the mission is to follow a

documents marked either 'A ute work marked 'A Action'

e comments by the Employer.

turnip the design ntractor is to ex

it tincorpor streviseNVawing

hedule 1:

marked

er relieve/the co

gulati

5) airy any need to

copies 'ot hi master programme as soon as possible equire a pre minary draft with the tenders.)

the Employer to nominate a CDM Co-ordinator and on ctor. This is also a contractual duty (Articles 5 and ant a r placement is also covered (3.26).

Dates for posses i d co pletion should be entered in the Contract Particulars. There is provi on for div' ing the Works into Sections, and setting separate commencement a co letion dates, and rates of liquidated damages for each section. All provisions relating to timing, for example extending the date for completion, apply separately to each section, except that there is only one Final Certificate.

The contractor must proceed regularly and diligently and complete on or before

86

Page 88: Which Contract

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e con acto chitect (2 3) an

the E foyer

i,s,certifby the

ik oblige

o asst

The art

insur&me a

3 Control

-ime

The cont IIIQ

rovi s for Third Party Rights to be assigned to purchasers/tenants and funders. The requirement to grant third party rights to identified persons, together with information regarding limits to the contractor's liability, must be set out in the Contract Particulars. The rights are set out in Schedule 5.

The contract provides for collateral warranties to be provided by the contractor to funders and purchasers/tenants, and by sub-contractors to the purchasers/tenants,

t be reduc t. The d to

bec

ctor

plete within th

e

tion o itect

reduc there i

ealin e.

yt Co

ke ffect a new c ion te, ar

,weeks -28 Thi ref

f tim 29 the t mploy la th we

ion visi

p dures foN e followed witb

owere he contr

. T32)he

an opt 6n for ertifica can t ntract in tern

iori exceedir)o six

toge ?aMpletio

completion date (2.4). Early completion is

achieved, issue of the Practical Completion the Employer is not obliged to assist the

An option clause for deferment of po subject to an Appendix entry (2.5).

Notice of delay must be given in writin information including its estima Architect is required to conside of his or her decision within 12 which are grounds for an e

to any impediment, preve subject to review by the completion. Whilst it i

contract period cann,

except by agreeme are detailed and ne

supporting (2.27.1). The

the contractor nt events' are listed nt of which relates

e interim decision is

ks following practical y awarded, the original

for accelerating progress, elay and extensions of time

-20).

contract period is certified as a fact ges may be deducted or otherwise

mployer is obliged to give notice in writing

to rectify defects (2.38) unless the Employer d agrees`"propriate deduction instead.

partial possession (2.33), and where the Employer wants to use

ed works for storage etc., this is possible subject to proper

without written consent refers to 'the contract, or any rights

6

87

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6 Traditional procurement: standard lump sum forms

88

funders, and the Employer. The requirement to enter in the Contract Particulars, the relevant persons together with information regarding limits to the

The warranties to purchaser, funder and tenan CWa/P&T, CWa/F, SCWa/F and SCWa/P&T. T

relation to the Employer, although this is no

Sub-contracting any part of the work, in

written consent (3.7.1), and the contra, sub-contractors. It is a condition of any certain provisions (3.9).

The contractor may sub-let to pers Contract Bills. There must be not less f the specified sub-contract might consider whether the submitting its tender, in or

Visits, inspections, etc. by th or affect the contracto Contract Document

Architect's instr confirmation of are empowered, an (3.15) and e

JCT SBC05

's

(3.6).

tions l instr

rovisi these-may i

e a coYnpeten the Emp

or

for is aauire to permit the pre

inspe t#, alth the Archit

ials do Ae (3.1

ain

ere work it re

forrhiiqT work sho riate deduction. Th

n-co

The contract req s all wo to be carried out in a proper and workmanlike manner, and in accordance wi e Health and Safety Plan (2.1). In the event of failure to comply, and although this might under other circumstances be interference with the contractor's working methods, the Architect is empowered to issue instructions (3.19).

The contract does allow for work under the direct control of the Employer to be carried out during the time that the contractor is in possession (2.7).

lust tioi

v 711

ate l require th er to dtim

Architect or clerk ci'n5ibilit

for is r

b-letti

eferred t

he E% tontr list d in o

abl n illa

Ar

c

n thre fired ti

for to

ed 'D contra

rage so-c

inriting, altho The

r flucl nal surds

to war antie ust beams

nd su )6_contractor-s iden ontrac or's IA bil

on the JCT/stand iblish Wa/E t`he form.

the Arc

annexed to the g' to carry out

tects who use this oice at the time of

h' auctioning.

of in any way diminish Works in accordance with the

gh this can mean written early defines what instructions

iations (3.14), postponement of work ).

person-in-charge on the site full time yer's clerk of works. The clerk of works

e can issue directions which require

of comply with the contract, the Architect can order Where, after consultation, it is agreed that non- 3-18-2), then the Employer is entitled to an

ct is empowered to order tests and inspection, and pliance in similar work elsewhere is covered (13.18.4

Page 90: Which Contract

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uctio

(4.23).

ad

icu'la rs) a

6). The su

e b t tactor's

ov w

p

or w e by

(5'2

ation

tions is

cto

utions p

st (Alabo ccmanc

in ed,`rtrM

rovisio ai work

visio

les and pro

ct

e whi firme

an inst ation r.

odific n of th

ontra1CV mus make tte application for reimbursement of loss and/or vv4 ns . The grou s for ancation are set out (4 24) and include only

hich e contractor has no control and which occur because of action Emp er. The procedures should be followed precisely, and the

writte notice and supporting information is a requirement

rdereo, uation rule

ctor

an ar

r be invited to s

itect's in ruct' n

Pest cost f wo . The ork v

was issued. In

issued to

ly beadste

ver i

4er

JCT SBC05

4 Money

The Contract Sum is VAT exclusive (4.6) an the Conditions (4-2).

The Conditions provide for the contrr including landfill tax, levies or contri (Schedule 7, Option A). Increases in the as net increases (Schedule 7, Opti 7, Option C), if either of these

Where provisional sums ha

contractor (3.16). In accor,

defined or for undefined approximate quantity is includ a variation has been application of the v

In addition, the cont which is the subiect o bind the cont and/orexpe

unless a c

accepted

be subject

If th Po

h taxes,

of tender e recovered

les (Schedule iculars.

t be given to the 's will be either for

arried out where an are included, or where

the quantity surveyor's

chedule 2 Quotation' for work a quotation, if accepted, would

the time implications and any loss

ould not be carried out on this basis he event that the quotation is not

'roceed with the work, but it will then ures (5 6.1).

which is part of the Contractor's Designed Employer's Requirements and will be valued

nce payment of the contractor (4.8, an entry is required in the nd this might be subject to an advance payment bond (Part 1,

is to be reimbursed to the Employer in agreed amounts and at Contract Schedul agreed time

Interim payments to the contractor are made to the contractor following the issue of Interim Certificate by the Architect at intervals as entered in the Contract Particulars (usually monthly). Interim valuations will be made by the quantity surveyor (4-11). but may arise from application by the contractor and his own assessment of the gross

6

89

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.-t

Traditional procurement: standard lump sum forms

90

JCT SBC05

Rec

the

Certific rtifica

ices (2.1 The

(2.21

contrctor is to n ifs ements and the C

uc a e c tra ract for any - ompl

actical c

s to b

ti 5). Is

e co on

ays

een s

ficate h egard t the final dat

Ffnal Ce

tes, e cc

e of-the Architect is onl

ractL1.10

ce w r no le

4 s fro c#s a iv b e EZI he final r p

cart aIso th ntra

feren ention terie

ton.

prep ificate

--fe0wed in f ue of the Fin

ractor (a

Pe d has

concltfsi_ve

t

a

e

i

o the

ate of issue

then

valuation (4.12).

Interim Certificate must show the amount due, calculation. Within five days of issue the Empl writing of the amount of payment it intends to,

deduct must be clearly stated in a written no such action. This must be given to the contra for final payment. The final date for paym Interim Certificate, and if no valid noti must be made in full. Failure to pay by of 5 per cent over current base rate,

suspend work (4.14).

Where the traditional operating of bonding (4.19), then this will a

amount will be released at

There are precise procedur after practical completion (

sending the final accot to out at the end of th Similar rules apply above for Interim the date of the

T req instr cont instruction (2.1

tiorY of the final account within two months of

that work to be carried tisfactorily dealt with (4.15)). to notices, as those outlined for payment is 28 days from

omply with'a'll statutory obligations and give all required r is entitled to recover fees and charges not otherwise

hitect if it finds any conflict between statutory ocuments (2.171). The Architect must issue an

or is thereafter not liable to the Employer under the ance with statutory requirements resulting from the

If divergences betw-eerr statutory requirements and documents relating to the Contractor's Designed Portion are discovered, the contractor is to propose the necessary amendments, to be at its own cost unless one of the 217.2 exception applies.

The contractor is empowered to carry out limited work for emergency compliance and

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to IeaJ

contracto fo esign,

The contra

treat

of0 xistir f 3, Optio

uranc (Schule

requi s_of

the Cont ion from

ep d to K wh er ti il rec

The Arch' c d

a 0< pass gthe or c

in respt of per nt a alw

oun

alue. It

the E

erty o mini

uisa ntrac aims

be at er ma

o an

i red

isles where

)-r- take o rising due t

ibutable be req

reinstment tion A)#

isk wi riatio

e

contra work

stru res a d the contents is a matter for the Employer C) and i 'mited to specified perils. New work in existing

still a matter for the Employer, requires all risks cover.

#gly 18). '

wit t C

>ly with ties

JCT SBC05

this will be treated as a variation to be value

The contractor is contractually obliged t particularly, where the project is notifiabl Construction Phase Plan and the healt

What a particular contract inclu Contract Particulars (for exampl amount of cover required, etc call for documentary eviden

The contractor indemnifie and injury or damage to backed by insurance ( the Contract Partic

If instructed, the c

against the risk of c

and damage nt no will indicate provided.

Insuranc be for fu (Sch

be

8 Termination

entries in the the minimum

sue instructions, cking.

injury or death (6.1

rks (6.2). This is to be er required is entered in

es insurance for the Employer e. There is a list of exceptions,

neg'Hge'nce by the Contractor. An entry 6.5), and the amount of cover to be

w buildings are concerned and should cary-Be taken out either by the contractor

ployer (Schedule 3, Option B). Normally it is

or under Option A, since restoration under d will be valued accordingly.

d to carry professional indemnity insurance to cover its liability should be set out in the Contract particulars.

consequential loss arising due to design errors not covered s may be limited to a figure entered in the Contract Particulars.

act Particulars will show whether the Joint Code of Practice on Fire of Construction Sites is to apply (6.13) and if so, both

contractor must comply with it. In the event of non-compliance, the insurers can specify remedial measures which must be undertaken. In the event that terrorism cover is withdrawn and is no longer available, the situation and options open to the Employer are dealt with in clause 6.10 as applicable.

6

91

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6 Traditional procurement: standard lump sum forms

JCT SBC05

The Employer is allowed to terminate the employme n

specified defaults (8.4). A warning notice may be notice of termination is a matter for the Employe, Contractor, depending on the circumstances, th agreement with the contractor for continuatio

If no such agreement is reached, and in all o Works completed by another contractor 18.7), carried out and completed at all after de

(8.8).

The contractor is allowed to termina the Employer (8.9). Again, the proc ciures

contra of insolvency of the Employer, th employment.

Either party can terminate tl) (8.11).

The respective rights and d

completion are set ou

8 Miscellaneous

A list of definitio out, including a g

partnership, c

Architect/has

nd any of

ed to inform the Arc

9 Disputes

avoid di

third rights nder the Contracts (Rights of Third

overed 1) t this might be subject to reasonable ps are conc ned.

der the exclusion of persons from the Works (3.2.1).

>eca of the discovery of antiquities, the contractor is

an to take all necessary action to preserve the status 12 ). The Architect must issue instructions, and the `gained loss and/or expense (3.24).

Part II of the Housing-Crants' Construction and Regeneration Act 1996 gives either party a statutory right to refer any difference or dispute arising out of the contract to adjudication. Article 7 of SBC05 provides for this.

The procedure for adjudication is as set out in the Scheme for Construction Contracts, subject to some limited provisions regarding the appointment of the

employment o

er cases,

w to ecid i

aye c ter

ployely have have the

cto ' empl

n e melt forpecifie e fol meticu

of the ntr or by `a ca+ ff

sued the rch' ct, b the In th case f i Ive of t

mplo might enter in an otion.

of con

ules for interpretation are set

ories12) the parti1s ice

releva t to Co'

rider bi ause,

s in sled (1-1). ,Xnd that

er bodv c 6n' refers to an individual, firm,

porate (1.4).

92

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Traditional procurement: standard lump sum forms

JCT SBC05

adjudicator (9.2).

The adjudicator's decision is binding on th determined at arbitration or by legal proce

Article 8 establishes arbitration as an the Contract Particulars indicate that

The appointment of the arbitrator his or her powers are defined (

The parties agree that either

Arbitration is to be cond Construction Industry Mo Arbitration Act 1996 shal

s, provided apply.

rticulars, and

on of law (9.7).

005 Edition of the the provisions of the

6

93

Page 95: Which Contract

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6 Traditional procurement: standard lump sum forms

94

JCT SBC05

ages; ad

ersta ing of its pro nsuming.

ks/1. The so

dition

c

cume ;actor m3

m be

! 0th is the ntra ideally at r s

plo is re

vers

ent if are th

tractd this 'listin

an be hin o r

are re

nd

ion, ands tional c mple elays re cau by a ran

respsibi k of the Employ,

the J ro time to ti dmiNstration for

by prov

requi d

is available or us

d tende tage e quire

and

desig def

This contract?

If considering using SBC05 remember that:

It is intended for substantial lump sum contr without quantities. Work needs to be fully d completion within a stated period. The con identified part of the Works, in which Employer's Requirements at tender stag with fully detailed design information; provided later may give rise to claims,

administrator and a quantity surve

If used for work in Northern Ireland while for work in Scotland the be used.

Amendments are issued by The RIBA publishes contract

It can include partial be subject to adjust as by events whic

It allows for sub-c three names. A whereby th whether f

SBC05 places mor, MP05 or GC/Wo although the late

Of

ion. The completion date may e on 'neutral events', as well

r.

actor from a list of not less than , there is no mechanism within SBC05

se any particular sub-contractor, aspect of the work.

uired relating to decisions on matters (whether in lieu of retention, advance

the Works; Joint Fire Code; liquidated fluctuations; and electronic communications.

or note that SBC05 requires a comprehensive s, many of which are detailed and likely to prove

Employer than some other standard forms, for example etimes lengthy provisions are not always easy to grasp,

s gone a long way towards improving its clarity and ease

of use. The form is supported by a considerable body of case law, and many helpful commentaries and guides. It is still probably the most widely used form for major building work.

Page 96: Which Contract

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Traditional procurement: standard lump sum forms

JCT SBC05

References

Standard Building Contract With Quantities Standard Building Contract Without Quantities Standard Building Sub-contract Agreement Standard Building Sub-contract Conditions Standard Building Sub-contract with sub-

contractor's design Agreement Standard Building Sub-contract with su

contractor's design Conditions Contractor Collateral Warranty for a

Contractor Collateral Warranty for Tenant

Sub-contractor Collateral Warranty for Sub-contractor Collateral War

Purchaser or Tenant Sub-contractor Collateral arranty for E

Funder

ployer

1Cf

JCT F

.jct rlier Prac

itten h JCT

Pras Not 23: (198

Pr Note No Reg s (1995

tice e 28: Pr

Series JCT P

e 6:

fact Gui

-contrail ding n

ediation (1995) ote (yellow covers):

n Contract Tendering forms)

SaLu Gui etc RIBA uk

Davi

SBG

Chappell 5 Contract Administration Guide

IBA Publishing (2006)

James Davidson JCT 2005 What's New? RICS Books (2006)

0

95

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6 Traditional procurement: standard lump sum forms

GC/Works/1 (1998)

The Stationery Office

GC,/Works/1 With Qua

Background

GC/Works/1 first appeared in 1973 as a f,

central government departments. GC/W is published for use in major civil engi design and build, or management government agencies and private

The form is part of a family of GC/W versions as follows:

GC/Works/1: With Quantiti GCJWorks/1: Without Qua GC/Works/1: Single Stage D

GC/Works/1: Two Sta

GC/Works/1: With GC/Works/1: With

e antiti

racts a

range of contracts

GC/Works/ GC/Work GC/Wor GC/Wor GCNV W5'.

Works C1Works/7. C/W rks r a

r facili

contract for equipment maintenance (1999) nd maintenance of plant, equipment and

GC/Works/1 (19 8) With Qu ntities is a particularly complete publication and can be

adapted to sui wide ange of applications. It is similar in structure to its

immediate predecessor and even uses the same numbers for most of the Conditions. There are fundamental differences, however, in the text which are not always immediately apparent. The earlier published form was intended almost exclusively for use by government departments and reflected the methods and procedures of contract administration then used by them. The form was not intended to be even-

or /9: for operat otions (199

C(

titie

nd civi nd ele engK

ment

-9-98)

nd Build (1

uild (1

struct structi

nt Trade Contract (1999) ment Trade Contract (1999)

misL buildin and engineering projects. The is -comprehensive and further includes: rks label

inor works (1998) ering veering works (1998) ical enci

eering, me,

cons anical and electrical small works (1998)

tants (1999) eement fo?, bnsultancy services (1999) term contract (1999)

m contracts (1999)

96

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Traditional procurement: standard lump sum forms

bnditi

r

'the and la

f Tim index--t],jpe cust

information versi

les an hat th

Northe

charges;

le life costi

over SQ, pages. There

fins w h ar set well ablishe

mmary fo

,gtd 7s Li m

s

y th professional inde incentive bergs for

on praymen to the co

soft 1, ap

take claus

e this een the

e o er. ct t th

com datns e L

ing ts, Cons uc to rks/1

to over

ofm a ry

et to s so

afforded solut ut ive/e`n`te cur t for ?rn ploy (f

rus NIna'

ver Jai?

GC/Works/1 (1998)

handed in all matters, and the Project Manag many of his or her decisions being 'final an

to be adaptable enough for use by non-c local authorities, educational institution by private sector employers. To facilit a form which strikes a fair balance be

hand and those of the contractor. on introduced, and there is recognit are now open to adjudication.

The form takes account o

complies with the conditio Act 1996 (Part II). Amendme only, was published in_ 000 Excellence' initiativ engineering and w

The documen followed by

straightfor Schedule alphabetic entrie Ag r th

s;

parent company guarantee; collateral warranties.

for use in nNjor building or civil engineering works.

d sub-contractors; rance for design;

arly'-6ompletion;

ractor on the basis of stages, milestones or valuations;

is claimed ample c.) and

to-produce n the one

e has been

er's decisions

ham Report, and n and Regeneration

esign and build forms vernment's 'Achieving

isk management, value

is JW introduction and contents list,

ut in a clear graphic style using terminology. Also included are a

contract administrators); a detailed Particulars but with an Addendum for

uppliedl- and the tender forms. The Contract contract can be under Scots law, or under Ireland.

The factual details relating to a particular contract and the incorporation of option provisions will be determined on how the Abstract of Particulars is completed. The

6

97

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6 Traditional procurement: standard lump sum forms

98

GC/Works/1 (1998)

Abstract is detailed and among other things re Manager and Planning Supervisor (who may be th There is also space for the adjudicator and the arbitr It is recommended in the notes that the same adiudic all the Employer's related contractual docu consultants or others. This could be problem

A Contract Agreement is to be execu Government contracts are not normally, attestation if required.

Synopsis

1 Intentions

There is a fair dealing clause a cooperative and open rela

The contractor is to exec Programme, with all reason part of the Works doe Manager, then it mu terms 'the Works'

itions

out-by hi

e either [ve A)

e

give a

ave sabi fied iVelf about the conditions under which he

q u f ' s'f :ifi i bills an ra

ctor must be prepar e Wgrks, a

ans the C

onship (1

e th

le s

form

fined

ntra for a

responsi uire

% tin

qu es the

J-'o ks with di and care,

ith the

rojectilanr) tie entered torto

execu

ents; tic if the

name3-,of th Pro

ed in this dcbcumen in

The contractor of such work care

contractor's li skill and ca

Alternativ

accordance with the anlike manner. If any

ands rejected by the Project its own expense (31 [6]). The

ility for design work in respect -d-sub-contractor or supplier. The fessional duty to exercise reasonable

itness for purpose warranty (10 -

payment i3-,Alowed except for unforeseeable ground

oration is to conform to the requirements of the be fit for their intended purposes (31[2]). The

`sfy the Project Manager in respect of the execution sing the skill and care expected of an experienced and

con of th competent contr

The 'contract' Specification, drawii st bitfs of quantities, Programme, tender, and the Employer's written acceptance (1 [1 ]).

If discrepancies occur between Specification and drawings, or between drawings, the contractor is to draw the Project Manager's notice to any discovered (2[3]). The Conditions prevail where documents conflict with them (2[1 ]).

htract Agreement, Conditions, Abstract of Particulars,

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it a writt gram

ven, or

ris re

g reed

ion, a

meetings e

ss, incl at lest five

er is alrea

nsi

until a`final

set out in or asc

al comp) on It

Th>I s not i orpo

ired t submit-a, ogram

iced as

The Project Manag

on or com of contri

ject Mana

ion is

ra ct i all

proc

nager ted i ri

e dat

ained'

9

agerco

in the st ct artic ay tae

__10 the e iing1 [3 .

re to

ogr

lo61 [11). The Pr

slued 'durX fg th p gr ide uitabf or r orodu

the mi Vyicrr rs r o

GC/Works/1 (1998)

Bills of quantities are to be prepared in accor identified, except where stated otherwise are to be rectified by the Employer (3[31).

The contractor is to receive a copy of Works' in a form which the Project M

The contract period will be state will notify the contractor when All notices under the contra

The contractor is required Programme, or as the Project

The date for comple (1 [1 ]). This envisages clearing of rub

accordance with the hole of the Works or

thYthe contract, and to the tion (34[1 ]).

om the Abstract of Particulars not called such) and includes

ated (34[2]).

e prior to acceptance of the tender, gramme is to be for the whole period

other specified information (33[11).

(35[21), and the contractor is obliged to ing requests for extensions of time and re-

ays before each meeting (35[31). If notice is

dy aware of likely delay, he or she shall consider (36[1 ]). The causes for which an extension may

(36[21), and the Project Manager is to indicate whether the final. The Project Manager is to keep interim decisions under

ikon is possible (36[3]). It is interesting that weather is not ay.

ired to issue a written statement of progress within seven

ss meeting (35[4]).

etion is possible upon direction by the Employer, subject to tor's priced proposals (38). The contractor may also choose to

l5osals and Programme amendments for the Employer to consider.

The Project Manager shall issue a certificate when the Works, or any Section, are completed in accordance with the contract (39).

Failure to complete the Works or a Section (which includes clearance) by the relevant Date of Completion makes the contractor liable to the Employer for liquidated

0

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6 Traditional procurement: standard lump sum forms

100

struoti ted) can be o

powered (40[2]).

te a

n

r e! co ed 'Vls'. T

Is

d reirri

arly sess

o assign yer (61). S

ct M

acto

ing th ntra

to

tract t see

b-lettir r (62[1 ]).

is requir

supplf(s/may b

is entirely r

tif o

ted-(the basis of a Prime Cost sum for the performance of any nominated

3A is stated to apply, the Employer ent of determination of a nominated

gay r ominate replacement or direct the contractor to

t. ere are o sta d procedures and no requirement to use

The cont for is given right of reasonable objection

the e

sub-c6 c m

nomin spons)onal

lau

ion- rn leti

A f Pa icu s 1 D.

e IVWjA tenan e Perio

sst aand to t e satis a io

rs ent m t wa until

a rre

GC/Works/1 (1998)

damages (55). There is no reference to a certificate

The Maintenance Period will be stated in the contract accepts that there might be more tha contractor is obliged to make good defects at the Employer. Any arguments about liability defects have been rectified.

There is provision for completion of the of Particulars (1 [1 ]).

There is provision for the Employer and this also relates to completio

3 Control

The contractor is not allowe written consent of the Emp of the Employer or the Proj

In any sub-contract, t contractor is respons imposed upon the completed (62[41

(63[1 ]). The c

sub-contra will bear t sub-con complete a pa

(6

I (Ii

are

Instructio representative (4 variation are ter a quotation of the fu

rtain terms (62[2]). The rs comply with all obligations that sub-contract works are

nager must be in writing (40[31) except for a few ed later. The contract sets out what instructions

y the Project Manager or delegated to his or her tractor must comply forthwith. Instructions requiring a

Project Manager may require the contractor to submit of complying with a VI within 21 days of the instruction (40).

In the event of failure to comply with the Project Manager's instruction, the Employer may have the work done by others at the contractor's expense (53). This right extends to rectifying defects (21[3]).

The Project Manager is to provide the contractor with information necessary for

Page 102: Which Contract

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Traditional procurement: standard lump sum forms

GC/Works/1 (1998)

setting out the Works, and the contractor is

the setting out (9).

The contractor shall employ a competent a

in attendance at site during all workin returns (15). A clerk of works or Resid

Manager or quantity surveyor may app powers - which must be listed (4)

The Project Manager may in

Independent experts may be bro their findings disclose non- bear the cost of rectificatio

connection with the

4 Money

The Contract Sum is

e

s re

ems b

lely for th cor

t (5) *4(/is to rs, d supply t

r vbe a

int reores

s pervise Proje a

point d, an

ect, exa n or vet is 101-it irt, tes es o uita

1 [1 ]) and

instruc ire

gins

f Proje t Ma age there o . gre,

]) in the c

contr

rinance charges stated per (47[

atio

ns in

it e contra t n

ssar ertest

cise th

d out (31[4]). ity-of Things, and if

e contractor must [51).

e exec

iting is as

uctions (40)

om the Project Manager before work ovided for in the contract (42).

ay be by acceptance of a lump sum ment, of o

d &u

`tity surveyor will value on the basis set iation instruction, or (43) in the case of other v

ptio costs may be included as part of the

tion d disru tion expenses generally is limited (46[11). The in the d" ions. Interest and finance charges are expressly

overy of expenses depends on written application from the ie Project Manager in time (46[3]). The application must meet

able to the contractor only for limited reasons, and for and43]). The rate is to be stated in the Abstract of Particulars

Progress ayments, t rmed 'advances on account' (48), are based on either Stage Payments, Llesto Payments or Valuations (50[2]). Payments will include for work executed to the satisfaction of the Project Manager, and the contractor is entitled to 95 per cent of the relevant sum, plus 100 per cent of certain other sums and certain adjustments (48[2]). Stage Payment Chart and Milestone Payment Chart are defined (1111).

After completion of the Works, the contractor is entitled to be paid the amount

6

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6 Traditional procurement: standard lump sum forms

GC/Works/1 (1998)

estimated by the Employer as the Final Sum, less

surveyor shall send a copy of the final account to th certified completion (49[2]). The contractor m

within three months. The other half of any Certificate is issued at the end of the last contractor has complied with making good

5 Statutory obligations

The contractor is to give all statutory n

and pay fees and charges arising. The E

incurred. An obligation on the co with the CDM Regulations is expr

ofessional

The contractor is also required to cori stated in the Abstract of Part he is working (22).

The contractor is required t storage and use of all Thing

6 Insurance

The contractor is r

Maintenance Per

to the Works and or damage acceptance

insurance in accor

T e co tr an Things da ma unforeseea of the contract absolute obliga

ndit r, the contr, ion on th

ons or unforeseeable circumstances beyond the control ctor will be reimbursed by the Employer. There is an

contractor to reinstate, replace or make good to the satisfaction of the Emp oyer (19).

The contractor is to take precautions needed to take care of the site and the Works against loss or damage from fire, and any other cause, and shall take all reasonable steps for security and protection of the site and Works including lighting and watching (13[1 ]).

uired ma

the E ployer,

' liai od: e

=follrein ng

the Contract and the longest rance against loss or damage

insurance against personal injury be required within 21 days from

actor may be required to maintain f-qp e ny, (8). The evide e

nder I native ). e con

or is resp not for incorp

he contractor and all sub-contractors stract of Particulars (Alternative B).

act of and in connection with a contractor's ntractor may be required to take out and maintain

ce cover (8A).

r

ai

efects.

ices req ' e , ob ' any loyer ill re' urs s or

or ting rin 'pal act ssly st

ly with all statuto ht on to

rance; in

atement va

#f the tent . T

o

h uiiy contr for in mon s of notif agr me or herw

n is ased hen th final

en ce Perio and AW t

requin ll

r the duration o

to the A

or damage to the Works and even extending to the Works 0 9[61). This is in respect of any loss or

rises because of 'accepted risks', defined in (1[11), but vrthis

102

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GC/Works/1 (1998)

The Employer may determine the contr Contractor. This is a discretionary power upon some default by the contractor

In addition, the Employer has the rig by the contractor including insolvency

The contractor may determine following determination by th

Matters following determ 'on th

Ngerl

r a ment, completion, removal, transfer of sub- ntrac ar in Co di on 57. The quantity surveyor shall ascertain and t Proje Mr the ost to the Employer of completion of the W

The Proje

The cont work (

ground conditions (7(4)).

`r reasonable notice before covering up ns until the Project Manager has examined the

TJe ProjMan'ageriay order th, replacement of the contractor's site staff, Manager has power to control the admittance

uch as a requirement for passes (27), the taking of photographs all employees of the Official Secrets Acts (29) may be an

the Abstract of Particulars.

obligations relating to the protection of the Works (13), isance (14) and the removal of rubbish (34[2]).

There is ron )for the discovery of antiquities (32[3]).

There is xtrem wide provision for recovery of sums where money is owed by the contractor or to the Contractor, under this or any other contract with the Employer (51).

9 Disputes

There is provision for adjudication for the resolution of any dispute arising during the

6

103

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6 Traditional procurement: standard lump sum forms

GC/Works/1 (1998)

course of the Works (59[1 ]). There are precise require,

and the procedures. A decision may normally be notice. The adjudicator's decision is binding until legal proceedings or by arbitration.

Arbitration is included in addition to adjudicati (60[1 ]), and the arbitrator is given wide pow

ents f xpecte

e disp

ea

under t

13 'r the 0 wit e is

tice 2

O

re

the ays o

hally

of dea co ract.

et&

ng wi

ined

disp es

104

Page 106: Which Contract

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derable authority, and the procedures are not arduous. eep a careful watch on the Schedule of Time Limits.

he 199 am epor recommended that government departments then using G ork 1 sh uld egin to change to the New Engineering Contract. The current 199 3 G or s/1 f mily of forms may be seen as a robust response to that suggests It has merged as a versatile and well structured document which embodies many of the Latham Report's points for 'an effective form of contract in

modern conditions'. Amendments to the design and build versions were published in 2000, to introduce some of the recommendations of 'Achieving Excellence'.The Government Central Advice Unit also publishes some excellent Information Notes from time to time.

Traditional procurement: standard lump sum forms

GC/Works/1 (1998)

This contract?

If considering using GC/Works/1 rememb

This was the major form for lump c

government, but it was substantially wider application, including use by

eing

intended primarily for use by govnme a version for use with quantities

it can be used for work in End

Scotland. In the latter case

resulting from the contract are relevant references to sta

Contract Agreement f given in the Comm

it can include co indemnity ins uranc savings, bonus alternatives f clear, with interestin

regular contractor b

con

SB

actors. 05.

hen ckmpNing f

e law

vise rivate sector

Scots tary unde I Back

pletio , sec rity

inati no 0 o r adv ce o n ac

good raphi

tages, de measur f sub-

unt, Iyout. ro

ntracN

bo roced

ons, for exa featur sin e

gress p its for rs any losse_

Qn e whole

/co m mer resul ' c

the orm

act detai

by t

itho

n Irelan

fted f us

tion t alto

iffer rthern Ireland or

nces in arbitration and Scots law. There

ntries, and a different er helpful information is

e contractor with professional ession, acceleration and cost

'suppliers, mobilisation payment, lieu of retention. The wording is

are logical, and there are many ple, that the contractor is to provide contract administrator, and that the

from failures on the part of nominated sub- aces more risk on the contractor than JCT

, the Abstract of Particulars is a vital document

t Manager, contract administration should be relatively obligations and responsibilities are clearly stated, the person

6

105

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6 Traditional procurement: standard lump sum forms

GC/Works/1 (1998)

GC/Works/1 With Quantities (1998) General Conditions

106

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Traditional procurement: standard lump sum forms

NEC3

The Institution of Civil Engineers

New Engineering Contract Doc

Engineering and Contract Third E

Background

This form is placed under Forms purely for reasons

Civil

bold and major initiative in

form which is adapta build, or managem

The Engineering a

what was first calle clean sheet' Institution o.

chaired by r Mar

cons pare

and L

ble en

tract

ent and Lump Sum system which was a

racts. This resulted in a

in lump sum, design and neering and building works.

a -Third Edition development of NEC). This was an entirely new contracts undertaken for the

by a panel of engineers and lawyers brand, London.

t procure

Con

the ht o

f conv'

d for

ru on Contra ew Engine

draftingir gi

Barn

ers.

of Coo

was to

n an ably adapt e

cale pr sect

s origi II

aking one purp document suitable for traditional procurement, or ma gem t co acts. It was further claimed that it could be

fo ost t s of civi engineering and building work, from large- c)

mestic-sca work. Although drafted as a head contract, it houg t that' could Iso be used as a sub-contract, thus providing the k to ack compa ' ility. The language of the form was such that it was le r use under UK law and also overseas. uitab

ity__s.V f f ici

ad to fe clauses kept terming

form to be exportable, understandable, and therefore likely was also drafted with plain language and relatively short e precise meaning of some of the more unfamiliar

isnutes:

er, Has yet to be defined by case law.

3 Good m n tfnent n the part of all parties: it was felt that there should be an end to adve arial posturing by bringing into the contract an obligation for frank and open discussion lems as they arose, thereby minimising the risk of disputes escalating to the point where time and costly overruns became inevitable. It was further thought desirable to introduce incentives for good performance and early completion.

Sir Michael Latham bestowed high praise on the original New Engineering Contract

tein b

(ng o> `T clit-ional

it i ally pah onst c co draft

ed to

6

107

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6 Traditional procurement: standard lump sum forms

NEC3

in his 1994 Report. After listing what he considered should be present in all modern construction contra of the New Engineering Contract is extremely 'virtually all these assumptions of best practice'. changes to the New Engineering Contract, so e

that the name should be changed to New Co struct to NEQ that there should be provision for a sec u tr t fu that there should be prompt payment rovision that there should be affirmation by the p f ies t basis; that core clauses should be left una ende nd ly

that terms of appointment for consulta *u sand contract; that consideration should available).

The Latham Report also begin changing to the clients should be

str,

gly its 13 principles for mod 1995. Reports in cate th,

being used on pro' is in

parts of the w A e

requires an ende r

The publi tion e th suite. Ne conce is s h

indicators a thir rt opti s ee increas those dealina1with 0

The

which i

an adjudicator's together with r

intended as a refer

ction Contract system comprises 23 documents, ontract, sub-contracts, a professional services contract, erm services contract, and a framework agreement, nce notes and comprehensive flow charts. NEC3 is

ment, and contains Core clauses and Optional clauses.

The Core clauses are set out in nine Sections, and apply in all contracts. The core clauses allow for a flexible amount of contractor design, enabling the form to be used in traditional and design build procurement. The Main Option clauses constitute six sets of clauses A to F, and one set will be added to the Core clauses to adapt the

w Engineerin We ICE-C3,

of N K2 to e use

G be d irab featu he s ted at e app ach

-acti e' a d t t it ontai <

went to ad ocate c tain hish were as f Ilows:

ion

een taken

cobble su

tors-sliold in

Departments should ded) by private sector

Report was published, with ion of the form appeared in

p widely, and that it is now on and engineering in various

the English National Health Service on its Procure 21 projects.

ced some significant changes to the register, 'Key Dates', key performance

introduced. The number of secondary been made to existing clauses such as

ion events, correcting defects and adjudication.

nded tha 'the use

Sin the a th

d

hand on

a short

given to a

omm

bus se ors of car xample o this is t

in

-co ctor al lin ere t

intro

a nsla

108

Page 110: Which Contract

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Traditional procurement: standard lump sum forms

el Ot ende

uently

of liability

First, it is n sa select the appropriate Main Option. Then the Secondary Options can be considered and incorporated as desired. It is necessary to determine the make- up of the contract content before completing the statements of Contract Data. The Core clauses are relatively brief, and the information carried in the Works Information and the Contract Data therefore becomes extremely important. Part One of the latter consists of information to be provided by the Employer, and Part Two is data provided

tho ts. Ano

g

in

er inf d has

its terms.

oncer

ses hic

n h cer and K) w can part erin y rma imita o ont c is

mp delay to ta' e co

I piece of draft ause s roblems Iso r her disconce

`ts will , and the m sum o

witho def is is ou ork', h mea s that so

h the co ractor

oblem ' tha the co bf n, a ough

ortunatel, nt.

to the o

/xample rice

; Cot eim ase relat to 3 with t e cor

NEC3

document to the type of contract requir Quantities or Activity Schedule; Target Management Contract). These Main 0 payment system. For convenience, ver with each of the six Main Options ar

There are also Secondary Option required. Some can only work in

are 22 headings (X1-X20, Y(UK to allow for performance bon payment; sectional comp) fluctuations; retention; bo

The NEC3 is a no terminology could tense throughout is

attempting to nstr

Some conce For exam which is

following proje

def

Use

or not as

lauses. There ted as required

icators; advance bility for design;

es; low performance itions to the intended

wage' but non-traditional tion. The use of the present

een criticised by lawyers when

to more traditional standard forms. contractor is paid the value of work delay or be covered by immediately

ective work will be paid for during the ultimately be responsible for correcting all

tract does not state clearly the contractor's e inclusion of Option X15 implies that it is

this lack of clarity means that the form is

mulate good management, emphasis is laid on the contractual ve programming, sound management, and the need for early

ct Manager and the contractor in order that matters which ss and additional costs can be properly considered at the

e recently introduced risk register is a further tool to identification and management of potential problems.

6

109

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6 Traditional procurement: standard lump sum forms

NEC3

by the Contractor. Because of the number of options I will be related to the selected options, completion o,

Contract Data needs to be precise and approache

Synopsis of Core clauses

The intentions of the parties as indicated in

from the Core clauses, the choice of Op by the Employer.

The contractual spirit of mutual try Section' (10.1) of the Core clauses:

There are clear rules relating to submissions, records, etc.) (1

Early warning is a significan difficult concept in practice

A register of risks is set The register may be a

Project Manager m

quired

unica

le/and tRe

Os I rma at c re.

ramvocu

is expre

ntract,,

start the pro ct ari du g the urse f the a risk r uction ting t

notify t

1ecanager

incbded in the Contract Data.

roject, and the contractor or discuss the noted risks (16).

I lows

ntractor is respons is

Title to plant, eq

pass to the Empl

necl tion to prov e the Works in accordance with the

in c s 11.2. It is important therefore to make is full, clear and accurate,

y the contractor (21) and questions of copyright are

'ooperation over providing information, and the contractual obligation (25).

pri eml and er where t

contract' (70). The s

2 Time

aterials is normally vested in the Contractor, but may e Supervisor marks goods and materials as being 'for the

f title is allocated a complete Section of the Core clauses.

Starting and completion arrangements are straightforward (30). Possession of the site, access and use is subject to conditions (33).

e contract

110

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Traditional procurement: standard lump sum forms

r+u1aaager delegate. T

tin o

accor

if the con cto

rol

he early o

ssoaa

ue iostru

y Dates hi defin'

f on cont or ge

urre the Empl e hr efault ainst t

art o f the

(35). on of a6 the Proiect

hieve

re are terve

fisted,

Contract D

ipa rte Manag

uire the contr ompleti

occur

n Eve

is can e in de'd

lanag f such ue (61).

on Ev

instruct the

/events, viousl t tsar at

,for other fails ro

ue o the o n t r a b incl ed is des

NEC3

Programmes should be identified in the Contr Project Manager by the contractor. If the c

25 per cent of any amount that would oth until the contractor complies (50.3). T

Programmes may be revised subject to

The Project Manager is empowered to i not started until instructed (34).

The contract may stipulate '

complete. This allows the work dovetailed with that of anot a key date can be claimed

Procedures for using or to to conditions. Posses

upon certification b

The Project Manager

Where dela Compensat, req u i rem the Projecf

compe acco

e Employer are subject whole site, is dependent

it a quotation for accelerating contract completion date (36).

ing events, these may constitute nd for weather in particular, precise a. The contractor is obliged to notify

Project Manager will decide whether early warning' requirement will betaken into

d a complete Section 6 in the Core clauses.

ontractor to submit a quotation to deal with e delays (62).

pensation Vents is a matter for the Project Manager in

pin rules and procedures (63 and 64). The Project Manager must his or her decision.

nd the Supervisor are both given considerable powers, and e Project Manager is empowered to issue instructions to the

changes of Works Information or a Key Date (14).

The contractor must submit names, qualifications and experience of key people. Replacements are subject to acceptance by the Project Manager (24).

The Project Manager may order the removal of an employee from any further connection with the particular contract (24.2).

6

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NEC3

The contractor must arrange for access to Works, ma Project Manager, Supervisor and others notified b

The contractor must obey instructions from the Pr

authorised under the contract (27.3).

The contractor is wholly responsible for th contractors are subject to acceptance by the

Tests and inspections carried out by Supervisor, who may also order the c

own tests (40).

The Supervisor may instruct the c

not the Supervisor notifies him the end of the Defects Correction

Where Works have been t arrange access for the con need not be corrected, then reduction (44).

The contract mak obligation to assi

4 Money

An Addend takes acco

this affec

s no r

the b

e Project Vana( e, and ea

p meftx l.)-i).

The oject Mana any Emp u

(Y2.2). 1

mee a set

ther than the contractor's tion of his employment (96).

is on NEC3 in the United Kingdom), on and Regeneration Act 1996 and

ut in Section 5 of the Core clauses.

a payment on or before the date on which a payment d payment is made on or before the final date for

ust show the amount of payment due, subject to ction, and the basis on which the figures are calculated

The date on whit aymen ecomes due is seven days after the assessment date, and the final date for payment is 21 days after the date on which payment becomes due (Y2.2).

If the Employer intends to withhold payment after the final date, he must notify the contractor at least seven days before the final date, stating the amount he intends to withhold and the grounds for so doing (Y2.3).

work o

"the tr t& ay b,;-,,

tractor to-EkhW o sts,

tracto

)ken over

actor o

there ay

ractor

y the Emu

rrect defec be char

rch for-,defects (

ploy Whe

ork

7 _ plant-(

ect NP-Qag

ject Manager is to it is agreed that defects nformation and a cost

teren to i n ent, efitxA co racts on termin

ssential saa Gra nstruc

112

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NEC3

Interest is payable on amounts due but npaid, and i respe o o1e t Manager's certificate which is due but issue late. T e

in the Contract Data (51).

Suspension of performance by the cony fa r i the event o/the E oykXfailure to make proper payment is treated as Comp sa n Eve (60 inco orated by Y2.4).

There can be price adjustments fc(r i do ion under 6pplementary Option X1 (applicable only for Vain Opti D) culat o h basis of a Price

Adjustment Factor.

5 Statutory obligations

The contractor is obliged to tify t Pro' ct r if /he becomes aware of anything in the Works do hich oul e ill al )

If the Project Manag r corrects th Work form 'on at it complies with Statute, this may be a Comp

The standard isks to e c ried b he Em loye are itemised, and any additional risks

to be carrie by th ;),y0-r,.my ob Bred i the Contract Data (80).

Risks not emised s b ng ca ied e Empl yer are to be carried by the contractor (81).

Each arty in m k ies th ther 'n resp t of claims, proceedings, compensation or co s arisin fro n ent w 'his at sk of the party concerned (83).

I uranc esp nsibil ties ar abled a d as stated in the Contract Data. Policies are to be en o in joi t names, a in the case of the contractor policies and

es, policies and certificates must be submitted to the ils to submit, then the contractor may insure and charge

Details of jurahce obligations and cover are to be stated in the Contract Data.

7 Termina

Valid reasons for termination by the Employer and by the contractor are set out in a

Termination Table (90.2).

In the event of termination the Project Manager issues a Termination Certificate and within 13 weeks certifies final payment (90).

t to acceptance by the Project Manager. If the contractor fails ployer may insure and charge to the contractor (85 and 86).

6

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6 Traditional procurement: standard lump sum forms

NEC3

Following the certificate, termination procedures ar Termination Table.

The Employer may elect to complete the Works hi

and may use any plant or materials to which h

Payments which may be due on termination ar,

8 Miscellaneous

Main Option clauses can include Activi Sch

(for B or D).

Use of the NEC engineering and con uc services contract seem to be re i red incorporated.

Secondary Option clauses ca beincor p rate for inflation (X1); changes i the l 2); m guarantee (X4); sectional mpl ion (X5); damages (X7); partner' g (X ); p ormanc

c s de contractor (X14); limi do of ntra care (X15); retentio (X16). low or c erf (X18); key perfor nce in be incorporated in whici

Option Y(UK)3 shou the law of E glan of third p y rights

9 Disput

Alternative tbeu

plies to t

e inc6rpora

der`Qp n W1 the etailed procedures ksation TablLd Botion

les, a

Cont

su ntract a

ss o ich

to ma ulti e

bonus on c e

si lia ccii

d into

as set o

bi mag

and aTditional e stated i

s (X17); limitation of liability onditions of contract (Z) may the Contract Data (option Z).

Contract Data for all contracts to which nd applies, and is a contracting out fern I`

(Right of Third Parties Act) 1999.

dication met out in Options W1 and W2. Option W2 using Grants, Construction and Regeneration Act 1996

contract and the Project Manager are to follow , including the limits on timing as set out in the

2 Fs a procedure which complies with the Act.

The adjudicator ecision ' final and binding unless and until referred to a further 'tribunal'. Whether this is to be arbitration or legal proceedings will presumably be stated in the Contract Data. If arbitration, the procedures to be followed appear not to be stated in the contract and would presumably be for the parties to agree.

curr cies

er co

r price adjustment 3); parent company

ompletion (X6); delay r ear

vanced payment to the ty to using reasonable skill and

114

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This contract?

If considering using the NEC3 remember tkt: The idea of Core clauses to which sele(

clauses may be added to produce a ci of circumstances is seductively attractiv and the various options can res n

producing great variability and risk o

The Contract Data and Works Info at former is not to be changed supplied by the Employer formats, and is information ne

There are no stated language of the con One of the Contrac located might be a

Addendum Y(. 12 Regeneration of Third Pa

Wales, N

England an

As m

refe

Pr

t who

t er to an

lect M er,

Supe sor, who he or e has

entri

ct 199 ies) A

rthern Wale dd Nort

cted in a for w6 hi ct or a tity sur

ages the pr certai

r.

releva

`trictions' ract, a d t Data. mpe es

Adde

199 relar

e

tract W

r Thkre Nko di

s W

nc

io % tia o on ntra

n be p

ern Irela

sary a

e law of the contract, the of th onrdt should be entered in Part

w of e

country

in which the site is

p ' n is incorporated. Additionally ous ng Grants, Construction and

K)3 akes account of the Contracts (Rights will be applicable for England and (UK)3 will be applicable only to

n r)e curren Cha ges in the sation Ev

account

clause and S

n be t k re o a pa

n this pproac ichme lawy rs

al

NEC3

is of the NEC3. The orks Information

sented in a variety of

this engineering provenance, there is no yor by profession. The key persons are the

curement of the Works for the Employer; and responsibilities on site for the Employer with

ervices.

m requires selecting or assembling the appropriate options, and to 13 pages of Contract Data. Attestation is by a separate

quires attention to communications, early warnings, rmation, and Compensation Events in particular. A cooperative itude is essential with NEC3, and there is a strong emphasis on ent.

There is as little legal pronouncement, but some well respected legal commentators have expressed reservation over what they consider to be many unresolved legal issues. However, the form seems to have been widely used without serious problems.

0

115

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6 Traditional procurement: standard lump sum forms

NEC3

Engineering and construction contract Engineering and construction contract A: Priced contract Engineering and construction contract B: Priced contrac Engineering and construction contract C: Target contra Engineering and construction contract D: Target contract Engineering and construction contract E: Cost Engineering and construction contract F: Manag Engineering and construction contract: Guidan Engineering and construction contract: FlowKhart Engineering and construction subcontract Engineering and construction short subco Engineering and professional services contrac Engineering and professional services contract: Engineering and construction short Engineering and construction sho Adjudicator's contract Adjudicator's contract: guidance Term services contract Term services contract: gui Term services contract: fl Framework contract Framework contract: Procurement and co

Commentary (rela

Brian Egglesto The NEC3 E

Blackwell P,

116

Page 118: Which Contract

(Do

3.O

The Joint Contracts Tribunal Ltd

Intermediate Building Contra

The Joint Contracts Tribuna Minor Works Building C

The Joint Contracts Tri

Repairs and Maintoance Con rac Coma rcia 200 Edition

Association of Cons ACA Form of Building Agrgement 1,992 hir dAion 1998, 2003 Revision)

Scottish uilding Co ract Committee (SBCC)

SBCC Forms of Co tract

Just what constitutes a shorter form is arguable. For the purposes of this book, contracts which are

comparatively brief and easy to handle in terms of administration are included under this heading. This need not necessarily imply that they are solely for smaller works nor indeed only suitable for lump sum contracts.5ee also Chapter 8 below, in which short forms which are more likely to be

categorised as consumer contracts are covered.

Page 119: Which Contract

118

00

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+

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how run to over 80 pages. There are eleven Recitals in the icles. The Conditions are arranged under nine headings, in

e wit 5. T re is a contents list at the front which gives clause and page numbers. ontr ct

p

iculars (to be completed by the parties) are also included at the front, a d the Con tions are followed by four Schedules dealing with insurance options, ed su -contractors, forms of bonds (in relation to advance payment, and

Traditional procurement: shorter lump sum forms

JCT IC05/ICD05

The Joint Contracts Tribunal Ltd

Intermediate Buildi Background

With the introduction of a then Form of Building Contract (JCT

suitable for middle range jobs. the JCT set up a working pa

input from constituent both and the Association of Me September 1984.

IFC84 was the subje recommendations 12 ensured compl

E tion most

i n twos

Regeneration t 19

The 1998 IFC84. Th

Contract which is

have be ilar t

0 oplii ),m a hi s fel

he RIBA ex s d t i on o epar 'in me 'a for

rti ar th the oc' lita ut rities, nterm l o

of 12 Am adein nce

6 in

versa

rthM

f h4atham R with Part II o

Stpect of kdj_

nterni iate F

ort o

he Standard ked a contract

in October 1981

With considerable n of District Councils

ate Form appeared in

h was to meet many of the 94-*corporation of Amendment

Hod a

ng Grants, Construction and d payment provisions.

as basically a consolidated version of

orporates m

for SK05. T

n retained.

e Int m iate

tracto ' d sign' - ort IN of th Work

verz

bot ins a e

version

versions

unle

ICD05 version an

off-site materia s and goods), and fluctuations.

The Intermediate Building Contract has the virtue of relative brevity, a clear layout and commendably easy cross-referencing. Although the wording of the clauses is of necessity truncated in parts, the Conditions should be adequate for the foreseeable circumstances of most middle range projects. The introduction of the ICD05 version

id enti

uildi which

Contract

entitled the Intermediate Building ny significant changes, the scope of

'r provisions for naming sub-contractors

ifs now published in two versions, one 'with ision for the contractor to design an identified

(ICD05), ar one which does not (IC05). In all other respects the al, therefore the points raised below can be assumed to apply to Vindicated otherwise.

7

119

Page 121: Which Contract

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Traditional procurement: shorter lump sum forms

120

tract Do me d a ODP-4halvsis.

n detai

e Co ract Doc ents as being the Contract Drawings, ent or e pecification. Where a sub-contractor is

s are also t be included. For the ICD05 version, the elude Employer's Requirements, Contractor's Proposals

ecital (fifth bills, Specification

`arty th t it i n

d to a of t an ar inted to un

twervison

hitec rta ke

and Pr

e

ntent a

th this e J mu

suit ty is r ica`t y a

act de?iQd not ex'ceeN

1ong`6,QTKkn the' assfu o 0

the ica

suitabilit

e use

ich sh

does e

e new Prac

ion fd part

r on

!e t the

the

ble for desig

a for sfiiWili

JCT IC05/ICD05

expands the range of projects on which the form to be a popular choice.

The inside front cover of IC05 (not part of th These refer to building works of simple c

installations. Most important, there is a remin be priced entirely by the Contractor, and t billed or specified at tender stage.

JCT Practice Note 5 (Series 2) suggest of up to f375,000 (at 2001 prices) but accepted that contracts may Experience suggests that the form projects and it is the nature It is important to note that t or period.

ICD05 lists an additional crite contractor is to design that design have be

The notes state c

Employer is requi name whoever is a

(Article 4). T

to Articles

Th

itemi on a Spe

Employer will req

Analysis. The E

Employer might al's

tract value 12 months,

its suggested. 'siderably larger

mate determinant. any limits in value

m is suitable where the Arks; and the requirements for

mployer.

and build procurement. The dministrator (Article 3), and to

duties required of a quantity surveyor ontractor will be identified in entries

ws the contractor to tender either by pricing the ules (Option A), or to state just a lump sum based

t itemised for pricing (Option B). If the latter then the cont}actor to submit a Schedule of Rates, or a Contract Sum

e wise to stipulate a Contract Sum Analysis option. The e it to be in a preferred format, and perhaps this should

be prepared by the quantity surveyor for completion by the tenderers.

There is a provision for sectional completion, and if partial possession before practical completion is required, then clause 2.25 provides for this.

Page 122: Which Contract

(110

(CD

,N+

O73

O+

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Traditional procurement: shorter lump sum forms

pe case o fticulars for 13.1}

act bH&, exce,

ce with tVe

?na

iate

plicable; to

reasonab

tract Docu

d wor 4.1)

sta satis

the her

Wor 2).

e read

he co Infor

ecital and clad 2-

2.10.

th a

to the of

included i

d.

winged other' to`Pain th

d a

on

mNship are to including

tad to be t s reas

d Apndix sisten 'rrors i

ed sbb`-contra

ve priArity

in acc r

d stat or Co tracl

JCT IC05/ICD05

The contractor is obliged to carry out an

Contract Documents and with the He

(2.1). The contractor must compl Portion, and comply with all instructio of the Portion with the rest of t

The quality and quantity of wo and is related to the docum

relation to the design as real (2.10.2, ICD05 only) stipulated in the Co,

Materials, goods a

Documents (2.1 an Proposals as r

the Architec a standard

The CDM

where relevant a

(Articles 5 and 6

covered (3.19).

ith the equirements

Designed integration

ments it prepares in

Contractor's Proposals when necessary' or as

standard set out in the Contract Requirements or Contractor's

chittL-Et's satisfaction, they are to be to no standard is set out, they are to be

r between documents (including the tender 'tor) corrective instructions must be given

t stated otherwise, must be prepared in

Standard Method of Measurement 7th Edition (2.12.1).

ractor must be provided with two copies of the information tion Release Schedule by the stated times (Third/Fourth e contractor must also be issued with further drawings as

t-6/complete the Works (2.11). Use of them is limited and s is to be respected (2.8.3).

ons oblige the Employer to nominate a CDM Co-ordinator and Principal Contractor. This becomes a contractual obligation also

and clause 3.18) and any need to appoint a replacement is also

7

121

Page 123: Which Contract

.-.

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Traditional procurement: shorter lump sum forms

122

.,this is p

The contract proves for c lateral warranties to be provided by the contractor to funders and purchaser enants, and by sub-contractors to the purchasers/tenants, funders, and the Employer (Section 7). The requirement to enter into warranties must be set out in the Contract Particulars, the relevant persons and sub-contractors identified, together with information regarding limits to the contractor's liability. The warranties to purchaser, funder and tenant are to be on the JCT standard forms

IpioY,(

ssible

r to assignment with n Sub- ttin

e ision, ink 9.1 . Although nt 'event ' are

0). Re Xew

s or her on (2

Relev on

he Arch

hg by t e con

cons riting,

time for,

at th&

t ex

into Se

es liqu I ing t e ( xte

ly o Fina

acto u st

we

etion n

pletion

ils to may

c

clucte

rtified by

rectifdefects late deductio

on date, this

CoZe a Partl .i

iol on r be

JCT IC05/ICD05

Dates for possession and completion must be enter contractor must proceed regularly and diligently completion date (2.4).

There is provision for dividing the Works commencement and completion dates, and section. All provisions relating to timing, for apply separately to each section, except

Notice of delay must be given in writ any Section) appears likely to be reasonably necessary (2.19.4) to notify the contractor of hi to see the effect on comple be within a reasonable time empowered to make beyond practical co

the Works (on any information pletion date and

as he or she is able it is stated, this must

which the Architect is

nsions up to 12 weeks

act must be certified (2.22). vered by the Employer (2,23).

(2.21).

-30) unless the Employer decides instead.

to occupy part of the uncompleted Works for storage roper insurance arrangements (2.6).

ut'itten consent refers to 'the Contract or any rights any part of the work requires the Architect's written

Page 124: Which Contract

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Traditional procurement: shorter lump sum forms

JCT IC05/ICD05

or m teria vaI fro the ite` x,(3.14 there

kh may be s,

Aled to'arrVout wo is in possess]

Co

ontra

stponeme

u i red

an

Zed

not co-r4efm to Instructions

chedule 4).

ronal ed, i

this is partj contr

is

SSma at this

iting

t pers e

to have a com o permi

ed thority.

chedu

methods or an i

for o

ee n s, and sbl h pr ersio es offer

sub-

/s a par spect ft

or re firing

e ork (3.7). T ,14e proy cans

requ the se of ailable, roug

te JCT Also p

ru n regardi fen ICSu

t referYed to/iq_the orm.

rovisi

CWa/P&T, CWa/F, SCWa/F and SCWa/P&T.

relation to the Employer, although this is

All sub-contractors are domestic. There i contractor to execute identified parts named sub-contractors are set out in

form sub-contract ICSub/NAM/A. T

sub-contractor in the Contract Do

sum. Both require the use ICSub/NAM/T.

There is no provision for a

necessary. However, the N

care should be taken to state

The contractor is re

reasonable times (3-

(3-3) who ha

sub- ating to

e standard naming the

a provisional

ctice should not be ble clauses, although

d not under clause 3.7.

ns empowered include for of provisional sums (3.13).

-in-charge on the Works at all f the Employer's clerk of works

he contract, the Architect may order re empowered concerning inspection

elpful provision concerning similar work owing established failure (3.15).

not forming part of the contract during the in subject to certain conditions (2.7).

VAT-exclusive (4.3) and may only be adjusted as provided for in

or fluctuations (4.15 and 4.16). These are limited to tax etc.

ums have been included, instructions must be given (3.13). SMM7 applies, to distinguish between defined and undefined ularly important where a provisional sum has been included for

work (Schedule 2, paragraph 5).

Applications for reimbursement of loss and/or expense must be made in writing by

the contractor (4.17). The grounds for a valid application are set out (4.18) and include only matters over which the contractor has no control and which occur because of action or failure by the Employer. The procedures must be followed precisely. Other rights at common law are preserved.

7

123

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Traditional procurement: shorter lump sum forms

124

contra-c )uirement truct

ha l g- carried ou ion (2.15.3)_

igatio

tractor' duty t 1). T con racto

2 3).

o notify, Contr

ntrac in a

The contractor is c-orAQct&ally obliged to comply with the CDM Regulations and particularly, where the project is notifiable, to comply with duties in relation to the Construction Phase Plan and the Health and Safety File (3.9).

ve

to for' ontrac

erim money-Ls (4.9

state otify the

enn to also is t ro

of less tha t fore ays to ue 1 ved e Empl

t wi ctintei

iaht t u n

t is 28`dAys fro

ly witK all sta

itled to r

or t preparatio f a

t Fina ertificat is wi or ertify that defe

al Gertificate wi the

date-of-isfic

e` stag (4*6 -mot is 5 r ce unle an

05 cles n use e ter

ulatior(s (41

JCT IC05/ICD05

Interim payments to the contractor can be at pre intervals of one month (unless stated otherwise). R

alternative rate is entered in the Contract Particular 'retention').

Interim Certificates show the amount due and Within five days of issue, the Employer must amount of payment it intends to make (4.8) be clearly stated in a written notice whic and this must be given to the contractor payment. The final date for payment Certificate, and if no valid notices is required. Failure to pay by the fina over current base rate, and can give the

Within 14 days after practical which only half the retentio

There is a precise timescale completion (4.13.1). Issof account to the Con whichever is the lat

6 Insurance

). e

ust ction,

for final the Interim

ent in full st of 5 per cent work (4.11).

count after practical ays of sending the final

is have been made good,

In regard to notices, and the ue of the Final Certificate (4.14).

tory obligations and give all required over fees and charges not otherwise

the Architect if it finds any conflict between statutory t Documents (2.15.1). The Architect must issue an

r is not liable for any non-compliance if it results ordance with the Contract Documents or any

carry out limited work for emergency compliance and n to be valued accordingly (2.16).

What a particular contract includes will depend to a large extent on the entries in the

Page 126: Which Contract

.-+

vii

vii

.-+

Traditional procurement: shorter lump sum forms

ploy specified defaul notice is rca-uired

ate the co

inati

isks vJ

can

Emplor (Sch

tents i

ent va

A) or by th

str

nd i

r

rry prosional i

be set out,i

ctures and united to

the ploye

detai or is r

e Contract P

m Fire

tractd dial measur

uired to

an the state the

'e to lega i nc ere ian glig e b t Con her r may be re

icular

dt i uei t to r for ecki

bnal in' or ,1 a 6 2).

JCT IC05/ICD05

Contract Particulars (e.g. whether option cla

cover required, etc.). The Architect may documentary evidence and pass policies t

The contractor is to indemnify the Emp injury or damage to property other t backed by insurance, and an entry wi

If instructed, the contractor is t against risk of claims arising d

damage must not be attributabl Contract Particulars will in

cover to be provided (6.5)

Insurance of 'the Works' is

be for full reinstat (Schedule 1 Option

Insurance of existi (Schedule 1 Opon although still

will show whether the Joint Code of Practice on n Sites is to apply (6.11) and if so, both the y with it. In the event of non-compliance the

which have to be taken.

thdrawn and is no longer available, the situation

the Employer exceptions, and

ctor. An entry in the and the amount of

e concerned and should either by the contractor

ption B).

s a matter for the Employer New work in existing buildings,

demnity insurance to cover its liability n the Contract Particulars.

terminate the employment of the contractor by reason of the event of the insolvency of the Contractor. A warning

he actual notice of termination by the Employer.

he contractor's insolvency, whether or not the Employer decides ractor's employment, are set out in clause 8.5.3.

If the Emproy ecides to terminate the contractor's employment, the respective rights and duties of the parties concerning payment, removal and completion are set out in detail in clauses 8.7 and 8.8.

The contractor is allowed to terminate its own employment for specified defaults of the Employer (8.9) or in the event of the insolvency of the Employer (8.10).

7

125

Page 127: Which Contract

7 Traditional procurement: shorter lump sum forms

JCT IC0511CD05

Either party can terminate the employment of the con (811).

The respective rights and duties of the parties co completion following termination under clause clause (8.12).

8 Miscellaneous

Definitions are included 0.1).

There is a contracting out of third part Parties) Act 1999 (1.6).

t

There is no reference to access for t

There is power to exclude pers

quities.

Contract Sum Analysis (Sec

(original series, green cgver)

9 Disputes

ITa n

2.5).

r listet neutr ca

qrning-ymeniremova 0 8.1 1 are se out in d*,tai

iahts,under th)a CoNf- acts

Arch i

cital) is define. seful ex

(ructio ifferenl

rants, Cons, Part II of the Housing party a statu adjudicatiq . Article 7 p

durO isions

e adjudica or's derision is

ation may be selecte (Article

The appointment are clearly defin

rbitr

spute arising out of the contract to

ding on the parties at least until the dispute is finally I proceedings.

greed method for final determination of disputes

for is subject to clause 9.4, and the arbitrator's powers

The parties agree that either may appeal to the courts on a question of law (9.7).

Arbitration is to be conducted in accordance with the JCT 2005 Edition of the Construction Industry Model Arbitration Rules and the provisions of the Arbitration Act 1996 shall apply.

d Regeneration Act 1996 gives either

126

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Traditional procurement: shorter lump sum forms

JCT IC05/ICD05

Where the Contract Particulars do not indica then Article 9, legal proceedings, will auto

rticle apply'

7

127

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128

rsecon

provisiona ity oft e in C

-contr for . As iqn, e ployer

b-contr

Orm,

ds (fo A

a pz

ch na d

a

en

rm"ossessid o s; Joint Fire Cod mm -cations. autior

etin the

b

is

m:

n if he Er

the contra ArchitectY

an

uirements. bmissb-n-E

ssess

Chas Rigl

Ii

tra e mai

ch le sAai nd, an re site d be med.

ntra to desig quir bein

io n in

ctly t

id

0

E

tion

s

Emplo it furt

to se

also out in

m

era

N 3

o

Fu

anc

e

n

the is

he t SIlO

rocedure s

and io I

or its b-contr tors tenan fun ers a

ct to pu

i rd Pa

ntrac be n

be pre-con s for

n bot urih

es the r. Use of d

contr

fact

ming

should be

ed,

an

hout special. fo tender

quan % i s eyor.

aisE

rA

n

de

the

ut

no

BC

incorp

plo

This contract?

If considering using IC05 or ICD05 remember tha

It is intended for building work of a simple con and where the work is adequately specified o required to appoint a contract administrator

If used for work in Northern Ireland an Ad The form is not suitable for use in Sco Scotland, the appropriate SBC form sho

There is now a version which provid of the Works. This depends on detail stage. Although the contractor is to sub carried out, the Employer wo required and when in the Re

include the detailed design s

It can include for partial provisions for the cont, on JCT standard for no provisions for T

It allows for sub- requires the naming certainty. Th

contract by responsibi named s

contractor d for

W de W co

be left blank and e the mechanism (usually that of th

p

t instaRatio The E is

ated.

sisin

citified part ssued at tender before work is

hat information is

at ICD05 does not 5 and DB05.

etion. There are also p provide collateral warranties

to the Employer. There are

are two procedures. The first ay seem inflexible but brings greater

construction and is covered in the b-contractors are domestic and the

icated documents is mandatory with for is not responsible for named sub-

ised to use an ICSub/NAM/E agreement for involved in some design relating to their work.

cisions are required relating to matters including dvance payment, 'listed items'); insurance of the

ted damages; fluctuations; and electronic peded over naming a quantity surveyor-this should not

ployer does not agree to appointing a quantity surveyor,

t still requires a name to be entered to fulfil this role

If acting as contract administrator note that while the procedural rules are less

demanding than those for SBC05, care is needed to make sure that action is taken within a reasonable time even though no time limit is stated. This is particularly so concerning named sub-contractors.

Amendments are issued by the JCT from time to time. The form is available on disk. The RIBA publishes contract administration forms for IC05 and ICD05.

JCT IC05/ICD05

Page 130: Which Contract

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Traditional procurement: shorter lump sum forms

JCT IC05/ICD05

Intermediate Building Contract Intermediate Building Contract with contractor's Intermediate Sub-contract Agreement Intermediate Sub-contract Conditions Intermediate Sub-contract with sub-contractor's Intermediate Sub-contract with sub-cont Intermediate Named Sub-contract Ten

Intermediate Named Sub-contract Cori

Intermediate Named Sub-contracto Contractor Collateral Warranty for Contractor Collateral Warranty f Sub-contractor Collateral Warranty Sub-contractor Collateral Wa Sub-contractor Collateral

Intermediate Building Co

Intermediate Buildin Sub

7

129

Page 131: Which Contract

tai

vii

vii

'"*

Q.;

7 Traditional procurement: shorter lump sum forms

130

MW80 was the subje the Hou7ntrat of t he Ament foi MW80.

In 2005 the J CT 91nzb4 B ding Con

f s, a

?ract,`aq iifica.nt c

hkaWcontracto 0 ubt be very welcom a

ome d gn ' put m ithin

The 2005 editio s also con in some other changes. The format, sequence, clause numbering and ter y have been revised, and the language used has been clarified throughout. There is a new Contract Particulars Section at the start of the Form. The Scheme for Construction Contracts has replaced the JCT's own adjudication provisions, and legal proceedings, rather than adjudication, are now the default mechanism for the final resolution of disputes.

in ea N tenarse vrk whi as clearly i op

Fo= f t oe fn t w suita here th

heic ar

4greement,; IBA C

a fo v un

set

approve

page contra_t r eight h vrking nifica

po

rm. It in JCT

oncept

of 11 Ame tructio

ildin egern

orks w

inor Buil&"orks was revised along with all the other new editions were published, entitled the Minor Works inor Works Building Contract with contractor's design.

course, the introduction of the new version allowing derta a limited amount of design. This new version will s i is requently the case in practice that even on smaller om the contractor is needed, and previously there had lthe JCT suite.

resu

nae

ip w nce,

rranged under ce in the,

JCT MW05/MWD05

The Joint Contracts Tribunal Ltd

Minor Works Building

The Agreement for Minor Building Works, for minor building operations and mai Form of Building Contract (then JCT63)

long, compared with nearly 40 pag with bills of quantities, and was sta.

not exceed £8,000.

In the 1970s the RIBA, consci Form and the Minor Works form' of building contract. June 1978. The aim was fo English and structured in principle, but the re

of the Minor Works time that Conditio the 'short form'

1963 Standard ew, simpler 'short

with acclamation in

itions written in plain accepted the proposal

to-draft a new 1980 version wever, and this was the first

ection headings. Incidentally rafting of IFC84.

e last of which was to take account of tion Act 1996. The 1998 Edition

s basically a consolidated version of

Page 132: Which Contract

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Traditional procurement: shorter lump sum forms

JCT MW05/MWD05

The Minor Works form has always been a

editions are undoubtedly an improvement extensive use of this form.

The Minor Works Building Contract contractor's design' which has prcvisio portion of the Works (MWD05) respects the versions are identic to apply to both versions, unless

Both versions of the form

othese.

an one wh doe

now pu for e cd

therefor h of raise

e ove

at th

up only around half of these. t un

nclWe,,- ur R he Ag and eight Articles, and thon A two-page Contrac information relating Schedule 1, incorp incorporated by

at the back of

relativ

?minim sum. T

, or

'Particulars o the f ated

.11,

two ers a

ice for s all pr cts. ands en uraq

but the act Conditions take itals (five in MWD05)

on headings.

e form requires entries of ed'dles at the back of the form.

udication, and Schedule 2, Guidance Note is also included

e. However, it should be remembered ressWstated

fluctuations provis o

be the entire picture. Terms might be implied e used with thought and treated with care.

3 use aears on he inside of the front cover of both versions, et o in the G dance Notes. These give a clear reminder that rere the ient as engaged a professionally qualified person to e contract a inistrator in administering the terms. It is for use

works of simple character are to be carried out for an agreed not for use with works for which bills of quantities are

ie d tion is likely to be such that full labour and materials e r quired. There is no provision in the form for the Employer

sub-contractors for specialist work.

The 'with tr ctor' design' version, unlike SBC05 and IC05, contains very brief provision relating to hat design, and does not include requirements for approving design info do or for the contractor to carry Professional Indemnity Insurance. MWD05 should therefore only be used where the design input is limited, and should never be used for design-build procurement.

There can be 'Contract Drawings', a 'Contract Specification' or Schedules which are also Contract Documents (First Recital). The contractor will price a detailed contract document, or may provide a lump sum price supported by a Schedule of Rates (Second

sons ar

rt. There by clause 7-

s,a fluctu tic

7

131

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Traditional procurement: shorter lump sum forms

JCT MW05/MWD05

Recital). There are no supplements published to exte

In many instances where the Minor Works Agree Housing Grants Construction and Regeneration A will therefore not be subject to the statutory and payment provisions. Nevertheless, th adjudication and certain procedures relating

Synopsis

they may be removed but only after takin lega

care should be taken to explain th

1 Intentions

The contractor is obli Contract Document requirements (2.1

been engaged, which may b

e Contr

or is tool

consumers in connection with work take legal advice. The JCT now

eated as a

le.

Me further infor riatio

t

for ms

pa ymen .

d the range ohis cobra

ntis est work, may rh"t )ply a d the tract

re nts relatin to ad ca

c e the Vequir men t for If t rey st ute,

dve.

nsumer nt or oil Rgula ns 1 (SI 4/31

as of

their

is reasonably`Rec

itect

s ir1 or betw nsisten'

'variatio

e

ny furt

the c umer, or tractscially

lete t whe

o which might apply mer should

d for use by

consultant has

s in accordance with the applicable and the statutory

elating to the Contractor's Designed 05 only).

r information necessary to enable the -4 in MWD05).

en Contract Documents shall be corrected and this may be nstru

ary (5, MW,

n (2.5.1).

rxa i l 0

art y uncle s to .

2 Time

The,

erest

older that it will comply with the requirements of the rchitect is to act as CDM Co-ordinator unless the name d in Article 5.

The Works may be commenced on and shall be completed by dates to be inserted in

the Contract Particulars (2.2 or 2.3).

The contractor is to notify the Architect if completion by the stated date is unlikely, for reasons which are not within the contractor's control (2.7 or 2.8).

132

Page 134: Which Contract

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E

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Traditional procurement: shorter lump sum forms

JCT MW05/MWD05

The Architect is empowered to make such e

(Note: no specific grounds are listed.)

If the contractor fails to complete by the damages (2.8 or 2.9) and the rate is t there is no reference to a non-compl

Practical completion is certified by the

Following this the contractor is

three months, although a long by the Architect when this o

There is no provision for sectional completion.

erson' Ts to e &,Qo pro ion fdr a cl

is fixe

onement,

in writing (3.4 3.4.1) but may be oral and include variations (3.6.1) and this would

s no specific reference is made elsewhere.

or testingg"r ripening up of work. In the event of failure to meet Is, and problems over remedial works, refusal to certify leading Id seem to be the ultimate sanction.

ork to be carried out by persons engaged directly by the

AT-exclusive (Article 2).

price (4.10) except for limited fluctuations (tax etc.) provided for by Schedule 2-(4.11). A percentage addition entry is required in the Contract Particulars. (If none, NIL is entered.)

Instructions must be given if provisional sums are included (3.7). The cost of variations is either to be agreed in advance or valued (3.6).

provisi oved fi

mall

lige

ion ce

chit V (2

tify period m ian ha

b sta ) A en ha e

eferi-M

nt witbeut Written c

ssior ,- s_r for p

itten konsent to subwcd

ote h

s Ver:

a sub-contrac. Veve

on su at neith

ract is

Yentitle'dc tract P,,i i.cu

or, and no provision for including a

'r is there anything which prevents this, ests suitable ways of achieving this.

ons ar to b issue i lnstru ns ma

The Contract-S-fm is

7

133

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Q-1

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134

n-6t

is to b

on of tion fo the f al a

"ciure is ted in

this.

Certifkat'e with r,

ent in this 's apply to th`eFi

The fi a to f ue of e Fi al C

ations

The contractor i obliged to omply with the CDM regulations and particularly, where the project is note e comply with duties in relation to the Construction Phase

Plan and the Health and Safety File (3.9).

s the contkactor's

contractor is to not require

e date e ' ull

f 5 per ce to stop wo

to belissued withi4

issu king

tificat

he mod i the ntr for i

days a t e is of e

must e g by tten

o

rf7state is n tice t be date aymen

rtifi te, nd if e to

se ra

issue

quire the cu

4.7).

t half Ne

with 28 ys of bO_the eects, or

8.1). The he Contrac

Archi per ce)

JCT MW05/MWD05

Direct loss and/or expense is limited to variations included in the valuation (3.6.3).

Progress payments are to be made at four-week) issue certificates (presumably to the Employer). a different figure is entered).

Certificates of Progress Payment will calculations (4.3). The Employer must n

he intends to pay not later than five intention to withhold or deduct sum grounds for such intention must b

contractor no less than five days

payment is 14 days from th t have been given, then paym payment will attract interest the contractor a valid right

A penultimate certificate is

releasing all outstandimo

The Final Certificat signifying comple necessary infor (unless a different completion t

6 Insurance

s of ou nt

te. Any and the

iven to the final date for

o valid notices the final date for and can also give

either issue of the certificate the contractor submitting all ntractor is given three months

iculars) from the date of practical

mply with all statutory obligations, including giving all

chitect in writing if it finds any conflict between is other contractual obligations. Having done that, it will S under this contract (2.5 or 2.6).

The contractor indemnifies the Employer in respect of personal injury or damage to property (5.1 and 5.2). He is required to arrange insurance to back this (5.3). The

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JCT MW05/MWD05

minimum cover as a contractual obligati Particulars (5.3).

The contractor is obliged to arrange insur damage by perils specified in clause 5-

should be inserted.

There is no provision for the Employer

Joint names insurance of existi alteration or conversion, is

requirement is for cover aga

The Employer may terminate t satisfactorily with the,

Regulations, or if i

warning notice, bu

The contractorKnay

Either party suspended

The resp the Condit

for if it fails to proceed obligations under the CDM he Architect may issue a

r for the Employer. 7 or stated reasons (6-8 and 6.9).

'Architect, presumably this is implied.

n of any person from the Works (3.8).

e to antiquities, terrorism cover, etc.

out of third party rights under the Contracts (Rights of Third

Grants, Construction and Regeneration Act 1996 gives either party a syalbfer righ to refer any difference or dispute arising out of the contract to adjudic ion. Articl 6 of MW05 provides for this.

-Adjudication is to be conducted according to the procedures set out in the Scheme, except that the adjudicator and the nominating body may be stated in the Contract Particulars.

There is an optional provision for arbitration (Article 7), and if disputes are required to be resolved by arbitration then the Contract Particulars must state that Article 7 and

7

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JCT MW05/MWD05

Schedule 1 apply.

The appointment of the arbitrator is subject to A defined in Schedule 1.

Arbitration is to be conducted in accordanc Construction Industry Model Arbitration Rul

Editi

136

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fl-

E

Traditional procurement: shorter lump sum forms

p

RIBA

contra uate f

advisa ctor

clari the fi

sued tract

fro

ministr

a

o

ndmeri ublis

e JCT'su gg ted pri ) in va but

ic Note doe sle fo large aLru are Ded

r

er

ng

le

br phas orm is dra g Gri to t

insu e Wd

rtyistrato , not that ions, should th

cedural t

sc

t

r mo

d-w

adrri

at 98 was Appropriate for contracts up to f 100,000 (2001 was so ti es used incautiously well beyond this. The new JCT

not suggest a limit in value for MW05, but it is unlikely to be ojects. Although the conditions are clearly worded and the b f and easy to administer, it should be remembered that the

ition to those expressly in the contract. e The suited to commercial rather than domestic work where

in a

I r'

r use

or Wo

letion, lude c

nd R

Whe, ts,

itu

particularrccl-*ac

the` t tim

the

ion ith no

a

'rk. The contractot, ea p essi

o antit le r th eci

Ad tion Sche'du'lesh land wher

is JvailWe.

o

u

p

e ag

c

b

fd

co

ed to i

onstructio

nce of t

emb tha .

sim one-off' ture, his ons one To

-one wnere it is na aDSUILanr ro e

ra aitne ilA

ar

am

ks a

n

pli

I C

a

on

t-hpre-ifa'n be p oble s with the client remaining in occupation. For slightly larger projects, or se wh ch require more comprehensive conditions, then IC05 might be a safer nice. For ork on domestic projects, perhaps consumer contracts, then the JCT forms o e owners might be more applicable. The Minor Works Agreement has featured in a surprising number of court cases, often due to use beyond its intended limits or because of careless administration, and a RIBA expert has

commented that although it appears to be a favourite with the profession, at the same time it appears to be little understood. It has limitations, particularly concerning the design insurance and determination provisions, and needs to be treated with respect and administered with diligence.

JCT MW05/MWD05

This contract?

If considering using MW05 or MWD05 r

It is intended for small building work q for jobbing or maintenance type w some design input is required from th be used where the Employer has

administrator. There is no prov,

surveyor may be named, it is

If used for work in Norther The form is not suitable Scotland, the SBC Scottish

There is no provision the contractor. The and with the Housi not these apply in f are required r

If acting as

prove ad might b

with a con

Am T

may imp

th

suitable use where

t. It can only ct as contract

ugh a quantity ions.

Id be incorporated.

intended work is in

b-contractors, or design by with the CDM Regulations,

eneration Act 1996, whether or completing the form decisions

damages for non-completion.

Ithough the Conditions are likely to nature of the work require it, then it

les pre-contract, especially if working

time to time. The form is available on disk. tion forms for MW05/MWD05.

7

137

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JCT MW05/MWD05

Minor Works Building Contract Minor Works Building Contract with contractor's design Short Form of Sub-Contract

References

Practice Note JCT: Deciding on the Appropriate JCT

Commentaries

David Chappell The JCT Minor Works Building Contract 3rd edn, Blackwell Science (2006)

Sarah Lupton Guide to MW05 RIBA Publishing (forthcoming)

David Chappell MWO5 Contract Administration RIBA Publishing (2006)

138

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JCT RM06

Repair and Maint (Commercial) 20 Background

The Repair and Maintenance on 'individual, substantiall specified buildings or sit

ntract Co

`s'. It Building Works of a Jobbin Chara

, pro m 0

iced

with 1990, but not re-published al

The form is for e

undertaken from would be reasona

ployers w o ha me to in the 6

y exp rienced in co and

i does no use by home owner

ntract,

the J

ich w ions of Contract for

originally introduced in in 1998.

which requires small jobs paw and maintenance, and who

uch work. It is not intended for oning role of a contract administrator.

cts, but is not to be used as a term ct would be more appropriate. It allows

ng, either as a lump-sum contract, or as a re- ixtu

he for is lativ 06o ai saf o

Contract Particula r un ge

tenanc

a bu

u re o

i ed small proj re m Cont

or pri

use by local authority or commercial clients, who will be orders for such work, and in dealing with contractor's accounts.

All the etails regar ing the work to be carried out and the information required under t ontra Particulars must be sent to the contractor at time of tender. In

particular, the contractor must be told on which basis it is to price the work, as a lump sum and/or a schedule of rates, and the start and completion dates for the Works.

The contract will come into existence after the contractor has completed and returned the Tender form, and the Employer has accepted that tender. The completed tender, signed by the Employer and returned to the Contractor, is the evidence that

is inte

ition

for w h t Mea fferen ases

der

k mea of the two with defined work being priced as

red using an agreed schedule of rates.

y sh running o 18 pages in total. Unusually for JCT contracts, rm of in tatio to Tender, and a form of Tender. It also includes , and a g ance note, together with 6 pages of conditions

ven Sections. In contrast to the contract for Home Repairs and cwract follows the format of the 2005/2006 suite this

7

139

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140

JCT RM06

agreement has been reached, and there is therefore an attestation. As an alternative, as explained in

conditions may be incorporated by reference in an relevant parts of the form should be marked 'no

It should be noted that the form does not incl or to the CDM Regulations, although there mi

either in full, or to the extent that Regulati

The form is generally compliant wit Regeneration Act 1996. It should be not for payment in a single stage, for so

several stages for payments will ne

Synopsis

1 Intentions

The contractor is obliged to competent manner, in accor

As there are no article tender and the Cont

work ma

ployer must fix a n

its contr

ici,rfor liq

epted

de any t be occa

ffe desi

the

, hovu ver, this

ified.

ts,

not com v ith h

carried

Works` islati

blige ance

further infor.

orry out ith all appj

,th

ct Pa rti

bliged, o car

jes, these w,

anclotethe o nee

e Gu ployers

or reals, acle

r, in-Nhich ise th

ce to health did saf will ap

06

3 Control

There is no bar to assignment.

a regular, diligent and n' (2.1).

or shall be completed by dates that are entered in

r

tion date if the contractor is delayed for a reason

nable endeavours to prevent delay (2.4).

dated damages.

There is no requirement for a statement of practical completion, and the rectification periods runs for six weeks after the completion of the Works.

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JCT RM06

There is no provision for naming or listing included in the specification.

t

The Employer may appoint a representati

The Employer may issue instructions r is limited to those of 'a nature and s

Works' (3.4).

4 Money

The contract may be let on a lu

combination of these.

Variations are to be value by the Employer on a fair and and including an a

Payment may be b

contractor is to inv days of the invice

On comple (4.4), whi

out the Works in accordance with all applicable

icable legislation' (2.1) would include the CDM regulations, c mention of these in the conditions.

The con or is to i demnify the Employer in respect of personal injury or death, or damag to property ther than the Works caused by its own negligence (5.1 and 5.2). This is to-15 bac by insurance, and an entry in the Contract Particulars will state the minimum cover (5.4.2).

Unless otherwise agreed, insurance of the Works is the responsibility of the contractor under a joint names 'all-risks' policy (5.4.1).

Insurance of existing structures against listed perils is the responsibility of the Employer (5.4.2).

s, or failing agreement rates where applicable,

fered (3.5).

If instalments are used, the Employer must pay within 14

the JCsuite'Statutory Requirements' are not defined, instead

7

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7 Traditional procurement: shorter lump sum forms

JCT RM06

7 Termination

Each party is entitled to terminate the contract imme insolvent, or after a seven day warning notice has b

material breach (6.1).

The Employer may terminate the contracto corruption (6.2).

8 Miscellaneous

The contractor must take all reasona6 contractor's etc. are registered cardh Scheme.

There is no reference to access for the E

implied.

9 Disputes

Disputes may be resolved th Scheme for ConstructioK-Contr

There is no arbitratio clause/ther re eit party world have the right to pursue a claim through litigation.

Th form doe not co th e is othi o c r

desi n. It ill therefore b m

incorporated forms of invitation and order. It`a so (lows for a variety of methods of pricing, ssioning work of this nature.

ovisions for liquidated damages or for retention, and n where the contractor may be undertaking any d to experienced employers on very short, one-

off job For longer mer ' I p ects MW05 or MWD05 should be considered, and where a s * jobs re a ticipated, MTC06 may be more appropriate. If the Employer is there occ pier of the property on which the work is to be carried out, the homelo ner occupi contracts may be used.

Related matters

Documents

Repair and Maintenance Contract (Commercial) 2006 edition (includes a Guidance Note)

142

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essfully on vii pear t ye us

opera o *r a

ocremen hich

is little evid built upmay

The second (1984 ke t der r viev

dme neration Act

Xdrafts to ro ice.

very wider nge o

al co r entators steep ay di issive).

he

rm w rking rm w fted

rmer 'Nation ter int

variet is u

obs, in

orm withou

fthef,

A ontracworkin hfch wa th a.

nefficie

for

CA nd ha

It bs of

in th

itior

ed, itwas

eA an

byye a

ce

rm eva rRitiativ

e fir'

ed

'a flex

u ilate Fedel

contra/

ACA Form

Association of Consultant Archite

ACA Form of Build

Background

When the ACA Form first app relatively complex procedur of the advantages claime introduced. Nevertheless, th form unencumbered by tad took two years and 1

suitable for use on initial reaction of le

was cautious, not to

At the outset produce a f,

architect that the Indeed the

Nature

claimed that their intention was to y balanced contract for an efficient J contraan efficient client'. Early criticism was any contribu tion from contractors.

tion of Building Trades Employers advised its g the ACA Form. However, it has been used ding fast-track projects. Major client bodies

problems, and the British Property Federation rm suitable for use under the BPF System of

vas not vJithdfawn until 1998.

retion against the o years later some

d when IFC84 was it is still an interesting ished. The first edition

t the new agreement was es and types (although the

hraseology of JCT documents

ce of problems with the form, and no body of case law has yet that the ACA members using the form are, in line with the

architects working with efficient contractors.

included a number of significant improvements. The form and revised from time to time. The Third Edition appeared in

is needed to take account of the Housing Grants, Construction 1996 (Part II).

The ACA has continued in its progressive and non-traditional path and recently launched the first standard partnering contract. (See Chapter 13 below for further details on PPC2000.)

The total document runs to over 30 pages. There is a contents page which lists the

7

143

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.-

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Traditional procurement: shorter lump sum forms

ACA Form

Sections in which the clauses of the Conditions ar are Agreement which includes alternative clauses relat appointed; who will be responsible for the pre details; and whether the Works are to be compkte

Flexibility is a feature of the form, made possi Agreement and also at various points throug

pt to

the document either as a deed, or not as,,kd expressed intention was to produce a for of the terminology used is peculiar to t administrative procedures are relativ,

guidance on their detailed use.

Examples of where the terminology

completion date: the alternat taking-over in parts, and p

extra costs: the production of an architect's instruction,

information: the atte the supply of infor

design: the atte contractor are eac

To help in m The Time operatio Schedule

ing t'

ation

e ciau Bible accel

e by t gut the Co

i wh' w pl wo e

e ACA for m' t cau s tho then

tensi

Vouped gto t

aratio of in Sec

at e en

t otRer-forms i

ration;

contractor of his

ement,

maticA

ablis iablefbdthe d

chedule o

or Alrhative

ible, th

ovide or etail be resoonsi , awhen

ontract th ign of the'

e are the 1

s which follow after the Conditions. wher the job is to be completed as one rnati

the job is be completed in Sections. A further n the i ue of ' formation; what this is to be, who is to t is to be pplied. A final Schedule provides stage

Th re is r suggested IT t cost r type of job for which the form is thought to be suits e. It can be ed w h o ithout a bill of quantities and where no quantity app

..

ted. It an b used where the Employer is private or is a local authority, surveyor '

and where contr inistr tion is by an Architect or by a supervising officer.

The contract ca "e fixed rice, or fluctuations based on an ACA index can be incorporated. The form may be used as a traditional work and materials contract, or the contractor may be required to accept a measure of responsibility for design and the provision of drawings. The flexibility in the document is made possible only by the introduction of alternative clauses, and great care is needed to ensure that the intended alternatives are clearly evident.

his is olloW

s a

alter tives oth The ies exe

e Condition d. oweve

144

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,-

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Traditional procurement: shorter lump sum forms

laus his architec

clu

the contractor possession to the date or dates stated in the ractor is to commence immediately and proceed regularly

ement to extensions of time will be subject to Alternative 1 or 11.5. The first alternative includes solely delay caused by the

or persons appointed under the CDM Regulations. The second

s for neutral causes. The Architect has 60 days in which to notify the contractor of his or her decision, and decisions are subject to review within a

reasonable time of taking over (1 1.6 and 1 1.7).

The Architect is also empowered to issue an instruction to accelerate or postpone the dates set out in the Time Schedule. This is an unusual provision, although it may be

subject to the test of reasonableness. There must of course be a fair and reasonable

ACA Form

The Third Edition takes account of the Housing Act 1996 (Part II).

The contractor is obliged to execute ari strict accordance with the Contrac skill, care and diligence (1.2).

What constitutes 'the Contr Agreement, and incorporat

a

The provisions of the printed

The drawings may b

supplemented by dr (2.1 Alternative 2). T

Agreement.

`r is res

him,

supplied s

wing, is will

blely t details fo

Iso be evident

ons)ble for-the hd vvarrts con)

ers e

he A hich

r Alte

onstru on anit Regg

re is a

Alternative 1) or may be

cohtractor takes responsibility ative 1 or 2 in clause F of the

racy of drawings and other information ance ith performance specifications and

purpo

e Schk phas 'ob. Se w ns.

is to permit o

pntrid ernati

aged directly by the Employer to carry out work t, whilst he has possession (10.1).

set o6f the i4ortant dates. Alternative 1 is used for a single e 2 alloor possession in parts and/or completion by

mployerto giv

and diligently (11

cor ctor's, enO

145

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Traditional procurement: shorter lump sum forms

ACA Form

adjustment to the Contract Sum as a result, and a

(1 1.8 and 1 1.9).

The onus is on the contractor to notify the Archit taking over by the Employer. The contractor outstanding items. The Architect may then is

architect's list of items which need attention b

even though there are outstanding items, And of practical completion in JCT forms (1

t

Where the contractor has failed to have dates, this fact is certified by the Ar (1 1.3 Alternative 1 or Alternative

Outstanding work at taking over, repairs as instructed by the Archite Period (12.2).

The contractor may be req

Works or any Section for 3 Control

'nsible for all management of the Works , and this lanning and superintendence (5.1). The contractor

`s full-tine sl

e r I y I i s

e manager a person approved by the Architect. This d (5.2 and 5.3).

Facilities are to b access and visits by the Architect, both to the Works and workshops (4.1 and 4.2).

Instructions and notices given by the Architect must be in writing (23.1) although the contract does allow for oral instructions in an emergency, provided these are confirmed in writing (8.3). Matters on which the Architect is empowered to issue instructions are conveniently listed, and include removal of work or materials from the

or pro

r is nar. onsible f

om this

es may menpec

ertot

n in Contract ocuments. This may be by way of a

siona m. If t Vs arises out of an architect's instruction, ght of r "sable objection (9.3, 9.4 and 9.5). The

all sub-contractors, including those named (9.9). This ;*ign, compliance with performance specification, and

or im

allow the E

ueofaTac

rs of

contractor is clearly r a

kks

is and ney is

either=

sted

the i

work by t

actors v be ne,al

eaTa ore taking

is rsnect i

a re reag_y

`itract Lis

cate r issu

WoN,s rea `Jor tk-inci ove

eplace

either party r

146

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site, dismissal from the Works, opening up a

connected with the Works'. Immediate c

required (8 1).

4 Money

The Contract Sum may be adjusted in

will become the 'Final Contract Su-m

Agreement, and 15.1).

A quantity surveyor, if appointe may be defined (15.2 and 1

The contract may include

ap evi

stage

rally '

cto rs

structions vvikta tract

A index. Deleting this and 18.3).

I be instructed and valuation made r otherwise on a fair and reasonable

comMance kan st

ractorrill

(if appropriate)

and the c

ting th

be either on the basis of monthly valuations rnative B) (16.1).

htractor is to present the Architect with an total due, and supported by documentary

ue an Interim Certificate within 10 working days of receipt of the amount due and the basis of calculation (16.2). appli tion, ting tN

t mplo p

contractor written of ian five vrkg da s

s not r

cordance

oth , re e

is named i

r flucf

e inclu ction with

ct's i

vide

ach h

le of 7.3

Sched

17.2,

oex.i tithe nt is 10 day

to withhold or deduct any sum, he must give the wing the amount and grounds for such action not later

ore the final date for payment (16.5).

ise entitled to payment of the amount certified. The final date from the date of the Interim Certificate (16-3).

Retention of 5-p7cent will normally be retained by the Employer, and in the case of private employers will be placed in a separate bank account without obligation to the contractor for interest gained (16.4).

The contractor has 60 working days following the expiry of the Maintenance Period within which to submit a final account (19-1). The Architect is required to issue the

7

147

is to the co

fg varia ns, a 'an by ;V con ctor i c

iEtions

Page 149: Which Contract

7 Traditional procurement: shorter lump sum forms

ACA Form

Final Certificate within 60 days after the contractor under the Agreement (19.2).

The Final Certificate must show the amount calculation is made. The final date for payment of the Final Certificate 0 9.3).

5 Statutory obligations

Unless instructed to the contrary, the c

requirements and to make applicatio

If there is any apparent conflict requirements, the contractor mus (1.6). Where the contractor is respo responsibility for ensuring co

The Contractor, where also obligations in addition to include cooperating with t h

Safety Plan, and the

6 Insurance

In respect of per the contractor g

to the extent

ernativ`

tracts Ngui give rCotic

t

otify

,ble fo wl statu

to c

on vvRc lowince i

d statutory

d p`aees

e C ct

ing

appointed rincipal o tatut ry d-dties relatin

Plan ing a Saf File.

nal inj ry or eat Rs the oyer a

ate saecifi

ditidnaKnsurance

mployer h

erty (other than the nuis e (" ).

ted to the injury or damage (6.3).

i,psurar e ver ag tract, althou

nst these indemnified risks to no less

of course this will not limit his liability

be by the conntractor (Alternative 1) or by the Employer to be in joint names. The Conditions do not appear to

to be covered (6.4).

irement for an agreed sum against damage to here there is no negligence etc. by the Contractor,

tractor to take out design indemnity insurance (6.6).

The contract includes for termination by the Employer for stated reasons of default. The last one is simply where the contractor 'shall otherwise be in breach' of the agreement (20.1). The Employer is to serve a default notice, which may be followed by a termination notice. A dispute over this may be referred to adjudication (20.1).

ntra o hea

in r

uean instruction e also assumes

(2.5).

articular contractual and safety (26). These pect of the Health and

to roperty other than the Works, indemnt y-.- will be reduced proportionately

148

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ACA Form

The contract also includes for termination default by the Employer. A default notice n

termination notice. Adjudication may be

Either party is given the option of to grounds of insolvency. It is not auto

Either party is given the option of termi causes (21).

The consequences of terminati of site, sub-contracts) is deal

8 Miscellaneous

There is an optional obstructions on the s

Clause J of the Agr of Third Parties Act) be deleted and a clau the contract.

ement s"t 999

sub

advicy the

ne greer liation (2

AI native

, There are aernati

Conciliati agreed f e parties

w of the contract is English law or Scots law (25-11).

reference to a person named in the Agreement, or as otherwise Where the parties sign any written agreement on the terms of

a settlement,this is to be regarded as final and binding (25.3).

Under the Housing Grants, Construction and Regeneration Act 1996 (Part II) the parties have the right to refer any difference or dispute to adjudication. The adjudicator may be named in the Agreement, or be otherwise appointed in

accordance with the CIC Model Adjudication Procedure (25.5).

ers are

adjudication (256), and finally provision for either litigation (Alternative 2) (25C).

sions relating to litigation and arbitration depending on

n can mea

bf the c tract for `s

may b issu to e

ed w4 re th re is disn

tinghe c

n, and act`bq'tQ beV en

s that third ill not apply, but stituted w li

is

actor are hi

part margi

theucontrattor's motion (2

em'ployme

I

ie

ed

ons 6f

nder the Contracts (Rights note states that clause J may

who may be given rights under

s responsibility entirely irrespective of rchitect

ed toe the p

Archite

ess to site (10.3).

operty of the Employer (14.1). The contractor

for disputes to be resolved by four methods. There is first

7

149

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Traditional procurement: shorter lump sum forms

ACA Form

Adjudication is to be conducted according to the CIC

and the adjudicator's decision will be final and bi finally determined by arbitration or in the courts

Arbitration is subject to the provisions of the law, or its counterpart if under Scots law. If t of the arbitrator, the appointor is to be th Arbitrators (25.9).

150

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Traditional procurement: shorter lump sum forms

ACA Form

The form is stated to be su ila relating to litigation a itra law of Northern Irel nd.

A notable feature most situations, for including dra insurance of, payment p

Sections. contract minimum. the eed Pr

co

the riodic he fo

s, de n y sub TU flexibility c

leme

uires p

di

magi resol

in ave s

cedure 1998:

ompl ing he binati f alter

e and the I

may b

inistr

ility

if th titles. W r g Itho

the chi ct the

f a single ct od ooi . Th plo is q red t iQ a tity surv

is lam ther

his the ran'

relating to -u C

at edli' ',Of on

tontr be ac

e used rega ryer is

needs

native

6tho fully

re is altern ctor. j6

This contract?

If considering using the ACA form reme

It is intended for lump sum contracts, certain clauses may need to be delet used with or without a bill of qua reasonably well documented at to de for further detailing by either completion may be in respect in accordance with a Time S

or Supervising Officer, and

ticular care over selecting the appropriate completing the Schedules. The form has a logical

nguage use-'is straightforward Fnglish. However, some of the unfamiliar to regular JCT users.

though . It may be

'signed and 'tive provision

ossession and onal completion

ppoint an architect

are alternative clauses its suitability under the

clauses available to cover r further necessary information

cur'rts; adverse ground conditions; s; grounds for extensions of time tion; possession and completion by

simple way with naming of sub- the procedures are kept to a very

eved all within the one document, and without olt-on document is the ACA Conciliation

r is given considerable authority. The procedural rules are ishes standard forms and certificates for use with the

for traditional procurement, attractive, concise and modern. ted to contracts which are middle range in value, and in this pared with JCT IFC98. It seems not to have attracted adverse

-'tractors despite its unilateral production.

7

151

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Traditional procurement: shorter lump sum forms

ACA Form

ACA Form of Building Agreement 1982; Third Edition 1998 (

ACA Form of Sub-Contract 1982; Third Edition 1998 (200 ACA98 Appointment of a Consultant Architect

Notes

152

Page 154: Which Contract

,-+

,-+

.-+

0-D

fl' E

E

Traditional procurement: shorter lump sum forms

GC/Works/2

The Stationery Office

GC,/Works/2 (1998

This is sub-titled as a Contract for is more in the nature of an int GC/Works/1 form and the G

of between f25,000 and f2 It replaces the former G

It is published as a two volu Commentary. The for

The form is for use drawings only - requirement for the of any variatio

4 car7ies

d

es and follow the well established raightforward language and standard

ontents list are followed by the Conditions of e headings.

there is a very useful Schedule of Time Limits odel Forms is essential. Model Form 1 contains

endum; Model Form 2 is an Invitation to Tender wings; Model 3 is a Tender and Tender Price Form; Model Form urance Documents; Model Form 5 is a Performance Bond; Model

uildi

orks/4 s m a ks c act. in v e, an or litio

0) a e old s

a Civil

ers in mp um terms

pr ision for =tor to subma

rm ndin

eraKo-rrdition

Works, but it e major works

ded for contracts works of any value. ks C1010 (1990).

e basis of Specification and t4s of antities, and with the optional

dule f Rates to enable fair valuation

some 45 p

Araphi`c ion a

red L/ndE

C/Woi`Fks for se of the

any Contract Performance Guarantee; Model Form 7 relates djudicator; and Model Form 8 is an 'Order to Proceed'. Sotfie A p p o i eat

The latter is in e ct specifOd-d`tg. Th

Use

`struction to the contractor to proceed with the Works on e is no separate Contract Agreement.

GC/Worh1Z has rel ively limited provisions, but almost certainly adequate for the kind of operations intended. As stated in the Commentary it is necessary when considering a choice of this form compared with, say, GC/Works/1, to establish whether certain features (e.g. sectional completion) are contractual requirements. If so, then this less

comprehensive document might not prove suitable. The choice must be determined by the circumstances, the nature of the project, and the balance of risks to be covered.

ith lu

ithout ontr

'ral Codditiotfs

he ndex.

ti ulars an

atter o clear he Introdu 4$, structi

7

153

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GC/Works/2

As there is no formal Contract Agreement, a contract when the Employer signifies acceptance of the contr, writing to bring certainty to the arrangement, pa

invariably be a 'construction contract' as defined in

and Regeneration Act 1996 (Part II). GQWork surveyor, but a Project Manager and Planni Abstract of Particulars, and the name of an a

be entered.

Synopsis

1 Intentions

A fair dealings provision is include

The contractor is to carry out the Works (2), and instructions of the P

Specification and shown o works to be executed un workmanlike manner and to

The contractor is dee affect carrying out misunderstanding

t All 'Things' selec described in t of the contr

er d raw'

e to lone ,

Tng apl

t

ion is give ate,

dditio-naL_

or for in rawin

houl e in

as r*llt alm Grant , Constr tion

no provisioh for a q n

or ould b-q na ed in

d a arbitr or may

act Documents s described in the

ified or additional to be executed in a ey a

iect nager (19).

out all matters which might will be allowed because of

Sri n agreeme concluded by tender, acceptance, ticula Spec 'cation and drawings, etc., all taken pancy, th e a detailed hierarchy (2).

ructions etc. may be issued by the Project Manager from 25).

r by written order to proceed. He must thereupon nd 'proceed with diligence' and complete by the Date

A reasonable exteA5 ion ay be awarded by the Project Manager, only for circumstances wholly beyond the contractor's control (23).

The Works must be cleared of rubbish and delivered up to the Project Manager's satisfaction by the Date for Completion (21 [41).

ject M- a

drawl n s,

er th

he sa

ge 5).

i and wi co tract (1 ).

isfaction ofAli

e sati

by ication and

e co

Super

iudicator

accor

T

nclu

154

Page 156: Which Contract

-.-0

.-r

Traditional procurement: shorter lump sum forms

GC/Works/2

Defects which appear in the Maintenance Pe,

must be made good to the satisfaction of th

The contractor cannot assign the con the Project Manager (44). Sub-contr Manager.

There is no provision for sub- Employer or Project Manager.

The Project Manager may i e truc on any ter f ecessary, including variations (25). Notices m t be i riti an I instrus confirmed in writing. The contractor must comply

Instructions which r /lull in ri on wi e v ued herever practicable by prior quotation and ag ement, or a rele nt ch e r aywork, or by the Project Manager, on fair ra es an pri s, and will clude r disruption or prolongation costs (26).

There is nor er e t setti out, n to t e contractor's person-in-charge.

The Projec Mana r and repre tive ar empowered to order tests, and the cost will e bor e byeon ctor where ings are not in accordance with the contract

Th Contra Sum it defined N, od the 'Final Sum' will be adjusted in accordance

ust give written instructions before provisional sum work is

e valued as provided for in the contract (26). r

certification by the Project Manager, shall be entitled to advances on account (30). Valuations will be prepared by the

contract and, if ag ed by the Project Manager, the sum due will be certified by him.

The co ractor may ,fiave to allow credit for old materials. 97 per cent of the value of work execu value of Things for incorporation will be paid during progress of the Works (30).

On completion, the contractor can expect to be paid what the Employer estimates the Final Sum to be, less half the retention (31 [11).

7

155

Page 157: Which Contract

fl,

fl,

((D

u

Traditional procurement: shorter lump sum forms

GC/Works/2

The Project Manager will send the contractor a draft after completion, which is certified by the Project Ma when the Project Manager certifies that the Works the Maintenance Period (31).

The contract fully complies with the Housing Act 1996 provisions concerning payment pro

5 Statutory obligations

The contractor is required to give all not supply all drawings required to s

obligations (6). This includes the C

The contractor is required to comply and use of all things brought on

The contractor is required to in respect of the site (10).

6 Insurance

The contractor is requ respect of his empl contracts (5[11).

The contractor sha Things for whi plus profess

The cont

damage (5[21 and 8).

ed

ees o

e site

ants,

fi al acc nt k hin si

ger. T e Fi=orv will b aid in a tisfa ate lowin

d u res.

es, pay a

suN noti ions.

regu atisns rel

main v+ d

omply wit

`site, a

insure'iRhint n

tractor is r

'Employe is fb"t ctur d may e

oyer has

ponsi

mployer in

f profit y, loss

iin e ployer's liability insurance in

o inse t a similar provision in sub-

isks damage to the Works and his will be for full reinstatement value

espect of injury to persons, loss or or use, and will cover this by insurance

certain specified risks arising from work to existing out insurance (5[61 and 8).

det'drmine the contract for specified grounds including

Matters followin determinat' n (payment, completion, removal, etc.) are dealt with in Condition 39. T ro'e Manager must certify the cost of completion.

The contractor may determine the contract for specific grounds, including insolvency of the Employer (40).

Either party may determine the contract following suspension of the whole or substantially the whole of the Works (41).

156

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GC/Works/2

8 Miscellaneous

A full list of definitions is included (1).

There is no express reference to rights,r thirQ parties, or tVcontr tir of the Contracts (Rights of Third Parties) Ac

The contractor has obligations vkatch`iRg, Tlghting mid protg6on (7) and for removal of rubbish (21[41).

Security matters such as admi ion to th t 0 king (16), passes (15), and Official Secrets (17) m givee eva liga ns.

9 Disputes

There is provision for adjudica n for ere lutio o y spute arising out of the contract (42). Therdecisi ise equire ent or t n tice of referral and the procedures to be owed. T e a dicato ma be amed in the Abstract of Particulars, and his inding on e par i s, a least until finally determined by arbitration.

Arbitration isgi* as he form for filial res`glutio"6 of disputes and the arbitrator is

given wide

7

157

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7 Traditional procurement: shorter lump sum forms

GC/Works/2

This contract?

If considering using GC/Works/2 remember that:

It is intended for use when lump sum tende drawings and a Specification only. Its use is no onger departments. The Employer is required to ap considerable powers to act for the Emplo be listed in the Abstract of Particulars. Th

and functions normally ascribed to him

The form may be used in England a

or under Scots law. The arbitration Condition 43.

The Conditions are general, a

in tailoring the contract to t sectional completion. Ther suppliers by the Employer. Model Forms should supplemental to th informative.

Contract admini administrator to k

terminology, progress m

for a pro

This is an

result i fai r is t o comp fo se n as an al ernative

Rela

Docume

int a Pro

g invited d to ce(ral govern

nagerr Who is g

ct t,exclu d tters whit

ilit , the qu tity s

re the resp

rovisi or the law

r ra rtrs'L

nature of he int ded is no pro Ision for n i

e tw volume pr ti. std as ome o the

T

tration sho d b e the t 'td uble

tings bec` res, and e

active' r wh is

substantial d

s/ C-to u

si n

GC/Works/2 (1998) C

Conditions, Mode

ntract ligatio

always provided that the oroughly conversant with the

Rather unusually but very sensibly, s, although there is no requirement

has m y fe ures not found in other short forms. The cument w N& can cover a wide range of work which 4, but not justifying use of GC/Works/1. It may also be

b-JCT forms MW98 and IFC98.

ng and Civil Engineering Minor Works in two volumes: General mentary

mmeotary

oprXi - the la

for some flexibility is no provision for

of sub-contractors or mprehensive, and the

information which is

s practical and particularly

stra' tforwa be mie

tim li

158

Page 160: Which Contract

=00

o form part, but choice should ultimately depend on the nature he form accepts that either all the CDM Regulations will

ulations 7 and 13 will be applicable. It also takes account nstruction and Regeneration Act 1996 (Part II).

A fair d

=otract on is included (1 A).

Conditiprevail in the event of discrepancy, except where special supplementary conditions are included in the Abstract of Particulars (2.1).

Specification takes precedence over drawings unless otherwise instructed (2.2).

contractor responsible for care of site and Works, including sole responsibility for protection, security, lighting, and watching over the site and Works (5).

Traditional procurement: shorter lump sum forms

GC/Works/4

The Stationery Office

GC/Works/4 (1998,

Background

This is sub-titled as a Contract for Small Works, and obviously int works of a varied nature. It is i

replaces Form C1001 (1990

It is published as a two vo Commentary. The former ind

and'are set out in clear graphic style, minology. There is a contents list

1 structured under seven headings.

dule of Time Limits. Use of the Model the Abstract of Particulars; Model Form 2 is an

wings; Model Form 3 is Tender and Tender icator's Appointment; Model Form 5 is the

3 are contract administration forms.

`visions which should be sufficient for most small contracts where

7

159

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Traditional procurement: shorter lump sum forms

GC/Works/4

Contractor indemnifies Employer in respect of any los work under the contract (6). There is no provision f

Making good defects in the Maintenance Perio

Abstract of Particulars (7).

The usual GC/Works provisions for matters s

passes, photography and Official Secrets, are

The contractor's dates for commence Abstract of Particulars and subject to t

The Works must be cleared of rub satisfaction on completion (15).

A reasonable extension of time may be circumstances beyond the co

The contractor cannot assi

Manager (30).

There is no provision f

The Project Manag variations (17).

Valuation of varia agreement, or b

racto

ch as occ luded in a

'state

gage wni nce irrthis

e order toeed.

withou

tructi

ion instia.c Ons wh

contract

oject Mana

ovisions re

provtsion or pr

the WoTks_01

Pa

e contract/price (t

stat

after

n`ttq-the contra or ill

that there will be a an -third _sf-tfiB wo

Applications-must to certification b

em deb the Project

never

er on t

ion and di

will be by prior quotation and basis of fair rates and prices (18).

ccepted) may be adjusted in the final account (21).

be a er completion, unless the Abstract of Particulars n account (20). This will mean one-third payable

completed, with the remainder after completion. the contractor to the Project Manager, and are subject

Manager (22).

In the event of to time, the contractor may be liable for liquidated damages, or damages at large as stated in the Abstract of Particulars (26).

The Employer has the right to determine the contract for specified grounds, including insolvency of the contractor (27).

The contractor has no rights to determine the contract.

160

Page 162: Which Contract

era

Traditional procurement: shorter lump sum forms

GC,/Works/4

Adjudication is the only provision for resolv,,

adjudicator is binding until finally determin include for arbitration. Alternatively the p

the adjudicator as final determination.

There is no express reference to righ Contracts (Rights of Third Parties) Act

This contract?

It is intended for use wh drawings and a Specificati

do

departments, although some p

sector client (for exa

Employer is required a quantity surveyor.

le the re

to appoint

used under the la

Bred b

ions a rela

,Abstra Partic s acti

eP ntract e tern'

ly presente,

r Sco

ion 29'

Form

lu

only. isions

Projec

riend ars bec

althoUd

be str inistrNtio y is typical

infesting basi

form

orks

althoug important document. The two volume

tratAn. but-the f6 agdee to *cep he de

n

ed on the basis of fined to government relevant to the private

under Condition 24). The ere is no stated function for

limited, are adequate for most small

erhaps a trifle over-sophisticated for this class

ightforward, and the procedures are simple. ut clear.

alternativehnall Works Contract, particularly where services

rt of the Works. Likely to appeal most to those already familiar other G Works

(1998) Contra mes: Gene

ntracts.

t for Building and Civil Engineering, Mechanical and Electrical Small Works Conditions; Model Forms and Commentary

7

161

Page 163: Which Contract

,-r

Traditional procurement: shorter lump sum forms

162

igatio

u rse.

a, oFI . It miY orta

conv

onditions

nce: si

w been re

more C c

ply ial peculiar to

cu ment),

loyer's ntract of

ke Li§t; a--cchedule

ntra a-M&s-lon th

- requireme

mages; inte/est on

incor udicafor an

h with indicate wheth

thquant

93 at f rst prbed f pro the Lat

ume ch a

d in

the

r le spe

inor w was

as

uide wftb flow Chart

NEC3 (Short contract)

The Institution of Civil Engineers

New Engineering Contract Document

Engineering and Con Contract Background

Although the New Engineering Con which could be used across the wh the need for 'a simpler and shorter Engineering and Construction NEC family. The form has n

documents. There is a usef

The form is obvi i thoughtfully struct major document. right up-front (t

Wor any wor applicable; cons conduct of wor and updating; an

a contract eport stated

document, the 99 as one of the

ew NEC3 suite of

tract, but it has been very paired down version of the particular contract is placed

nd comprises:

payments; limit of contractor's liability; arbitration procedures (if relevant). if so they are to be listed.

ped and dated. The offer and acceptance bring about the

onthe Works which the contractor is to carry out, and for is to design; list of drawings; list of specifications

contractor such as sequence, timing, methods, and is for a Programme, such as form, content, submission

to be provided by the Employer.

Site Information: ground conditions, access, position of adjacent structures etc.

The Conditions of contract, which occupy only 11 pages, are set out in a similar although not identical way to those in the major form. The clauses are of necessity briefer than those in the major contract, and some provisions are omitted entirely,

Page 164: Which Contract

Traditional procurement: shorter lump sum forms

s ar

tha

byer may gi

tio` arties ac

erms use

ommunicatit en withi

on

iing a

art 11

, unle Y(U K)

by r ontra

uses in

a pted ich t

o ra

nti Add ndu

ncorpora kes account o

t&d, and tl

he inte

ontra as een s

i~sticat proc estrictioi

natur

ecifi u res

on tl

c

cumen tons hic

pe Ne p

e(e is no e E rrk

Sta n

mily/,

NEC3 (Short contract)

such as testing, health and safety compliance contract administrator or Project Manage authority for taking empowered actions.

The language used in the form has attr,

terminology is consistent with other is generally attractive. The only provi demanding in terms of manage nt Compensation Events, which are

The contract as printed does, no Construction and Regenera replacement clauses conc

to whic construction contract provisions would also is left to apply. The cl

Contract could be a

Addendum Y(UK)3 1999 may also short contract

rd, the balance

articularly oncern the

ajor form.

e Housing Grants, ditions, there are

icular contract is a

es, then the payment Construction Contracts

ineering and Construction e in the Contract Data. The

is (Rights of Third Parties) Act stated to be applicable to the

ed for use with straightforward work, necessary, and where the risks are relatively

e of contract work for which it might be

ded work which must be the determining

ractual spirit of mutual trust and cooperation (10.1).

ct are helpfully and fully defined (1 1).

to bbb in writing, and if a period for reply is stated in the Contract period (12).

e instructions which change the Works Information (13.2).

st obey empowered instructions issued by the Employer (13.1).

The Employer must allow the contractor access and use of the site (note: not necessarily possession), and provide the services stated in the Works Information (14).

Early warning is a significant requirement in the contract (15).

7

163

Page 165: Which Contract

=Q

3

7 Traditional procurement: shorter lump sum forms

164

e contract

re isWo consent req sible (21).

instruct

onabfy ro weeks a

ly no

omp asses

or ford (62 a63 ents;

ents

are inclu

ainst en ex

coul r loc

or cann at the desig

oyer

ay instruct

e as req

events, tly arisi

e net al caus t pe

nd

r

ve

rd whi for strike

nsation E

g the am the maa

ligatiorf can c

lies " the W

nstitu

The n dat

NEC3 (Short contract)

2 Time

Starting date and completion date are entered in

may not start before, and completion may be on or

The contractor must submit a forecast of th each week (30.2).

The Employer may instruct the contracto,

The contractor must submit a Program

Where delay occurs due to cert Compensation Events (60). Ther inaction by the Employer, but als

weather (measured in ratio of da beyond those which could re

completion by more than t occur. This would presuma

The procedures for no or rates and the mec contract as those i

3 Control

There is no provi

The Employer not the Employer n`o

on (31).

constitute action or

These are for

sical conditions event which delays

ally be expected to

control mechanism (15).

s designed, before the Employer has

rks Information (20).

may cancel any delegation (13.4).

n employee (21.3).

ccess for the Employer and others to work and to stored

-contracting, but the contractor remains wholly

ng.

e contractor to search for defects (40.1) but whether or e contractor of a defect, he is obliged to correct them (41).

After completion the contractor is to correct notified defects before the end of the Defects Correction Period (stated in weeks in the Contract Data) (41.2), and the Employer is to issue a Defects Certificate (41.3).

Page 166: Which Contract

Traditional procurement: shorter lump sum forms

NEO (Short contract)

Uncorrected defects permit the Employer to en

the cost of which can be charged to the co

Until the Defects Certificate has been issue

in the event of loss of plant or material

ere is no

once o th KQ 1).

than p

brea

eedings

: ers to 42). /

able fo /orks4

Contract Data, half is

ificate is issued (50.6).

ssment day which follows for Vterest becomes payable on

ute or regulations, but these would uty by the Employer, the contractor

d costs arising (81 .1).

erence to health and safety and the CDM on for termination by the Employer if the

regula ion (90.3).

ovide in joiames the insurances stated in the Insurance Table

e insurance where this is stated in the Contract Data, and ovided by the contractor (82.1).

eplac6ment cost in respect of loss or damage to plant, materials nd e:

serial

ends from starting date to Certificate of Completion in the case

and Defects Certificate in the case of the Works.

Insurance-maq also e required in respect of the contractor's liability for damage to property other t an the Works, and injury or death to persons for the minimum cover

as stated in the Contract Data.

The contractor's liability for loss or damage to the Employer's property is limited to the amount stated in the Contract Data (80.1).

The contractor's application will and is for the amount due (

The Employer is to pa

receipt of applicatio late payments (51).

es expr

n the fied ag

within thr for pa

)obIi9 ent

inst aii

In part' lar Regu ations, co ractor SL

6 this occ

The insuranGeJs for'

lude details o

t from f

ions r ting o sta

ch of statutory

press

7

165

Page 167: Which Contract

E

Traditional procurement: shorter lump sum forms

NEC3 (Short contract)

7 Termination

Both the Employer and the contractor have t presumably means the contract, although not e

There are eight reasons stated which allow for other party (90.2). The Employer may also t

The Employer must issue a Termination cease work (90.1).

On termination the contractor must leave the site (91 Em`ployeYmay have the Works completed by others.

Amounts due on termination are a

8 Miscellaneous

Use of the NEC Engineerin necessary.

The Addendum Y(U K)2, is n6 provisions no doubt Data.

The Addendum the short form.

contract, but payment ed by reference in the Contract

Clauses 9/tUK i ute re sol ion in e ort form should be replaced by clauses 93UK to , fo s in th Uni d Kin dom where the Housing Grants, Construc and-Reaen ati Act 1-496 aD ies.

9 Dispute

S=t=orma s is t 'be by reference to adjudication (93).

T be na d in theContract Data.

T e a ud or's de io is fina nd binding unless and until referred to a further tri unal'. The Contract ata ho Id state whether arbitration is the tribunal, and if

so, w t the pr cedure is to be.

166

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Traditional procurement: shorter lump sum forms

NEC3 (Short contract)

This contract?

It is intended for use as a lump sum o

and engineering works. Care is neede which are short but generally com adequate for the intended wor Acceptance near the front of the are particularly important and r

The law of the contract is

reference to the law of No amendments necessary to

The document is rath Conditions are adm comparison with eq

contracts or insuran out of proportor

cling

robably w ainly

rthe pr at first an

form rks, see

Mo tion b

is 'delega

to est lish t at th ith ork o his na

is = on * tad W

quire full e

r

at the ensurate

em tract`6

an refu

ing whele th to aw. Pre

Id h e e in

plici

e

give efiniti

not Ys the

ond iti

s ap p

tfo inor

satio

dece rably brie R ivale

:e. Th

hort ditio d

with other NE

nairofi

in

stra d S

s in othe e

clauses for rm, alth ug ml time i i

remen%er Mat:

rement confract f uilding onditions,

re, will be e Offer and

rks Information by both parties.

here is no express ly any consequential

uded in Contract Data.

because whilst some of the seem to be lightweight by

rks forms, for example over sub- Events, however, seem rather

muMe difficult to abbreviate this NEC

oney.

documents, is somewhat difficult to precision. The terminology is standard

clause. Recent UK legislation, where applicable been taken into account. This keeps the form

denda can be a trifle confusing.

come professional advice when it comes to e Compensation Events procedures suggest the

for contract administration.

itted and experienced NEC users, this form must be seen as a

family.

and Constru K)3 (Ju

nn n

on Short Contract (June 2005) 2005)

, Option X12 (June 2005) Engineering and Construction Short Sub-Contract

Notes

Engineering and Construction Short Contract Guidance Notes and Flow Charts

7

167

Page 169: Which Contract

Traditional procurement: shorter lump sum forms

168

onn ust co

bli ed dsc

rities

ith a ced u res

gen

orm refers to 'the

ntra

ierwi

The applicable la whateve the nationality of the Employer, and wherever the Works are situated, is the la ngland (1.7).

Works may be subject to the 'CDM Regulations' (Fifth Recital). If mainly soft landscape works then this is likely not to be 'construction work' and Alternative A will apply. If landscape work includes earthworks, hard landscaping, drainage, demolition etc. this might constitute 'construction work' in which case Alternative B will apply.

ere

reement

dsc e A sin

TNrK new oft JCTd

S. T include dditi rs r p

loy is fo

n

Minor

urrently in

'construction pd Rege

pu

rgerI

al auth f f75;

reeme ndsb

sible f

Supp rent o th tracts.

elunt to use t

visa

JCLI Agreement

The Joint Council for Landscape Industri

JCLI Agreement for La

Background

The JCLI originally had two standard form and Without Quantities. In 1978 these the then current JCT Minor Works A Section headed format (two years clauses of specific relevance to Ian

failure of plants, malicious damage dead at practical completion. The form Prime Cost sums, objections to none of which were include revised in 1987, again in 1

Landscape contracts will mo of the Housing Grants,

In 1985 the JCLI al

(IFC84) for use on the time some to

contracts in exces

opted a

additional ters as the

to cover plants rtial possession,

and full fluctuations, was considerably

n of a 1998 edition. need to take account

96 provisions.

then JCT Intermediate Form hought desirable because at standard JCLI Agreement on

e Maintenance Works for use where the care of trees, shrubs and grass

ntracts' adjudication is a statutory right, and payment the provisions of the Housing Grants, Construction and

ministrator' and sets out respective duties (1.2).

t Bills, and these are to be prepared in accordance with e 0.8).

Page 170: Which Contract

---I

'-`

Traditional procurement: shorter lump sum forms

JCLI Agreement

There is provision for partial possession (2.6

There is provision for replacement of plant (2.7).

There is provision for the maintena practical completion (2-8) either by

There is provision to cover maki to practical completion, either by a provisional sum (2.913).

Although the form does contractors, there is refer,

expenditure of Prime Cost is given to the contra

The contract may

Adjudication is p

arbitration or

s

ce tr

for

tate

ch fad before

an

he contr

tt

goo fcil4yving tire

efe

co) acto

o an ocecxures n st

(4.7);

0

les

ction the cor gh)f re o le o ri

e fixed pric

vide tion

t to x

for (8-1), and 8.2 and

i putes

plant e, Ero'i

ompletion

tc. post-

or theft prior 9A), or covered

or nominating sub- administrator on the a

ection to a nomination

tc. changes (4.6).

y be finally determined by

7

169

Page 171: Which Contract

fl,

fl,

fl,

fl,

fl,

r-+

0

030-

Q0

fl,

O-0

0-0

IQ)

7 Traditional procurement: shorter lump sum forms

170

actor, ods, healt.

JCL iss loose lei rs peculiar to Ian

The wording of he Conditio s closely follows those of the JCf form MW98 and therefore the struct la age and terminology will be familiar to many. For large hard landscape work it might be worth considering the use of the JCT form IFC98

suitably modified as an alternative.

er th endm

i.nor

uatio nomi

dam

d com for ppTti

ailur orm

ts,

e required relatin ractical c

plet n, flrk possessio

of plants, m drafted o i

C structi usiri

e form (comp)

ix to an

form,

tor, ao -expe in landscape operations might find rleti defects lia ility obligations and staggered release

les in neral e straightforward but if the agreement work bei arried out on the same site by a Principal

over coordination of contract periods, Defects Liability ments, indemnity and insurance.

ision nd Practice Notes which give useful advice on w k such as plant specification, watering, frost

ion, iability for plant failures and multiple Defects

easi

nd entri

a ma ion only,

tits The tect

i<able of The co`rgt Kt, vv

are ed, is t he i resol

trac

llt cov Ag repi

JCLI Agreement

This contract?

If considering using the JCLI Agreement remember

It is intended for new landscape work, both soft up to practical completion, but maintenance i

Landscape Maintenance Works. It is in one ve

or public sectors. There is provision for bills Qf qu a contract administrator (not necessarily quantity surveyor.

Subject to anything to the contrary, nationality of the parties, and wher For landscape contracts in Scotland, would be required, or preferably

There is no provision for pha Contractor. There is provisio and clauses dealing with the practical completion carekThe

When completing t damages for no conventional appe Conditions.

If acting as

difficulties of retenti is used in par Con

atever the

of England. on provisions

be considered.

ape design by the tiorVof sub-contractors,

e or theft, and post- pliance with the CDM

Regeneration Act 1996.

to insurance of the Works, pletion care. There is no

to be made in the text of the

Page 172: Which Contract

Traditional procurement: shorter lump sum forms

JCLI Agreement

Related matters

Documents

JCLI Agreement for Landscape Works 1998 Edition JCLI Agreement for Landscape Maintenance W

References

JCLI Practice Note No 5 (February 2002) JCLI Practice Note No 7 (February 2002

7

171

Page 173: Which Contract

-E'

5-o

n-0

°(D

Q._

fl,

f+'

,--r

Quo

N~C

o f6"

'.P

O-v Q

Traditional procurement: shorter lump sum forms

CIOB Forms

Chartered Institute of Building

CIOB Forms of Contract

The Chartered Institute of Building was on Society. It now has a wide range of consultants and clients. In 2002 it assimil Surveying Institute (ASI). The ASI at that t i contract and the CIOB consequently forms are virtually identical to those

he ASI ver

minor changes to the text and termino for completion at the start conditions or an appendix as

CIOB forms exist to cover a

which counts contractors, arc surveying profession a

approved by the Briti use with traditional basis. The CIOB a

beyond the scope

o Instit

metho o pubs

Building/ContrA nde or19.P

of q ities. CIOB o mare available.

of all types. It may be used either with or without -contract forms and nominated sub-contract

CIOB Small ontr ct (2 04 Edition): intended for use with smaller works e.g. private houses, al era ions or extensions, with the work shown and described in

drawings and/or cificationr Schedule of Works. Supplementary Conditions permit the use of bills of qu ies if required. This contract also makes provision for nominated sub-contractors and fluctuations if required.

CIOB Minor Works Contract (2004 Edition): for use with straightforward jobs or minor works of a relatively simple character carried out on a lump sum basis. It is not suitable for use with bills of quantities or where it is intended to nominate sub-contractors.

.t All rathe

donb- requ

ers

torn, re and

d forms of t range of

cts, with some des a Section

entries in the

eratio ide r nge of building tects, rchitectu

Vtee its emb s. The

ra b-co?

It Conditi

to 'she e rsh' ' h iri

ted the m b shi the pub ' ed g tan

ver eir p ation. T

ou pu he I cont ee lion o inck iv

o evi

cts are s g/r

ties management, which is

in are commendably free from legal ructured to a common pattern, with

uped under 11 headings. The contracts

dition): suitable for all types of works, but primarily

,andii`them

as befits an Institute nd all branches of the

ntracts have each been logists. These forms are for

a) lump sum as the contract

172

Page 174: Which Contract

Details relating

oint

istra

tals and the

ract d

ation the

enc entries rief citals, and t g

st b entered. There is

ie , or a dee Eac

1 eac as an ' list o kng Grants, Co

en

s of

elete rthele

to to r o "ses, bu a er maybe ator i efer o i Con

Wor ontr t, he n! tnote r t pa ess th

ars t

as

tract, rovisio of adj is ion b

r Constructi

(2004)

oveme

}bracts lis

act.

Traditional procurement: shorter lump sum forms

CIOB Forms

CIOB Mini Contract: in two versions, for Ho,

Use (1998 and 2000 Editions respectively),

The forms referred to in this Section are t Chapter 8 below for details of the Cl

CIOB forms are suitable for use

administrator is needed in all c

engineer. The contract admini in the Building Contract a

Works Contract - regard the term 'Architect' must is a Registered Archite to contract adminis

All the forms co contract. There are particular conct

ies. A contract tect, surveyor or as 'the Architect'

viser' in the Minor er on p. 1 states that

contract administrator `t the term when relating

tifythe parties and date of the in which details relevant to the

' ion for attestation to be under form has appendices peculiar to the clauses. The forms appear to comply struction and Regeneration Act 1996

nd if so then the relevant provisions of

of quantiti

re drawings, and bills of quantities or Specification. If the latter supply a Schedule of Rates. r icular contract are to be entered in the Agreement.

d by the Employer as contract administrator is referred to as 'the or'. If that person is 'Surveyor/Engineer' this will be an entry in

wording of the Conditions is deemed to have been changed.

The obligations-f the contractor and the role of the contract administrator are well described (1 and 2).

The contractor must submit a Programme/progress chart within three weeks of entering into the contract (4.11).

Key contract dates are entered in the Agreement, and the contract administrator may

7

173

Page 175: Which Contract

--6

,,.

7 Traditional procurement: shorter lump sum forms

C10B Forms

award at his or her absolute discretion extensions of ti of delay (4.4).

The contract requires practical completion (the d

approved in writing by the Contract Administrat Part/Sectional Completion as the 'Employer ma (4.6).

Failure to meet the completion date will r

confirmed in writing by the contract ad

The Employer may appoint a Clerk of must be confirmed as contract ad

Domestic sub-contracting is

administrator (5.1).

There is provision for nomina stated conditions (5.3 and 5

The Contract Sum is V labour and materials rules. Otherwise only,

The contract admi stipulate the basis

nistr

r-

requir

u`ft Ii

inistrat

ractor

poked ipstru t s (2.6).

`ed sub-con 4). ( -

e0usive.4luctuati yB

chang

incded, there

istrator/is embo r valuV(i.e. ei

ct administ approved by the con administrator measuring

Architect' by the Emp contr, pr f of pay

hite 's Fi r 4 been ade good fo

the contr

rk). N

rge will

o order vari

er acc

tor; tetht i

f the ccovfractor

are n mally is ed at monthly intervals, with payment 14 days 3 . Amounts payable to nominated sub-

in the Certificates, and the contractor must provide omply means direct payment by the Employer (6.81).

:o issued as soon as practicable' after any defects yg th end of the Defects Liability Period - normally six

onclusive evidence that work, materials or goods are t (6.91).

The contractor must7y'with all legal and statutory requirements, including giving necessary notices and paying fees and charges legally demandable (1.3). If changes from Contract Documents become necessary for reasons of statutory compliance, the contract administrator must receive written notice from the contractor (1.31).

Compliance with health and safety CDM Regulations becomes a contractual

as ed witf acco d

the C ntrac

d rates and prices for djustment by use of formula e allowable (7.3).

ions, and the order will also the priced document; or rates

quotation approved by the contract re is no quantity surveyor, then

174

Page 176: Which Contract

nom

..,

3-0

,,,

are an full Schedule,

smaller works which do not warrant ed for complex operations where the ropriate. However, Supplementary

vide for bills of quantities, and for the

by the Employer as contract administrator is referred to as

e Conditions is deemed to be changed.

e co-6tractor and the role of the contract administrator are listed

act dates ar entered in the Conditions (4.1), and the contract administrator r her absolute discretion 'an appropriate extension of time if

warranted by the circumstances' (4.4).

The contract requires practical completion, and this is defined (leaving 'only acceptable minor items to be completed') (4.2).

Failure to meet the completion date will result in payment of liquidated damages, as

Traditional procurement: shorter lump sum forms

CIOB Forms

obligation as well as a statutory one (Agree

Insurance of new work in joint names, aga contractor (8.1), although the Employer m

of existing buildings against risk of da Employer (8.2).

There is provision for determining the e

of default on the part of either E

out, and if determination occur, site, completion of the Works,, an

Disputes or differences are,

his or her decision (10.1).

yproced`u

(10.2). The contract lists the se

shortened arbitratio to refer a dispute to an adjudicator and

A headnote i

the use of CIOB Bu

Condition appoi

D

dicate bill of

ding t the

personp tt m i i, and the

ted =hte ra ddt nm

adjud icatio and tl p

:ondu t o he adjudic

ntrac,(2004)

tha

uant

d ru

(on (1

sted reasons are clearly set

moval from the cribed (9.1 and 9.2).

nistrator initially for proceed to arbitration can apply, including a

tion on the right of parties ting to the appointment of

he for is inte ded ies. t shou t be u

f da ag H d pen is

arry th insura e. In

ed perils sat tW eT4A

pl r o ctor. yen acts i in red settlel, all %Oim

t re sb

Con& rveyg'

o be

vul e more a

a quantity

The of

If the person is 'Surveyor/Engineer' then this will be a Recital

roce

7

175

Page 177: Which Contract

o E

Traditional procurement: shorter lump sum forms

CIOB Forms

certified by the contract administrator (4.5).

Domestic sub-contracting is permitted, but only approval by the contract administrator (5.1).

There is provision for nominated sub-contracto stated conditions (5.3 and 5.4).

The Contract Sum is VAT-exclusive. Fluct labour and materials may be included charges will be allowable (7.3).

The contract administrator may ord basis for valuation (i.e. according

al and stat

contract administrator; or quotation daywork) (7.2).

Architect's Interim Certifica payment by the Employer contractors must be identifi

Architect's Final Certi f following the end o

Insurance of r contractor

of existin Employe

Di

ew wc k of damage by listed perils is by the

kate t be iss d after ny d

the De Acts Lk bility Pe-i iocl nor

st coryiply

- 1), altho h

uildi agai

(8.2).

ns of ere is ave

vides

limite

fety

e co a adm

ed at . Amo

fir

pliers,

ntervals (6.2) with is for nominated sub-

advised (6.8).

fects have been made good, ally six months (6.9).

ory requirements, including d 1.6).

oint na es ag nst-6 e Emp er may el

s,it ri of da age by

efere

ute ar to be si

'on (10.1). If not sate

t to carry this insurance. Insurance listed perils is at the 'sole risk' of the

rmination "e employment of the contractor for listed rt of either the Employer or the contractor (9.1 and 9.2).

to action and claims subsequent to determination.

r riati the p

prove cu ; or rate

s, a e order i a(so

nor ally is 5-0 -44 days (6-

e Certificate

e contract administrator initially for his or her deci There i

the procedures r

resolved they may proceed to arbitration (10.2). Iso a S ion n th'

ting to th adjudication (11

right of parties to refer a dispute to adjudication, and appointment of an adjudicator and conduct of the

A headnote indicates that this form is intended for 'minor' works on a lump basis. No bills of quantities and no nominated sub-contractors.

Contract documents are drawings and a Specification or Schedule of Work, Health and Safety Plan.

sum

and

176

Page 178: Which Contract

r_+

CD-

Q-6

Traditional procurement: shorter lump sum forms

CIOB Forms

Details relating to the particular contract are of the Conditions.

The person appointed by the Employer as 'Adviser'.

the role

erim C

'2), wi

AT-excl usi

is (7-

rtificate

I Certiffcate

Ived, they ies to

omplyv(iith all

e (1.3).

of the defects period (6.5).

tatutory requirements and pay all fees and

k in joint ̀n rr s against specified perils is by the contractor (8.1). g buildings against specified perils is at the 'sole risk' of the

to

termination of the employment of the contractor for listed mployer or the Contractor. There is very terse reference

low (9.1 and 9.2).

be submitted to the Adviser initially for his decision (10.1). ay proceed to arbitration (10.2). There is also a Section on the

'fer a dispute to adjudication and the procedures relating to the appointment of an adjudicator and conduct of the adjudication 0 1).

Key contract dates are to be enter in his absolute discretion, an ex

{

The contract requires practica followed by a defects perio

Failure to meet the completi

Sub-letting is not per

defects

nsion'

ered i

e ilae cir

mp on e ove

tions, a

CoNdition

Iv o onths

ill d fro y

Ilbei fter thi

Employer

nt of li

or is re

uidated damages (4.1).

the Adviser (5.1).

time to time at the discretion of the e within 14 days (6.3).

ued after proper completion of the work and

contractor r usf

ins nce otew wo ran of existi

Empl yer ).

trac reasons on the to actionsich m

7

177

Page 179: Which Contract

7 Traditional procurement: shorter lump sum forms

178

ree comp uctur Idin

ator

tfacl orw i

m

inter

ainWworde

ate o

-memb

Contr th to that ks C trac ilen this

bjec the w o E Ian

itablese and

rovis ar tffi

d

ear to

ain th eck in'

ermin ,ano fates, insu some, Dent

Coh

Ktructi ination

Cont

nce, ai mited,

concerned

5truction Contr e fo

ut no `r Wor ontra

traightfo

considerabl onve

r

eon each of he for oc author use The

ml t also ti

d the

GOB Forms

If considering using CIOB forms remember that:

The intended scope of the contract is carried in a

are all for lump sum contracts, and for pri obviously for use by CIOB members, but considerable interest and may use them.

The Building Contract and Small Wor contract is English law, but the Minor forms refer to adjudication procedur The forms would therefore not ap

Contract administrators should first be nature of the intended work Practical Completion Certifi their requirements. They are work. Certainly as far as pay' '

required by the Housin be subject to the Sch

by the Contractor, except in the Min and domestic su

Documents

Building Contract 200 Small Works Contract 2004 Edition Minor Works Contract 2004 Edition Domestic Sub-Contract 2004 Edition Nominated Sub-Contract 2004 Edition Contract Administration Forms

(eight in number, available in pad form)

Notes

ately cover the e provisions for

djudication satisfy best used for traditional

to be light on detail on Act 1996 and might

ere is no provision for design nd suppliers is provided for

tare available for nominated

authority, and contract administration ional operation. There is a full range of

available.

ting forms, traditional in scope, clearly set out and Likely to appeal to clients, and certainly to smaller

Agreement for Appointment of Professional

Adviser Agreement for Appointment of Planning

Supervisor

CIOB Contracts Guide - Guide Notes on their use

Page 180: Which Contract

--o

8(o

Traditional procurement: shorter lump sum forms

SBCC Documents

Scottish Building Contract Commi

SBCC Forms of Co

Background

Scotland might form part of the differs markedly from the la

Westminster apply to Scotland, of law in Scotland are not th law and Canon law over structure, not to mention a

have also helped to 'intermediate betwe

Despite pressure frj measure maintained out work in Sco

and in the la rel

ime

d Ki do but ots w, fi

:dso la a Wa le on lies o

tho f En Ian , a the

istinctiv

Civil la

m En

their ed t

what

rical reasons,

statutes from cotland. Sources

fluence of Roman system and courts

nental links in the past has described as an

confo oble and ind

take acc r pro rty, de r

English law f tort) nd o

In the pa , build' g co tr rather tha Repor 9

tha the exis

b ' dino ind

u rse

aw, the Scots have in large Therefore architects carrying

ificant differences in legislation, adly speaking the equivalent of the

tland wer bften based on an exchange of letters ocumq

highlights

Scot h jIdinc

tr ctured a

op ff i tee i

in Scotland as fo

de b

com

fits, and the di'9`

irect trades contracts. The Emmerson ent circumstances in Scotland and concluded

Ite uniqu hkolog`j con

basis

nded t

party b

ittee.

as unsuitable for main contracting in the at closer links should be established with

appointed in Scotland, which duly resulted in

report from that committee, with the initiative ation of in Scotland, resulted in the formation of the ntract Committee (SBCC) in 1964. The SBCC has now been

f

company. The SBCC Ltd board is advised by a Consultative m representative bodies from within the building industry

Scottish i

The Roy I Institution f Chartered Surveyors in Scotland; Scottish C;

Convention of Scottish Local Authorities, National Specialists Contractor's Council - Scottish Committee; Association of Consulting Engineers (Scottish Group), Scottish Executive, Building Division, Confederation of British Industry;

forma

7

179

Page 181: Which Contract

Traditional procurement: shorter lump sum forms

180

Association of Scottish Chambers of Commerce.

This is obviously a wide representation compared,,

'fly in t ,editio'

es

the ti forms are

nditioi t. Thi

e Sco

a signi welcomed

ontract ra ct

With tinor Sc tish`R6ilding Contrast

Scott' h Building Caiatract Scottish Contr ct G

tish ottish ottisl6

Bu-i

Buil

ill to be up

ractic g patio eleva

ctive

onsi kale for

ontrac nomi

r com Scot

t to

to pal nd of

t rt in proves

plement uil ' g C

p in 96 'subj ner whi nfo d

ation o

it theme

q Engl d, Sccy

SBCC Documents

The Banwell Report, issued in March 1964, common form of contract for all construction Wales was both desirable and practicable'. I

the Joint Contracts Tribunal inviting the Scottish the Tribunal, and this invitation was ac SBCC to issue Tribunal forms in a m practice'.

SBCC Ltd is therefore primarily res

use in Scotland. It is also respon advising on the interpretation of these and publishing guidance an party tribunals, and attendi JCT. SBCC Ltd is now the '

within JCT Ltd, and takes an and practice dictate.

The SBCC is curre with the JCT 200 of new forms. The are entirely incorporat Scotlan

ications to bring them in line as produced the first of a suite

to the earlier SBCC 'supplements' but ish Building Contract terms are now

cant step for the building industry in

y the users.

proximate Quantities orks orks with Contractors Design

uments for g such forms,

ractice, drafting mediators or third uding those at the

Construction Industry afting where Scots law

Scottish Building contractor's design (2002 revision) Scottish Measured Term Contract for Maintenance and Minor Works (2002 Revision) with Scottish Supplement (Notes to Users), Scottish Management Contract (2002 Revision) with Scottish Supplement, Scottish Management Contract Phased Completion Edition (2002 Revision) with Scottish Supplement.

Page 182: Which Contract

O-,

3-:

(SD

Traditional procurement: shorter lump sum forms

SBCC Documents

There is an additio ecutioxr

o p,i'ovisio e a page f

cot05

difference i

issue

flutio iron p

SB

Scotla#who ar eek advice f,

fini

off-si

ttesta

testati bitrat

s dance on in Scotland. ced u res

CClkas pro

dertaW ra cts

MW/S'eot05

orks C ntra (MV WWD/ t05) a

ifferences b s folio

own ve

rms IaQq y

omi sub-c s a ateria

ansons

eMorks ontrac /Sco IScotti ETIn, oye Revisi ); ntra of

tes to sers.) 11

e

an2,,SBCC `rsions

f nomf-aatedAnd do

(Both these Management Contracts need th Invitation; Tender and Works Contract; Agreement; Works Contract/3/Scot (200 Works contractor (2002 Revision) and S,

In addition the SBCC also publishes it contract forms, the SBCC Contracts contracts.

Use

The Conditions of the ada Modifications relate to determination, payment damages etc.

The most significan Scots law. The SBC

concerns dispute re

Scotland, and a

a statutory ri

JCT documents. ors and suppliers,

deducting liquidate

made in accordance with procedures. Another difference

n Act 1966 does not apply to e quite distinct. Adjudication is

own Adjudication Agreement.

cot05), and Minor Works Contract with clearly closely modelled on MW05 and

etween the JCT and SBCC versions of the forms

r the optional use of bills of quantities (second recital, third pointment of a quantity surveyor (Article 4).

10 to deal with 'registration hereof for preservation and

for Attestation as set out in MW05, but the contracts the insertion of particulars of signing in a Testing Clause. Model

ce are set out at the back of the forms.

Applicable law is stated to be the law of Scotland (1.7).

2 Time

The wording of the clauses is identical, save for some clause number cross references.

7

181

Page 183: Which Contract

u

Traditional procurement: shorter lump sum forms

SBCC Documents

3 Control

Covered under Section heading 3 in MW05, MW/Scot05 due to a provision for bills of quantities 3.

Wording of the provisions is mainly the same for listed sub-contractors.

The main contractor may choose a dome three names as set out in the Cont maintaining the list at three, and a

(4.3.2 and 4.3.3). This is similar to

4 Money

Covered under Section headi

The wording of the clauses i

5 Statutory obligations

The wording of the cl

6Insurance

e account

iscel

with pro tish le

hea

ules are the same f The w legislation. Mere the parties are r

9 Disputes

le P

diti

ut Sectio heading 6 in MW/Scot05. The orms, except for some minor cross

ig 6 i W05 b fit Section heading 7 in the SBC versions. Ins is ide 'ca in both forms, except for an additional edings in of erjurisdictions (7.1 -5) and adjustments to station (7.6).

ms in respect of 1: Arbitration and 2: Fluctuations t 2: adjudication is different to take account of Scottish nal Schedule Part 3: Contract Documents under which all the documents forming the contract. quired to lis

Part II of the Housing Grants, Construction and Regeneration Act 1996 applies to Scotland, and either party has a statutory right to refer any difference or dispute arising under the contract for adjudication.

The procedures and rules for adjudication in clause 8.2 are identical to those in MW05.

4 in

identic

ction h6adinc6 in

ses is identic

of throvisi

h both fo

Se io hem rd

, nder S ction

is s co ac from ct Docum t T is a

r on ere roJ p laus

ve for s

statuto

182

Page 184: Which Contract

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Traditional procurement: shorter lump sum forms

SBCC Documents

Arbitration in Scotland is not subject to the 1 sets out the relevant procedures and C

unless it has been selected in the Contrac

The alternative of court proceedings is

rights in relation to opening up and

This contract?

If considering using MW/Scot

It is intended for building w for work of such duration used where the Employer administrator. There is provisio be appointed, althou for such matters as

required to design

This contract is

is drafted to Housing Gr

As with J

this SBC

names

SBCC Guidance Notes upon Dispute Resolution in Scotland

cotzK

stru

ears t

edica

and form e with t nsu

nts, C

ntrac cles f re is also a

e for , de isions a

pletion. Ap rbitrati

he or aluations. porti

sta

plia ion ari

or

eC erati

vision for p

the Works

rbitrati n Act 96, alx es wZr h , Th

P artic s.

re o in clause4 and c

n ce icates d d isions.

re

Related

Docum

SBCC Minor Works Contract 2005 Edition, 2006 Revision

SBCC Minor Works Contract with Contractors Design 2005 Edition, 2006 Revision

Notes

and is not suitable uired. It can only be

Itant to act as contract a quantity surveyor may

ified role under the contract ed if the contractor is to be

ing works in Scotland. The form Regulations, and with Part II of the

n Act 1996.

aced completion. Unlike the JCT form, sub-contractors by way of a list of three

e required relating to insurance of the Works opriate deletions will indicate whether the final

n or court proceedings.

administra dr, the Conditions are likely to prove adequate for procedural rules are simple.

s SBCC form can be seen as more of a middle range contract e full SBC version of SBC05 cannot be justified. There is

CT IC05 form.

7

183

Page 185: Which Contract

184

Page 186: Which Contract

The Joint Contracts Tribunal Ltd Agreement for Housing Gran,

The Joint Contracts Tribuna Building Contract for a

cts betW,,

ss, in pa

' (i.e. a

mer nsu

cularna p

pplie

epairs a

f Building

Works

intena

ct 2004 Editio

to proteq 96 er so that f cts Regulations 994 (SI

e which might ca,

is d (e.g. thi would nerati

al s ises), a re uire that r e th isu er uch terms

pressed

' i.e. a tural erson entering into a contract for purposes on wish have w rk carried out on his or her own house) and

1 services in the course of their business).

lain, i

put at a disadvantage. The Unfair Terms in

94/3159) apply to contracts which have not been include all standard forms of building contract and here must be no unfair terms. Terms which are

se a significant imbalance in the parties' rights to the not be binding on the consumer. The Regulations

elligible language.

will normally 13-4 classed as consumer contracts, although some might also

185

Page 187: Which Contract

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du

ed for s HG(

is for be

t 1996. Is dire

and

ea ith the

e for nurse, n.

the ousin Gran ntract ca nec b ed in 2002. It s

Narc ct or con

wed the v

vas appoint iiere th

eement but the Conditio seven c e . and f

kno f the payee

the I

ISO, o Ive bi

ova

e intro

was of the

d. The ink-cored nt dealt di ctly wi

ibunal first dduce" vari wit? 4z ous w

nts under' of f

in o r

ino

XT HG(A)

The Joint Contracts Tribunal Ltd

Agreement for Ho,

HG(A) 2002 Editi.

Background

In 1970 the Joint Contracts Minor Works 1963 Edition, by the local authority. R

Housing Act 1989 saw t Renovation Grant Works, whi RG(A) closely follo where an architect and was for use w was appointed.

With the intr, 1996, a rev,

Grant Wo contrac grant is

Reg

w

e Agreement for h were grant-aided

cal Government and e 1994 Agreement for ions. The white-covered

orks form and was for use

was a more maverick form the contractor and no architect

Construction and Regeneration Act sary and the Agreement for Housing persedes the RG(A) 1994 Edition. The

ract administrator is appointed, and a

o the Housing Grants, Construction and arently no plans to revise the version for use ontractor without appointing an architect or

er RG(C) is now so outdated that it must be wer consumer contracts specially drafted for use

ilable.

eement for Housing Grant Works is closely modelled on the ing Works MW98. The total document runs to 31 pages

my 10 of these. The Agreement includes six Recitals and e Conditions are Section headed. An Appendix comprises copies edgement and authority which must be completed by or on of the grant, and sent to the local authority. This sanctions

al authority direct to the Contractor.

A very helpful Guidance Note is included with the form, and this precisely summarises the types of grant currently available, as well as giving some worthwhile advice on contract administration relating to grant aid.

The Conditions reflect the nature of the work, and the wording is appropriate for

0

187

Page 189: Which Contract

..l-

$ Traditional procurement: consumer contracts

JCT HG(A)

wording. obviously be complied with in addition to the ex

concerning notices over payment procedures, Regeneration Act 1996 do not apply. Where Part 'construction contracts' to which Part II of the Hous

probably be suitable. need to be incorporated at the outse reason, still insist on going to arbitration the parties entitled to refer final resolution Adjudication is included as probably the most

Use

The form is intended for use where an appointed, and where a gran Construction and Regenerati

The Works are to be carrie fluctuations - not even tax Contract Drawings, co will be lump sum, ba

The Fourth Recital

Recital states the are made for paym e

contracto

ides fo`r

ontractor is to per

oyer has ap

fig Gra ts, does pply the sta utor ob ati requi ents i the coract

olvind

hQ P

utes, for some avisionsn

with no provision for ments may comprise

ult. The contractor's price ntract Documents.

y out and complete the Works in accordance with the

hose described in the Contract Documents (1 1).

The Architect is liged to issue any further information necessary to enable the contractor to carry ou-tlNorks (1.2).

Inconsistencies in or between Contract Documents shall be corrected and this may be treated as a variation instruction (3.6).

The printed Conditions prevail (3.6).

n Act 199

out

rchite

or aln agreed lu nges. The cfi

S cifica pn, and ed upo,) prl\(ng ofe rele

ates th m for ats of

ft the 5eQt hi a gra t

th gran

ing uhder h

188

Page 190: Which Contract

c the

ths, al

he Ar

o compr the rate i

mplet

certi

tra ou

itec

rovisi

actors 'co (3.3). T

`tten consent refers to 'this Agreement' (3.1).

for naming a sub-contractor, and no provision for including a

date to b

Coons, a uivi _or ntm4nt ma if ne

chite f c p in 6 h

the c ntra s c 1 (2

e co cto co

fisted.)

ed by th

oriso

be issued in writing (3.5) but may be oral and confirmed include variations (3.7) and this would presumably allow

no specific reference is made elsewhere.

petent person' is to be on site at all reasonable times (not re is no provision for a clerk of works.

There is no provision for testing, opening up or action in the event of non-compliance. Non-payment would seem to be the ultimate sanction.

There is no provision for work to be carried out by persons engaged directly by the Employer.

Traditional procurement: consumer contracts

JCT HG(A)

Where the project is notifiable under the CD

Principal Contractor must be identified, and Recital, Articles 4 and 5 and clauses 1.3 a

The Works may be commenced on a date to be inserted (2.1).

The contractor is to notify the for reasons which are not with contractors or suppliers areithin The Architect is empower (Note: no specific grounds

If the contractor fail damages (2.3) and certificate of non-c

ion.

of ti

i,oserted

s been discharged.

possession, nor for partial possession, nor for

recti

er is entitled to liquidated there is no reference to a

defects. (The Defects Liability Period e inserted, 2.5.) A certificate is to be

ibligation ferrin

Written con nt to slob-contra

is n

approv

0

189

Page 191: Which Contract

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190

4 Money

The Contract Sum is VAT-exclusive (Article 2).

The contract is fixed price unless stated of

Where a variation incurs additional work, the whether this will be eligible for grant aid (3.7

Instructions must be given where provisio work is either to be agreed in advance

Direct loss and/or expense is limite included in the valuation (3.7).

Provided that the contract period is to that Progress Payments are ma issue certificates to the Empl figure is entered).

Certificates will show the am payment by the Employis 14 final date for paymen can also give the co

ill a

tractor,

tificate

issue g go 28

he def account (4

to of

e Certific

W ere e n a resi tial occupier (for example in the case of a landlord wit a h e in multiple cc atio grant) then JCT HG(A) might be a 'construction contr t' to which P t II o he using Grants, Construction and Regeneration Act 1996 ap this c se t Employer would be obliged to give notices to the contractor as req it der ections 1 10 and 11 of the Act. Notices would have to be given within e applicab time limits, stating the amount proposed to be paid, and any intention old or deduct money. This would apply to Interim, penultimate and Final Certificates, despite the absence of any such express provision in the contract Conditions.

yer. Reten

ct`Fnteres

a validht to

rficate

mpletion o inform i fort

iqure is X ser ed) f

ificate, the

chitec

valued fir va ons.

riatibb s or

e in ded

ys,

(4

cent

er th eekly 1

ill be a

e and the Qrn issue

f5pe

t half the

of f th r ent

nd

Docum

JCT HG(A)

The Final Cer,

signifying necessary,

different

r can request e Architect is to

unless a different

ons. The final date for te. Failure to pay by the

ver the current base rate, and w rk (4.6).

14 d ys after practical completion ention (4.2).

ys of either issue of the certificate ts, or the contractor submitting all

). He is given three months (unless a

ractical completion to produce this.

inal date is 14 days from the date of issue

Clause 4.4 covers the payment of the grant or any part of it directly to the contractor by the local authority. Signed copies of the form of acknowledgement and authority

Page 192: Which Contract

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termine the employment of the contractor if he fails to proceed ks, or wholly or substantially suspends carrying out the Works, Wo

comes inso. vent (7-2).The latter does not mean automatic determination.

In such circur tafTtes the Architect may issue a warning notice, but notice of actual determination is a matter for the Employer.

The contractor may determine his own employment for stated reasons (7.3).

There is no provision for determination by either party for neutral causes.

Traditional procurement: consumer contracts

1CT HG(A)

(in Appendix to JCT HG(A)) must have

contractor by the Employer. Certificates is

the amount of the grant to be paid, and t amount otherwise due to be paid by t the Employer within 14 days of the da

5 Statutory obligations

It is the contractor's duty to com required notices (5.1).

The contractor is to notify tlAre statutory requirements and he will not be liable to the

Where the CDM Regul

the Employer is to e

out the duties requi

6 Insurance

part

event

/ind requir,

ure that th

n sen to t ed by h

is amo ul ts d

E l oyes b

issue the Cert

itect ritir if h`e i tract bligatio 1ethis c ct.

iafull a

Plah-r in

under th g SO

DM s rv

itec will t d e cted fra Zn

ce sha e Q

ficate

ativ i`Vthe Sixth Recital applies, an Principal Contractor carry

,aula ons.

re

d to mange i ra ce to

ed to

ontrac

or is o specified i

of spe

requires an e

arrange i

Iclaus ically nclu

ay d

A pe de

ntage

ect of personal injury or damage to ack this (6.1 and 6.2). The minimum ry (6.2).

rCe of new works in joint names against This is for full reinstatement value, but note heft, vandalism or impact, and advice should cover professional fees should be inserted.

of ex ing stru ures, together with any new work which forms r convers n, s to be arranged by the Employer. As with clause

quirement is for cover only against specified perils (6.313). In the e the Architect must issue instructions, and the cost of making

un r clause 3.7 as for a variation.

7 Termination

0

191

Page 193: Which Contract

$ Traditional procurement: consumer contracts

JCT HG(A)

The respective rights and duties of the parties follow the Conditions (7.2 and 7.3).

8 Miscellaneous

There is no definitions clause.

There is no reference to access for the Archi

The Architect may order the exclusion o

There is no reference to antiquities, to

There is a contracting out of third ri is ur th-6"Contr (Rights of Third Parties) Act 1999 (1.8).

9 Disputes

Article 6 of JCT HG(A)98 pr

Procedures for referral to djudigal o,4, and theaRpointhcig of an adjudicator, the powers and conduct of an

The adjudicator's dec' io ' bil,ding bathe pariies, aleasf until the dispute is finally determined by legal

Article 7 determi s that bjec to dj 'cation, disput s or differences shall be finally decided b

legal

rocee There s no p

io r arbitration.

192

Page 194: Which Contract

a,c a'-m

Traditional procurement: consumer contracts

JCT HG(A)

This contract?

If considering using JCT HG(A) remember

It is intended for use in housing improv, has been appointed and a grant

Construction and Regeneration Act 1

short duration, with a fixed price quantity surveyor.

The form is for use only in E

Construction and Regenera Scotland.

There is reference to grant paym 4.4. The Appendix is

There is provision for of dispute resolutio

i ri

When completiog th completion a

of the Hou modificati

ma>v

lotions.

k mus istrati

e of

wled tfor a

fth Recitals, and clause hority for grant payment. itigation is the final means

decision flae Work

nstrun add Re

tor th t elaxed` e co n

uses will be re

relating to damages for non- e the contract is one to which Part II

eneration Act 1996 applies, some uired (as those for MW98).

ral rules are brief and relatively easy to it is important to watch out for any grant within a specified time. The RIBA does not

'r HG(A), but some of those for MW98 could

ative of A helpful guidance note is included, which s of grant currently available and provides commentary on the

JCT Guidance Note Housing Grant Works (included with form of contract)

JCT Guidance Note for MW98 (included with form of contract)

hg Gr

of th

ontra

form

adjudicatio

for

minis escales are

t'work, where 'contr a

to b

6. It is

is nnrov

m- We und6r the/H ntracts

onr the app

996Aaes n-ot ex

t proc

Commentaries (relating to MW05 but relevant)

David Chappell and Vincent Powell-Smith The JCT Minor Works Building Contracts 2005 3rd edn, Blackwell Science (2006)

Sarah Lupton Guide to MW05 RIBA Publishing (forthcoming)

0

193

Page 195: Which Contract

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$ Traditional procurement: consumer contracts

JCT HOB and HOC

The Joint Contracts Tribunal Ltd

Building Contract for a

/Occupier who has n

consultant to over

Building Contract Agreement for /Occupier wh consultant t

It used to be thou smaller builders, consultants. Ho for engagement appropriate

reshi

t tha

ch w ever, t e re nt b in this arket

produced to c r ut atte in t at t h

ined for t

The

i att

or cus mer comme

of work.

ysta I

ps directly to custo

Occupier, sui home improve improvement o

ed i

e wh

hom mpr veme ost pa was n

ousing i

ave show`

is might prove lucrative for t of interest to professional

'provements and the potential e need for forms of contract

ms of`btyflding c ntract for home owners or occupiers me c building work. They both follow a relatively y are ckage in a folder, there are counterpart copies d the bui and guidance notes. They are written in

dably free from jargon and legalist language which has

rk for Clarity approved by the Plain English Campaign. to ket them widely through retail outlets such as book e

1999 was the Building Contract for a Home Owner/ re the customer chose to deal directly with a builder for ensions or repairs. Obviously this promised a significant nts, small e;

-oral arr parties to consider me deal.

gements or poorly worded letters, and encouraged the odically and agree the important points before concluding the

The second form published in 2001 was the Building Contract and Consultancy Agreement for a Home Owner/Occupier who has appointed a consultant, and it

194

Page 196: Which Contract

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JCT HOB and HOC

The B ilding s pLOYdT aox pproach used it is for very small

rtial s ice

pointing-a_

The Buil

intends to ap'p consultant to deal directly with the builder. Note that it is suitable only for a home owner. If the work is being carried on as a business venture, then one of the commercial contracts should be used.

builder,

Contra

nsul

an

s

blished

s ap JCT Cons

is b d i ng ee

5 ions:

ccuust se

licat h w the

The

yare cope

ted o"

ential bui

rrange ' The

s servi( Pa

es of X. Ther otes are prj

an asy to un rstand. They are only suitable for construction rt II of Ho ing Grants, Construction and Regeneration Act not apply. e CDM Regulations will not apply.

-or a Home ow

must not be used where a consultant o ated cost limit, but as will be obvious from the excellent tick

document, and the basic contract Conditions, ie ork only. Incidentally, for architects who are involved in a

iestic work but whose clients nevertheless ask for advice about his form would be a sound recommendation.

ionnair ndly t

two er, an

11 headin

and onsultanc pear ce.The

en for th work, nd P

an Agree t is als

e Conditio

ng an presen tion. His c f the I rger- le esti

build' s veyo , tha the smalle work a co m

to act the c sto tan Agre t for

nt t. It is likely t nts blis d by t1j4

uildi

J

ial

followed the same attractive format for packa

to be a more appropriate form for much attracting the involvement of architects a

Works Contract which is perhaps more s

It can be used only where a consultan and the document folder includes a

services which is dedicated for use with t appropriate in these circumstanc bodies. Both forms are now re

Nature

The Building Contract for a

two parts. First there is a ques the arrangements for t simply worded uncle an enquiry letter to s

The Building Contra rather more for,

Part 1 is the 13 heading consultan of just 14 and G

en completed sets out ct Conditions clearly and

ustomer is provided with t of helpful guidance notes.

a Home Owner/Occupier is

Contract which has two parts; is the Conditions set out under

a two part document; Part 1 is the set out under nine headings, a total

for the customer and the Contractor, e inside cover of the package.

ork now Minor ature.

pr'' behalf, ofessional

prove more

professional

and Consultancy Agreement is for a home owner/occupier who

0

195

Page 197: Which Contract

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JCT HOB and HOC

Brief synopsis

1 Building Contract for a Home Owner/Occupier

Lump sum contract. Note that contractor's quotati

Drawings and/or Specification or other docu

Either customer or contractor may deal with plic,1tions or anninq permition, building regulations and party wall cons

Facilities for Contractor, as ticked, to provided e f c e by e to omer.

Contractor's responsibilities includ orin equ ent t t d o each day, regularly disposing of rubbish, an leavin II c n an after i is 'ng the work.

Payment may be single payment or agre ins Ime t mer to pay on invoices within 14 days, 95

Working period may be or art and corhoetion date entered. Working hours may be spe

Only customer can char wok deta'k. contra or to ubnWa price before work goes ahead.

Customer can ext d wor peri if ntractor is delay d for limited stated reasons.

Insurance provisi s custo er's h insurance, contractor's all risks

cover for dama e to ork and unf' ed m rials, and public liability cover.

Provision f occupati a secu ' o premis s, very limited.

Defects per d is thmont s, and c o r will pay remaining 5 per cent of money due,vgtd 14 ays of con actor puttin right any faults promptly reported by the c

If isp p ty can art court proceedings, or may opt for adjudication.

2 Bui ing Contract and C s a y Agreement for a Home Owner/Occupier 2005

Descripti e wor is d tailed in contractor's quotation/consultant's drawings /consultant's spec i . No ills of quantities, but 'other documents' may be included.

Lump sum contr . Contra or's price is VAT-inclusive. contractor to itemise this and show details of VAT c argeable.

Price includes for 'unexpected problems' which should have been foreseen by the contractor from the documents or a site visit. Contract figure can only be changed up or down if changes to the work are instructed.

196

Page 198: Which Contract

Traditional procurement: consumer contracts

t consultan

comp to t nsult t or he c

ant is respo Consult

they

ons con

e wor likely, e au

make an a

nts sure t

Welfare facilities tbbe

tractor

details

ntrac

car

carry ou

elude ov ing cess the rking area r o stru or

derh h ns e nece

tvng in rons es, i

t th

stom two

ctifie neta

actor has-re

OW4 are no r s invoices are e consulta, -

nere c

ropri`e

ake a it nd rea

'for reasons b

he con

contr hough

tract ith t

r.

be only ust quote t

cjsj

4x guara

the fe dto

JC T HOB and HOC

A start and completion date should be enter hours may be specified.

The customer can expect to receive the be

The contractor's responsibilities includ and to be 'at the premises regularly t duties and responsibilities'.

The customer's responsibilities i

the working period, keeping contractor to carry out work j time.

The consultant will act for the in issuing certificates. and second after th of three months. Al satisfied that the co of any directly with

xtensions of time, and of the work,

end of the defects period ertiflc`ates, the consultant must be

ontract states that in the event he contractor must take this up

y the consultant. Where an increase

extra cost and time involved before mounts to a reduction of work, the

eduction.

onable extension if the contractor is unable and his control. If delay is caused by the

actor may also be entitled to costs.

ible for pla?afing permission, building regulations and party wall nts acting for the customer in serving party wall notices should

ve written authorisation, otherwise their capacity to act might

ded for contractor free of charge by customer are as ticked.

to ke all practical steps to prevent or minimise health and safety omer and other occupants, to minimise environmental disturbance,

pollutio . In return the customer undertakes to take notice of warnings by not knowingly allow occupants or visitors to be exposed to dangers.

Payment may be a single payment or by instalments as agreed. Customer to pay 95

per cent of total amount due. If stage payments are selected, they should be clearly defined and amounts stated.

Customer is expected to pay 95 per cent within 14 days after completion has been

0

197

Page 199: Which Contract

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$ Traditional procurement: consumer contracts

JCT HOB and HOC

certified by the consultant. There is a three months D

of which the consultant will issue a list of any fauIZ the remaining 5 per cent will be due within 14 days

Insurance provisions are minimal, and limited to us all risks cover for full cost of damage to ork a

stipulated) and public liability cover. The cc) ct liab

Provisions for occupation and security re s

residence the customer should be mad aware t which might result, and the contra r sh Id o measures as appropriate. If the cus er vaca

policies should be checked, as most sp do unoccupied beyond a stated pert and eci advisable. Also the contractoro bligati n to a p

precautions' might require

If disputes arise, either part, In the latter event the contr Council to be appointgT

Other rights and re edies

mething

can s

zto r

e no

ore

u

i ility riod, ese ave en re ified

plet n h bee ertifi

ve ility

esare Ii

in

to

veni a

rce, co ac terials (no

ce

ng in

ption r u

mp the rern\ hou

where a rrgents

racti t

ecifie

urt proce y not apply_te h

exting hed

th

a

peci

ryrotective

re

e insurance ises are left ight become

common-sense cation.

ay opt for adjudication. ation I Specialist Contractors

contract provisions.

198

Page 200: Which Contract

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Traditional procurement: consumer contracts

This contract?

aging is ri

e form e co mme in uildin

icular no d

identifi

e forrt adop a

miliar t most corms

and cus m r orien bly written i

ember

atters

uilding Contr' 1CT Building Contract

ce N`ofe`s inclu

ments

ft over po larly roati

are rovide ore F

e cas f the d h

ersio contract nistrat

where they Qicat d aser

t nt, th t. In suc

cu nt t

fs and ns II Works fo

are is be stra tries,

insta sessroQ

to servi

Dwners to be

JCT HOB and HOC

Each form is intended for use only customer wishes to appoint a consu which gives a role for the consulta Agreement must also be used. approach to defining the servi considerably from the RIBA S

Problems could ex responsibility partic insurance.

Helpful guida carefully, pa

yet there a

be clear)

s. If the the version onsultancy

al and clear ly. These differ

d not be used.

work sequence, design or other specialist work, and

cMtract, and they should be read where a consultant is appointed. As on forms available, but letters should re intended to serve as such.

plete yy fresh and friendly approach which will ract administrators. The presentation and

ted. The terminology is straightforward and plain English. As Tony Bingham was moved to

99, 'This little form is a beauty'.

0

199

Page 201: Which Contract

fl'

$ Traditional procurement: consumer contracts

Maintenance

JCT HO/RM

The Joint Contracts Tribunal Ltd

JCT Contract for Home

revised format. The new version long. The JCT have now re-publishe

there was a form for all situations. It minor works for which even the H

Background

The JCT published this contract for hom

too often been left as vagu about, and commit to writi The form provides a most u

into an agreement su

Where the contractor i

of i

ctrical re guidan

e

care and r i wo 20 inte d t er t

the d

own

tials ful service

g, thosss assu

evio

short', ndar form

e mini set out in

no s sugge tha ring, p bing s

whemore than o

An im at the reduce the likeli small print of his

Brief synopsis

ied is that the customer should let the contractor know otation that this contract will be used. This will then aq

od of the c

n term ntractor submitting a quotation which is subject to the

A two line description of the intended work is followed by a tick box indicating whether the premises will be in occupation at the time.

ages long, ith a

the Crystal

t appr riate or thi 11 ort S ns. As

ccu Contract t in editi edfree e

ing he co

re that .type of very seem overly

with a slightly website.

ng work ever produced. The ditional page of guidance notes. The

kind and size of operations, clearly with other JCT contracts for home ark of the Plain English Campaign.

t repairs and maintenance might, for example, cover tallations or even painting and decorating. The form

h buil

ptions.

own to

g work which might involve structural alterations, ely to be involved.

pha

200

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Traditional procurement: consumer contracts

JCT HO/RM

Documents are a 'specification' prepared eit and the contractor's quotation.

The contractor's price is inclusive of VAT, rate.

Facilities to be provided by the custo

Payment is not made until the wo contractor's itemised invoice.

The contractor must carry 'eno h in anc-04 cbO full't-gsts of damage and materials on site, in additio

A start date and the contraceriod ened,tcgier wit the agreed daily hours of working.

The contractor's obl, gation is the ork om&tently and carefully', and to leave the work a

Sub-contracting is p

%nromil

t t req

=safet

sto er's permission.

The contract is r ible healand environmental matters.

Third party open to

There is no visionn-for los or exp se, but the contract accepts that the parties may c I a i ro c tier in e eve t o ilure to keep to the contract.

Di putes can be fer d Lo 'a dicati , and the right to litigation is preserved.

0

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$ Traditional procurement: consumer contracts

JCT HO/RM

If advising using JCT Home Repairs Contract rem

It is intended for repairs and maintenance w Grants, Construction and Regeneration Act 1

certainly not be subject to the full CDM Regu

It is a modest form, but it must provid a more bu lik o alinghan just relying on a contractor's estimate, w the ritt r or The de pair works may be simple, but the cost could s em ela ' ly la xpense t stomer and should be covered by a proper agre

There is no role under the co for nstruc n but they might be approached for advice n a suita e m an this should be a safe recommendation. It migh also ,help to prot t cus er from the so-called 'cowboys' of the industry!

Related matters

Documents

JCT Contract for Ho

References

JCT Guidance

202

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Traditional procurement: consumer contracts

CIOB Mini Forms

The Architecture and Surveying In

Mini Form of Cont

Mini Form of Co (Home Improv Background

In 1998 the C106 took a

neatly styled a Mini form of co form appropriate for architect or other pr had no real com published by the Cl

The form is pr in collabora

'ocument which they sible to find a standard

for the client to appoint an

rator. At the time the Mini andard forms, this is now

general use and the other developed for use with residential works.

In appear ce an `ructur the form--5- e omewhat conventional, and compared with tes CT consu er co r ts, not so friendly. Having said that, they are

wri en in plat E fish a req ire the inimum of effort to complete.

s of Conditions, and the Home Improvements "sions of the form come with a dedicated Letter

tender an Eter of acceptance. The Conditions are to a Section istent with that adopted generally for CIOB contracts.

arily for use by members of the CIOB, but there is no bar by'-qp(n-members of that Institute.

T e re r com en 1d for use in contracts up to the value of £6,000 at 1998 prices,

and bo r uire e Employer to appoint an 'Adviser' to act as contract adminis

Whilst the form for general use might well constitute a construction contract to which Part II of the Housing Grants, Construction and Regeneration Act 1996 applies, the version for residential work would certainly not. Whether or not the CDM Regulations applied in full would depend on the nature, scale and duration of the intended works, but there is no express contractual obligation in the Conditions.

0

203

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a`, ac,

a--'

ti-

$ Traditional procurement: consumer contracts

CIOB Mini Forms

Brief synopsis

1 CIOB Mini Form of Contract (General Use)

Completed Form of Tender and Letter of Acce Documents' constitute the agreement betwe

Contract Documents are referred to as Spe

Contract Sum is VAT-exclusive. Any adj be entered in the Schedule of Adjustm

The contractor's obligations includ the Adviser's satisfaction' (this mig Certificate) (1.1 and 6.4).

The Adviser's role includes information and instructio

Dates for commencement a

at the Adviser's disc completion is delaye

re to

he co

ification/S

tments ts.

kg th`e rt+qrk 'to a

cause s ova canclusiv

of t`he

ractor

n the Conditions, and

`nspection to th

d co e or

from ract.

is to be confi ontrac

pletion are r he may

sta es bey m

thompletion date where evis

time, liquidated

(m ed 4.3).

Xractornot-wed to

-15 viser (5).

Tie corgractis fixed

valuation The viser may

Payment to the in a single main

at the cont

or part

e contractor's control. nd t

e end the Adviser is to list defects 'he actor (4.4).

without iften consent of the other party, and the sub-let any work without the written consent of the

r any changes in statutory payments (7.3).

atid'nf, and the order must also stipulate the basis for

ntractor wi yCment (6

discretion of the Adviser

be as agreed and entered in the contract, that is either or by interim payments made from time to time at the

Payment is to be made within a stated period (entered in the contract) of certificates issued by the Adviser. A retention of 5 per cent (or other as entered) will be held by the Employer until the Final Certificate (6.4 and 6.5). Retention money is held in trust.

204

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Traditional procurement: consumer contracts

CIOB Mini Forms

The Final Certificate would appear to be concl goods are in accordance with the contract

The contractor must comply with all legal a

and charges (1.2). Presumably these w

property (other than the Works?) entered in the contract. The contr, Works, unfixed materials etc. a

c

asive

-6). - statut

a d

equireents, d pay to the C

er and c LQsura al i 'ury

le fo too a trac

de

d must m names until the end of the Defe

Claims or disputes or for a decision. If no

The adjudicator ma CIOB President. The and the decisi parties (10).

ene

(8'

mploy

ntract

mover Amount

e, loss

r'sW ri

ng to the Adviser initially

co

Lial3rkty Pe

'resolved thin th

be a

ocedt4 th adju

wee n

are

gard

tiome Improve

of th Conditio s in tFii

'arm for Gen al User ;Letter of In aa£

er is s d by ue forfn- Th Lett

lausL,_2.3 in the ere is n

herwise fi thus making it lit

in th' fo m refer

gl ency, and n

f A e n V l feneral Urefers to the appointment of a replacement such provision in this form.

use form refers to statutory increases being acceptable in

ice co Ily fja

d 'D

ers-6n agreed b

res for ad' i do cator is be

ract. There is no such fluctuations provision in this form, ed price contract.

termination by Contractor', refers in 9.2 ii) to delays of A weeks rior agreement' in the General Use form. In this form 9.2 ii)

eeks or longer at the Employer's insistence, except by previous ! t by elays of '4

adjudication (10.1).

e parties, or nominated by the conctly stated in the contract,

d as final and binding upon the

of the form are virtually identical with the following exceptions:

to the appointment of an 'Agency', and the the 'Adviser/Employer' as is the case for the

each case in signed by the Employer.

0

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$ Traditional procurement: consumer contracts

206

nc the payment e r cl uir 'bQ Rtis

ra ' n Act

CIOB Mini Forms

pear

uments

ni For i For tract (Ho

orr of e eme

ontrac ade in the text

Advis are rela

first to pr minis a

m re co

that:

s suita land and

oth

nd n Adviser

use ngl arwan Am

of b

der a

ocum the

ion, F

o beco

o be

for (' I rule

ity. C

clusive.

is a

'vely need

m

rocedwtes8id

If considering using an CIOB Mini Form remember

It is intended only for very small domestic work adjudication provisions are simpler than woul Part II of the Housing Grants, Construction versions of the form the Employer must a

The Home improvement Agencies form General Use form is suitable for use in E

is available for use in Scotland.

The provisions are probably adequa concerning insurance and determinati

The dedicated Letter of Invit be used, because the last t documents, entries are also

If acting as contract ad drawings) note that t considerable discre Certificate which

The CIOB deserve for a consulta indeed an friendly la

ceptance should en completing the

ditions.

rson who prepares the ple and the Adviser is given

d before issuing the Final

such forms, which also provide (not necessarily an CIOB member, nor

entional than the more consumer

Page 208: Which Contract

E

The Joint Contracts Tribunal Ltd Standard Form of Building C

With Approximate Quantities

The Institution of Civil Eng eers ICE Conditions of Contract

The Institution of Ci

ICE Conditions of

For the purp

provide for acknowled Rules provide quantj wor in

venth

Editid

Engineer ontractfo

ibuna

es of thi chapt

ct 2

substa ial am unt-bf 4 that t I mp s sum

'ar approximat surement

4 not ge

racts wh cr-are not surement have

e

sed on a lump sum figure and which en included as measurement contracts. It is

easurement to some degree, and that SMM hich of course is not the same thing as 'approximate

ure and extent of the work is broadly known before case ith 'cost plus' forms. These are dealt with separately

207

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208

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--I

03-

and

insufficient ies~to be V

005 edition, al

k couidiot be acc

firm ce efore may have be

e

itment ini

Appro

to a5

ibed

g with the other forms in the suite.

ed for early completion outweighed the need

first

to

ua

k is reasonably the drawings and

fully measure, work tities on behalf of the

such circumstances the ties may be appropriate.

ed in 1979 in response to aditional method of building ed a

It was thought that this could accordance with SMM Rules, even rately determined. It has now been

ork could start on site. Subsequent events h overstated and that the implications of not

d not been fully appreciated. This would seem

ally fewer copies of the Approximate Quantities

ate Quantities edition states that the form is for use 'for or detailed by or on behalf of the Employer ... where

isions are necessary and with a approximate bill of quantities to uantity of the work, which are to be subject to re-measurement, ime to prepare the detailed drawings necessary for accurate bills

oduced'.

Reference is made to bills of quantities setting out 'a reasonably accurate forecast of the quantity of work to be done'. The form should not be used where only certain Sections of the Works are approximate. In such cases the Standard Form With Quantities should be used, and the relevant items might be marked 'Provisional' or, if under SMM7, could be the subject of 'an approximate quantity'.

Traditional procurement: measurement forms

JCT SBC05/AQ

The Joint Contracts Tribunal Ltd

Standard Buildin Approximate Qu

Background

There is often insufficient tim definable and measurable r

Specification in sufficient d

up and collate measuremeri

di

Employer for the purpose of ob JCT Standard Buildin

This version of the pressure from prop procurement, vh still be achiev though the revised an

Tbg-Keadnote

uantit

ontra`c

tanda rty d

arly

(even whe t e s of`N m t uts to o let

Ilo the ity surv or or e to epar of qu

ail t in

(ning I

Xd-J,C form velopers. The

start on oul e desc c

onsider

updat

larger works desig tailed ntr t pro`

9

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N

9 Traditional procurement: measurement forms

JCT SBC05/AQ

Brief synopsis

As might be expected the text of the With Approxi closely that of the With Quantities version. The Recitals differs, and Article 2 and Clause 4.2 ref of a Contract Sum.

The With Approximate Quantities version diffe rules) to take account of the fact that all

In clause 2.29.4 work whose quantity Contract Bills is included as an additional contract period.

The list of matters for which loss an refers to work 'for which the accurate forecast'.

Interim Certificates cover ' II wor sured an alue the quantity surveyor'. Valuations are always requir un r the Appro to uanti ies form, and are to the usual valuation procec}es. I doc ents a co ut ns are to be sent to the quantity surveyor by

The use of price forpftylaL-,for fluctuations QOption C) is not included.

210

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irn

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(1)

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vii

Traditional procurement: measurement forms

ng sc li ely to

for p ntract torfr

+Qg the for

sion; of th

o wheth orks;

are is nee

ed.

e basic st logy. mps

Ps, b

essio , of rment ortion. It allow,

an thr

ersi

bal p

relan ottish

the o

eis th lati

ions. lses sele

roxi m

both

ertain a

in detail me esign`

ant in

st a me. withi con ad sst t and

t

t

reme)nber'l-hat:

it is not/oossib of fast-track g,

efore pment it

area

This contract?

It is intended for use in substantial con quantities at tender stage. It permits a

needs to be well developed and quantities are taken off. This alto construction work, but if the ap accurate there can be penalties the Employer is required to a

If used for work in Norther while for work in Scotland be used.

The form has the sa

language and termi instead of a contract those in the of

are full he design

proximate parallel with

of reasonably er SBC05 forms

versions, using the same use of an ascertained final sum

to valuation are simpler than aynYent provisions are similar.

of possession, sectional completion for sub-contractors to be chosen by

names.

are required relating to matters including in lieu of retention, advance payment or

int Fire Code; liquidated damages; advance d to ensure that the relevant Supplements are

dministrator note that some of the procedural rules are detailed e-consuming.

the JCT from time to time. The form is available on disk. administration forms for SBC05, many (though not all)

wiN this Approximate Quantities version.

`e least risky remeasurement option for the Employer, and allows t found in cost plus contracts. However, successful use depends

1 and accurate the approximate quantities are in the first place.

JCT SBC05/AQ

9

211

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9 Traditional procurement: measurement forms

JCT SBC05/AQ

Standard Building Contract With Approximate Quantities

Standard Building Sub-contract Agreement Standard Building Sub-contract Conditions Standard Building Sub-contract with sub-

contractor's design Agreement Standard Building Sub-contract with sub-

contractor's design Conditions Contractor Collateral Warranty for a Funder Contractor Collateral Warranty for a Purch

Tenant Sub-contractor Collateral Warranty for a Fun

Sub-contractor Collateral Warranty for Purchaser or Tenant

Sub-contractor Collateral Warran

David Chappell SBC05 Contract Administration RIBA Publishing (2006)

References

Standard Building Co

Standard Building S

JCT Practice Note: Dec

JCT Form of Con Series 2 JCT Pr

Practice Note (includes,

212

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(DD

o _+

O

Traditional procurement: measurement forms

ICE Conditions

ICE Conditions of Measurement Ve (September 19

Background

The sub-title of the docu Agreement and Bond for Construction: Measurement Ve

This is a form which engineering operati that the form is not for lump sum cpntra

This ICE for Consulting under re

warrante

ly imprecise nature of civil

table. The Conditions show nd that it is not appropriate

f Civil Engineers, the Association of Contractors Association. It is kept

revised 'when such action seems

s quite distinct from the New Engineering the Institution of Civil Engineers, are the

ontract Panel. These forms continue to be

g for the needs of the modernisers, as well as

ages long and comprises the Conditions of contract; a Form

in two parts, the first of which is to be completed prior nd of which is to be completed by the Contractor; and a

The latter identifies the documents which form part of the contract y berawings, the Specification, and the priced bill of quantities, in

addition to the Conditions.

Also include-&is4-1-r6ICE Form of Default Bond, and the Contract Price Fluctuations for Civil Engineering Work and Structural Steelwork.

The Conditions are contained in 72 clauses, without any apparently logical sequence or

structure, but with historic precedence. However, reference is made relatively easy for the uninitiated because there is a Table of Contents and a particularly detailed Index.

9

213

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9 Traditional procurement: measurement forms

214

ICE Conditions

The Form of Agreement identifies the Contrac Appendix to the Tender will show detail such period, completion by Sections, liquidated insurance requirements etc.

The key person for contract administration is 't in the event of his or her being unable t successor.

Synopsis

1 Intentions

The contractor undertakes to constru inferred from the contract (8

The contractor is responsib of permanent works (unles temporary and permanent

of the Engineer.

The definition of 'Contract' m

acceptance

Agreeme

The qua actual quan

ork in

e WdH& inclu Tender 0

rice are t

s

t quant e tak

trict ac

contract nderi atter , f iei could

ent possible (11 an

urth neer

The contractor in quired tOsubmit a Programme for approval by the Engineer, and

e rates

esti m

mper is

and

contra r.

for al

expre

rks

ing r

e

skill,

rdanc--m&K the c

daretobea

I ite operations sly provided in t

signed by sonabl

es both

tints, a en es in

n ment ate, n

oavment and reten

but not the design ), nor for the design of ny design responsibility

are and diligence (8).

ntract, and to the satisfaction eptable to the Engineer (13).

orary and permanent work. The important Appendix) and written es, Specification, and the Contract

as being mutually explanatory (5).

inspect and examine the site and its surroundings before he quotes will be in the bill of quantities, and only if

ably been foreseen are encountered is additional

necessary drawings, Specifications and instructions to om time to time (7).

to revise it within 21 if the Engineer instructs (14).

All materials and workmanship shall be as described in the contract, and as

instructed by the Engineer. There is provision for samples and testing (36).

Facilities must be afforded by the contractor for work not in the contract but ancillary

Page 216: Which Contract

(CD

-r,

gine r of any lia

o liqui

ae a Ce ficate f Completion when the whole of the Works are

ed and ha assed any final tests required by the contract (48).

ork and defects period runs from the date of substantial to d in the Appendix to the Tender as the Defects Correction Dr is o liged to finish any work outstanding, to deal with repair, :r ti n, rectification and making good of defects either within i as may be practicable. A Defects Correction Certificate is to be

when he or she is satisfied, although this in no way relieves the ility (61).

The contractor is prevented from assigning the contract or any benefit or interest under it without the written consent of the Employer (3).

The contractor is not permitted to sub-contract any part of the Works including their design without giving written notice to the Engineer (4).

Traditional procurement: measurement forms

ICE Conditions

to the Works undertaken by other contracto

The duties and authority of the Engineer, assistants, are all clearly defined (2).

2 Time

The contract may prescribe that posse in portions (42).

The contractor is to commenc Date as stated in the Appendix contract is entered into, or expedition (41).

The time for completion is to Completion by Secti

Interim extensions Engineer within 28 The Engineer rWst an extension subject to f

ht

of ti ays ai

on

ion of th

as soon sib er f the rm en , or vv

The cont ct is ed d

i red (

-_nay be a, er the cause o to all clai0 s

.-e'bf a clai u

rded' delay;

b==a d

ntractor must inform the nd supply detailed particulars.

ei `t of particulars, and may award overall extension of time awarded is Th,

given t

al revi

EnginE t

ice ca

gr46d. The co

for taking such steps as may be necessary (46). to addition

amendment, recd the peri or so

'44).

ress is too sl

o expedite matters. The contractor will w and no extension of time is possible,

d the co payme

0

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9 Traditional procurement: measurement forms

ICE Conditions

Sub-contractors may be nominated, although the objection (59). There is a detailed set of provisions f, as is normal, the Employer is required to bear so

If any design obligation rests with the sub-contr contract and the sub-contract (58[3]).

The contractor is wholly responsible for the unless incorrect information was given b

own cost 0 7).

The Engineer is empowered to suspen variations, subject to their being of

The contractor is obliged to give work before it is covered up (38).

The Engineer is empowered in accordance with the con

agent or representativ

4 Money

Because this is no of the priced bill

a lump quay

the figure finally_asc

subject'of pr

ble, and ntract (56[

,aywork is to be used as a basis if the Engineer thinks it he rates will be as set out in the daywork schedule D.

Payment is on the b'asi&_ monthly statement submitted to the Engineer (60[11). The Engineer must issue a certificate within 25 days of delivery of a statement. Amounts for nominated sub-contractors are listed separately. The certificate must show the amount due and the basis of calculation. If the Employer intends to withhold payment, he must notify the contractor not less than one day before the final date for payment, and state the grounds for any deduction. Final date for payment by the

sional su

ere is referen

Tender,

oth defined (1 [11), and work or goods and Prime Cost items may be ordered by

d by t 4agr d ' advance, t

act if applicable, or

Engineer (51). Wherever possible quotations should order.

i!

therwise variations are valued at the rates in the at rates fixed by the Engineer, as the Engineer

d)sq reason "e2). N

ave bee

aine

instruct ract, art

curate se

any pert o Ire Wq'rk (4 efin Fin thb con`t(a (51

oval f

is g n th f`ghht-a

nhee atio ndefa

occ stated the

site e prope .e-exec

e necessar

tantly o

n

r or agr (1[1])

ost it sums Ana ryrime

216

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Traditional procurement: measurement forms

utory requ structixTs,(26).

Safe

ra

du

ions g en b,

ck whet ts, b

The Ne New Roads a

Jsa p t oads

ntion

it-hi-p- 14 daJ of th e other ha v hin days

Defect ccou

the

f c&

s aft ineer a

nths

ithin 2

s, th the E

doc i

give all orary

men of

issu

t is requi

iaed tern

Y

is rks.

ums i

ides the Emplo ill not

II recei

contr

f - e ulati ns 199 la statutory obligations on both employer and tor, particul rly in respe of the Health and Safety Plan and the Health and

Fi . The E loyer is obliged to appoint a Planning Supervisor and a Principal ctor. ough orporation of these provisions into the contract, the statutory also o cont tual obligations (71).

d Works Act 1991 is given detailed attention (27). There is

cular efer ce to legislation on damage to highways (30) and unnecessary and footpaths (29). e ce-

t is mo hly s tem Is to ify, the

ctor is enti ed t me

ICE Conditions

Employer is 28 days after delivery of the Engineer (a quite tight timescale). If the En

to make proper payment to time, then t overdue amount (60[7]).

Rate of retention, and the limit of re

(60[51).

Half the retention is released

Substantial Completion, and t Correction Period (60[6]).

Not later than three mont contractor is to give the E

Engineer then has up t amount due. Payme

The contractor is ob These might contractor

ction Certificate, the rting documents. The

tificate which states the cation (60[41).

all fees required by legislation. th7' Engineer certifies it, then the volved (26).

er against the consequences of any pply if it arises because of compliance

ineer. There is no express obligation on the s or instructions by the Engineer conform to e found not to, the Engineer must issue

The contractor is to take full responsibility for the care of the Works and materials for incorporation, from the date of commencement until the Engineer has issued the Certificate of Substantial Completion. The risk covers damage from any cause whatsoever, except where the damage is due to the Employer, or is a defined Excepted Risk, or is due to faulty design of the permanent works (20).

9

217

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rt.

(-1

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9 Traditional procurement: measurement forms

218

ICE Conditions

ie rig or M

eisp haeoloai

Enbinee is to hav

s relating to sses

ontr applic

nsio I intere

t to termi insolv nc

entitl d

settl

h# risk

(er cen

encerO

quire

gainst

nst al

roperty

f thZxisks

ty of Kkmen is

4).

mplo of s

of

The Employer is given the ri event of the contractor's ii,

Contractor. The Employer is

completed, and postp an Period has expired (6 ).

iven t ploye

ted sub-co

ate th or becau

to take vent of ccou

rminate his o

plo become;

racts i

ofdama liciere s

ate,d inay b

tend stag

ss and cl ms ar'sing I

other an th orks. T

The contractor is to insure in joint names, against for the full replacement cost plus an additional 10

to approval by the Employer before Works Co

prudent for the Employer to state the kind of c

The contractor indemnifies the Employer ag death or injury to any person, and damage to are certain stated exceptions (22).

The contractor is required to be insured the Employer has been indemnified (23-

The contractor's obligations concer, Employer is indemnified in respect

7 Termination

Termination of nomi

8 Miscellane

Definitio

The Engine

e contractor in the ified defaults by the e site, have the work

the Defects Correction

n employment for specified insolvent (64).

removal 'ntractor's employees (16).

event of discovery of fossils, antiquities, things of

Works, the site and workshops (37).

ite and site access, beyond that prescribed in the tor's responsibility (42), although extensions of time and ble in the event of failure to give adequate possession.

e contractor is to be removed from the site without

The rights and obligations of the parties on the outbreak of war are fully stated (63).

There is a provision contracting out of the Contracts (Rights of Third Parties) Act 1999 (3[21).

Page 220: Which Contract

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Traditional procurement: measurement forms

ICE Conditions

Special conditions can be properly consecutively as a continuation (72).

9 Disputes

The terms of the contract require th to the Engineer in the first instanc

tm The En

decision in writing to both the Employe reference (66).

If a matter of dissatisfaction Engineer, then it become consideration of the disp

Since the Housing Grants, Co

force, parties to the c

Conditions of Conu be conducted in at

t nduc t

tructi

and4he c

actio

nnot e s cto reso reference to the

ispute. e p tie ht, ICE 'liation

ructio e rig

ct a noticelof a i%udicati

genat

djudi

ren

be

0

agreement, seek re 0 999) (66(5)).

1996 (Part II) came into djudication. With the ICE

iven, and adjudication is to rocedure (1997) (66(6)).

arbitration. The party seeking inally etermine rve note to refe .

d in ccord ce wit Arbi atioMiis to be under the Arbitration Act

eith r the ICE Arbitration Procedure 0 997) tratio Rules.

9

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9 Traditional procurement: measurement forms

The Conditions are comprehensive,

should be incorporated. Scotland or Northern Ireland, then for use in Northern Ireland and under S

will apply.

The form is for use under the law of E

basis of measurement. It is not readily suitabl find themselves involved in some secondary b

This is a contract primarily intended for use with

ICE Conditions

This contract?

If considering using ICE Conditions of Contract re

Conditions, in particul Completing the form is,con

variations, and design by th commencement and com engineers, might need to b

to have w commentat and with a di It is the traditional

usually the case w

uments

Cond'

of s

amiliar to civil is flexibility over

ors, valuation of

entries is tho endix'to the T&der

is gi n greater authority than is admiastration the En

h contact admaisf on under bu' ding contracts.

e need for supplements. Much used a logical structure and some legal

-contMed fore' without t

orl-Ml enaineeriM work

woe

land an es, ma ale

D,ts la If th o con nt enc ICE c Arb.

the to stud iedcar Ily b

etion, nor inatio

pedigreq' It m it on

K Ktemb)

nciliation Procedure (199 tion Procedu 97) '

97)

Condit

unds o being rather imprecise, but it seems tice foY a veryong time.

220

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Traditional procurement: measurement forms

ICE Minor Works

ICE Minor Works

ICE Conditions of Works Third Edit

Background

The sub-title to this form is Co

for use in connection wit sponsoring authorities ar Consulting Engineers, and

This is a document months or less, t

ntended fo use wh e the s, de ere ate n nominati

complete, the con tra for h no respo i

do,not e eed f2 ,00

ent. T e C diti o rasy re d. The

mploy contract. The fo starting 4a to

'etion of

Synop

1 Intentions

he

ntract, ing G

and,this includes th rys are are pr

e inc4

desi

ontract Schedule Construction. The

the Association of Contractors.

mall, the contract period six

n of the Works is essentially n of the permanent works, and

It isform suitable for straightforward

er 13 headings, and are commendably Conditions, an Appendix, and a Form

aced by a full index, and helpful Guidance Notes, ith the form. This latest edition takes account

ction and Regeneration Act 1996.

or lump contracts, or with measurement contracts using a

tities, valuation based on a Schedule of Rates or a Daywork t plus form. An Appendix entry will show which is applicable.

to appoint an Engineer to administer the terms of the ovides for the appointment of a Planning Supervisor. A

entered in the Appendix, together with a period for completion. orks can be in phases.

This is essentially a contract for engineering rather than building work.

The Employer must appoint an Engineer, who is to be named in the Appendix (2.1).

The Engineer may appoint a named Resident Engineer, and delegate any powers except those dealing with disputes (2.2).

9

221

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9 Traditional procurement: measurement forms

222

ICE Minor Works

The contract means the Agreement (curiously qualifj Conditions, the Appendix, and other items listed in

not defined in the Conditions and the Contract S

Second Edition of this form has now been omitt referring to the drawings, Specification, priced documents now listed as part of the Form of

The contractor undertakes to perform an responsibility for the care of the Works f issue of the practical completion Certifi

The contractor is liable for design o respect of temporary works other standard expected is that of reasona

The Engineer must provide a

(3.6).

Other persons engaged direc

2 Time

The starting date is

written instruction

The contract peri

If required, th date (4.3).

session by;

vise

sess n possible

ted b

on Period f _dix (5.1

necessm in

ntered

within

will b

r must pr

ed where p

in thAppe 8 d after acceptance of

e cont

y

han f skill,

uctio

vide a

Employer are t_q b

ix; if)not,

d by tKe words 'if a he 'CohtractSche

edule 4hich esuma

ties, Sch

(1

was i

this c

me ate (3.2).

g reeme

ete he ce nt u

expr staffed in

sign the E

dili

s1). He tak

completi

A Defects Correc stated in the App

ogress is delayed for reasons stated in taken all reasonable steps to avoid.

when the `Works are fit to be taken into use or The Engineer is to certify practical completion, or must

what remains to be done to achieve it. Partial pletion by Sections identified in the Appendix.

le where the contractor fails to complete by the

lows practical completion. The duration of this will be

Completion is to be certified by the Engineer after the defects have been made good and the Defects Correction Period has expired. Certification is in response to a request by the Contractor, and shows that the contractual obligations have been discharged to the Engineer's satisfaction (5.4).

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E

vii

Tom

ertificate shall show the amount due and the basis on which it was -3). The Appendix may include a minimum figure for any Interim

calculated. Payment by the Employer becomes due on certification, with a final date for payment 28 days after delivery of the monthly statement. If the Employer intends to withhold payment, he must notify the contractor not less than one day before the final date for payment, and state the grounds for any deduction (7.10).

Traditional procurement: measurement forms

ICE Minor Works

Instructions which the Engineer is empo, variations, testing, suspension of work, re

contract and exclusion of persons (2.3

Each of the parties is bound by ever

for is t

it concerns a matter referred for disput

The contractor cannot assign th consent of the Employer (8.1). consent.

The contractor may not s

the Engineer (8.2).

There is no referenc Notes suggest that by the Engineer in t

nstructio'tor

iss e a list o noti accor

esd,kjtion`(2-7

contract 61\anJ icrhts Lder aIIy`r\ uirestie c

-contr

o nomi pproved su

ie Sp

full r

t anlmpart &ftze Wor

-contr ion.

onsibili

tors a

ppliers, but the Guidance rs can be named and listed

t and for the stability and safety

the

is of me can rthods t used

ontract

The contractor is

chedule

used on any one contract. The Appendix Options are for lump sum, measurement on Rates, valuation on a Daywork Schedule and

in the tender figure.

of delay or disruption to progress (6.1).

't a monthly statement giving the value of work executed r items to be included (7.2).

ue an Interim Certificate, within 25 days of delivery of the ee`r-i's to i

atement

ntitled to additional payments due to unforeseeable adverse

9

223

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9 Traditional procurement: measurement forms

224

re

ipora r

Engin

ions 1

state

the

a rwise,

ontrac cernin

ions be"Goryiie contr, ulati

nd these o

he cont# nd pe

full va

itions

is re

pect of to incl fined

ractor

e contract

ployer or t

It, approval s wou

part

utory obligati

oval licen lude plan

walls conserA

the E

r as P

issi

f311owi ma ' ao Corr tion Perio ,the

cep of t th ngin on c ificatio ,and

4 days o

ICE Minor Works

Within 28 days after the Engineer has certified comp of any outstanding work at the expiry of the contractor shall submit a final account. Within 42 should issue the Final Certificate. The amount p

the final date for payment is 14 days later (7.6,

Half the retention is to be released within completion Certificate, the remainder completion (7.4 and 7.5).

Interest may be added to overdue pay

5 Statutory obligations

The contractor is required to compl notices required, and pay all fe

Responsibility for any conse rests with the Employer. Th

matters of land law includin

The CDM Regula Contractor. Unle Planning Supervisor under the R

Safety File,

ere this has occurred because

).

ns on both Employer and inates the Engineer to act as

cipal Contractor. There are requirements nd Safety Plan and the Health and ctual as well (13).

to be the contractor an Appendix ctor is then obliged to take out joint names insurance in

anent works. Unfixed materials and construction plant e against all loss or damage, bar Excepted Risks as

10.1).

loyL`r an indemnity against loss and claims for injury or rty. This liability will be reduced proportionately to the ose for whom he is legally responsible contributed to

The c

damage to extent that the E

the cause (10.2)

There are further exceptions to the contractor's liability for matters beyond his control and in respect of which he does not indemnify the Employer (10.4).

Insurance required under the contract is subject to approval by the Employer (10.6).

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Traditional procurement: measurement forms

ICE Minor Works

There is no express provision for determinin must rely on common law. The matter of of contract obligations is left unexplor

Definitions are included as part of,

There is a contracting out of ri (Rights of Third Parties) Act 199

9 Disputes

The terms of the contract req the Engineer in the firs in writing to both th (Addendum clause

If a matter of dissa Engineer, the consideratio clause A-5)

n must be referred to state his or her decision

ne month of the reference

resolved by reference to the parties might, by agreement, seek

iliation Procedure (1999) (Addendum

Notice of referra to Z ludic ion en to ther party, and adjudication is to be conducted actor c e wrh the, ICE ludication Procedure (1997) (Addendum claus

reference to arbitration. The party seeking Arbitration is to be under the Arbitration Act

in act ant with either the ICE Arbitration Procedure (1997) Industry W WI Arbitration Rules.

9

225

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9 Traditional procurement: measurement forms

ICE Minor Works

If considering using the ICE Minor Works form

It is intended primarily for minor engineering £250,000. It is for lump sum with or without contracts. The Employer is required to a

renf ember that:

ks,iort duratior}/ not ercQe bill o ua ties, or or m sure oint an

administrator. The contract is for use under th suitable for use in Northern Ireland or u

It is a truly short but balanced form Conditions are succinctly and clearl Specification.

Completing the form is straightforwar the Appendix.

Contract administration s

considerable authority, and

Related matters

Documents

ICE Conditions of

Notes

ICE Condit

tract

could the p

.

rtes

cedures are strai

w riproject

Minor Work9Third E

ks Third Editio

w ro v la f Eri n nd Wales,

ied in clak

hich -q,Ilow-! r p

n eer t 6,6e con

226

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.---

.

r-«

D

..E

E.°1-o

Traditional procurement: measurement forms

/total docu en eeme .. ith fi Con tion set

contract because y an orclq ss ed b

pliari

d Recital e

ree

it also

ons co

ivate min

tra was w have

im m ork.

arat raC%S foe sm nde repair

dea i one

spec

nee

prefe ontra

bas s area t

cts ck, b1

as b

rms in the suit

-r 4ited on the geogra rm cont

ding nt b

lly for itions

act'.

s 42 'aqs long, kals and eigh

r nine

JCT MTC06

The Joint Contracts Tribunal Ltd

Measured Term Co

Background

The Standard Form of Measured Employers in both public and planned regular maintenance a

and wasteful having to entero cases a contractor might b

such circumstances it is usua handle all such work under one agreed.

Competitive tender nature of the intend of the contract commercial cli

form specifi the 2005 Term Co

9 for use by

ckin need of

viously tiresome II job, and in some short notice. In all

ntractor appointed to d, on terms previously

es taking into account the be covered, and the duration been used by corporate and

this JCT contract is the first standard n re-published in 2006, in line with with the shorter title of 'Measured

nd contains a Contents table, Articles of Articles, Contract Particulars, an Attestation,

ections headings, all following the pattern of

to the nature of the intended work as being 'maintenance and e 'Contract Area' to be defined. The Employer is required to

trator, a person who has special significance under this ate job within the period of the contract must be initiated

theontract administrator. The Fourth Recital also refers to CDM e in respect of each separate order.

bodies the offer by the contractor to carry out work under the erms of payment set out by the contract administrator, and

acceptance of this offer by the Employer.

Article 3 identifies the name of the person or firm acting in the capacity of contract administrator, and requires that any replacement needed must be nominated within 14 days. Article 4 identifies the Planning Supervisor and Article 5 the Principal Contractor. Entries in the Contract Particulars are particularly important with this type of long term arrangement.

9

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9 Traditional procurement: measurement forms

JCT MTC06

Details should be given of the types of work for whit, properties in the Contract Area which may be incl indication of the estimated value of work which guaranteed). There is opportunity to assign a pr for example an 'A' Code could require respons contract period, which will normally be for entered. The terms for measurement, valuation of the Contract Particulars.

By nature the Measured Term Contract can be no precise amount of work es

an enabling document, which allow to be valued according to rates, pr

Use

After the identity of the pa

an entry which states the documents other than the must be named under

The Contract Pa

of any one order annum. A priori co for rapid re

within sti riods' eiE)K t contr for tq/speci

ated \Nlue

necessary to id

Eimurn

d, or as a deed.

and maximum value imate total figure or figure per

troduced, which would signal the need orders such as emergency repairs

tify whether payment is based on the Schedule of Rates. The contract can be subject to fluctuations.

t and valuation can rest with either the contractor or Contract Particulars should indicate whether the

urement and valuation, or conversely, that the 'sponsible. Alternatively it can be shown that only

ill be the responsibility of the contract administrator for

With a contract elativel ong duration, it is desirable that there should be a break provision. The perio o notice required to bring this about is 13 weeks unless a

different period is entered in the Contract Particulars.

Synopsis

1 Intentions

wit minimu

order may nissue d ed tl cor act, a

be anti o ate alth gh n

ode t ach a icipated der,,

f r hours. T e dura o o e yea , sh Id als

nd paym

iffers from I p conic shed at ou an n Con b4f

e of fic order

date t rea'. Ther

terms of iae erm 'Arc

ges ered i

he 4

itect'

is no . Th

t a under tems 8

'the Recitals require ference to drawings or

contract administrator 'sed at all in the contract.

derand arnot as a d

culars quir a eri stating the be is d toget r wit

ing for order may b

is to undertake administr

228

Page 230: Which Contract

-°R'

L7-

E actor i req u

etion

10).

red to make good any defects appearing within six months of Date.

The bar to assignment without written consent extends to the contract, or any part share or interest (3.1). Sub-contracting in any order is restricted to the extent that previous consent in writing of the contract administrator is required (3.2).

The contractor is obliged to employ a competent representative (3.3). (Note: there is

Traditional procurement: measurement forms

JCT MTC06

The definitions in this contract have a particul (1.1).

conflict with Schedules, Specification o

The contractor is obliged to carry out to be executed in a good and work Contract Documents, empowere Plan. The contractor does not h

and the Employer can use oth 2.3.1).

The Employer has the right td for carrying out work, an the (2.3).

If supplied by the En1

Schedule of Rates, a

failure to 3

blars (ite

starti 11 be s,

onable com

the contr, There

ate Ad re

ployer rials an

d the contractor is

).

ices he

otifid

ork whe

ance, b>ausethei

in cti s, d an e exclusiv t to work iit ovtractor hi wn ur fo

pply tracto

ma riaplan ve r

Co-drdina

e work is

e with the and Safety

e Contract Area if desired (2.1 and

or equipment needed ilities concerning these

starting date are entered in the Contract ty code imposed.

the contractor where the contract administrator rog mme must uo (2-7).<

'for compl control of the contractor cause delay, an extension to the

order may be given by the contract administrator on a on,.or eac

fair and reasonabl

0

229

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9 Traditional procurement: measurement forms

230

JCT MTC06

m

W an estim unless there is anyt

/by ea.

e agr of H ly harge

air ra esorp e

e tween ator h ust

sha

ministr

ntract is p gres inist the

asis (5.8). ,

sure . It is

lue r

se up9h the

initor,

d i curred

wer t6

rsons ctor'

comply roper ie ins

is sub*ctAo mi

Rates (5-3-1)

va I

ioite, other uction at the

rru pted

ult wit

ces sh

par

orks:

at cons

vious

Most work carri d ouTunder Construction a Regener ion Act 1996, and the contract provisions relating to payment take accoun this.

Progress payments at monthly intervals may be appropriate, depending upon the value of the order (4.3). In these cases the contract administrator should issue a

certificate which states the amount estimated as due for payment, and also the basis on which this is calculated.

no reference to his or her being constantly or othe

Access to the site, which can be a complicated i

considerable burden upon the contract admini entitled to a degree of possession sufficient to any order. Where access is restricted, unp daywork basis (3.4).

Variations may be instructed by the co variation under this contract is define

The contract administrator has the the site (3.7).

If the contractor does in

administrator, then, after Employer to give effect to

4 Money

The work covere accordance with

basis, the Sched

th are appropriate, th required, t contract a

from the contract ay be brought in by the

expense (3.8).

surement and valuation in

If daywork is the appropriate he Order (5.4.1). Where neither

apply. In the event that agreement is still as a last resort it shall rest with the the contractor (5-5).

ecause of an instruction issued by the e or other unproductive costs are valued

and valuation rests with the person designated in the ssible to set a value limit whereby in the case of sponsibility rests with the Contractor. Above this e contrary, responsibility will rest with the contract

n order will be subject to Part II of the Housing Grants,

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Traditional procurement: measurement forms

JCT MTC06

Where the contract administrator is respons certificate for payment is to be issued withi (4.4). Where the contractor is responsible f must be submitted to the contract a

Completion Date, and, if acceptable, of the account (4.5). In all cases the c

under the order, together with the basi

The final date for payment by t certificate. Within five days of t notice to the contractor of th or withhold money, then t no later than five days befo

Failure to pay amount at the rate of 5 per first became overd

In the absence of an other rights a

certificate ca

obligations,

nsi

com lianc

MM Regulation Health anfet

nt over ba

(4-6-

vali dies,

tract of con

ay

to s

to th give

i.e. pr

oblig

tor's duty t i,s entitl

ire in re

s no the c ntract administrator if he finds any conflict r uiremen a an order. The contract administrator must issue

ii will be a variation. The contractor is then not liable for non- i from the order or a subsequent variation (2.8).

igatio of the Employer and the Contractor, with regard to the ap ing o an order, and in particular Construction Phase Plans and

y les, come contractual as well as statutory duties (3 9).

Fce

ificat e m

e Em y is days date of th ific he Erp

t ma If e plo mu notifie

for nt (4'

urren

otices fro ilure to

a righ

compl to r4

le for easu ent Or r Co 56 da y meas ean alua n,

trator in 6 da ca is issued ithin 8

i show the lu of wor th Nhich e v &e was calculaf,

r

The con actor is to k demnify the Employer in respect of death or injury to persons or damage erty other than the Works, which arises from carrying out an order (6.1 and 6.2). This indemnity is to be backed by insurance, and an entry against item 13 of the Contract Particulars will state the minimum cover required.

Insurance of existing structures and contents which might be affected by an order is

the responsibility of the Employer (6.7). Cover will be for the full cost of reinstatement,

e of issue of a

'shall give written intends to deduct

ing of this intention

ment will attract interest payments by the Employer

and without prejudice to any thdate for final payment on any pend performance of all contractual particular order) (4.7).

ith all statutory obligations and give all required es and charges not otherwise provided for

y work undertaken in response to an order.

9

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9 Traditional procurement: measurement forms

232

'b

actua

ion is

'rminat Employer to

d whher ter ract are

rigxtts

and/or 'respec direct los

ontract inclu es br

t by ing

e to a fluct 4s- r

under annual

to be,_avaita, tfarty e Em)fover must ihsftuct t

loym as a

ers to ns

its o ay aq

er is

erminate e

ill aff t e contr an der. The clause gyed, nd min or

unre nably of of de mina

ivia vexa'i Lion b

o 8.5.1).

e is the r onsi .1 risks. Dolic

m re of e sta a p+ ctur am dmen will

twe the arts prior

JCT MTC06

repair or replacement after loss or damage due to Where the Employer does not wish to insure the exi

need to be made to the form, which should be a

entering into the contract.

All risks insurance of work or supply instructe Contractor. It will most likely be covered by be a joint names policy. Cover for each or Date (6.9).

In the event that terrorism cover ceas insurance shall inform the other par in writing which clause 6.15 opti

The Employer is allowed to reasons (8.4). Termination may arise only in respect suspended, disrupted gr de excluded by the word is required before t insolvency, termin

The contractor is

include failure by payment (8-

Common and the remedies.

The contrac necessary on a to programme or if previously agree

ntractor for given though the default

ork being 'materially' nces would clearly be

iousfy' (8.4). A warning notice the Employer. In the case of

ination is by employer or contractor, ithout prejudice to any other rights or

ties of the parties concerning outstanding payments and rising from determination are set out in detail (8.9, 8.10).

visions, which allow for determination of the ither party after six months. Such action could become ontract because of changes to the Employer's building ating workload. Thirteen weeks' notice (or lesser period

fired (7.1).

Rights of third parties under the Contracts (Rights of Third Parties) Act 1999 are expressly excluded (1.5).

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JCT MTC06

9 Disputes

Either party has a right to refer any disput to adjudication (Article 6 and clause 9.2).

Where Article 7 is stated to apply, determination of disputes (9.4.1). W

The conduct of the arbitration an (9.1.3 and 9.5). The parties agr

The JCT has adopted the 200 Arbitration Rules, and the p

Unless it is stated that Artic

itten noti

thaermae ap

JCT Editio` th

7 app be by legal proceedings and no`

There is a reference i clause 9 1

be particularly appr priate out under individual order a contractual aareem nt td

diatio 0 relative

It will not remov I

f th4rbitration

by arb thee-finKcleter

w co the sta

0

reed e- is 1

Industry Model shall apply.

nation of disputes is to

of resolving disputes may ort duration of work carried

tory right to adjudication, nor edings.

9

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9 Traditional procurement: measurement forms

234

JCT MTC06

dell kariati

're give and

act

r`t

tructions, ncell to and Gui

icate in Annex E w ew

sdard f,

itions ar

ue o ntract pe

er ' requ fo um ou par

each sep t ob en in

ngla ,ere th to c 1.7 re

001

the es. A

m Co

trato

'the' rders

reme he co

price: dmini

entrie n th Contr cripti of ty

rovisions;

rator, this_ eE*nsibility will extend to all work carried out nclude the issuing of orders, and may include issue of

icates for Progress Payments, extension of time, and re

.

no standard format for orders, but the JCT Practice 89 i luded a model Order Form and Completion

d be adapted for use with MTC06. The JCT are iuide to MTC06 in 2007.

rovisi

i, and ea n th

dS comm ce ent a

and this can uctuati

ommencT cancellation an

entered Co itions

d

tried o ween ,sine

This contract?

If considering using MTC06 remember that:

It is intended for maintenance and small wor three years' duration, and the approximate v as a sum either per annum or relating to the for both private and public sector use. The_Emp administrator. The form avoids the nee appointed contractor may only carry o issued by the contract administrator

The applicable law of the contract as printed for work in England and other laws. There is an SBC Me Scots law.

The form includes break arrangements for site acces minimum and maxim documents comprise, contract period and is subject to mea the contractor o contract may be fix

mpletion of orders, rders are subject to a

ct Particulars. Contract edule of Rates. There is one

completion dates. All work e made the responsibility of

ns provisions may apply or the

Particulars are required on matters s of work; value of works; contract

nd the break provision.

rm of contract published specifically for term contract clearly worded and Section headed.

Page 236: Which Contract

Traditional procurement: measurement forms

JCT MTC06

Related matters

Documents

Measured Term Contract 2006 Edition

References

Measured Term Contract Guide (forthcoming Practice Note MTC/1 and Guide (includes excellent annexed material on

9

235

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236

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Traditional procurement

Cost plus forms

The Joint Contracts Tribunal Ltd

Standard Form of Prime Cost

For the Employer who must procee cost of labour, materials and plan

bntract 99S.Ed n

plus a

standard forms may be used in a c

exclusively under this arrangement. plus sit

nation of t to prick aXagre t fort tractor's i

n but ther p rs to b

to pay the actual ds and profit. Several

my one published for use

237

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238

Page 240: Which Contract

9-'

_°Q

E

ate,

Traditional procurement: cost plus forms

's a heav an Annex 1 to the

J CT s UP wool ,ut wit contr.

.

1983 use 1983 use

6 ich ar6

ctor W

visio mS

p acce

whils r

Contrac

immediate'It-after t0,-Seco tion`CQntra s bdwa-on th

over contrac fter e ar, th

eo o bu d unlik

eir t wa the

rty to revis

I4hed a

ment of com le of i

if th archite Bust, the 'n

o re the

requir ary to cart

ct fee e

JCT PCC98

The Joint Contracts Tribunal Ltd

Standard Form of P

1998 Edition Background

Repairs and rebuilding during a

fast and sometimes even eme materials plus a percentag were an obvious answer at th out that fixing contractor's in the public interest

In 1967 therefore, t fee', thus introducin should be able to reco would only b

which altere

d War called for cost of labour and

erheads and profit imon Report pointed

t of the work was not owners in the future.

hich incorporated a 'fixed still ensuring that contractors

abour and materials. Fixed fees precluded from issuing instructions

rks'.

the form as essentially a Prime Cost d or a percentage basis as desired. The

headed format. An attempt was also made to were changes to the scope of the Works.

not to increase labour and materials more out the Works.

eventually published in 1992, and is currently in

ent over 150 pages long, including an Appendix, with relating to bonds, an Annex 2 to the Conditions relating

s, S plemental Provisions in respect of VAT, and Modifications tion I Completion under Article 7. These Modifications are quite

and clause throughout the contract which are affected as the result of Tonal ompletion are identified by small letter 's' in the margin. This

arrangement of printing Sectional Completion provisions in the body of the text, although convenient in many ways, does make for a rather bulky document and arduous cross-referencing.

The Articles of Agreement include seven Recitals and nine Articles, and the Agreement may be executed under hand not as a deed, or as a deed if required.

10

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10 Traditional procurement: cost plus forms

JCT PCC98

The contract Conditions are set out under nine S ect a Contents page at the front of the form. A ke y f contracting is the provision of eight Schedules. T h

on which a great deal of reliance is placed. The

First Schedule: description of the natur drawings (if any);

Second Schedule: definitions of the Pri

site staff, materials sub-contract works

Third Schedule: Contract Fee - Fourth Schedule: estimate of the

Fifth Schedule: items of the Spe

Sixth Schedule: items o

Eighth Schedule:

These schedules intended work i

There may or ma of the Sche

i headi gs,'h fullZd7-lex-e ature senwi

se are ry i port t co ch uIes a s follo s:

r g

t nd obds, d se-

C. ;

erce fee;

so

pd sub-contractors;

ification;

work to be executed b

be drawing fore vit

ominated suppliers;

Employer or others direct.

efully comple, tthe co to acc

for broth

be let on minimal information. ed because the nature of the

any the Specification, and the contents ering and valuation purposes.

In the itals, ter tatin in ge ral to s the nature of the Works (also to be described a clear as p ssible in First Schedule), reference is made to a

S cificati an any dra ings (which if used, are to be listed in the First Schedule). T e Archite t/cont t adm' istrator responsible for the preparation of these is the

erso na-ffi c . The uantity surveyor is the person named in Article 4.

Th contractor unclertak t ar out and complete the Works (as described in the First edule) er th o her items as instructed by the Architect (although presumab y e scope f th contract may not be materially altered).

The Employer dertakes to pay the contractor the Prime Cost (hence the importance of the definitions ' econd Schedule) and the Contract Fee (Third Schedule). There is provision for the fee to be revised if alterations in the nature or scope of the Works justifies this.

One criticism of this kind of contracting is the lack of incentive for the contractor to work efficiently. Protection for the Employer is afforded (C1.5.1) in that the Architect

ould

ork o be executeq by t

kely th a

240

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JCT PCC98

is empowered to disallow costs where the co economically as possible, or uses a greater tuber f op tive han i easonably required. However, this might not be easy o impl ent n pra ice. far a abour is concerned it could be very tricky for ar arc tect to ay 'yo haveXh ed or six

carpenters but four could have done t

The Simon Report concluded that 'the c trol to b xer ' ed inmost rei rpb ursement is a form of supervision, veto, and a ccoun ing . t is db-q bt whether is would be practicable today, as in any even/it wo p ba call co tant onitoring.

Synopsis

The contractor is obliged to accordance with the

Architect (1 5).

Protection for the E*loyer(agairist wastefuNA e of lour and materials is a provision (1.5).

Quality and sta.

(3-10).

The contr ctor st b p vi with such urther drawings or details as are reasonably ecessa t explai and a Specification (1.6). There are limits to the ecification nd all 91 aVings, and the confidentiality of rates must be

respe,

d complete on or before the completion date.

en by the contractor in writing (2-5). The Architect is

tension of time should completion be delayed beyond the corrrpleti6n date, prov ed the reason is one or more of the Relevant Events listed. The Architect , ake i writing a fair and reasonable extension within 12 weeks of receipt o he notice nd particulars.

Failure by the contractor to complete within the contract period is to be certified by the Architect (2-2). Liquidated damages are then recoverable by the Employer.

Practical completion is to be certified by the Architect (2.8).

There is provision for partial possession by the Employer (2.9).

10

241

and complefion are to be entered in the Appendix. There is

t of possession for up to six weeks. The contractor is to proceed

Page 243: Which Contract

10 Traditional procurement: cost plus forms

JCT PCC98

The contractor is obliged to rectify defects (2.10) w within 14 days of the expiry of the Defects Liabili

The bar to assignment of the contract without (3.1).

The contractor may not sub-contract wit

Sub-contractors may be named and in in or annexed to the Specification (3

There is also provision for nomin forms and procedures, (i.e. NSC/T

Conditions incorporated by reference

Architect's instructions mu work is not empowered.

The contractor is required t (3.6). The Employer is

although these mus

There is provisio familiar JCT Co

provision is inclu

There is pro,

(3.13) an informa

reis6 rect loss

for op eof Pr

onac d/or e

e C6,ntraefFee is

at tB

ontractor expens c

preserved (4.13)

be in wri

have

i to

ontr e s (8A-1) T*q C); l(PCC);

otifie

rk of\ by t

e on the site constantly competent a oint a c

d as i ructio wor+_s/Who can issue directions,

e Architect to have effect (3.9).

ing/.p,1 pection and tes vela

nd of

to be

he fair a

ection 3 d

rried rk are

itterconse

uded Rn-a lift of)bt fevv

ut b t listed

ification.

ing (3.11 and 3.12) and the reasonable operation of this

r6-form.

thers engaged direct by the Employer n the Eighth Schedule, and relevant

ut Article 2 refers to a Prime Cost, Contract Fee and any ertained.

the Third Schedule, but may be adjusted (4.10).

application for reimbursement of direct loss and cified headings or 'matters'. Common law rights are

Interim valuatio are to b made by the quantity surveyor, and the contractor must provide the quantity urveyor with necessary details of expenditure to enable valuations to be made (4.4).

Certificates are to be issued monthly and the first date is to be as entered in the Appendix.

may mak

242

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Traditional procurement: cost plus forms

the cbri c` (5.1

The cntr`ktor is t

ate

after

4ce spe must

t date

utory obligation

ui/ements'wd the onfr or is

compliance with`at

pr's c' uty to

for em's IJbe reate

for is obli

us t e iss

fyingltk

=ificate is n

makin Cont

t amou is duk u of the rtifi ate, t

ount he propo itten n

`t e mu

ayme e con

two or fr

est

e am all Inter=

terim Ce

issuf a

es da ifi c c the

amoun dying e c6 T&Qt w r i

Emp ails

as a

V. Final ate issue)

f later thaD od defect

ctor, whicWE

#ie cos f mat Nia ay de tabl

oroo of o et

JCT PCC98

Certificates should include for work properly ex

properly on site, an instalment of the fixed f site where these are 'listed items', subject requested provision of a bond (4.6).

Interim Certificates must state what calculation (4.2). Retention is applied otherwise agreed.

The final date for payment on I

Not later than five days after th written notice to the contr intends to withhold money, five days before the date for fina due by the date for fin

Issue of the Final Cer

Liability Period, or information from the

The Final Certif than five day,

written no money, In

final date fo certifi

6 Insurance

date of issue. ployer should give oses to pay. If he

otice not later than pay amounts properly

o suspend work (4.3).

om the end of the Defects receiving certain necessary 12).

and the basis of calculation. Not later e Employer is to give the contractor es to pay. If he intends to withhold

ice not later than five days before the or payment is 28 days from the date of the

`th all statutory obligations and give all required

notify the Architect if he finds any conflict between statutory ocuments. The Architect must issue an instruction and the

liable to the Employer under the contract for any non- quirements resulting from the instruction (5.2 and 5.5).

owered to carry out limited work for emergency compliance, as a variation and valued accordingly (5.4).

ed to comply with the CDM Regulations and particularly, where The cont the project isi-tet+#iable, to comply with duties in relation to the Construction Phase

Plan and the Health and Safety File (5.20).

The contractor indemnifies the Employer in respect of personal injury or death, unless

due to the Employer's negligence (6.1).

10

243

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10 Traditional procurement: cost plus forms

244

JCT PCC98

The contractor indemnifies the Employer in respect that this is due to the contractor's negligence (6.1

The contractor is to maintain insurance to cover t cover required by contract is the sum entere necessarily limit the contractor's liability.

If instructed, the contractor is to take out jo against the risk of legal nuisance. There be attributable to any negligence by t

Insurance of 'the Works' is for all ris

names policy may be taken out b

or 6.313).

out in joint names by the E

In the event of terrorism Employer are stated in clau

Where insurance is r

to an extension of ti in the Appendix

An Appendix en

from Fire of Constr need to res

measures

letermineemployment of the contractor by reasons A warning notice may be issued by the Architect, but the

matter for the Employer. In case of insolvency of the

g on Me circumstances determination might be automatic leTent/or the Employer might enter into an agreement ;2.1 reement') for continuation or novation (7.5).

pecifie btice of d

ontr ject`tdpossible rei

he contractox-(a ' 7 cum

r certain wo still el

hich must

toy s allbVf ed to

termin

ui

e foll -3D).

will s

tion Sites is

e event ertak -3FC).

Its (7.2)

ployer (6-

over ;es 6.

ainst er's Wor

ilabld,

e contra

t n es i7+u i

of xc ions, 2

e nevWauildirkas ar for 64ke Emplo

ified

cern

K). "I,--,

g to be

6.313 and

iqtheJ apply

f non c

e ind6"n' iies, an the th ppendix (6 ). This

Depending upon arrangements f agreement. He

or abandon the idea`o

ss of liquidated damages due s, then this should be entered

de of Practice on the Protection f so, both contractor and employer will

nce, the insurers can specify remedial

tances, the Employer can have the right to make interim k to be carried out during the holding period under this to have the Works completed by a different contractor,

completing the Works altogether.

The contractor is allowed to determine his own employment for specified defaults by the Employer (7.9). The procedures must be followed meticulously. In the event of insolvency of the Employer, the contractor may elect to determine his own employment.

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JCT PCC98

Either party can determine the employment of,

(7.13).

The respective rights and duties of the completion are set out in detail in the

8 Miscellaneous

A full list of definitions, many of t

Special provisions apply to th concerning the ascertainment o

Section 8A of the form is

given up to nominated su

Action necessary as

Third party rights excluded 0.25)

9 Disputes

The Housi party a s

d u res

adjudicatio

g Gran tutory

Articl

en

iers.

min sub-co

conseque

the Contracts

-8).

ities (3-16) is included.

Third Parties) Act 1999 are

ref of P or this.

udicati

on and Regene ation Act 1996 (Part II) gives either erence dispute arising out of the contract to

98 prpvides

etho'd for fin Iitratio ateme been)delete

on

i

e dispu

detail in clause 9A.

I resolution of disputes (unless the Appendix tailed in clause 9B.

conducte" accordance with the JCT 1998 Edition of the

en deleted as the chosen method, then clause 9C will apply

cifi2qo P

actoor listed ne

keeping f co me rime st iteib (1

10

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10 Traditional procurement: cost plus forms

246

JCT PCC98

Sub-contractors ma names. Sub-contr of dedicated doc but the prescribe

When com including Fire Cod for com

con ticularly here

PPC98 provides for parti facilitate this are included a

design by the Contracnor be sel

tors a

ments d

SC do 'dato ents

m, ent ies ar regLf

scion; s Oiste

d EDI. The

oes not

p

se for JCT98 can be'ada

tract

eo tract Fee

izatei an

e int lished in

ifi ion ime st

ed

thud antity s v r.

arry the a

=dof , se ction

the co formanc so

the trac r frog,

ay also e nom rocedures4

work i such that " is

e sion ther pri ate t d s h drawings s are

o e i ms of ork as

he c tra may be h ule. e Employer

arteclon sit

This contract?

If considering using PPC98 remember that:

It is intended for contracts where work mu documentation, or where the nature of t impossible to prepare full information. It is p

or public sector clients. The Recitals call foKa Sp

listed in the First Schedule, and an estim shown in the Fourth Schedule. The C

either on a fixed or percentage basis

is required to appoint a contract a

The form is for use in England and published its own SBC Prime withdrawn.

This is an atfractiv are Section hea administration. this is a procuremen

etion (Modifications to ere is no provision for

a list of not less than three nated, in which case the use

ollow closely those for JCT98,

d relating to decisions on matters items); insurance of the Works; Joint

ght Schedules should also be checked

ator it is essefitial to follow carefully the procedural rules,

ns are made.

from time to time. The form is available on disk. dministration forms for use with PCC98 but many

d, self-contained but bulky document. The Conditions -headed, but the procedures are rather complex for o have sold in great numbers, not surprising perhaps as

ethod which brings considerable risks for the Employer. However, it seems to have been used without serious problems, possibly due to careful selection of the Contractor, a realistic attitude on the part of the Employer and sound practice in contract administration.

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Traditional procurement: cost plus forms

JCT PCC98

Standard Form of Prime Cost Contract 1998 Edition Amendment 1: 1999 (Construction Industry Sch

Amendment 2: 2000 (sundry amendments) Amendment 3: 2001 (terrorism cover/Joint Fi

Amendment 4: 2002 (extension of time/loss an

Nominated sub-contractor forms: NSC/T 98 (PCC): Part 1 (tender invitati NSC/T 98 (PCC): Part 2 (tender) NSClr 98 (PCC): Part 3 (particular NSC/A 98 (PCC) (agreement, con NSC/N 98 (PCC) (nomination fro

CT Pra

NSC/W 98 (PCC) (warranty agreemen NSC/C 98 (PCC) (condition (all these documents hav

Nominated supplier for TNS/1Tender TNS/2Warranty JCT Domestic Con Sub-contract A Sub-contract

ra

eemenf ndition

to be used i

Code/CIS)

xpe Ks )

, or)

itiori actor

chitect ontra

ctor) -contr

ting subs

(no equire ent in con act th S SC , dition

SC/C/S 002 Edi

PCC/1'Md Guid

yency o ai Contrac $es (relev t to JCT 8 but r

ice Note No

ctice No o 27: actice to No 8: M

Seri

Practi Practi

Prac'fic

JCT PrrWce Note to 1: Constru

Not Note 3

: Adjudi

on oft e CDM 4 iatiori

(for the 1992 Edition but largely relevant for 1998)

995)

(yellow cd

mploye

rs):

itten with JCT80 in mind):

ontra

(1992) gulations 0995)

on Industry S&eme ation (includes text of agreements)

errorism Cover surancT it iing on Appropriate JCT Form of Contract

10

247

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248

00 N

Page 250: Which Contract

Design and build procurement

Design and build forms

The Joint Contracts Tribunal Ltd Design and Build Contract 20 5

Institution of Civil Engineer ICE Design and Constru

The Stationery Office GC/Works/1 Single GC,/Works/1 Two S

Traditional procurement for design by the

The wording u responsibility

With one specifically

tage Desi age DVsi

rms o Con actor.

scan

on

n ark and B

ontract do ` 4ey are sim

rd for

rib ly 'wb

cont act ex

19

ea

ition (2001)

bf anything to the contrary, provide and'rfaterials' contracts.

essly includes for a limited measure of design d in so

y the M

ception, use wit

the contractor.

h Contrac

is ch ign and

sometinxes'by optio

nce

uild procu

d only with

al or supplemental provisions.

rms of contract which have been drafted and take full account of design responsibility by

249

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250

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Design and build procurement: design and build forms

the fo

u ng form

appo one t was eed d whi n archit t nor a

The cos f preparin a tender for design and build contracts with a substantial design import is re ' high. The JCT Series 2 Practice Note 6 Main Contract Tendering, gives an excellent framework which should be adopted. If it is to be demonstrably competitive both in design quality and price, then two stage tendering is essential with design and build procurement.

inded. As t up to the fact than

welcome) e .ct'.

ostl

th iasm id bui e me ablisltQ recom en n t ED

part t o th for ey in I

was a raise

hic ,

rs' s

up o

es. Th form

s to

f the En

later to becon e scales

r-d aned

rm w pro acted, islaed ase JCT/

Edition (J

ildin

struct f

pa rtn oyers

nd

to

or p

po

ct exis fo use bj onsibilities, obli

deal wi

JCT DB05

The Joint Contracts Tribunal Ltd

Design and Build

Background

During the mid-1970s, a time of building, contractor-led design of building procurement. It wa Industrial Recovery. The management working gr pressed its apparent advant Tribunal the need for a standa would design and c

By this time the D

Building Trades Em

(sometimes However, n

which fair a new fo of neither

the National Federation of ction Confederation) had their

here a building was designed nts) to a client's specific requirements. local authorities or the private sector ations and risks of the parties. Clearly

the situation where the appointment

pproachesto

ortant method Construction for

ent development hority housing also

ith the Joint Contracts ump sum, a contractor requirements.

nd continued for six years. However, when tandard Form of Building Contract With WCD81), it was an immediate success and

ndustry. Supplementary Provisions introduced in

e usefulness and flexibility of WCD.

eared, public sector housing has declined, and it has been used

r more complicated than those for which it was originally statement in a 1987 report put it: 'Architects should face

and build is here to stay and that many clients appear to sign and build is now an established procurement method with contractor-led but frequently design-led.

11

251

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11 Design and build procurement: design and build forms

252

he agree its th

By the Second ecital, the c ntractor is obliged to submit proposals, and a tender figure. The contrac-to s obliged to produce a Contract Sum Analysis. The Third Recital places on the Employer the obligation to examine the Contractor's Proposals. The wording falls short of a warranty by the Employer, but this obligation must be treated cautiously because it is the Contractor's Proposals which prevail in the event of a conflict. (The form is frequently amended to reverse this.) Where the Employer accepts some divergence, the Employer's Requirements should be amended before

hou

nditi Qs ,e simila?fy is no role for a con

Ky out and plete t perso

er

often the a

'often used it is co racti

ed design loye

f de'* o the

uranc

he co to the

of ca sign ana to act as Employ gr any oth

Id be c

xecute

later

hanges t

e for -- vhich

suit suit rly er' ha

is duty might

co o ate

lirn

s'o'

ich i Itl- J the ousra was blish

JCT DB05

A new edition was published in 1998, wich was es

the 1981 edition and the 11 subsequent am necessary to bring the form in line with the r

Construction and Development Act 1996. Th

and represents a radical overhaul, with simila

The total document runs to over 100 pa

Recitals and nine Articles, and may be deed.

Article 1 states the express ob design for the Works and car

that the obligation is to co

3 the Employer nominates a

architect, surveyor, pro1( ct m

and any limits to his or (The contract wordi and depending o

Employer's Agen

in practice the form a substantia consultant

includin However Agent, and d ra

b 'complete the f the Works' (note

e design). In Article This agent may be an

n, and his or her duties ed right from the outset.

ing a duty in certain matters, r might not rest with the

scheme design has been developed to to appoint an architect and other

ments in considerable detail, often nd even some production drawings.

is quite distinct from that of Employer's

arked resemblance to SBC05, and in parts the difference between the forms is fundamental.

inistrator to act fairly as between the parties. The compatibility between the Employer's Requirements on tor's Proposals on the other.

Page 254: Which Contract

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Design and build procurement: design and build forms

JCT DB05

the Contract Documents are signed. This

obligation to satisfy the Employer's Requi

components and materials, and standards are covered by performance specificati

The Contractor's Proposals should re

Requirements, indicating where amen not include Prime Cost or provis,

which case the Requirements plans, elevations, Sections and services layout drawings, a

already provided in the E

those Requirements.

The term Employer's R

suitable for projects required', or a full " with planning permi Requirements

f responsible suggests tend( rs. If obtaine Requireme n not t ext

lating t naiys

might stipulate

dasaCh4 th mployer, the contractor may have to bear any Fee CD/1A paras 11-13 for further guidance.) tice No

n c tract Payable in stages or periodically based on the n. The nditi ns make no reference to bills of quantities or a

he Contra Sum Analysis will therefore be used for valuing loyer's Requirements, valuations for interim payments, and for

sement of increased costs by the Formula Rules. The Contract e su itted with the tender, and the Employer's Requirements

rm and headings to be used, possibly as prepared by the sur yor consultant.

Use

The for places o the contractor the same design responsibility as that of an architect or appropriate professional designer (2.17). This of course is to use reasonable skill and care. It is not an absolute warranty except to the extent that housing designs must satisfy the provisions of the Defective Premises Act 1972. There is now a requirement in the form for the contractor to take out professional indemnity insurance to back this warranty. Details of the cover required, including the period for which it must be taken out, are entered in the Contract Particulars.

here ther

oes n relie ments in to

f work an ip

and to ent or a

ns less

st belie e ey s

ical d tai s, n ab rm

n" prepa sion ready obtaine e

state learIy w ob 'niri

t t at I ast

e co ract by th da of

% have ated t

als. Thi

ifica ' ma e ire . althod

0 ther',

is a

Pract

consi

sign; rticuly

h th ent 't able tvis

mployer's hey should 6ation is

es to this, in

any necessary 'structural design,

workmanship not ifically requested in

-6 makes the form equally

loyer agr

t-nclu

ription of accommodation oyer by his own consultants'

e Note CD1/A.) The Employer's oyer or the contractor is to be

st important matter, and experience g ni is desirable before inviting

ponsible f r approvals, and these have not been r clause 2.15.2, if the Employer's h en u e

men muents necessary to ensure compliance are

e res

nde?

at any nge bra

11

253

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11 Design and build procurement: design and build forms

254

ty con authority of

o inspe sect td+`epare

nsider the wings. ome ntractors choose to retain an architect that drawl are being correctly interpreted, or to see

ccommodated without injurious consequential effects. raised by their architect about workmanship and

:e rice, and consider that the inspection of work on nt an contracts manager. Therefore it might be highly to advantage of clause 3.1 and appoint an architect

and report back, to ensure that the standards of y of materials is in accordance with the Requirements.

ge g of

nisi

itect or contrac

subs iers regar,

teri is best-reft to their si

le for the Errloyer spe

alit

erefor'

re Em

tion ins`

i ility for mp er b

as de n he

be prob wh the`r the e v t o i l u r e b

yth 'frpm a dev

ge gs i dica I nning p

the Employer on or 'C

h full co ctor. luati

r esig rauura he ntra Par ti

app pria fig i

uId to e advice

JCT DB05

Liability for consequential loss occurring as the re,

contractor may be limited to an amount to be en (2.17). Opinion is divided on the worth of this, and be. As each set of circumstances is different, thp- E

insurance experts.

The form, as used, sometimes places respon contractor. It also permits design input design warranty is only applicable 'insofa the Contractor's Proposals'. There ca

substantial design input, because responsibility become blurred.

The Employer's Requirements may statement of performance req

with outline specification and finishes, which may have re no provision for design in

documents, except by w occurs the Employer consequential expen

The fact that there can leave the pro person acting with t to the Works have enga

drawings or she ha for site dutie wh

imple written scheme design,

nts, materials and . However, there is

pletion of the tender rm terms it. Where this

ch variation, including any the hands of the contractor.

administrator in the contract he Employer's Agent or other

er or his Agent is to be allowed access

ditional sense. The contractor might esigns and assist with production

Fchitect's work to be finished once he

Synopsis

1 Intentions

The documents are to be read as a whole, and the printed Articles, Conditions, Appendices and Supplementary Provisions prevail in the event of any conflict (1.3).

The contractor is obliged to carry out and complete the Works referred to in the

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Design and build procurement: design and build forms

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Contract Documents (the Employer's Requir Contract Sum Analysis and the printed Con to completing the design for the Works; materials, goods and workmanship of documents (2.2.1).

t

Kinds and standards will be either t Employer has specified these in th contractor. If not, then the cont and 2.2).

The Contractor's Proposals a

Recital) and the Employer is that he is satisfied that the

There is no means Requirements and th the Proposals prevai is to be notified an amendments (?11.2).

e Employer iso

ble d skiIJ

Action', 'B

on', in he c

c ust r

any work(

se referr me th

wh liab

com d by a C itact S

e b refully, :oyer R ire

esign arran inc lo s f use,

endix (2.11

br is

care a

u bject ,1 will

terms t app!

The is re uired toorvb it drawings and other documents it prepares in o the de 'gn (the 'Contractor's Design Documents'), as set out in the um

en or as reasonably necessary. The submission is to follow a

et t in S edule 1 (2.8).

ents, e Co actor Pr`o

itions) 1 1 her k expr t elia ce u n t contr

ithin f Proposals.

Whe he m

his m

here iscrep cy

re is a discr ancy make a c' ion bou ht cons ute a han

its o»bvdign 1). However, w

efective

neceary bu;'not refer

cumen ill reduce

in everx

and if the ability on the of failure (2.1

m Analysis (Second ause the assumption

ents (Third Recital).

a mismatch between the hd within the Requirements,

hin the Proposals, the Employer the discrepancy and proposed

ork to the extent that it warrants ere the contract is for housing work

remises Act 1972, the limit of liability

es for consequential loss not covered by ss of profit, etc.) and can be limited to an

-3)

by returning the design documents marked either 'A 'Ction'. The contractor is to execute work marked 'A Action' se of the latter it must incorporate comments by the Employer. vise drawings marked 'C Action and return for approval before

Schedule 1: 5).

No comments of the Employer relieve the contractor of any of its responsibility for design (Schedule 1: 8.3).

The contractor is obliged to supply 'as built' drawings after completion, and before commencement of the Rectification Period. These may or may not comprise part of the Health and Safety File, according to the circumstances.

11

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11 Design and build procurement: design and build forms

256

t

fter the b the Pm-pl

compl on oye

25-

s, provi

inclu rm ho or the oyer (2.27).

ris I

appr

r early

pletion,

tract

not excee

e enter

ntlwand

o Se s, ands esf liq d da

ing Fina

e W an

xamp ere is n, except

to th tima fy th

na y

or o

le an

mlbloyer, tod of the lik

contra bl ractica

Event for ich

ing de n wor of chan

to ent bject Yo

to

the C

revie

o- In; ran rin he uto ation

s uto

JCT DB05

The CDM Regulations require the appointment of a

Contractor, and under Articles 5 and 6 and provisi both employer and contractor become contractu

2 Time

Dates for possession and completion should The contractor must proceed regularly and dill completion date (2.3).

An option for deferment of possessio

to an entry in the Contract Particular

There is provision for dividing commencement and completion section. All provisions relating to apply separately to each sect]

Notice of delay must be giv including the contractor's Employer is required completion date as s

(2.25.2).

The listed Releva

to strikes etc. affe

approvals, an which arise

decision practica

3 Control

ng separate ages for each

for completion, Certificate.

pporting information, mpletion (2.24). The

hiscision relating to the in any event within 12 weeks

e awarded includes reference g from necessary permissions or

requirements or terms of consents tract Particulars (2.26). The interim

no later than 12 weeks following

plete thelorks to time, the Employer may recover that it issues a written notice to the contractor (2.29).

ufficient compliance by the contractor in providing .y File, is signified by a written statement from the

bliged to rectify defects unless the Employer decides priate deduction instead (2.35).

`se or occupation by the employe (2.5.1) and for partial

The bar to assignment without written consent relates to the contract 'or any rights thereunder' is a (7.1).

Page 258: Which Contract

vii

0

Design and build procurement: design and build forms

JCT DB05

The contract provides for Third Party Rights funders. The requirement to grant third pa

with information regarding limits to the c

Contract Particulars. The rights are set o

The contract provides for collateral funders and purchasers/tenants, and funders, and the Employer. The re

in the Contract Particulars, th together with information reg

The warranties to purchaser, CWa/P&T, CWa/F, SCWa/F relation to the Employer, alth

There is a requireme to the carrying out o sub-letting that the

ntrt accor

instr, of o `structi

and these or des

the

have a

for wri work, but u b-c

na

b-co

ntal P

ina ay b

2.1.

in writin

The and i

V.Cie-'contract a

out during the ti

Venrork or ate 'als do not comply with the contract, the Employer may instruct the o rem ve them from site (3.13.1). The Employer may also order any consequ Chan es necessary, which will not attract any extension of time or addition to ntract Sum. It may order tests and inspections (3.12) and the likelihood of any non-compliance in similar work elsewhere is covered (3.13.3 and Code of Practice).

Employer' confirmati are em wer con ruction m

sent

tters in cert

K (3.7 ay

ractors isio

n

ISO to P, shall con

e assi ned to urcha y ngh to i tifie

ntract s li ility, ust iSchedu 5.

provi d by/the to th urcha

to rranties b- ntra

set o

tractor to s/tenants,

st be set out ors identified,

ting which refers not only -3). It is a condition of any

provisions (3.4).

contractors or suppliers in the part of the Employer's Requirements

although this can mean written ditions clearly define what instructions

Change (3.9.1) and postponement of any Employer cannot order a Change which

ut the contractor's consent.

mpetent person-in-charge on the site full-time

s all work to be carried out in a proper and workmanlike manner, the Health and Safety Plan (2.1.1).

under the direct control of the Employer to be carried e contractor is in possession (2.6).

4 Money

The contractor is required to provide Priced Statements; there are strict timescales to

11

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11 Design and build procurement: design and build forms

258

aid cash flow; and non-payment to time can be a val

The Contract Sum is VAT-exclusive (4.4.1) and ma in the Conditions (4.1).

The valuation of Employer's Changes can be of the Valuation Rules set out in clauses 5.4

The contractor can recover increases in t the base date (Option A). Increases in la

by the traditional method (Option B)

4.19).

Where provisional sums have instructions must be given about the

6o valid n

ilure k outkarW

tices

ng amou

The final d

Within fiv amount e

clearly in a

be give

The thr mo the following practical completion in which to submit his detailed Final /AA ht an the Final Statement (4.12.1). If the contractor fails to submit these tw important ocuments within the timescale, the Employer is entitled to prepare his own count and Final Statement and, if not disputed, these will be conclusive as to monetary matters (4.12.5).

Final date for payment is 28 days from the date when the Final Statement from the contractor or the Employer becomes conclusive. Failure to make payment in full by the final date for payment will attract interest of 5 per cent over current base rate.

actor the right to e

en in expen

tion et out

er con

ritteri alid applica fining

ose der of r JCT,\

sterna A). he ch

e Contract Parti

m tt ynts ents,

ontractor e giv

rop er

r P

e pay equire

erim details as sti

is 14 vs froom th date of receipt of each application. notify the contractor in writing of the

`thhold or deduct money must be stated lich also s Gt the grounds for such action. This must o less than Me days before the date for final payment. by the Employer, then payment in full must be made.

ue by the final date for payment will attract interest 5 per nt over current base rate, and can also give the r rk until payment is made (4.10).

mploVer mus tion to

`the

o 5.7 (5-

or ntri ur a m eri ay

by thus he ula

in tt,-LMploye

u rse n

ulate

pon are scion, or o

JCT DB05

The contractor must make expense. The grounds for a

from delay in obtaining pla has undertaken to obtain.

Interim payments d

(Alternative B) or sta

in the Employer's

Applications for must be supported

ent of loss and/or include loss arising

nts which the Employer

forms. They may be periodic sen method should be stated ulars (4.7).

ntractor, and each application the Employer's Requirements (4.9).

Page 260: Which Contract

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tin

Of-

ctor's design work. Which alternative clause is to apply should mployer's Requirements and shown by deletions in the Contract

In the event that terrorism cover is withdrawn and is no longer available, the situation and options open to the Employer are dealt with in clause 6.10.

The contractor required to carry professional indemnity insurance. The amount of

Design and build procurement: design and build forms

JCT DB05

5 Statutory obligations

The contractor must comply with all sta

required by statute (2.1). The only exceptio in the Employer's Requirements it is stat permission, 2.1.2). All consents or p

passed on to the Employer (2.1.3).

The contractor can only claim fe,

Employer's Requirements by

adjustment to the Contract S

The contractor is to notify t requirements and either the The Employer's consent

If amendments to t statutory requireme Change in the Em

expense (2-15- this, then nec

e Em

ploye equir

mission

r r quir en and this tract I oblig

se are in c plia e

obt w ed b he ntr

itheN anydiv

to ari irerrhnr the

osals le Contract ract is aft ,oyer'

ever,

is Pr`a{

-tW base dat Requirement

here th Er

e r s woul k d m

Xor is o iged c

is not iabl , to e Healt d Safe

with duties ply w-ittrfhe CD

contractor in mim#Jes th Employ,

wou

between statutory ontractor's Proposals.

ents (2.15.1).

essary due to changes in

ould normally constitute a

not be at the contractor's yerquirements expressly preclude the contractor's expense.

Regulations and particularly, where n relation to the Construction Phase

r in respect of personal injury or death, and pertXothi han the

d, the co

orks (6-1). This is to be backed by insurance

'tractor may be required to take out joint names insurance for the inst t

emen caused b

risk of legal nuisance. This will have been stated in the There is a list of exceptions, and damage must not have

the, contr' required by the Co

e

tor's negligence. An entry on the extent of cover is

rticulars (6.5.1).

orks' follows the SBC05 provisions in clauses Schedule 3

B or Q. The full reinstatement value of work must include for 0p`-ffons A, the cont

then

11

259

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11 Design and build procurement: design and build forms

260

JCT DB05

ctive ri s

n are t o, ovidin

an

ind e Em

bligation

iscellane

ist o`kditions is

arty

ployer's Ag s_migh

fo olven

clb@ t

If the J

(stoapp evence

the cob suspe

liga ay r

o.

anent plant'

e his o e ied per oft m

m of in

emplo

erminL,4l empl in obtaini

u of the parts concerning payment, removal and tail ( and 8-1/2). Note that the contractor's obligation loyer wit co ies of all drawings etc. prepared, and that r payment includes design costs.

Code f Pra ice o - 3) an if so, fno compliant

e th is wh

scharg

otice, f the

by no

e a w case of in ntrac

em dd loyer,

in

DIvenc c

mployme

Contract P ticula The i ur Pr

tion

Z o the ntr . Th is

or con min tion ims if no in rted in e Co ract Parti ars.

to a

e

cover and the period of expiry are inserted in the must be taken out immediately following exec provision for inserting a level of cover for pollutio is inserted, the level is the same as the level of co

An entry in the Contract Particulars will show Protection from Fire of Construction Sites Employer and contractor must comply w result in the insurers specifying remedi

7 Termination

The Employer is allowed to termin specified defaults (8.4). One reaso design work and is therefore unable to The Employer is first to is

determination notice. In th at any time terminate the

The contractor is allow if the Works are susp (8.9.2). In the eve determine its ow

Either party can (8-11-1). Onej blameless.

flow this with the the Employer may

(8.5.1).

for specified defaults or default of the Employer

the contractor may elect to

he`Contracts (Rights of Third Parties) Act 1999 are ,for in the Contract Particulars (1.6).

Access for the E

provided (3.1). workshops is concerne'

Discovery of antiquities etc. is covered (3.15).

Sums payable in respect of royalties are deemed to have been included in the Contract Sum, and the Employer is indemnified against infringements of copyright (2.18).

nt, and any person authorised by the Employer, is to be

e subject to reasonable restrictions as far as access to

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Design and build procurement: design and build forms

JCT DB05

The Housirrant righ

n.-Article 7

Procedure r refe al to adjudication and the appointment of an adjudicator are covered in clause 9.2. Any adjudication will be subject to the provisions of the Scheme for Construction Contracts.

tiob, atter to

atutor

tf These

cts.

bly im

icu sho* e i ota I

ey Ca4 ably

int A

erso uired

a char

ntrac ogres

s,

er is req

titled t duc

r wh

ajor na

ies a

of m pclu ills, Jhe

of dto s

nd cor

e a sub' later during ,n the sufcc

're firm

ariatio or ang may b requir

of time t over

icatior :

or ma ap ication for loss and/or expense as provided for onus is on We contractor to include a detailed estimate in the

loyer may accept the estimate, or choose to negotiate, or refer

fnploy 's ins ct o the co racto

ed t the ntra-Lt Sum

n with ements

are ado

rtaM in the`contM of th the boundaries oftKe s

However, where the contractor is complyi matters not covered by the Employer's Requi

for infringements, and any additional sum

The Employer is wholly responsible for contractor (2.9). This could be conside etc. Act 1996.

An appropriate deletion in the C

Supplemental Provisions apply, necessarily be relevant for all con of the form, and they are as.

1: the contractor may be r

representative on site, and shou consent of the Emplo

2: the Employer is e

(note - not to be int is to notify the ERplo

e Employer's Requirements f the Works). The contractor

een entered into.

part of the Employer's Requirements, asurement used is to be stated.

re have been issued by the Employer, mit estimates of the anticipated effects in terms

ential expense, before work is authorised. If

the instruction may be withdrawn, or the

Cor truction and Regeneration Act 1996 (Part II) gives either to refer any difference or dispute arising out of the contract to provides for this.

The adjudicator's decision is binding on the parties at least until the dispute is finally determined at arbitration or by legal proceedings.

11

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- 11 Design and build procurement: design and build forms

JCT DB05

Arbitration may be agreed as the method for finally, 9.3). Unless this provision is shown in the Contract are to be referred for legal proceedings (Article 9

Ydispu s (Ar-8-aad s to amply, en di utes

262

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Design and build procurement: design and build forms

JCT DB05

This contract?

If considering using DB05 remember

It is intended for use where the contra Works to a greater or lesser extent as

the design is a stated obligation. The achieving this (i.e. not a fitness responsible for design, the cle Whilst at first sight, this cont difference is the absence o surveyor to act on the Em

The Scottish Building CoW

ntractor e more th

e reasable ski

Contractor's Design form (200

The Employer's R

contract and it is i

should be adequa particularly beKaause

provisions av

ating to named persons in Employer's es by the contractor relating to the

s Ag tt,, ny limi to authority should be clarified, and a clear

oye

n what is erypowered by the Employer under the contract. is(ng the Fhployer, care is needed to stay strictly within the

tment e ee''ally once work starts on site. If acting for the trar under a/novation agreement, accountability should be clearly established

and espe

uirements and on port at they ly d Ctailed in cove of numbe of

`er th ou dar of ct has man ila

t Corn

ovisi for on

evisid

if. TR-rm is for' usi ubl i i 199

ccept resp

tra in h

rtarly those

Co m ct,

71tu/iar r equire althgbgh

spor

c

of the etion of

nd care in

ontractor is

bility become. a fundamental

istrator or quantity England and Wales.

sals are the core of this The Contract Sum Analysis

eting the form requires care, Particulars and supplementary

incorporating the optional dyer w Id e

ntary P ovisi s,

ts, a ubmis ranges and io

11

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11 Design and build procurement: design and build forms

JCT DB05

Design and Build Contract 2005 Design and Build Sub-contract Agreement 2005 Design and Build Sub-contract Conditions 2005 Contractor Collateral Warranty for a Funder Contractor Collateral Warranty for a Purchaser or Tenant Sub-contractor Collateral Warranty for a Funder Sub-contractor Collateral Warranty for a Purchaser,

Sub-contractor Collateral Warranty for Employer

References

JCT Design and Build Contract Guide JCT Design and Build Sub-Contract Guide

JCT Practice Note: Deciding on the A Series 2 JCT Practice Notes (yellow Practice Note 6: Main Contract Te

Earlier JCT Practice Notes (relevant Practice Note No 23: Contract Sum

JCT Practice Note CD/1 A (

JCT Practice Note CD/1 B (

David Chappell and Vi

The JCT Design and Buil 3rd edn, Blackw.

Sarah Lupton Guide to D RIBA Publis

264

Page 266: Which Contract

Design and build procurement: design and build forms

ICE/D&C

The Institution of Civil Engineers

ICE Design and Co of Contract Seco

Background

In the early 1990s governme awarding contracts for roa

endorsement of the rapid the belief that there wou and save money overall - even

The ICE Design and although obviously of the two forms is

however, the 5iMilari distinct.

as the basis for n. It was a further f procurement, and

e schemes more quickly ay be higher'.

ely introduction in 1992, onakYCE Conditions. The structure

same Section headings. There, urpose the documents are quite

As with th traditi al ICE nditiorm4is for is produced by the Institution of Civil

Engineer d, the ssoc ti o Consulting ngineers and the Civil Engineering Contract Asso n, an is kep gular review.

is includes the Conditions, a Form of Tender of Agreement, a Form of Default Bond, and

obligations are for both permanent and temporary works. The

will be completed to show which documents are intended to be

Is.

e c(tract are in 72 clauses, and the sequence follows closely that s foun in t e traditional ICE Conditions. The Contents list and index on a

clause b c e basi are particularly helpful.

Use

Entries in Part 1 of the Form of Tender Appendix will show a contractor tendering whether quality assurance or a performance bond is required, and provide detailed information such as commencement date, time for completion, completion by

Sections, damages, payment provisions, CDM responsibilities and arbitration procedures. Part 2 of the Appendix will be completed by the tenderer.

ong these the Employer's Requirements and the Contractor's

11

265

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11 Design and build procurement: design and build forms

266

ical con'

esee n prove

resdntatiye a ontractor must su

orks i,

t is

ave ins cted nd examined the site and surroundings, e by the Em yer before tendering (11). In the event of cial obstructions which could not reasonably have been at e contractor gives written notice to the Employer's )ayme may be authorised (12).

nit II necessary design drawings to the Employer's

of Con act, mplo gree y the/

lanator r n he Em

of D98.)

st submit

sibility

ntativ

re

rsr partie but i

Jo

`a quality he E

struc

e de n (8).

temporary uireme

ssura

Repre ion stages (8),

fety of t truct

co Iete hi het

onab`h to beerr m t aterials

ble skilr,

ign v ' clud

an permanent work. Contract , Contractor's Submission and

(1). T He documents taken together are 4event of discrepancies between the

irements it is the latter which prevail

ICE/D&C

The key person in terms of contract administration is t He or she is to be named in the Appendix Part 1, an to act within the terms of the contract. In the Employer must nominate a replacement.

Synopsis

The contractor undertakes to design, co providing all design services, labour and or a temporary nature as specified in or

In all design obligations the contra (8) and this includes accepting resp Employer's Requirements.

The contractor is to institut which must be approved by work at both design and co

The contractor is resp of all site operations

Definition of the means Condition other documents stated to be Contractor' (5). (This i

The contr and t ph

fo,

uding manent

contract (8).

nd diligence as part of the

consent must be obtained before construction work is

programme to the Employer's Representative for his or her acceptance. It mrevised from time to time as necessary (14).

The Works must be designed, constructed and completed in accordance with the contract, and materials and workmanship must be as described in the contract, or be to appropriate standards and codes of practice. There is provision for checks and testing to be carried out.

Page 268: Which Contract

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Design and build procurement: design and build forms

ICE/D&C

Reasonable facilities must be provided for Employer on or near the site of the Works

The functions and authority of the name named assistants are clearly defined (

The contractor must start as s

expedition and without de

The contract may prescrib

e wit epres

'ward

er to give of extensio

ay

s of tim

so be due f wf a h

7 n z

ntative

kind (4 day

Tempo ime

. Thex

,lay , not I

tatty

nd supply necessary particulars. The ter than 14 days after the completion

even if t re is no claim by the contractor.

ctor tM to co loyer ma E

nalty, bu

here r

a Plo

n ctor a r !boe

es,

e ion is taf

e or any designated Section of the Works plete the w dedu

e no Thznitakfon to I

re aroaress is too esentati

obliged to take

then Mquidat

retain liquidated damages. These must not be uidated damages is stated in the Appendix

damages without limit shall apply (47).

tive requests accelerated completion and the for payment shall be agreed between the parties

ow to ensure completion by the date agreed, the Employer's T'ay noti such e

he contractor of his or her opinion, and the contractor is

as may be necessary at his own expense (46).

Th-e- ployerRe esentative must issue a Certificate of Substantial Completion when i r her opinion the whole or a designated Section of the Works is

substa tially compl ted. The contractor must notify the Employer's Representative when com as been achieved, and the Employer's Representative issues the certificate within 21 days of notification, always provided that he or she is satisfied (48).

The contractor is obliged to complete any outstanding work and deal with repairs during the Defects Correction Period. When the Employer's Representative is

11

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11 Design and build procurement: design and build forms

ICED&C

satisfied, a Defects Correction Certificate is issued, alth contractor of any liability (61).

Prior to the issue of the Defects Correction Certifi manuals and as-built drawings for the permen obligation quite additional to material for the

Neither party may assign the contract or written consent of the other (3).

The contractor must first obtain c

change of the contractor's designe Form of Tender, Part 2 (4).

The contractor is permitted to must notify the Employer' arriving on site (4).

The Employer's Representati and order alterations t

The Employer's materials whic of materials contractor

y cl wor as desici

Represent

itorltaieres

)must a co ra

(61).

om Em oye \ ore rson`r rmed in th

rior t

order susp

?N Requir

give t erect (

ip. Thi!

instruc the c

will tens

ility ( replacement of work for which the

gust prov'de a necess y superintendence. A Contractor's overa I response it and may delegate to a nominated deputy

ement o the Employer's Representative (15).

omply wit

nclud

p sum, or such other sum as may be ascertained nditions. The contract price will include for the

pletion of the Works (1).

d in the contract price (70).

Provisional sums a rime ost sums are not referred to in the contract, but a 'Prime Cost Item' means a Prime Cost sum for the supply of goods, materials or services (1). Use of Contingency and Prime Cost Items require prior consent by the Employer's Representative.

r)-offender inc rdance with the colt'

istru n a co

ged t it is c

resenw e ma a

Repre

moval from the site of any ct, and the removal and replacement

268

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Design and build procurement: design and build forms

Variations to the Employer's Requirements Employer's Representative the contractor and delay involved. Otherwise, or if the es

variations will be by the Employer's Repr in accordance with the contract (52). in accordance with the Federation Dayworks (55).

Payment to the contractor is

the Employer's Representative Certificate within 25 days. T

of calculation. If the EmY contractor not less than or grounds for any deduction. delivery of the contra or's m-or event of failure to ce ify, or failu to time, the contra for is

ream

days of certi

han t ee m nth must the E

ments. Th

a Final 0 (60).

The contractor in

'-statutoGw6i`Ntion by t

ning planni equirr

oyer

day b date

to intere

ill be shown in<he A ten

and th

e. Fina

n 'kill t

4ployer

mplo tific

ork of Civil

de on s

ificat

sis inter` he tract,

ust sow e mou to old pa

e fi to for' ent

Em)

I

they :orre

the date of

dered, nd if u ita tim eoft

of cepte , val tion n fair a d reas na E

on a da ork sis ill

ICE/D&C

submitted to ed by an Interim

due and the basis

he must notify the ayment, and state the

mployer is 28 days after yer's Representative. In the

yer to make proper payment utstanding amounts (60).

o the Form of Tender, and the slue of the Certificate of Substantial tion Period (60).

he Defects Correction Certificate, the entative a final account together with

Representative then has three months to verify date for payment by the Employer is within

tractor must give all noti and pay all fees required by legislation. This might ofd sign or construction relating to both temporary and permanent

Representative certifies this, then the contractor can expect

the Employer against the consequences of any breach of but this will not apply if this arises due to complying with an e Employer's Representative. The contractor is not responsible

permission unless the contract actually requires this. If the ents do not conform with statutory requirements, then the

Employer's Representative must issue necessary corrective instructions (26).

The CDM Regulations 1994 place obligations on both Employer and Contractor, particularly in respect of the Health and Safety Plan and the Health and Safety File. The Employer is obliged to appoint a Planning Supervisor and a Principal Contractor. With the incorporation of these provisions into the contract, these statutory duties become contractual obligations as well (71).

11

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11 Design and build procurement: design and build forms

270

ICED&C

6 Insurance

The contractor takes full responsibility for the care equipment from Commencement Date to Substa any loss or damage from whatsoever cause, b listed in the contract Conditions (20).

The contractor must insure in joint names temporary and permanent works for the cover additional costs (21). The term Employer.

There appears to be no requiremen respect of design failure.

The contractor indemnifies the to persons and damage t exceptions, and these remai

The contractor is required to third party insurance co stated in the Appen extent of the contr

property the resczo

mini equi ut t

ccident

x to tor's li

obliga ployis ind

tractor` seven nd may,

tr

d u res

arranoin

of spec

ency, the contracto s ing sev dNs' no

aso

Following termi ation by th Employer, the Conditions provide for assignment of goods and materia not appear to include for design drawings which might be necessary to complete the Works.

vency ler the c

ains risk 11 .11 to t co

ce e fo

tract take ou

inst t than

the E

e indemnit cove Qnder,

eins

oth - sibility

nified in -r

rks, a rial '11 a

le on. Th risks i

Jude th Except

claims for injury There are stated

22).

mployer by taking out ntract will be the figure

is will not necessarily be the

ays' notice in the event of specified xpel the contractor without releasing

(65).

Works, ascertaining the value of work already done, ter termination, are set out in the contract (65).

on the part of the Employer, which include inate his own employment under the contract

tice. -If default continues for a further seven days the able dispatch remove all equipment from the site (64).

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Design and build procurement: design and build forms

ICE/D&C

8 Miscellaneous

The Conditions include a full set of definiti

The Employer's Representative can requir (16).

There is provision in the event o archaeological interest, etc. (32).

The Employer's Representative Workshops. The Conditions refe but not to offices where de

Matters relating to the posse the contract are mainly the resp to give the contractor, be awarded (42).

tractor

things of

e site and the als in manufacture,

nd those prescribed in

here there is a failure e and additional costs can

Is brought on to the site may mployer's Representative (54).

In the event df an o for k of vvK the obligations of the parties are as

stated (63)

ights of Third Parties) Act 1999 are

Spe I con i ns ay be corp rated, nd they should be numbered consecutively aft r the standar Co itions contr t (72).

agreemen (1994).

ract requirhat matters of dissatisfaction must be referred to esentative in the first instance. The Employer's Representative is

er decision in writing to both the Employer and the contractor ference.

n cannot be satisfactorily resolved by reference to the tative, then it becomes a dispute. The parties might, by deration of the dispute under the ICE Conciliation Procedure

Since the Horants, Construction and Regeneration Act 1996 (Part II) came into force, all construction contracts carry a provision, either express or implied, that parties to the contract have the right of reference to adjudication. With the ICE Conditions of Contract a notice of adjudication is to be given, and adjudication is to be

conducted in accordance with the ICE Adjudication Procedure (1997).

11

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11 Design and build procurement: design and build forms

ICED&C

All disputes may be finally determined by reference t arbitration must serve a notice to refer. Arbitration 1996, and conducted in accordance with either t or the Construction Industry Model Arbitration

This contract?

If considering using the ICE/D&C remem

This form is intended for design and buj civil engineering work. It may be for,a required to appoint an Employer's

The key features are the Em

Unlike the JCT WCD98, in t which take precedence. Th

loyer's R eq e eve

onus

supplied as part of tl Emp contractor's designe work is commence

yer'

and siiAnificint

ireme ts ny conflic

on the coat Require( od by r pp ay re

, , an it is th

ents. E ml

the c

r ion. e par sq nder he itrats Act

itrat' n ced (19

ctor's Submission. Employer's Requirements

to ch ck design information s originating from the

loyer's Representative before ntractor's liability.

tract. For civil engineers, the nd build c

oyer's Re

chit cts acting finder t

d Co)-,struct Conditi

tative is likely to be much easier onditions of the JCT WCD98 contract.

272

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Design and build procurement: design and build forms

GC/Works/1 Design Build

The Stationery Office

GC/Works/1 Singl Build (1998)

GC/Works/1 T Build (1999)

GC/Works/1 Edition 3,

afterwards, with the assumed responsib procurement appro increasingly po,

Stage Design followed b

was publi applicabl mana

loyl r

ee wo Sta

nd Bui

a 199

for trade a

emise of t e Prop e

lity f t it ow n pr '

hes, esign an =ntee

d

I respo e to t hs d w intro ced in 1993 version r Two e Desi

ov ernment ' ed in espo se' t so botla forms

hole life c

a -realistic tender's d This is us

e sufficiently advanced to enable the contractor to submit e is submitted initially together with a Schedule of Rates.

he construction price at the end of the design phase. deign phase will not necessarily lead to the Employer proceeding

with constr--ttdn.

Nature

For the purposes of this book, comments will in the main focus on the Single Stage version of the design and build contract.

In common with other GC/Works forms, this comes as a two volume pack: first the General Conditions which run to over 80 pages, and secondly the Model Forms and

It inclu tang a

ocure ent s fir published in 1989. Shortly Serv A , government departments

e looked to non-traditional icular, which was becoming

t, a ersion of GC/Works/1 for Single nd is currently in a 1998 revised form n and Build. In 2000 Amendment 1

Achieving Excellence' initiative, and is

visions for risk management, value alue engineering.

sign idBuild rsion is obviously an adaptation of the en C/Works/1 ntract. It is mainly a lump sum contract and

sepa to desi phase. It is flexible in that it allows for varying input

by e contractor, as the contractor responds to the ents by deve oping the design outlined in these documents.

and Build version is also mainly a lump sum contract, but

11

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11 Design and build procurement: design and build forms

GC/Works/1 Design Build

pposa

Tender and Tender Price Form, and the Contra Addendum which is really a schedule of desi useful Schedule of Time Limits, the essen

number are identical with those found in the tea

contracts. The 65 clauses appear under the sta Index. Language and terminology is as that to Commentary. The General Conditions are prefaced b

Use

or Alternative B (warrant of Condition 10, Alternative A

indemnity insurance.

The Tender Price Form in

Requirements. The Contractor's P

together with a Programme, a

from the contractor will be to the e

The Single Stage version is without a sep

al

a ContE(nts lis, foIIo

a

go-ac in /otther QVV6*s/1

anima lar very nal fo fi. The is also

of t Pa iculars w n inform ion, n Invi do to Ten

Acifeem

ate to e. N-clpsig fired, as i?7dica d th

e su ed ass a tails

ntries dudes alte native desig is " ity limite ' itnes for purposo

fo`ra se

stag ate desan s

using

d Build provi

design documents; professional incentive b

finance c

mobilis payments perf,

rent com (late

uil rugs an

plet

h desi r desig

put required Employer's

f the Tender professional

The ctual detailsMating o a*articular contract, and the incorporation of option provisio ISe dete*inN by how the Abstract of Particulars is completed. The

nning Supvisor (who may be the Project Manager). The provision Manager and P

Abstract is deta e-d-a d am ngst other things requires the names of the Project '

is somewhat unusual in design and build contracts. The adjudicator and the arbitrator may also be named.

Synopsis (Single Stage version)

The form is one of the family of GC/Works/1 contracts. The Conditions are broadly

of a Project Manag rtg on the Employer's benalt, and given so much authority,

right j +.nsurance .

274

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an

"celera

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the

btain

emnity ins

Zd d

if

Design Do

e pro sion n Fo

build r on.

ctor mu prova

ovisio

evant to

obli.catio

pIo 's equir bet which

ts.

uirem

ions fP

7 ante re

sign and build ve

'dated in that is sa

t on tl withi

contra -t6r's des obligatio

is (10A),

e contNctor to

gn oblig are sl

e for the corr'

e Date of Com

/and it i here e un 6 a b&&

ant res

GC/Works/1 Design Build

similar to those of the traditional GC/Works/, to repeat much of which appears earlier in

However, the design and build forms diffe which are as follows:

The definitions include items mainly Requirements, Contractor's etc.

The fair dealing and team-wor those responsible for desigg

In the event of discrepan Proposals, it is the Requiremen with JCT design and

The professional in

both the traditional these would apply o

eats and Contractor's reverse of the position

ng to design are similar for ]), although in the former case

rticulars.

ctness of setting out, and there is also as built' drawings and other relevant pletion (9).

an be incorporated into the traditional different from those for design and build (10).

e traditional form is not included in the design

provide samples as are specified in the Employer's Requirements efore commencing work (31[3]).

differ (38).

ns, the design and build form makes no reference to actors (62). Obviously therefore, the nominated sub-contractor raditional form is not used.

11

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11 Design and build procurement: design and build forms

276

GC/Works/1 Design Build

nd well presen

revers

Condi epend i

kill, ofor an

for Oxa'gress

upporting tract,

ons i"Iea

se cover t d val

se 'AcWing Exce

the Abstract of Pa

mos roeeaures Employer,

ier ,t

solut

ng lar'

ice betw io, d an a

Co ittn rese7rt

or Co e se than o d bu' nderin tagrin

efin

etM in the f any sp

c flict the; e os' 'on wit

e

at de to tha

re for

thtraditional n i/rfforma

le stag d form is

This contract?

If considering using GC/Works/1 Design and Buil

Although there is a contractor's design provisi is the true design and build version. Depen contained in the Employer's Requirements, a c tendering will determine which versionf applicable.

The now defunct National Joint Consulta Industry Board, have both produce build contractors. Both advocate through the two stage process, and only where the Employer's no risk of further modificati

When completing the co Particulars is a key docu incorporated, then in

This, of course, is th

The wording of th design liability reasonable care an

This for terminology and seems to give t contractor not usua

ro

Construction design and

est achieved ill be suitable

ign with little or

forms, the Abstract of ntary conditions are

I ovf the printed Conditions. ontracts.

ed. There are alternatives for e professional duty to use

fitness for purpose.

traightforward and there is the etings in Condition 35. The Model

ocument and must be used. There are nd a further 13 administration forms.

set departments targets to become best practice clients. tegrated supply chain routes such as design and build,

account whole life costing and value management. ay be progressed by incorporating Amendment

r GC/Works/1 Design and Build contracts.

to those with experience of GC/Works/1, for the ill be familiar. It is particularly interesting because it

nd the Project Manager a degree of control over the d with design and build contracts.

Page 278: Which Contract

Design and build procurement: design and build forms

GC/Works/1 Design Build

GC/Works/1 Single Stage Design and Build (1998)nGe GC/Works/1 Single Stage Design and Build (199 GCJWorks/1 Two Stage Design and Build (199

Amendment 1: Achieving Excellence

11

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00o

vii

Management procurement

Management forms

The Joint Contracts Tribunal Ltd Standard Form of Managem

The Joint Contracts Tribuna Works Contract 1998 Ed

Contract

The Joint Contracts Construction Man

The Joint Contracts Trade Contra Agreement.

i-ibunal Lt

gemerI A

d that s eral

r s where the pry by o er person

t Cont?act'1,998\lditio

reemen

ith the

uilding contra / However, opal rot

'under h

or h

or h

tandar

for traditional procurement can be adapted ' included in this chapter are those exclusively

the contractor is to manage the intended works, which control.

279

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ocu amiliar cfim

ise

ften g

tanda

e J is ued elated doc r the he contract

s Con +qg out a p

cts bet ments

htractor, an orks

ents ar for

discr

Th

is in

Works Contract/

ract/2

orks ntr t/1,

ycq ared

d rat

ca rr

e Employer i an e over the s o in e nde

n.T

se

int l

cen vear seem

hav

ocia

on

ut in

iar clien olvem

Contr A

Tb Stan ments

uncil,

ntrac suit f

rh cd isatid

rred ith their particul

the advice anagem t4Qg orga s

XT MC98

The Joint Contracts Tribunal Ltd

Standard Form of Contract 1998 E

Background

For 'fast-track' projects where t and contract administration management contracts ar popular during the 1980s, construction management. Ma well able to hand) procurement.

In 1979 the RIBA C

produce a

were those d

These were and uncle

gn, Specification professional team,

d Kingdom became o have lost ground to

more sophisticated and with this latter type of

is Committee, asked the JCT to the time, the only forms available

who pioneered this kind of working. orking procedures of the companies, r interests very much in mind.

m of Management Contract (MC87) essary for management contracting. The main

ween the Employer and the Management een the Management Contractor and each

kage of the work.

currently published in 1998 Editions and the Management Contract t with Section headed Conditions, whilst the Works Contract is

parts, the first of which is itself in three parts namely: x

1: Invitation to Tender tion 2: Tender

ction 3: Articles of Agreement (to which Sections 1 and 2 are

b-contract conditions, which may be incorporated by reference) (Employer/Works Contractor agreement)

The main contract between Employer and Management Contractor covers both the pre-construction period and the period of actual construction work. It contains a

detailed Contents list and the Articles of Agreement which follow include Recitals,

Articles and provision for attestation. The Conditions are followed by an Appendix in

12

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282

JCT MC98

two parts, Part 1 relating to information required g

specific information which needs to be entered b,

Necessary to this kind of document are the Schedul the VAT agreement.

The First Recital refers to the description of the and confirms that the Employer has appointe confirms that the Management Contractor is to both in the Pre-Construction Period and t set out in the Third Schedule.

Article 1 confirms the Management defined in the Third Schedule, for under Article 2.

The names of the Architect, th to be entered in Articles 3A to be entered in Article 5.

In Article 6 the Employer Specification, and a

after the date of the information prepay

The appointme purposes of the CD

of either part final resolu

struction phi , th cka

bsts a

Management Con tors almost invariably selected by tender and after interview. The fee is not usually the main criterion; this is above all a contract about resources and the ability to manage effectively many Works Contractors.

The Management Contractor will advise on the choice of the Works Contractors. They will normally be appointed on the basis of competitive tendering. The Management

e Ma 4tage earl i oug

his he will expect to a

For

the c611

to carry o reimbursed the P

n

ntract: d by t

oft PI nning egula Nons ar

utes to Kto be

r hand an

atio itratio

dert st

icle ,

iQnal tea`

d as

loye n resp

By)k profes

minist

Sups

over

roje

a profes

mop to w do erio

tor's Teem nt t6\60dorrri whi -kie E m p

kes to ha

P prepa he E

erally nd fore c nstr do

whit app r i

am. oh' 'gird Re

r ect of

ered in t

t rofessionaYI

e FirstAch

ings and the Project s reasonably practicable

undertakes to have necessary t of the Works Contracts.

Principal Contractor for the Artcle 9. Article 8 confirms the rights while Article 10 covers whether the

or by litigation.

ay be appointed by the Employer pre-construction, at contribute to the work of the professional team. 'ee. Then, assuming that the project proceeds to

Contractor will appoint Works Contractors es'. For this he will be paid a management fee and be defined in the Second Schedule.

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o f Pro mmes contract

anag

vi

Contr project is car,

detaile

rch itectt

documents nece specific 10)

raocu s and App

Tight financial control is essential, and of the Management Contractor to independent surveyor is appointed b

under a contractual obligation to chi e

developments or detailed cha ges proceeds could give rise to Management Contractor to e t en '

parts of the Works.

The Contract Documents c

Schedule), the Project S ati 2), and the Articles, onditions, be carried out on si e by t

Synopsis

1 Intentions

The Manaa ment ntracto ndertak o coo

prise a Con

dix an ctors i

onito he Emplo

co letio k p ag

e. e

you n

ojec

t Pla

ules'

co

allo

appeA rks Con

t ti

s entering and pr

ide ble reliance ' place o he ost PI tota , eve

e Man ement on me, altho es hi c-b occa

Pl.r'i and rogra me C tracto s, th coo

cilities.

t

Management procurement: management forms

JCT MC98

Contractor starts with a Contract Cost responsible for the appointment of Works and the provision of all site services and f

h any design r as the work

till requires the for acceleration of

(listed in the Fourth xed to the Appendix Part

The fact that the work will eferd to in the Second Recital.)

erate with the professional team (1.4).

nd the Third Schedule. These include orks Contracts, being responsible for the

those site facilities and services listed in the for is responsible for continuing supervision,

ed through in an economical and expeditious records for the quantity surveyor to verify the

ontractor is fully liable to the Employer for any breach of the se occasioned through breaches of Works Contracts (1.7).

he Management Contractor with further drawings and explain and amplify the Project Drawings and Project

The Con Conditi 6 and 7).

Quality is to be as described in the Project Specification, and in the Specification or bills of quantities for any Works Contract (3.8). There is no reference to Performance Specified Work in MC98, but there is in the Works Contract.

The description of the Project is to be entered in the First Schedule.

ents will be Project Drawings, Project Specification, Articles, hdix, the Contract Cost Plan and the Schedules (1.3, also Articles

12

283

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1 2 Management procurement: management forms

JCT MC98

Project Drawings are to be listed in the Fourth Sched

2 Time

The Management Contractor proceeds to constructi notice by the Employer (2.1).

At this point, the provisional dates (Append

roject

(Appendix Part 2) for possession and completio

The Management Contractor is given p

is required to secure commencement a

Deferment of possession for up to (2.3.2).

Completion is provided for

Project extensions of time Architect. The events or ite extension requires the

Completion of the

Practical co her opinio

If the M the Architec

ides for p

r fail

Part 1)

and gen

subject t

t Contractor by the u mber (2.13) and any its best endeavours to

contract period of a Works e right to dissent (2.14).

the completion date (2.3.1).

he Architect and is subject to his or

com ete the Project by the completion date, to of non o pletion (2.9).

to liquidated damages depends on the issue of a

ssessi

ensure re

oject

ceded to t h are relevan

Contract tr

efects.Liability Period must be scheduled by the an 14 days after its expiry (2.5). When the defects

tect issues a certificate of completion of making good

ial possession by the Employer, subject to the consent

The contract provides for the issue of instructions to the Management Contractor to accelerate the work. It is possible to establish a completion date earlier than the date stated in Appendix Part 1, provided that clause 3.6 is shown to apply (3.6).

prevent delay (2.12).

Employ `rtificate-of,

Contr itect

S MT non-co

A.

ay be s whi

men

ject may be

ects`-Q,lee made go ect and delivered up be ecti , th Arc

ses to ext6nd th

-L-d and has

284

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app

Management procurement: management forms

There is a b

ther an all s the I

ovide the he Prom!

n

f goo concer

bntrac

to assrqnmen clause

o tran uent

hey right

interes

ect of the Management Cob

t by-'perso r still has

'on o th str tion mi req

`rchitect to i 'be inst

e Mataaement ontractsto acc

to i n

term i

circu

II issu

actor' ust obtain vobcher matbkOls (3

(3 1

th-e,i

hich if,

age en ers ei er ched e, and r

the Arc itect iOLlaui

JCT MC98

The Management contractor has to identi the Project and/or site in a list attached to manager in the Appendix Part 2. The,

changes (3.1 and 3.13).

The Architect is to issue written instru reasonably necessary (3.3). The i

Contracts variations (3.4). The sums in Works Contracts (3.4).

The Architect has the pow work (3.5) and, an unusua altering its sequence under stat

The Architect shall setting out, etc. for of works (3.18).

o satisfy the Architect about the must also comply with Architect's

0)ioval fr m the site of work not in accordance mediate king good of defective work (3.12).

ntract without written consent (3.19). However, pendix Part 1 entry states that it is to apply, action against the Management Contractor

n the completed Works (3.20).

orks Contractors, and which are identified in the are subject to the Conditions in Section 8 of the

arried o r instructio

act (8.1).

Contracts, the Management Contractor's obligations in

vice versa are fully set out (3.21). Alleged breaches by the r by Works Contractors are covered.

ntract allows for work not forming part of the contract to be

s directly engaged by the Employer whilst the Management ossession of the site (3.23).

4 Money

Payment is made by the Employer to the Management Contractor at agreed and stated intervals, on Interim Certificates issued by the Architect. These can be issued at both pre-construction and construction stages (4.1).

12

285

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JCT MC98

Management C

cessa(ry

pleti 'the

.'The Constr contract (4-9 an

issues the)Final

fort

by the em

completion s a I Marj

epa ccount.

an e Proj

ctiori t

of the pr

ana

Em Empl

,posedand if her writte

ue to the y nt by ter is e an five

nt of

ractor for p

e giv ent (4j

f issued n les than 28 days before the Final Certificate, ing sums du to Works Contractors (4-11).

ust provide the quantity surveyor with all information ng Prime Cost no later than six months after practical keerio Management Fee may be adjusted in accordance

give pr per n ices the o nding Inagement Cc

nd he Ar hitec ust ma b71p quit to i r

earl finaay nt Wor

Cost o ag nent ConJractor's

4-5`aod 4.6).

Amounts due to Works Contractors are included, an Management Contractor as to the amounts due, the Works Contractor (8.3). There is an option Contractors, subject to certain safeguards (8.4).

Payments to the Management Contractor inclu carried out, reimbursement of amounts incurr staff and services, and an instalment of the man

Retention is not deducted from the inst 3 per cent of the work not yet at practic obligation to invest, and unless the Works Contractor may require it to is released at practical completion o

Interim Certificates are issued in the Appendix in respec construction (4.2).

Certificates must show the a

of calculation. The fin of issue. Not later t specifying the am Management Co

before the final da

ntractor, and the basis

oyeris 14 days from the date yer is to give written notice ums are to be withheld the

notice not later than five days

does not pay amounts properly due ms will attract interest at 5 per cent

ntractor a right to suspend work (4.3).

ertificate not later than two months from occurrence of the latest of t

=foit d in the contract (4.12).

The requirement otices by theEmployer, and the application of interest on amounts properly due and not paid by the final date of payment, also applies in the case of the Final Certificate. The final date for payment is 28 days from the date of issue.

Applications in respect of loss and expense made by a Works Contractor must be

Page 288: Which Contract

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Management procurement: management forms

he Emplo risks. This must be

yer.

In the eve hat to orism cover is withdrawn and is no longer available, the situation and options open to the Employer are dealt with in clauses 6.4.10 and 6.5.4, introduced by Amendment 4.

Where clause 6.5 is to apply, and the Project comprises alterations of or an extension to existing structures, then the Employer is required to take out a joint names policy in respect of the existing structures and contents. This is to be for the full cost of

ect, who

ntract sect t(

'ement to pr

6.10) other

attril An

if t d Con

issue i

to tak this w

li

r-+ mpowere certain condit Works Co

an-the-actual

nage nt C ntract irk of le I nuisar

table to ri

endi

int Krr

pa ul

~ e. ision

islatiand servi geontra

emnifies the

actor. If liqe Ar Icond ns s

d asce tain

JCT MC98

passed to the Architect by the Managemen opinion that the application is valid and m Contract, the quantity surveyor can be collaboration with the Management Coptrac

5 Statutory obligations

The CDM Regulations require the ap Principal Contractor. Various othe and Safety Plan and the Healt contract (5.18 to 5.21).

Responsibility for complia Management Contractor (

between statutory requirements is to inform the Archi

The Management C

compliance, and su

Management Cpntra

ces rests with the or finds a divergence rther drawings etc. he

hin seven days (5.2).

ctioM in any emergency to ensure be deemed a variation to the

able (5.4).

E,Mployer in respect of personal injury corks (6.7 and 6.8). This is to be backed

is to take out joint names insurance for the e. There is a list of exceptions, and damages

y negligence by the Management Contractor entry including the amount of cover is required

apply, insurance of 'the Project' (i.e. work executed and site ut by the Management Contractor in joint names (i.e. in his

or the full reinstatement value of the Project against all fore any work begins on site.

o apply, the requirement to take out such insurance rests with

12

287

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12 Management procurement: management forms

JCT MC98

reinstatement etc. in the event of loss due to Specifi

Insurance for the Employer's loss of liquidated Appendix Part 1).

An Appendix entry will show whether the Joi

from Fire of Construction Sites is to apply (6F Management Contractor must comply with if

The Employer is allowed to deterrri Contractor for reasons of default Architect, but the notice of deter

or is

T (7;,

In the case of insolvency of the Man circumstances, determination. or the Employer might elec allow continuation or novae

The Employer is allowed Contractor at will (7-

Construction Period

The Management of default by th

Either party c

neutral cau

rRe the em war

inatid a matte

emen matic

determine th

reem

course Tapp

determine hi

of the partj

to p

V-5-

thePfo cti plo er and

ending on the e reinstatement, Agreement') to

ine the em

ctive rkh% and are s ou in d

ist of defiditions

-ontra m plod

rs.inclu

c e s s or profes i n

rights of the ssured, but subject to restrictions to protect any

e (ent Contractor and Works Contractors (3.17).

The Ar ct y or er t removal of the manager from the Project and the find a suitable replacement (3 14) subject to approval Management C=sbecause

on

by the Architect

Where progress of the discovery of antiquities, the Management Contractor is obliged to inform the Architect, who must issue instructions (3.26 and 3.27).

There is a contracting out of third party rights under the Contracts (Rights of Third Parties) Act 1999, introduced by Amendment 2.

ail (7

team l

288

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Management procurement: management forms

JCT MC98

Section 8 also deals with relevant issues arisi the terms of such contracts, nominated sup Management Contractor under Works

rime Cost

expense reimbursement to Works Contrcto

First Schedule: Project description: a sh be completed by Employer;

Second Schedule: definition of relating to Works Contracts; K-si materials, goods, plant, st

Third Schedule: services to selected from a list of rno+e-

period and after wo

P

Articl

proceedi

tai

provi

starts on bite;

of yer;

o e t drawing

m t iers to

ontrac

6 Wor Contr 'sir or ont tors, fi al p men and

imp ant. hey a

Dfie scope of the

blehe r

an m ontr

fa lities d seres t plet befo the onstr

P2 is signed.

sing Gra ts, Co str l iq t to refer a differ

ovide for thi

icatio

ices

oblig

fed by

latir

ent Contractor tor; on-site labour,

ment Contractor;

be ' provided by the Management ction of the Project, and initialled at

ion and Regeneration Act 1996 gives either hce or dispute arising out of the contract to

s arbitration as the agreed method for final determination of ppendix entry shows that this has been deleted in favour of

B and 9C).

12

289

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290

gi ng i

'with ct

sop ' ticated with im ress e

impreci s d tim ele of trust betwee Empl Contractor. 1

fien the p edeces r

aila e. ce4he4a-th

inist Al

nclude ecified wor s Con

d re

lerati heck

`t; liq

ve Sch

ct ad turn

T

tor' e inv

re are ne d wit

nee

coord in

atN

ules

ocume

e ve

the p

d in

nt o

contra tive o

qui tingtgdeferment of possession; s; acc n, management fee; Joint Fire

b for completeness of entries.

rectly with the Management t dealing i t inistration of Conditions in the s ome instances when the contract rks cuments, and the procedural rules, m iculously observed. The whole process

ion if unnecessarily abortive work is to can be voluminous with this type of

in terms of administration. uite arduo

pa ject Spec f wor

th M acient s paid by e m erto e

ork wit

ma me fee.

einth uctib a

ix Pa

ion,

rs and resp

re re

m e

uId a

erthel the V

dministrat

JCT MC98

If considering using MC98 remember that:

It is intended for use where the Employer has

quantity surveyor and other advisers to make has prepared project drawings and drawings, Specifications and bills of Contractors enter into contracts direct is not a lump sum contract, and the

The management contract is in

sectors. The Conditions apply to bo period and the operative details are respectively. The Conditions possession, performances Section relating to the Wor

When completing the f insurance of the Proje

Code; and EDI. The

to or public d construction

Appendix Part 2

celeration, partial sign. There is also a

ations.

98 first appeared it was the first such standard form ent method seems to have declined in popularity, agement as developer clients become more

use expertise. It is a relatively high risk contract with ents initially. It depends on goodwill and a high degree

yer, the professional team, and the Management

Page 292: Which Contract

Management procurement: management forms

XT MC98

Standard Form of Management Contract 1998 Edition (MC98) Amendment 1: 1999 (Construction Industry Sc

Amendment 2: 2000 (sundry amendments) Amendment 3: 2001 (terrorism cover/Joint Fire Co Amendment 4: 2002 (extension of time) Phased Completion Supplement for Ma

References

JCT Practice Note MC11: Managem JCT Commentaries on the JCT Man (both written for MC87 but still large

Commentaries

Vincent Powell-Smith and The JCT Management C Kluwer Publishing (1988)

12

291

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vii

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Imo-

1 2 Management procurement: management forms

JCT MC98 WORKS

The Joint Contracts Tribunal Ltd

Works Contract 1 and 1998 Editions for us Form of Managem h

Background

Contract Documentation for use w includes the following:

Works Contract/1 (in three Se_

1 Invitation to Tender; Sect Works Contract/2 (Works Works Contract/3 (Employ

They can be used onl although this is lar Contractor, effec necessitates refe

Use

)Man

to 'numb confli

to SMM7 unless stated otherwise (1.10).

t/1 `Section 3) establishes Works Contractor's obligations. tract Sum which will be a lump sum, and is VAT exclusive.

d under hand but not as a deed, or as a deed. However, an be execu

t Contr t is a deed then the Works Contract should be similarly

The choice of Works Contractors is a matter for agreement between the Architect and the Management Contractor, although the agreement is of course between the latter and the selected Works Contractor.

f Agr

ly a

e ad

nce t

onfi ent is bet

irst Re it .ard Fo of

n2The ontrac t o y/Wor

e19 Matt f inistra t

Sectio art Oes

CTWnagement Contract, and t Contractor and each Works

anagement Contract often ontract. s

r ditions) Contractor A

Edition or t ' an

eme of 1te-rhain &in the Work

(Work Contr ct/1 e Ma ment

t the Mana# gement Contr t.

ed documenYs' which are effectively Contract Documents. between documents, the Works Contract Conditions are

ents (1.4). If bills of quantities form part of the Works d doc

1 (in

ction 3) contain Recitals and Articles. ontractor and the Works Contractor,

ement Contractor has entered into the

292

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t, and ciently infor

e Wor Co ractd of del and al

to of dc

Contr e13r

r fail Works Coh be

Practical ompletion i largely a matter for the Management Contractor and Works Contracto , ut th consent of the Architect is needed before the Management Contractor can issue a Certificate of practical completion of the Works (2.13 and 2.14).

st1

eme Seril_f

ion ugh the li ce with

nd c

fers ren

is, claus

for N, to in

nt

Cntof Work

i g out I will

e even

eduliov carry ion 2. Starti

nage

fore n

n notice to the Management Contractor in the ;o state t"ses. Subject to receipt of notice, particulars and y, the question of granting an extension rests with the tor. he must first notify the Architect, who has a right osed action (2.2 to 2.10).

rac

ive writ

gation to Is cernn ra ac

amou un r a c tifica ed Arc ect. S

D-f th orks C tract i m chi ct mus e otified

ecti s, de ermin

mnify t Ma efaul perf rman

The Architect has relatively few direct ob Architect's opinion is the overriding factor c

of off-site goods which may be included i

respect of which a direction for payment nominated by the Architect. Administr for the Management Contractor, alth matters (e.g. extensions of time, comp an

Synopsis

(clause numbers refer to Condit(

1 Intentions

The Works Contractor is oblig with the Works Contr relating to design a performa a reminder of the rr port Employer relating to esig

3 Control

Works in accordance dards, and obligations

to a design obligation is

hich is a warranty to the

ger'nt Contractor for liability to the e under the Works Contract (1.8).

will have been established in Works to a large extent on general progress of the r is obliged to keep the Works Contractor

mmence is given (2.1).

to complete on time, the Management Contractor may ment from the Works Contractor for any direct loss and

The Management Contractor is obliged to issue further instructions, directions, drawings, Schedules as necessary for carrying out and completing work under the Works Contract (3.1).

12

293

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.2) 'in

1 2 Management procurement: management forms

294

JCT MC98 WORKS

4 Money

Statutory obligations concerning paym Housing Grants, Construction and

The Works Contractor is paid by Architect in Interim Certificate valuation includes for work on site, and it may also inc

Retention in respect of Wor Works Contract (not ,f the reached (4.23).

The Works Contra quantity survey Ascertained Final Works Contr

5 Statutory

The CD Principal Stat

th se relatM

ind `r death, and,

ai

ire n s will

These

ateria

are also like

elera t if the ri

t trec

is ap fo%96 ion A (Par

t as

re s

Os a

'off-site

ttracts is redu eat under

or mu `r also,

orks Cautract S

hat issued

appoin all

Am (4.30 nder rta

tion nece

e

to epreli ary i rd or alter is seq nce

ice ands, the V

ei r)a ent for this/.

o

Relevant instructions issued by the Architect under t be passed down, and the Management Contrac directions to the Works Contractor (3.3 and 3.4),

The Works Contractor may make reasonable issued under the Management Contract to ac The Architect must take this into account, Contractor must comply. However, he ca)Zexp

The Works Co

personal injury is required to ins

irected by the o retention. The

materials properly (ods (4.22).

ntractor, and if instructed the ary for computation of the

is no Final Certificate relating to 4.12 of the Management Contract).

ent of a Planning Supervisor and a

be covered in the main contract MC98. to implicate Works Contractors will include

and Safety Plan and the Health and Safety File (5E).

orks Contractor are concerned with tax matters to

mnifies the Management Contractor in respect of amage to property (which may include the Project), and

this (6.4 and 6.5).

Concerning loss or damage to the Project and to the Works, Works Contractors are entitled to the benefits of the joint names policy for the Project (i.e. 6.6 to 6.8), but this is not in respect of all risks, only for specified perils (defined in 1.3).

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Management procurement: management forms

JCT MC98 WORKS

The Management Contractor has the right t Contractor for reasons of default. Determi

The Works Contractor has the right to default by the Management Contrac

Rights and obligations following

8 Miscellaneous

The provisions for nominate covered by a Prime Cost o Nomination is a matter for

9 Disputes

Statute requires an have the right to e

adjudication. The c16

determination df-,the

If coKsideri`

It/s inte

Ten ng

to ch

the n d e r

SeleWa i

djudicati o ter a

ision sput

rbitr

provisia

i

o

ill b

ion contracts. Both parties rising out of the contract to binding, at least until a final

proceedings (Article 3 and 9A).

thod for final resolution of disputes

sole` v fo

heW orks ntractor an

certifying

s Contract t Contr

ceedings (Article 9B and 9C).

f for the Magement Contractor, but the invitation might need mpatibility with the Management Contract Conditions. Similarly Nketween the Management Contractor and Works Contractor.

ontractors is by agreement between the Management ct administrator. The latter has a particular role in

ue0'the Works Contractors, applications for loss and expense, ractical completion.

'onditions are Section headed and synchronise with those in the t. If MC98 is used, then there is no choice other than to use WC98.

or (7-7).

term

ine t e to ent oft n nsolve cy is a om

own e ploy nt r r

iers w tT*e f sum uded in

:1).

n in a 4ferenc

12

295

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1 2 Management procurement: management forms

JCT MC98 WORKS

Works Contract/1 (1998) Section 1 Management Contractor's Invitation to Tender Section 2 Works Contractor's Tender Section 3 Articles of Agreement: Attestation

Works Contract/2 (1998) Works Contract Condition Amendment 1: 1999 (Construction Industry Sche

Amendment 2: 2000 (sundry amendments) Amendment 3: 2001 (terrorism cover/Joint Fire

Amendment 4: 2002 (extension of time/loss de/CIS/S,(uvlM)

ontract

296

Page 298: Which Contract

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II). The

etween m

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whtheienf y out work p

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desig

Mar cent

uctio the Con

cons

n an

d construction direct contractual

With management tractor, and there will

architect and quantity administration.

will be the key person or ontract administration relating

nt contribution to make, and is

ultant Team and nomination of a

will have a major involvement in the lave some involvement during the

t administration.

mentation for construction management. This f the JCT, but was then overtaken by the

d the Housing Grants, Construction and raft was developed to take account of the full

`ruction management documentation eventually

is of an Agreement (C/CM) between the Client and the a Trade Contract (TC/C) between the Client and each of

The is also an Invitation to Tender, a Tender document, and Contractor to a purchaser or tenant, and funding organisation

The Agre-emQ nt ( M) between the Client and the Construction Manager is an attractively presented document, logically structured and with particularly clear layout making referencing relatively straightforward.

There are four Recitals, the first of which refers to the building works being phased, and a deletion is needed if this is to be a single stage operation. The Client undertakes to appoint the Consultant Team, and to have prepared an Initial Brief and preliminary

Management procurement: management forms

JCT GCM

The Joint Contracts Tribunal Ltd

Construction Man C/CM

Background

The fundamental distinction management lies in the de ee

relationship with the Contr tors contracting this will be ac hi

also be an independent team surveyor with overallsponsi

With construction anage firm with an overall spon ibility

rt

for coor na

t . The lient als as ig

e age nt of Con der. e Con to Tea

ar,dalt ugh likely to tam Le

t peri on peri

cum onstruction Ma

produced

the Trade Ceiatract

12

297

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1 2 Management procurement: management forms

JCT GCM

follows: The Conditions are relatively short (just

Contractor; and the methods for resolving d

Manager and the Client; the identity of t There are five Articles, which refer briefly to

will be carried out under contracts directly betwee apply; the services to be performed by the Construc Project Cost Plan. The other Recitals refer to the fact t

1. Intentions of the Parties

2. Obligations of the Construction

3. Obligations of the Client

4. Assignment and Sub-contr

5. Payment

6. Insurance and Indemnities

onstr

ht Team;

Ninth, Cost Planning-arTd-Control;

Tenth, Adjudication;

Eleventh, Arbitration.

Conditions,

putes

signifi nt arts o pages in total). The Probably the mo

act as refer,

ption the je suran an Inde nities,

nits of Reimbu able Cc

urth, Mo I Servers to b

cction

Site Facilities and Se

the c

nce p,

yet the f I CD egulat on Ma agernd at the

the Client a

e Pla

utes.

incSupervior an

e Colntracto

ations of tKe Constru

tion he

're the Schedules (taking up 35 is for much of what is carried in the

nnel;

be provided by the Construction Manager;

298

Page 300: Which Contract

(_l

Management procurement: management forms

JCT C/CM

Some of the Schedules contain essential entries to be made. They amplify many of t are at the very heart of the agreement.

Perhaps surprisingly for a form more under hand or as a deed.

The nature of construction manageme only for major building works un Construction Manager is large

h Sche he sc

Trade Contractors, this still leave on a day-to-day basis for th of the Project.

Any role for archit might be appointe Consultant Team L

will depend onAhe

`_ts will b e

under ider ture

s rn b h nsultanc

rticularly for c

bf the wor

responsi

of th e-constru ti6Ran the ctrent w con3 cable

ers

ZDrovisfcins ailed iy(formatk

find

r rem e rienc

th nag

gree

stage

art he Cli nt is

work o mer Ian will be ient's el/ma rr

FAt Planlien 1 m Lea

Subject to thin

Possessior-and ontr

must a

sure 1,0 r is

d. Th

ction d

fy the 'Client's Representative' and the

e of interest

Although the coordination of

Itant Team to which they hey might also be named as

at pre-construction, but much

to name the Team Leader, and to ber. A copy of the Client's Initial Brief veloped into the Project Brief and the

nsultation between Construction Manager and commendable detail in Part C with clauses ut

volve Perio

in R

ent of the Consultant Team during the Pre-

s, which should be covered in any consultancy rt D of the Eighth Schedule.

are not involved directly in contract administration)

contrary the work will be carried out in phases (First Recital).

I of the site is given to the Construction Manager, but this will lusive to the Construction Manager (1.5).

for the Client to use or occupy the site or the Project before completion (1.6).

There is provision for partial possession by the Client (1 -7).

The Construction Manager is to manage the Project in accordance with the Project Brief, Project Cost Plan and Health and Safety Plan (2.1).

ssarily be e

12

299

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`^.

1 2 Management procurement: management forms

300

re is no s

rms,

by teade Con m Project Completio

Pro

nsult urth Sched

m

g ree

, and n, an

roject i

ifications, d

e constr

rolec

se Ti

m nt velo

Pro1o

Mails a

ormat

d Fou Sch uTF,Part

d side fa ities xth

tructi n the Ap

ing in

after er (F,

The Client will appoint the Consultan (3.2) and may appoint a Cost st Ita

e Con nts wil

by th

e co leted R itals,

M). D me s refE

ect Brie, Project

Eighth Sc

trac ors, to be ma

ConstructiouxP

JCT C/CM

The Construction Manager must provide the services A (Pre-Construction) and Part B (Construction) Schedule).

The Construction Manager must exercise skil

expected of a reasonably competent Con professional indemnity insurance as indicate

The Construction Manager is not liable (Eighth Schedule item 2.6).

The Client may appoint a Client's Rekres the client 0.4).

The Client will appoint Tr Consultant Team. Appointm tenders, and a written repor

Contract documents c

and Appendix to the Preliminary Cost Pla

Project Specifica

Further drawings, to explain or

2 Time

There vvi

consultation with key milestones (

expand this progr Schedule item 5.4).

the views of the terview, an analysis of the

urth Schedule Part A).

rtic es, Conditions, Schedules red to include the Initial Brief,

rawings, Project Programme, edule Part D item 1.2).

tion date with this agreement as found with traditional iod runs from the date of commencement of work on

the scene, and ends with the date of issue of the to (1.3).

ramme prepared by the Construction Manager after nt Team. This will identify critical path, lead times, and e item 5.1). The Construction Manager will update and

liaison with the Client and Consultant Team (Fourth

The Construction Manager will, before Trade Contract tenders are invited, prepare a

detailed week by week programme (Fourth Schedule item 5.2).

Page 302: Which Contract

(CD

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Management procurement: management forms

onstructi

The Tradef_ ntrac

ecess

t may issue

ttherwis

rk carri nage

(filled; the`

Client

held re

Team, b

:3).

h agreerit\by lei Cori ect ract

ont the Cd will i u he Int

ally

ast

Team itv Perid

tificat

ed4t under` will issue a Ce

nstruc acts h

(2.4).

structibp Moager es retire the

advis

Zh'es

e th lent ma

d ite 8), a

ons tant am ur1

JCT GCM

During construction the Construction Manage, may cause delay in completing the Project all matters related to progress after consul item 9-11).

The Construction Manager is not to b

caused by members of the Consuitan efforts' to avoid or mitigate the ects The Construction Manager, w certify practical completion in re

After completion of the agreement by the Consulta Certificate and the Defects Liabii

in the Interim Projec

When defects in w the Construction M of the Project (23).

2):

on Manager with im Project Completion s from the day named

ce (2.2).

acts have been made good, aking Good defects in respect

Client that all obligations under the ill issue a Final Project Completion

personnel are to be entered in the Fifth onsent of the Client (2.2).

ign the agreement without written consent (4.1).

nager cani'r4 sub-contract his obligations without the Client's

e Trade Contractors, after receiving recommendations from d where relevant the Consultant Team Members (3.6.1).

wiMe on the current JCT Trade Contract (TC/C) unamended, ed with the Client (3.6.2).

o the Construction Manager such instructions in writing as are

(3.7).

The Construction Manager will manage and coordinate the work of Trade Contractors (Fourth Schedule item 9.2).

The Construction Manager will hold regular meetings with Trade Contractors and provide monthly written reports for the Client and Consultant Team Leader (9.4).

12

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1 2 Management procurement: management forms

302

ti

r susp

e Cons

ander e a reem f issue of th

ply, )rkd tl final ManNger's a

nstruc

sdue to t re re,

ate o

er b

men

r is dependen uctio

ere the C

e the Construction ce with lh-e CAM R

ger ing to site s

ructio reject o

reimb struct

ient on issue of the Comt

bn Mana

er mit to str i Perio

cost age

r cent

e t. Thi

Final R

from the

til pa

e is ako r6oonsib for

JCT C/CM

The Construction Manager will arrange and chair re

which the Client and the Consultant Team will be i

the minutes (9.5).

4 Money

The Client undertakes to pay to the Construc Management Fee as entered in Part 1 of the Se

VAT, can be adjusted if circumstances ch

Payment will be due in part on signi intervals to be stated in the Appendi

In the construction period, the Con

accounts which show sums due in

Fee (as shown in the Seventh Sc

Schedule); and any other su

The usual five days' notices payment is 17 days from the

Final payment to t the total sum du month after the dat

ent monthly Management

ned in the Third 5.3).

is made (5.5).

on the final account showing e submitted not later than one

ect Completion Certificate (5.6).

full (Second Recital).

er is the Principal Contractor he must ensure that the ith the Regulations (2.8),

s appointed Planning Supervisor he must ensure ulalions, and in particular Regulations 14 and 15 (2.9).

s to liaise with statutory authorities and statutory vices (4.1).

The Construction Manag

rere is to advise the Client on orders to be placed with statutory bodies, and to manage implementation of their work (4.2).

The Construction Manager will monitor Trade Contractors' compliance with statutory requirements and verify that all necessary approvals have been obtained (4.3).

Page 304: Which Contract

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Management procurement: management forms

The Client

e Constructio client's ins

er ma

d in the A

ct wi I be taken out II rei tatemen valu of

a ount tered i the wo to exi s ructui

will be only in

us

mpris he Cli

tern 1);

uction

e Client i

ncy; T

riod

o exerc

fired to -5).

clieri

ination re

rmina on ay

Ivency, r f ilure eement (7.2)

the sum e

mni t damag

3).

rah in re

nclftr agree

requ pendi

ditiohs'bbv a v

inst daims re

JCT C/CM

Insurance and indemnities are dealt with i

to the Second Schedule.

The Construction Manager is to ind personal injury and death, and agai than the Project (Second Schedule item

The Construction Manager mus injury or damage to property f item 17.2).

Insurance of the Pro

all risks cover, the site facilities, the Project

owned by Schedule

under a joint names policy for oject and replacement value of

ppendix for professional fees. Where s, cover must include the contents espect of Specified Perils (Second

anager's engagement.

the event of the Construction Manager's egree of skill, care and diligence required under

rminate the engagement of the Construction Manager at will

ay terminate his own engagement in the event of the o pay amounts properly due; or if work is suspended for

f six months (7.4).

The consequences of

8 Miscellaneo

Third party rights under the Contracts (Rights of Third Parties) Act 1999 are excluded 0 -12).

The Agreement is to be construed in accordance with the law of England (8-1).

12

303

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r.. 1 2 Management procurement: management forms

JCT GCM

The Agreement is not for use under Scots law.

9 Disputes

Article 5 confirms the right of either party to fee difference or dispute (Article 5).

Nominators for an adjudicator can be agre made in the Appendix (Tenth Schedule it

The conduct of the adjudication and of the Tenth Schedule.

Final determination will be in the E

Appendix shows that clause 8.3 (a

Where arbitration applies, app riate letion in t Apd -/Will indicate the appointors of an arbitrator. e condu o e arbi do nd fects of the award are covered in the Eleventh

A footnote to Section 8 of khe Cdknditions is ayeTir er tha disputes may also be resolved by the procesf m

304

Page 306: Which Contract

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Management procurement: management forms

This contract?

WLt+f-e functio !

specifically states h

is an rram u rvice has the rte

ant Te

fide servic each the

Client-asses Itant may aafsq'ke a

the is anT anageXer f

and i . The

erati

one versi ment tructi

sin

decisi ar requ ding profession

dard Tra

n on

f docume periods, We for ctorni

ting t suran

yame he Co

particul tructi

o rt eness

If acting s sign ons ant, reme er that the Construction Manager may also a se the lie t in reparin the P ject Brief, make recommendations and review desig nd o er dr wings. A c working relationship with the Consultant Team

A Man y im

aol

sto e respp

JCT GCM

If considering using C/CM 2002 remembe

It is intended for use with large projects contracts with members of the Consu the Construction Manager who will pr period and the construction perio out and complete the Works. Th Representative and a Cost Cons agreement (although the Trr

Construction Manager rei

The form is not for use in S

Scottish version.

The agreement is i

construction manag construction and con Appendix. Theiditi When comp Cost Plan;

liability; payments Sche

the

eparate r design,

nstruction ho will carry

ugh a Client's not a lump sum

lient will pay the

d contract in a standard nditions apply to both the pre- 'e details are entered in a single

phases and partial possession.

ed relating to preparing the Project indemnity insurance; limitation of

e Contracts; reimbursable costs; and ring the pre-construction period. The 10

part of the Agreement and should be entries.

entative, then remember that this could involve carrying out o the Client, acting as agent unless the Agreement

ement which will appeal only to an experienced client probably . It is relatively low risk for the Construction Manager. The

erit of being logically structured, clearly laid out, and in taking `ver a very sophisticated operation.

12

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1 2 Management procurement: management forms

JCT C/CM

Related matters

Documents

Construction Management Agreement C/CM 2002 Trade Contract TC/C

Tender Document TC/T

Part 1: Invitation to Tender Part 2: Tender by the Trade Contractor Warranty TCWa/P&T (warranty to purchaser or to Warranty TCWa/F (warranty to funder) Fluctuations Code

Earlier JCT Practice Notes:

Practice Note No 27: Application of CDM Reg

Practice Note No 28: Mediation (199

Series 2 JCT Practice Notes (yellow c

Practice Note 1: Construction Ind st

Practice Note 2: Adjudication (incl d

Practice Note 3: Insurance, Terroris Practice Note 4: Partnering in des

Practice Note 5: Deciding /6n the I

Practice Note 6: Main ntract T B

tion Ma

overs):

ry Sch

es to Cove

ions (1

of agreements)

binding `Form of

xt of n

iate 1

ering eludes m'

ation

arter) ntrac rms)

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0-0

O=

- fl- L

A=

Management procurement: management forms

JCT TQC

The Joint Contracts Tribunal Ltd

Trade Contract TC/

Background

This is the dedicated contract Contractor (3.6.2 of C/CM Agr Special Trade Contract may be u

be required by the Client.

Representative), then administration, how the agent of the Cli

Contractor and the C

need to have

Contract in or,

on which t

spec

sal

eference

giver, will be nt. Th

suit

er to a

Cons

cable

re ucptioj

d twee `emen H ev the d in lied by em or a

ascri

e prec i e Co ru

no direct c

t Team orb e

marking late an

pager

ctio o tract

owle ate t ions

Ita

f applicable the Client's ain channel for contract

r who is to be regarded as

relationship between a Trade Team Leader, but consultants

d understanding of the Trade degree of support and cooperation

ay depend.

ct is re tivel conv

ed

tely). T

ies

d undr han

rd seven A

Performance Bon issue). The wl Use

t pa

n form

he

d d copi

ntici

and structure. The Agreement, which to enable compatibility with C/CM, includes

st Recital refers to the use of the standard of which are to be annexed to the Articles.

nt Team Lea er is given in the Tender TC/T Part 1.

ler 80 p pa s (compared with 19 for the C/CM Agreement), led. These elude uniquely specified suppliers; performance fluctuations (the detailed provisions of which are published

ur Schedules relating to a bond in lieu of retention; collateral ise re to be on the JCT Trade Contractor Warranty forms);

a J document); Parent Company Guarantee (again not a JCT

> fo wed by Annexes in respect of EDI, Advance Payment Bond, yment for off-site materials, and Formula Adjustment.

Except for fflt- resultant Team Leader being co-signatory to Interim Certificates, members of the Consultant Team have no express role under this contract. Administration is in the hands of the Client or the Construction Manager. Architects may of course act as the Construction Manager, and nearly all consultants will need to work in close collaboration with the Construction Manager during the course of the Works.

12

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1 2 Management procurement: management forms

J CT TC/C

Brief synopsis of Conditions

(likely to be of interest to the Consultant Team)

1 Intentions

Trade Contract tender documents may Specification, bills of quantities, or Schedule a 'Priced Document' perhaps together )kith Schedule of Rates on which the Contra

The Trade Contract documents completed Schedules. In the event printed text (1.1 1).

Further necessary drawing ain the- ra

Drawings, details etc. must b

Performance Specified

2 Time

A commencem

otation fob acc

accor

evise

Arti s,. Conditi

,Tra'de C

othirlq sall over

eriod are

ilt' information required (1.22).

ce with the progress of the Project (2.1)

ent of delay by a Relevant Event (2.3).

The Con uctio"ar ager llnay iss instrVctions to postpone any work (2.1).

may Trade Contractor to submit a written he work (2.6).

complete to time may result in payment of direct 11). There will be a limit to financial liability if a

2). expense to e

entered in t e App ndi

Defects liability

ilure(by

t date

runs from Liability Period, w is certified (2.16).

1

orks is certified by the Construction Manager (2.13).

ractical completion to the end of the Project Defects ally runs for six months after Interim Project Completion

Phased completion (2.20) and partial possession by the Client are possible (2.21).

retu r

hclu of Work.

,, e&

e Contr

ed to the Co.

ust work i

ite will b

308

Page 310: Which Contract

+-C

rmal bligation t.

Bond

be at 5 per cent, and the Client acts in fiduciary as trustee but invest. Alternatively, if so stated in the Appendix, a Trade

ay be used in lieu of retention (4.15).

The Trade Contractor is to submit documents to the Construction Manager not later than three months after practical completion of the Works, in order that there can be final adjustments or ascertainment of the Final Contract Sum (4.17 and 4.18).

Subject to conditions stated in the Trade Contract, the client is to issue a Final Project

Management procurement: management forms

JCT TGC

3 Control

The Trade Contractor must keep a person-

* Instructions are issued by the ConstructKn

The Construction Manager is resp information (3.6).

Access to the Works for the Clie person is provided for. Presuma

The Construction Manage Contractor may wish to su

disruption factors, and nee

4 Money

Payment by the clie sum) or the Ascerta

Where the Tra

be by Alterna

made by th applies, th rates or

Ave

t may be qrn the

in ract m appli (Ar le

Tr e Co ractor's rice ction anag sin the v onstr of rk mprised in the

ured or . a Sched

uotdt to cov resob-r-cbs43.19

sis of

y o site

1 w ,t b;ding

pro

aMade Contra

valuati ices f

o rst 9ltant

ai n

actor may b,

:22). entitl

hen valuation of variations can tatement, or Alternative B-valuation luation rules (4.4). Where Article 2.2

orks is by remeasurement based on le of daywork prices (4.7).

reimbursement of direct loss and expense due

r make writte application to the Construction Manager for ervals tered V the Appendix, or at agreed stages. Whether or de the st ction Manager, not later than 14 days after the t issue an Interim Payment Certificate signed jointly by the der and the Construction Manager (4-11).

the ient apply, and final date for payment is 14 days from the erti 'cate. Failure to pay may result in payment of 5 per cent

e, a the right of the Trade Contractor to suspend work (4 11). e of issue of

interest ovex base r

risible

y this co

issue Var

12

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m

1 2 Management procurement: management forms

JCT TGC

(419). and the final date for payment is 28 days from the d Completion Certificate and a Final Statement. The

5 Statutory obligations

The Trade Contractor is to comply with statut not already allowed for in the Trade Contract be added to the Contract Sum.

The Construction Manager will issue

statutory requirements, or emergenc

The Trade Contractor is to provide concerning the Health and Safety information for the Health and Safety

The Trade Contractor indem injury or death (except whe responsible), and da to the negligence of out insurance cov contractual limit

determina

ed (7.2).

the Client are set out in the contract (7.6).

ine his own employment if the Client defaults or 10).

on by the Trade Contractor are set out in detail (7-11 ).

Either party may deterntKe the employment of the Trade Contractor where there is

no default but one or more of listed events occur (7.13) and the consequences of such determination are set out (7.14 to 7.18).

The Client, except if he becomes insolvent, is entitled at any time to discontinue the Project and to require the Trade Contractor to cease work (7.19).

urination nay

e Tra

`ry requi cu ments.

hstruction

nnir`ta'S ervis ontr with ne

of clai

yes b the cK-,n- rapp-I y,

e of the al Statement

arising due to personal for whom the client is

ifies t e cfient in respe

due o the clier

plyperty,Rther th Co tractor -1 to V3).

rnotI not ne

ss

essa

iect anti of th

name

orkZ provided that this is due e Trade Contractor must take in the Appendix. This is the e figur ntered

t of liability ( 4).

covered under Client and Construction ensure that Trade Contractors are to a waiver of subrogation rights (6.9).

t is

icies an

ploymei Of the Trade Contractor.

Client on the insolvency of the Trade Contractor, or in the ult for r

M), and

seq'ue+°rc'es of dete in

de Contras-t may

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Page 312: Which Contract

Management procurement: management forms

JCT TGC

The contract provisions still leave other right

8 Miscellaneous

The contract is to be construed in accor,

There are supplemental provisions fo

The provision for uniquely specified supplier refe'-s to pplier' namec,Vin the Trade Contract documents (8.1).

Performance specified work re uires each td "I). Third party rights under theAoq (Rig A 1999 are ex cluded (1.32).

9 Disputes

Article 6 confirms We right to seek adibdication in the event of a

difference or dispu

Nominators for an djudi itor can be ac ree nd Oown by appropriate deletions made in the A nd

The conduc of effe s of jud icator's decision are covered (9A).

Final det minati n wiration (9B) o by legal proceedings (9C) depending on an A

This

r use ' h the CT Client and Construction Manager Agreement used wit

/at document. The Trade Contract is not for use

tter for the Client, but the necessary documents for tendering nt Team, and issued by the Construction Manager on the

tendering will involve the TC/T Invitation and Tender to-Trade Contract (TC/C) unamended.

The Trad act C nditions are a substantial 118 pages long, and Section headed. The clie t may acce a Special Trade Contract or amendments to TC/C, but otherwise there is no ut to use TC/C with the C/CM Agreement.

12

311

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1 2 Management procurement: management forms

J CT TC/C

Standard Form of Trade Contract TC/C 2002 Edition Tender Document TC/T

Part 1: Invitation to Tender Part 2: Tender by Trade Contractor Warranty TCWa/P&T (warranty to purchaser or tenant) Warranty TCWa/F (warranty to funder) Fluctuations clauses for use with Trade Contract

Earlier JCT Practice Notes: Practice Note No 27: Application of CDM Practice Note No 28: Mediation (1995)

Series 2 JCT Practice Notes (yellow co Practice Note 1: Construction Indu Practice Note 2: Adjudication (incl Practice Note 3: Insurance, Terrori Practice Note 6: Main Contract Ten

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((t

rip

Partnering arrangements

Partnering agreements

The Joint Contracts Tribunal Ltd

1CT Framework Agreement (F

1CT Framework Agreement No 1CT Partnering Charter (N

The Institution of Civil Engine NEC3 Partnering Op

The Association of ACA Standard For

'Partnering is neit culture and the

Partnering as,

studies an

Arrangeme n

partnering hic

Proje Team Pa enn is abo r ad ting a manage nt

n e i ca p rforrna tors nd to

ween t

ay embrace a

ers, an a l p ; a bin, e r

r ing of additio for Iti party

fo

dra

umber projects over time.

orkin

is view and m

togeth

hich effis oach

ets. There mu

ually achj his is

ing agreem tf

to achieve the client's objectives for a project by

ent coordinated working is measured against first be some formalised expression of agreement

ved by using either a free-standing non-binding charter single project or strategic partnering, perhaps through the

dard contract; or by using a form of contract specially al clauses in a s

rtnering.

Ltd ICE, a1m1 ACA h

`s a frame' ncl N k

u

e each taken different approaches to partnering. The GC/Works suite

reemen ointment Conditions for the A

ra

a

o-r

onsult B aA

ndi

rchitects of Cbntract for Proae

rtic%

Itch ay in w

n ethos /which

r proc tH ac

ement ap oach,

articip

ng PPC2000

or is if a particular type of contract; it is about age the project' (KT Note on Partnering).

p to avoid adversarial conflict was the subject of a number of s, a endorsed in b th the Latham and Egan Reports.

project pa pplicable to a single project, or strategic publicati ns in e 19

o may to form

art

pr use with consultants' appointments only (GC /Works/5 General

f Consultants: Framework Agreement (1999)).

313

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314 i6£

_ M

Page 316: Which Contract

fl,

fl,

fl,

Use

artne i-Rioles in

"s first publication to was a model charter,

e on a single project to

pemnts, in addition to the model ith a guide on their use. These

e model charter. They take the they are intended for use alongside en republished in a 2005 edition, these offer flexible options for those their contractual arrangements.

on is a formal document by which the Client vide gree to wor together in a collaborative and open manner, o jectiv . It incl des provisions regarding framework objectives, t re and d isi n making, collaborative working, the supply chain, ation, communication, confidentiality, risk assessment and

a d safety, sustainable development, value engineering, change >, e warning and team approach to problem solving, and

ica-tors.

(8)

merrtfunde k agreem

a Tittle longer at 18 pages, and has additional provisions relating and dispute resolution (23-28), and has a facility for executing hand or as a deed. The clause covering the legal status of the t is different, but otherwise all clauses are identically worded.

The Framework Agreements are intended to be used with either one or several

underlying contracts, and are entered into for a term set out in the framework particulars at the back of the forms. They can be used alongside any other JCT

contract, and standard forms produced by other publishing bodies. They are bi-lateral

Partnering arrangements: partnering agreements

JCT FA and FAIN

JCT Framework A JCT Framework Binding (FNN)

Background

In 2001 the JCT published a No

address the increased inter extremely simple and onl supplement any of t

In 2005 the JCT pu

charter, one bindin are longer and same approa another co

downloa wishing

e main ages

dard

lished ew Fram

a

and ne non- bindi t phis cated do ume s 1

ne ode harter tha

he m el ch er as b tract. ble fr intro

non-bindiri d the ice Pr'

achie ag ed isatio stru c

in f infor tion, alth

ormance i

icable la

The bindia -version

t in p

bsite. Together,

13

315

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o..

,-+

'vi

1 3 Partnering arrangements: partnering agreements

316

n f& vider

iples

ovider tor). T,

chain

ontract+`evails ny way ha

tatio v

formance

arency of manag he othevvft an

Collaborative working (10), sl}aring of information and know-how (12) are all included.

nd icat

rocess:

onditi

pple the unde

en shal

apon he r on, Contract . Th

merle t e o

h inbia sp

of to rath

gate, a

indin ot,t

-win' forms,, ion an

teg ra t creasin

ient' supply,

art and end In the

t (n versa

ere is a

'greater,

deal fairly, altho

bets sew Lce

JCT FA and FA/N

agreements between the Employer and the Service

client and contractor, or contractor and sub-contr endeavour to see that the members of its supply collaborative working.

The Framework Agreements are intended to the underlying contracts. In the case of confli The Agreements state that 'the Framewor legal or contractual effect or bearing enforceability of any of the Underlyin addition states that neither party sh

the Framework Agreement.

The Latham Report called for contract parties to deal fairly, and that presumption to achieve 'w,

blame. Unlike some standar to act with mutual coopera

But the climate is ch improved, more eff} management of th

Features (claus

Underlying contracts; in framewor arbitrator

ific duty for all

k with a general than apportion

ressly call for parties ay well be implied.

placed on achieving m working through better

erformance indicators are to be set out the name of the adjudicator and

o provision for mediation).

e identified in the Particulars, and the Guide usefully rs published by the DTI Best Practice Programme.

r angements is emphasised - each party is to

rganisation and management diagram of its internal

The Service Provider is-Mendeavour to ensure members of its supply chain 'embrace and adhere to' the principles of collaborative working set out in the Agreement, and where practicable, engage them on terms reflecting those principles (11).

The Service Provider must consult the supply chain on essential aspects of the project, e.g. design development and early warning (11).

Page 318: Which Contract

,-r

Partnering arrangements: partnering agreements

JCT FA and FA/N

The parties must endeavour to agree a com

Identification of risks (15) - prior to enterin into a y un er g c tract, e service provider must undertake a risk analysis with th o er pr ect pa 'cipan s. The employer then prepares a risk or matrix, t e perica eviewed and updated.

Value engineering (18) service proide nc rage to gest saving pir easures, and Employer and service provider t oti e t rov er's hare of/{he benefits if implemented (there is no prior

The parties are to endeavour tqa jree cosec. o y 0% es b *re implementation (19).

atter which may affect Both parties are required top raptly am e oTeGuide. time quality cost (2Msustain t a tea ap blem solving (21).

Health and safety ility E an ortant features of the Agreements, with f ation inc ed i

Related matt Documents

13

317

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_.1

fl,

0)-O

0-O

1 3 Partnering arrangements: partnering agreements

X12

The Institution of Civil Engineers

N EC3 Partnering Optio Background

The Third Edition Engineering and Employer and the Contractor, to act as st trust and cooperation. This main con matters likely to result in increased pri of the Works in use.

This partnering option, which touch was published as a First Edition except the Adjudicator's Co

document, but is an option any Team Members involved

gets,

consultants or sub-consultant these contracts will ha

The Option can b several projects. It

in a multi-pa

ibutio icators, t

Use

tract. As Which m with

If th re al

ed i Tact also

ed

others 1. It

itle im

tr req nt t an rdc

ts a n plor ire

the sed

acting parties, y NEC contract

es, is n t afree-standing I i o th e NEC contracts for Con ctor, sub-contractors,

D or ed, then the parties to ommon.

fie e incorpb.

Project, whether Option is

onsibili sit

used f r sin le pi

of co e only itra

e Wor artners j Neasure

s. Both Sch

rtnering e used Wii

for strategic partnering over C contracts, and does not result

Cont,Yc Data, me of which will not change (e.g. ring

emb

formation n agreed methods of operating), and hedu f Cor Group Members, which might change

s. The Sc le of Partners will include identity and oining and leaving dates, and details of Key Performance

ent arrangements and any incentive payments. The s will give identity of partners, and joining and

b swill obably need revising from time to time.

short clauses set out under four headings, and the dance notes on these clauses.

The Option is incorpor`ate6into the contracts of the partners by entering 'X12' in the first line of Contract Data Part One: Data provided by the Employer and by completing the 'Optional Statements' Option X12 entry, including identifying the document in which the Partnering Information has been set out. The information for this entry is suggested in the text of the NEC Partnering Option, and covers details of

318

Page 320: Which Contract

Partnering arrangements: partnering agreements

X12

the Client, the Client's Objective, and Partner

Synopsis of clauses

The Option does not create legal partneRh

Each partner collaborates to achieve of every other partner.

Each partner nominates a repres

The Client is a partner.

Partners are to cooperate o matters likely to affect of

forma

opinion and if so it must be

A Core Group is sele The Core Group is le

in the Option or th

d by t

e

er par ken fulTy;

by the Clie

contr

le for pr nerin perati

4h 'Sulhoril

mafion, aid-givi

senta

arin

act on behalf of partners. on not specifically defined

'on is d

work gethe. use com

ed as>4a conta under the

'as stNted,

on in r

i-nhe Partnering Information in a spirit of tion systems as set out in that Information.

amo statedi icator is im

the Schedule of Partners if the target stated roved upon or achieved.

ay give ann'tkoNectiv

13

319

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w

w

13 Partnering arrangements: partnering agreements

X12

This contract?

If considering using Option X12 remember that:

It is intended only for use with any NEC contrac it brings more than the two main contractin but it does not create a multi-party contract.

The responsibilities for Team Members ingbdeed

to the contractual responsibilities whic

There will be additional Contract Data,

The Option is a neat way of br,

partnering clauses set out the action

Related matters

Documents

NEC3 Partnering Option: Optkon X1

First Edition (June 2001)

References

Construction Industry ouncil, wide t

a

0

M Partnering

xc e9 I the Ndjudic mt a partn

or's C

B

B ntit) ing rej6 ionstip,

u ter tion 12 ill be in addition ioht ave.

ted

ps, and the

320

Page 322: Which Contract

LA

.

UO

=

_-r.

r+

. r_

+

fl,

fl,

,=+

Partnering arrangements: partnering agreements

ace

f Cons 'ant elicitors. his i br appoi tme t ter and

cess o eliveri g the l , it is th first Ittf-

ime a mergi e par nering

ntial d men , with a closely interlocking set of terms, which mediately y to understand. Realistically the ACA advises that

ith the benefit of experienced legal and or other professional station. on its

it s

advi

it was recommendation Giovernmeti &sk Fd

y th

v proce-c between ess,

1sint

rchite

ventional ctht`k tween t fun n o a ontr

cont al oblig ertain

ing &,th Th

d

es

ers c

es re

I key

an?+operates a

ding to mares

ention6

PPC2000

The Association of Consultant Arc

ACA Standard For Project Partnerin Background

Partnering agreements and there are essential difference arrangement. The former contracting parties, and ide dispute, can be tested in the co sound administrati collaborative workin invokes trust and f there can be difficul

Flying in the Association Hamlins, S

consulta the whole proje

led

c

lementary, but t and a partnering

trictly between the which, in the event of

tract and adherence to latter seeks to establish o putting the project first,

management tool. Obviously nciples to contract Conditions.

m, PPC2000 was produced by the afted by David Mosey of Trowers &

wis and

attempt to bri g together partnering arrangements, buildin ontract into one document covering

t is the first standard form of contract for arty building contract, and it is an architect-

a partnering agreement and a building rocess.

it John Egan in September 2000, it has received the busing Forum, the Movement for Innovation, the Local

ce, and the Construction Best Practice Programme. It has also Construction Industry Council and the Housing Corporation.

Between the Tssy covers, there are 54 pages covering the Project Partnering Agreement, the Partnering Terms, and Appendices.

The Partnering Agreement is signed or most likely executed as a deed, by the Client, the Constructor, Client's Representative and each consultant or specialist member of the Partnering Team. The Agreement will carry details of the Project, the site,

13

321

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1 3 Partnering arrangements: partnering agreements

322

PPC2000

art 1.Co Part Rart 3-4hitration (i

0 is uni cro

lega le `crdss-ref

mless d

ciliat

iples;

ill be bou

n Ag to be

reem

is is' n by

nfir commencem

2 hea %ing he guy ico y b r

e five Aes, con

With a

ime, a

e alre

ement ( ndertak

Part 1. Form of Pre-Pimsess

preliminary or ena Part 2. Form of C

that the Project

Appendix 4:

Part 1. Ins rant Part 2. T ird Part Part 3. rofes Part 4. sura

ing mmen

is read

iect an nsura

r Public Lia

CIM

of Partn i n g

m.composition of the Partnering Team, Partnering

0 8 of /The Ters d in Appe dix or C tract

ti matters ch

ea

composition. The Design Team and Lead Designer ar to the design development process as described i

noted. Details are entered on other matters usually Data with conventional contracts, but here als,

and insurance cover to be carried out by eac

The Partnering Terms are set out under but some terminology is peculiar to th there is a full set of definitions. There be summarised as follows:

Appendix 1: Definitions

Appendix 2: Form of Joining Agreemeri will be changes to the Partner in new joining parties who

Appendix 3:

PCC2

managemertr prin with commenda approach and

commitment on the

Use

inevitably there hanism for bringing ed obligations)

e an agreement to cover he Constructor) ation by the Partnering Team t of work on site)

aditional boundaries. It is a combination of project conditions and procedural rules. It is logically structured, encing. It holds out the prospect of an integrated team

very of the Project, but it calls for a high degree of of all concerned.

Reports indicate that PCC2000 has been successfully used for both private and public sector projects ranging in value from multi-million pounds down to f600,000.

Page 324: Which Contract

Partnering arrangements: partnering agreements

PPC2000

Partnering depends on an effective managem and good communications. The Partnerin beneficial to set it up as soon as possible. likely to change during the progress of th to bring consultants, key specialists, suppliers together at pre-construction

as

are proportional to their responsibilities,

A Core Group is to be established to meet regularly to review an Members must comply with

The Client's Representative attend and minute meetings instructions to the Con also be responsible r organisi However, restrictions can be,

in the Project Partne 'ng A

The Partnering partnering, a

remit whic Documen in Appen partneri Tea

ons ages. Th

ht stru ure, a ntive dmi earn the to

do ,

t will be

os %thomp CC200 acc pts t o t. Ide y the r shtract

and so e su con ac art ring m

em

be am ince

p9

Lion is

rtu n ity ors and liabilities

ti the rt rin am mb% timul ss he P e,

s rea b e r Grou

as con le au t . He she may call, organise, r an a erin Team, and may issue k< edi b he P ne ng Terms. He or she will ring or op for the Partnering Team.

her a on n and these are to be entered

powe g pa ne

don his

reement. - iser*ill bed person

pref e abl Ireac

s retie g inclu ; prep

N,3; acts; atten

tni mmen nen

Consultant's Ser

th any Joini the Price

sa I s;

n g

the p

Fng rerfrl Iving

Charter;

ve Nvments.

nthusiasm and a knowledge of ck record. He or she has a very wide r consistency with the Partnering

process, partnering relationships, and eparing any of the agreements listed

meetings of the Core Group and Partnering ms and resolution of disputes. A tall order!

s arelisted a

emei ramework;

being:

the Key PerEe Indicators; any other Partnering Documents.

Unless there is anything to the contrary, this is the hierarchy of documents which prevail in the event of discrepancy or dispute.

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1 3 Partnering arrangements: partnering agreements

324

bjectives rtner

em r o e Parr t,W iect and for the mut

Do-c"Wments

'sibiliti erin

erms for

e ann

'sible fob-r-- en then Cant Pavme

r

rR- d fo in r ect o Pre-Fo6 sessi6

Icula by refe ts. ring D

n for th

is a uni dings

ook

descry in the t) and Tea

are used as the

respo s (Pa

utua

ich appl me t out UQOr six h

the Project vyi

hasi io

erin

PPC2000

The ACA advises that at the time of signing the Pro

team should have agreed the following:

Client's Project Brief and the Constructor's Projec an initial Price Framework; provisional Key Performance Indicators; Consultant's Services Schedules and paymen

With so many separate arrangements, t a lump sum contract. The Client is respo

amounts properly due under the Cons Constructor of agreed amounts pro activities, and an Agreed Maxi Framework and other relevant Part

Synopsis of clauses

(Despite the fact that thi

comparisons the same he contract forms earlier in thi

1 Intentions

Roles, expertise ark

Services Schedu trust, fairness an

Partnering Client and stages t Also in effectivene im

Project Brief and Consultant's Members work in a spirit of

t of the Project (1.3).

ber of the Partnering Team including dings in clause 4.1 and cover design

thin the agreed time, price and quality. novation, improved efficiency, cost- of waste, and measurable continuous

o Key Performance Indicator targets (4.1).

ed by Partnering Targets under 10 headings, and each

ndertakes to pursue these for the benefit of the of the Team Members (4.2).

am Members shall act reasonably and without delay (1.7).

govern the relationships between Partnering Team

The Partnering Documents comprise the Partnering Agreement, Partnering Terms, together with any of the documents listed in clause 2.2.

Priority of documents in the event of discrepancy is in descending order as listed in

clause 2.6.

Page 326: Which Contract

Partnering arrangements: partnering agreements

PPC2000

Partnering Team Members work to achieve tr information, and integrate activities as a co

Communications between Team otherwise agreed (3.2).

Team Members are to establish a

Partnering Agreement (3.3).

Decisions of the Core Group are comply with authorised decisio

Partnering Team Members o others as soon as he or sh

Meetings of the Partnerin scheduled or request Only matters on the

ershi

flea m

such i

agenda are

y con (3.6).

iting

arly v ing systeNaid e

are

I no-K

dealt

ttersrsely a

ally b 0, an

and pera ' e e

e te(3.1 .

ctlhg the project (3-7).

nt's Representative as

e Client's Representative. are by consensus (3.8).

mber are to devel access to co

itiat

m Members s

ct Paztneri

TYre' Client's Repr

esen tive is to call, organise, attend and minute meeti g Group an art erin Team Members as required or scheduled (5.1).

The Clie 's Represe ative organises workshops for the Partnering Team Members, and organise monitors contributions of Partnering Team Members to value engineering, value management and risk management (5.1).

The Partnering Adviser as named in the Project Partnering Agreement may be replaced at any time by a decision of the Core Group (5.7).

The Partnering Team Members may seek the advice and support of the Partnering

tion by

ents for secondments, office s and databases etc. as may

er joi t initiatives which might benefit the sidered by t e Core Group (24.1).

I keep-records

ive is t"ct in ac

acilitate a

as required by the Partnering Documents of the Partnering Team (3-11).

ordance with the Partnering Terms and other integrated design, supply, and construction

tative is authorised to represent the client in all matters, except re Group, and always subject to any restrictions stated in the

ent (5.2).

ay issue empowered instructions to the Constructor (5.3).

ngs of the Core

13

325

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w

13 Partnering arrangements: partnering agreements

PPC2000

Adviser on a range of matters, including those liste

2 Time

The Partnering Timetable is a Partnering Docurperi the Partnering Team Members during the pr

The Project Timetable covers the period of co Agreement.

Members of the Partnering Team are t and by the dates in the Partnering Tim

The Project Timetable is to be ann and entries will show the date o

omple ecl

Constructor will submit the propose review by the Core Group a

Where the Project is to be to each Section and the Pr

Possession of the site programming may interrupted posses

ke

on int

sentati

Con

.s adaccou

co

truction

procee eg'ularl able (Q-1).

osses

ins

timeta the Cli

y Sectio

ructor rN nyrrang

Comme d dater corn

eleration, roject imetable

deavour

he actiJ

Agreement, etion (6.2). The ` r

presentative for

A ppro to tension f the date for completion may be given for any one of 16 r asons list d ineu %ral ue to matters beyond the Constructor's control and i clud nq rn uses 8`3).

Th Constructor must no }fent's Representative as soon as he becomes aware of an f the ev ted, nd upply appropriate evidence and detailed proposals for overcoming tJae ev is o minimising their impact (18`4).

The Client's Representative /rhust respond within 20 working days of the notification and make a fair a a able extension of time. The Client or the Constructor has 20 working days from the date of the Client's Representative's notice to dispute the award 0 8`4).

An extension of time which affects consultants, and is not caused by their default, will bring an equivalent extension of time for performance of Consultant's Services (18`7).

326

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5(5-3).

ections to an instruction for specific reasons, within two of V e instruction (5.4).

mus promptly carry out empowered instructions issued by the If it fails to do so after five working days of a further notice presentativ

ant, th lient may pay another party to carry out the instruction and the by the Constructor (5.5).

Any Partnering Team Member may propose a Change to the Client, and proposed Changes shall be considered by the Client and the Client's Representative, and if approved will be notified by the Client to the Constructor (17.1).

Partnering arrangements: partnering agreements

PPC2000

The Constructor will give the Client's Represe he considers that Project Completion has b

is invited to inspect and test as appropriat

The Client's Representative, together .

h

Members, shall inspect and test, and ithin t,

of this, the Client's Representative sha i

either confirming that Project Com tion the Project which the Construct mus

Following completion of the Proj the Ca shrinkages or other faults equipment or workmanshi Defects Liability Period is to

None of the ri

sub-contract (25.2).

Specialist Construct

mater,

y the Cli

and P ferr d Spi

resp Bible f,

in

not ir1

ifiative _bra efects hav

ve wor ved. The Cli

nstr r m'u rec olec"

cco ance

ntere

can

ssue a

ctifie

`late P

S foll

fN ny defects, excessive materials, goods, hicFi are\d to

Proj Par_tneri

ng Documents. The g Agreement (21.4).

erinAgreement may be assigned or liga ns of th Partly liql t t e pno onsen of al

ialists,Tay be r the,Der

nstruc,V are gj ds of com

the other Partnering Team Members

en by the Client's Representative, and in

unication for the Partnering Team (3.2).

ire for inspection or testing of any part of the tion at no cost to the Client of any designs, works, services, uipment that are defective or otherwise not in accordance with

Constructor working d y f iss

13

327

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Q!°

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1 3 Partnering arrangements: partnering agreements

328

en rease

uality 're to imple Propo

men ana

will b

obepladin ac nering Age

f Pre-

evelo

pity of the

an sup e nen

ent

stru

om 0

ct aNthe s

s tO the`Cl-t w eceives

e sit& rrru t be

nd Consu

ement A all ris

drdance 01i

emen e

sse ion Ad

e Client a Comtr

rs(ubiett missi , th6-i

to reserv

PPC2000

The Constructor within 10 working days will then sub Change Submission setting out the likely effects in

Within five working days from the Constructor Representative will either instruct the Constru of any aspects until later) or withdraw the C

The Constructor and specialists are to equipment of the types and standards s

The Constructor is responsible for sec

Ownership of materials, goods a

incorporated into the Project, or Such unfixed materials must not be and clearly marked as owned

Partnering Team Members in the Project Brief, Project

From the date of the Co Constructor is respon site, unless otherwi

4 Money

The Constructor Framework (P

are as ente pay thes

The Ag and other Co

If the Performance Ind each consulta consequential ad

Where an extension

yice Schedules (16.3).

completion date, the

e Partnering Terms and the Price amounts for pre-possession activities

ement and the Client undertakes to

ed by reference to the Price Framework uments ' is to be as entered in the Form of

I. This is the sum payable by the Client to the Constructor, ses in accordance with the Partnering Terms.

link payment to performance targets stated in the Key

when the level of achievement of the Constructor or rable, the Client's Representative will determine the

reduced payment (13.5).

of the completion date is awarded for certain events, the Constructor shall be entitled to additional payment in respect of site overheads and unavoidable additional work or expenditure (18.5 and 18.6).

Page 330: Which Contract

Partnering arrangements: partnering agreements

Fr

in 20 days issue a valuation fd

rese

Within 211 orking d s following notice by the Client's Representative confirming that the Construc fulfilled all obligations in respect of rectifying defects, the Client's Representative shall issue to the Client and the Constructor a Final Account. When agreed this will be conclusive evidence as to the balance of the Agreed Maximum Price

due, and the Client's Representative shall then issue a Final Account valuation (20.15).

amoun

ing the rdanc for p

r 10

to

ction 6v-the Clie for payme

ati with ing the m unt accor anc t ousi

to fo me by lien rkin s from r

p opos *44 the Hou ment by the

orking a

r ('9,4).

hholdi

nt by`fhe Clie,

Agreem pend

pllowing enta;

)a

rmanc

t will result

ach co ultar hee fea ac

.

ity sc dul ied b detail

e Clie 's Red

seek to agree taking into account any adjustments, and subject retention in the Price Framework (2014).

ted of issue of that account the Client's Representative shall

amount, or if not agreed the amount that the Client's 1tive cons ers fair and reasonable. Final payment is due within 15 working fr m d to of issue of the valuation (2014).

PPC200O

Applications for payment by the constructor Client at the intervals stated in the Project Bri

Payment can also be related to payment in the Price Framework. Applications mu Project Brief, and such further infoy reasonably require (20-2).

The Client's Representative will iss

Constructor's application, specif,

and the basis of calculation all i

and Regeneration Act 1996. from date of issue of valua the Constructor whichever

Applications for paym by the Client, speci calculation all in acc Act 1996. Final date

eceipt of the d to be made

ts, Construction s 15 working days

of VAT invoice from

to a notice issued

made, and the basis of struction and Regeneration

orking days from the date of eipt of VAT invoice from the

t must be made not later than two (20.6).

in interest at the percentage specified in the may give rise to a right by a consultant or until payment is received in full (20-17).

oject Completion (or as stated in the Price

ive shall issue to the Client and the Constructor of the Agreed Maximum Price due, and the Client

13

329

Page 331: Which Contract

fl,

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13 Partnering arrangements: partnering agreements

330

If agreement on the Final Account is not reached w,

date of issue either the Client or the Constructor m dispute as set out in clause 27 (2016).

5 Statutory obligations

Partnering Team Members must comply w force in the country stated in the Partnering in the country in which the site is loca requirements (25.4).

The Constructor will act as Princioa Regulations, and the Planning Su

Partnering Agreement (7.1)

All Partnering Team Members including development of t stated, this will also of cou

Each Partnering Team Me individuals for whom Member will be liab death caused by e

e risks-to

h Nawl'ering Tea nce for the amou

mnay or pr amed in

e insure

e Health se relate to

to t ers 1

eir contW7-4). to

ployee,

stru cto of a

ment Agre

eir ob fety P

and

ill an

fulfi

all use reaso

the sit or thi

all la

ree ent tt. It II st

ntra r for he )aL rmoses A be fft erson aamed i

pd the Hea

work' day r e

medies fo esoly the

PPC2OO0

6 Insurance

Insurance of the responsibilit Agreeme Where s

insuran default of t

Professional ind Team Member Appendix 4 Part 3

care to ensure that all

ring Contract, and each r any loss, damage, injury or

including structures on it, will be the t as shown in the Commencement

with waivers of subrogation (19.1). ment, the Constructor is to take out other than the Project, not caused by

are those set out in Appendix 4 Part 1.

to take out and maintain third party liability d in the Project Partnering Agreement and in

Part 2 (19.3).

duct liability insurance is to be taken out by Partnering 'the Project Partnering Agreement in accordance with

Further insurance as required by entries in the Commencement Agreement can include environmental risk insurance (19.5), latent defects insurance (19.6), and whole project insurance (19.7).

Page 332: Which Contract

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Partnering arrangements: partnering agreements

Each Partnering -Q-the Prorect-Partn

The Agree nt ca Iso include for a design obligation by the Constructor, and in this event the obligation under clause 22.1 can be amended in the Project Partnering Agreement whereby the Constructor accepts full responsibility to the Client for the design, supply, construction and completion of the Project including the selection and standards of all materials, goods, equipment and workmanship, and including any design undertaken before or after the date of the Commencement Agreement by any

HII ne s ctive ro

ass in

to of

to sp tive. A

ions. an ac

on the R

inns of that ointme-M of any,

are set o

Mem each

nseq

cifie ssess

point

Partri

inn it be es impos s, the Constru

is must b

aterial b?

nsequen

f tPartn be uiII

pt oZ`nsolvent

the`rtruct edu

rm

nfay termina of the Par

ntial act ns

ptabl oject

`of all P rtne ng er bec au of fai

clabs 14.1 or f r

to of -Ne Com

am embers ire to a ieve

any r

enc e n t

arbset out26-1

t he ap wing orb

PPC2000

The Client may terminate the appointment longer wishes to proceed with the Project e

conditions to a start on site as set ou foreseeable by the client prior to Procedures for giving notice and the

The Client (or Constructor as

Partnering Team Member for

The appointment of a Partn

The Client may terminate the or breaches of the P

consequential actio

A Partnering Team specified defaults or giving notice a

If after the Project du Represen

possible susp

r for specified defaults `r giving notice and the

26.4).

appointment in the event of nts by the Client. Procedures for

t in the Partnering Terms (26.5).

ible to proceed with or complete the for must give notice to the Client's

convened to consider the position and solution cannot be found then the Client may

Members are to use reasonable skill and care appropriate to their e and responsibilities, and owe to each other such duty of care

tnering Agreement (22.1).

ber is to provide or obtain collateral warranties as listed ng Agreement (22.2).

btain specialist warranties in favour of the Client (22.3).

13

331

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1 3 Partnering arrangements: partnering agreements

332

other Partnering Team Member. The Constructor may the completed Project shall be fit for its intended p,

Section 8 in the Partnering Terms otherwise state hands of the Lead Designer and other Design T

design with the object of achieving best valu

At pre-commencement stages the Lead Design and Core Group, and following Client ap Client and Core Group with detail suffi

Following Client approval, and aft applies for full planning permission design to the level necessary for th Framework, and satisfying of plannin (&3).

After commencement all fu and other Partnering Team periods stated in the Project

Each Partnering Tea

other documents t Partnering Team completion of t

Nothing in t or rights to,

Nothing Member

Any I to s to k

b reference o thi Ii

gree r the Co

vent of iffere e to

an

selecti condi

epare com

her dean Mem

imet

lwork is

or approva ble (8-6).e'

M& at he p

Memb Proje

rtnering less e

fht

state

nts creates

givp__noti

?er epares

ce

tains ' tellect al pry

r the , but copy and

`roval, develobed de lent for

Gro con tatI the ther n Team e b

ecia ' s, evelop do

reem ressK

quirokto waaan

mentli to de to

PPC2000

-3).

Designer s brings the

ent of the Price

atory approvals

perty rights in all designs and rants to the Client and other se such designs relating to

Partnering Terms confers any benefits otherwise (22.4).

rted into the contract must be identified as special terms must be set out in or attached to the Project Partnering

ent Agreement (28).

or dispute with other Partnering Team Members, a

e other Members and the Client's Representative (27.1).

s involved are to apply the Problem-Solving Hierarchy ent Agreement, guided as necessary by the Partnering

The Partnering shown in the Co

Adviser (27.2).

Where use of the Hierarchy fails to provide an acceptable solution within a stated timetable, the Client's Representative will convene a meeting of the Core Group in an attempt to reach an agreed solution (27.3).

Page 334: Which Contract

Partnering arrangements: partnering agreements

PPC2000

If the dispute is still not resolved, the part conciliation as described in Appendix 5 Par,

alternative dispute resolution (27.4). The Partnering Agreement.

The parties involved may exercise the, (27.5) in accordance with Appendix Project Partnering Agreement.

If the difference or dispute is no the matter either to arbitration Appendix 5 Part 3. The no Project Partnering Agreem

This contract?

If considering using PC.

It is the only standar cc

The conditions lai

a single contr ct bri in

i0 re embe the

act specificall d

o ed and sy 1

II im tant r1

inevitably t s calls r an op an

Contract dmini rati an prod

demanding, as appArent

If tultima in artneri arr res t of an archi ct- d initi

andard Fo

References

lanai

chose refe the rsMedia o ny o er r m,be`raame m the

f their d eren adi cator

arties may refer ation is covered in

be named in the

roject partnering.

ea"owever attractive the notion of together in a binding relationship is,

i-nent under it seem likely to prove een used in practice with successful results.

is is desired, then this form, which is the competitors as yet.

ct for Project Partnering PPC2000

ontract for Project Partnering SPC2000

13

333

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W

334

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0-3D

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it me in respect

temporary and permanent works. The statutory duties for tracto are usually made contractual obligations also.

act terms take into account the role of the Employer in

s, and the obligations of the Planning Supervisor and Principal the Health and Safety Plan and File.

Unfair Ter-ft in C sumer Contracts Regulations 1994 (SI 1994/3159)

This legislation applies to contracts for goods and services between a consumer and a supplier. The former will be a natural person acting in a personal way (e.g. a home owner) and the latter a person acting in the course of business (e.g. a consultant or a builder). This is primarily a consumer protection measure, and applies to any term in a contract which has not been individually negotiated. It calls for fair terms, to be

Taking into account

There will be times when operation of contract. For example, some the need for some additional sp

contract works proceed. This contracts proceeding in se

unrelated standard agreeme make sure that there is no obligations of contra

Standard forms curr this might necessitate particular contrr,,t bespoke agre

drafted by a

ent

ng parti

ntly py im

the u

ict or sp ki

are learly t ou

sded will a

of option cl e ire may

a`satisfact ve

experi

s the ntra t sly

to en that mat the alloct

t1w,?mp1oyer an

struc

ie inten tion o

w s. It is neces!

"sions, misht

ex

ry a an yer i

andard form n contract, or

as the main racts, or separate

ation of otherwise

most situations, although r sup ements as provided for in the

pti circumstances where only a

wer, and if so then this should be structed directly by the client.

count of eventualities that can be

%-a-rthe parties are expressed clearly, with is as intended.

the common law of contract, and affected ry to take into account applicable legislation

rr at least to have an awareness of what might need to be considered includes:

n and Management) Regulations 1994 (SI 1994/3140)

early

heck whether- the

335

Page 337: Which Contract

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14 Choice scenarios

336

w issued or aff

tructi- to cover p

hich might becom

It used to be h that at co/rfimon law only the parties to a contract had obligations and benefits fro The reement touched only the parties, and third parties were outside the contract. Now this piece of legislation has brought the right of a third party to enforce contractual terms, always provided that the contract expressly provides for this or purports to confer a benefit, and that the third party is identified in the contract. The contract may expressly exclude or limit liability.

er..

receiv

Faym able -

Re

ion 7rtt 996,

uire nts indi ' ually

nji

which e c

g as cla dl ain that the rm

d this on, la

cupiei or exterior

'ts wit own

erms eet pro dures eet

t not ressly i

ill automati

ecora- idential

occupation.

o ether

's appli ontra

elatin to d velop etc., "this will.

wall agr,

r co

xpressly

so care is eded e

s a plain ang erm tia d. He e he pr

nsu r c tracts' for sy

m willot

ildho or co

expressed in plain intelligible language. An unfair t consumer. In assessing the requirement of good fai parties will be taken into account.

Check whether: one of the parties is a consu that the contract complies with the req Most standard forms have not been attempts to publish building contracts domestic works. Care is needed if draft appointment agreements to make c

understood by the consumer,

Housing Grants, Construction a

Part II Construction Contracts

This will apply to 'constructio professional services, interio It will not apply to contra principally on a dwelling fo

Check whether: the adjudication, and w,

the Act. If the Act for Construction

Party Wall etc. A

As with m Planning Conditi might bri

at work will affect party walls, because if so notices might the course of the Works, and construction work might

11 award. Contract Conditions should provide for variations, extensions of time, disturbance costs,

incCude contracts for building contracts.

roNded that the work is

the6'right to refer disputes to he requirements stipulated in

cluded for, then the Scheme lly apply.

nt such as the Town and Country not usually feature in the contract

ements or awards are concerned this tract administration.

Page 338: Which Contract

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Choice scenarios

Check whether: it is intended that certain thi whether the contract expressly includes thi uncertain on this matter, it might be advis published standard forms of building co third parties under this legislation will

The tennis club in the afflue to donate a new prefabrica owns. This will be supplied which the members f e

required, which mus to carry out this wor to proper levels, dra

he nat minor straig

beg' act beinc

nd File c

Scenario B

d by the original contractor). A separate Health and Safety ill probably be required.

Planning rmis ion f r the latest 'Homeforce' DIY Superstore contained a condition that the Fin acade f the 19th-century Boon Mills, which now occupies the site, should b tamed. ite clearance is imminent and the selected part of the listed facade needs to e stabilised and protected in what could be a delicate operation. It is decided that this work should be entrusted only to an expert demolition contractor.

Which contract?

A separate contract is required for the demolition work. Consider a suitable minor

ed pa

ected

can e complet

which-incl cage,

odu a sub f Fai w has a b` ctor,,

ndert iQr to d

cles the c

the necessar base for the pavilion. oncre

e of t> e wo&tpr th)s preli

ver p si wher

uch as JCT MW

rs are volve rac , biz i ting

ate. Pra

mpede ica I

inary contract, consider a lump sum 5 might be appropriate if the work

there are sequential contracts, particularly The contractor responsible for erection must

possession on the due date and the site being ompletion of the preliminary contract will need

e respective Nabilities for defects and damage clearly established r example, MW05 only refers to defects in work under that

age. t al de

ty rights re to r.

an re fired

taro egal vice. f

ressly tate that

sel

loc

who has promised to the company he

oration will be needed,

ernal works will also be contractor will be needed

standing, bringing the site ess r

14

337

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P=}

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vii r(6

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14 Choice scenarios

338

er pr6tection and s

ese are no qu

to for

ho

only s ffective

Employer

ear for

f m rial i

ex t to teria . emoon can

the fight quir e

cto r.

-con this

incipa

ver si

sta

eliable buil er, pr dersona sup rvises

This nlikely racticable/

cover

ed to tent o

Ilow trdeteriorate t e is repared t s

su ey a repo on ar

'Out cle ance a d op

which c not be wn a

II, a ecia i act ition con ctors . ake pro isio fo dem ar s allo s for other

works building contract e.g. GC/Works/2 (1998) or, (e.g. the Standard Form of the National Federation sure that the Specification and Conditions includ and insurance, and that the contract for the b

contractor to work on the site occupied by th

Comment

The demolition contractor needs to be obligations for the safety and protectio stored, it should be clearly stated. (Th

contractor is allowed to acquire salv as a preliminary contract or as a su

a Health and Safety Plan specific contained in the Plan produced b

Scenario C

Victoria Towers has been century. Now Country Heri commissioned a det contractor will be ne work, the precise

Consider cont work who relevant plus ap standard best co

operation. Retur

Trades contract

Scenario D

ective ed and

ed if the dealt with

'former, then or it might be

e a disastrous fire last ial restoration and has

of the fabric. A ping-up to allow investigation 6e outset.

bly one with experience of this kind of raftsmen with a knowledge of the

o be a lump sum contract, and a cost ne. It is doubtful whether any of the

this is kind of operation, and it is probably of letters and an agreed Schedule of rates,

res are the contractor's responsibility, but check Sh work needs close direction, and the contractor ting rates that this might not be a single continuous further investigation are a likely requirement.

Champers is a popular cellar bar and restaurant in Westville. Success has brought more sophisticated patrons, a need for expansion, and a more chic ambience. Further vaults have recently become available, and these development ideas can now be

Page 340: Which Contract

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an

agreement,

osses

,y: stkte basis

ocedui sinvo

lities

s con e the

! or G

ere m

ateveNpfm, sho.

ncemen

actsenter y ost sate

s

ol: state

Establish procedu nvolvecl_vMNs to

etc.

: state wh

moment, worK;

eve th ratin

ouno mana re of

u ikely to acgri

t by a consu 1

N-volved a e lik into d ect b

a r. A s tory

period, an

to, act

work an ally

ork

be an app

hat th e mu be n o to be arrie ut i

of Ch per mus t won of ' t, dus , unsavou

ancecapf p

be

ro ded by one nd kitchen must be

per odic or phased

rail direction will the situation now

ate trades contracts.

arri ou atio

" a r at -ek

a mes sm

realised. The restaurant's reputation is such down during building work, which may ne fashion. What is equally important, patro enjoy their food and wine safe from any unwelcome noise resulting from the r

It has been suggested that whilst build reasonable building contractor, se

left to specialists. It is envisaged th manner possibly over an extend be critical. The Architect agr suggests that the role is dev

Which contract?

The situation calls for.

Because of the inter the builder is thougi this could best However, the

Insuranc and new w out of the work.

ination, and firm control. d lump sum contract with

esired result. It is thought that as a management contractor.

relatively small, and probably tween the client and each specialist ort form (e.g. JCT MW05, one of the priate document to use for these, additional conditions.

Id include for matters such as the following:

and completion. Consider problems of phasing

or valuing work done. State when payments are to be made and

architect's instruction before any deviation is made. `sure integration and coordination of the various trades

e responsible for setting up site access, welfare provisions and

will be responsible for insuring the existing structure, contents sider cover for any consequential losses arising from the carrying

Termination: if this is to be included, state whether it is an option open to either party and if so on what grounds. Trades contracts are almost certain to be construction contracts to which adjudication would be a statutory requirement.

14

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0

N-?

14 Choice scenarios

340

It might also be worth considering whether there sho event of key contractors falling behind, would allo no extra cost to the Employer) to bring the wor bringing in an additional labour force, or even ano

An architect involved in such a management r

for professional services with the Employer,

Contracts with substantial specialist co,

Scenario E

The catalytic degrader at Hotwells has become redundant, and is du Superlink Fibreoptics. The new de structure, but the services installation it i

far exceeds the capital cost

Which contract?

If the entire operation is to b

sum contract (e.g. JCT

sub-contractors.

Alternatively, the contractor with be a sub-contracto including ne contract (e

appropri parallel

ssa

. JCf98) o

e, a n e w ntract fort e bu

ceclu re tent,

effecti

former rvice e is ded to e

ation. There might nd ies der

dscape vv,

is

ding

d shoul

ter AssiateProduc d by

very

late om i e a

to be ched

o hou fl4ing the act

stall

firm could be

d by one

peciali erall r

respo iIity

ible dant bui ork`

ropr"gineerj nveniently s,

rk and

r rcar f r care ders' vv

for the i

Ad be a rov ' n w1171P

the ar itec to e ac back ti rn t

er fir

ropria co r riate

(1981) Ltd

Nation from atively simple

complexity and

considered as the principal work. The builder would then

g out work on the building envelope onsider either a lump sum building g contract as the main form. Where

If-contained, there could be separate he engineering work.

Pte 4 Placing of Contracts with a Substantial Building vised that where parallel contracts are used, great

e coordination and to eliminate the risk of complications where consultants with differing

ifferent contracts of engagement are employed on the

For the proposed Eventide Homes cluster development, specially designed with the needs of the over-60s in mind, it is thought that the external landscaping needs to provide a particularly tranquil setting. The architect-led design team includes a

Page 342: Which Contract

fl, 0

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fl,

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0

Choice scenarios

andscape parallel with anoth

At buil

a

evant JCL

easurement is

riate ring onsid

taine tect.

Iclj

The new ouncil office under construction at Tan-y-groes have attracted a great deal of media i est. W rk has not proceeded to programme and failure to complete by the contract completion date would be a matter of intense civic embarrassment, as

arrangements are already in place for an opening ceremony by a distinguished person. To make sure that this will go ahead as planned, it has been decided to omit all the landscape work to the central sculpture court. The building can be occupied and the landscape work can proceed at a later date under a separate contract.

er IFC9

ties mbtesho ake,. m ters Ian fail e d i, ora ical letion. u

u

befo ntract,.

oulet and

tives is

refore

eds

dsca

ed th k it should be ui

-aaye acquir romptly set

The site r

-be will hard uc

hology eas th

m contr ct (e.g JCN ctice 11 es Altern

racticable (e

ciated of

landsc ing a to'

to =ntrac

uildi b- r.

landscape architect, and although both soft out, it is thought best to treat this as a sub It is intended to use a particular landscape

If the landscape firm is to be named u

appropriate forms either NAM or NSC

The Specification or bills of qua special provisions to cover malicious damage or thef ordinarily appear in a building

Developers Rushe & the proverbial song; attractive to you architect, and specialist tec the same ti

ecific reference to aintenance, and

items would not

office block in the City for ting it to make apartments

ons of an innovative landscape using non-traditional materials and

t although this work will proceed at ertaken as a quite separate contract.

C98) perhaps modified after taking account ively, if the type of work suggests that if there is a substantial amount of earth-

rk of a civil engineering type), it may be more ditions of Contract for Minor Works.

ntract for landscape work, it is probably best administered reful coordination will be needed if it is a contract in g contract.

14

341

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14 Choice scenarios

will require a separate JCLI Agreement. such as plant failure, malicious damage or theft, on the JCT MW05 contract, but includes additional Consider the JCLI Form of Agreement for Landsca

ne ne new a

will as hey onts,

developer's contract with tH

to be fitted out by tenants and for providing shop

Contracts for fitting out

Scenario J

Ground floor shop units on

which an architect experienced only,in than a landscape architect (e.g. an arc It is perfectly acceptable for the administr

prin

terioiork nit. its gi'm pest

o

ight not e acce t appropri e st dard

r. HoOewer, sucVquotatid

suggest endin on th

or inte for rk is

the Socie suitable IFC98, de be wiser t conditions, a

specialist firm's respect of each

Shop-fitting and

of In trial Arti

ontractd is still spo ibil s an the Tw4

ractor might require

Heat

ntracts

tes De

t le

ume re o under direct co Opal contr or.

and n ure of from th

for the CLI do s c a

tect), bt e utie esuppos ildinur)era

s t not

nsibi racts

Thi i clos mo led for ealin ith ation

maint ance. ;ffie

tte+

to be left as shells, ing out the interiors

ite separate from the

be car`ried out u

is could be

sig

der a lump sum contract in

y written acceptance of the often subject to each firm's own

le. Architects acting for tenants might rm of contract (e.g. JCT MW05 or

e work). Alternatively an agreement hartered Society of Designers (formerly

rs).

site, care should be taken to establish respective site proper insurance arrangements. The principal rticula ractors to work in accordance with the Health and

the t6nant's work is carried out under separate unrelated Safety Plan for these works might be necessary.

The oil rich port of Fyl-yr-Up requires new state of the art terminal facilities. This is likely to be a large-scale and sophisticated construction operation calling for significant engineering installations which must be coordinated and integrated with great precision into a series of buildings which will operate as the necessary plant

Ian for the_ or i

342

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.-r

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Choice scenarios

housings. The conventional arrangement of sub-contractors specialists is not likely to pro detailed planning and coordination will b

on site, and there must be absolutely po installation or integration problems.

Consider a joint venture approa venturing, then the selected ten one legally constituted partners traditional lump sum form contractor would be a sing

The partnership ag performance bond particularly effectiv contributed by he the larger org is

ering c

p andacccep 8)

ka s p

$ement s

r r vould wher

ious

contratt

e more one

er ed u the of question.

for a-new oup

quire

forme

tract. If joint combine under

lity. The use of a

precluded, as the hership or company.

d several liability and a

ethod of working can be with elements of the design effectively coordinated within

tice veterinary surgery in Fairmeadow became 36-week contract. His employment was r seve h we of

certainly been inc

ms of the contract, and it is accepted that

ctor (ideally under the same contract Conditions as the original)

rovid q be`req

design input is

Decialist rtn

derer on the original tender list, but if the work has been efforts and departure of the failed contractor, there will

aseethe Contract Sum.

If the cir umstances r climate for tendering has changed markedly since the original tenders, it h e necessary to amend the original documents and invite new competitive tenders. An insolvency practitioner acting on behalf of the original contractor should be consulted and must be kept fully informed of all developments. Employer's costs and expenses arising out of the determination might be part of the claim to be brought against the original contractor.

first contractor. This might be achieved through negotiations

in a ma f ctory. tre endo d be re t co le.

ys or isruptio

ra

ies st b nt =everaQ

no y b

uired-.

14

343

Page 345: Which Contract

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fl,

fl,

fl,

.-t

r-.

'"'

fl'

.^+

fl,

.-+

fl,

fl,

fl,

fl-

c-0

cc.

fl-

--6

c+'

14 Choice scenarios

344

contr ctor w almo i evitabl

sibility for be in

n be The H

ared b

ew Healt

iousm, ing ite

tbec`o contractor origi ,as a

r, a n

complete t

Dragon`

out n

rtifie pr ca

patio-n. Unfortunat ding work fl-d. By

mo The

jrds le

so ewha errat o act recei

3rv cou e of aftioh js

ontract&-

y rein st nt ass

ity co tin der uld quired a g ed

I co tor, a

by re

ept re

not

ple night at-c

ntract mig reed betw` lthe subs 'tut

ng . The

ork al

ble

Work on the Limboland Fitness Centre was well ov contractor's performance became progressively sl

no great surprise when a letter arrived from a fir,

discussions, it was generally agreed that the have the contract completed by a substitute

The contract just might be completed substitute contractor accepts respons the original contract. A deed of assi

Employer, receiver acting on contractor.

Alternatively, the contract mi case, although the substitut Works, all the terms of th novation would be require behalf of the original

Where a substitu completion date about acceptin and additio a previou payable

d novation. In this for completing the

acceptable. A deed of er, receiver acting on

e work, an adjustment of the r might also have reservations

carried out and perhaps covered up, s of taking on work undertaken by

an additional single fixed premium and Safety Plan might be required.

ation refurbishment scheme was complete except for a

reat reluctance, the architect yielded to pressure and allow unhappy decanted tenants to resume is to bring back the contractor to complete the

iry of the defects liability period the contractor had ey was held back at practical completion, in addition to issue now is to have the work completed.

The outstanding work could be carried out on a lump sum or preferably a cost plus basis by another contractor. An exchange of letters might be considered sufficient, but this would probably still be a 'construction contract' to which the payment procedures and adjudication option would apply. Depending on the extent and

Page 346: Which Contract

0-o

ti-

E

.'^

Choice scenarios

nature of the outstanding work, it might be MW05 or an ASI form).

A Specification or Schedule will be nee The best course of action should first should be kept fully informed of develo

Contracts for jobbing repairs o

When the date for judgin announced, it was decide Street facades as a group ope renovation and some needs repainting, a

work, and well with

a competition was inting of several High es is in need of some

dwork and ironwork also ostly routine maintenance

uilders.

For small -scal strai tfo and j s, tend rs mi ht be sought on the basis of minimal drawn infor ation nd a cificati r Sche ule. This might result in just a lump sum, or if ufficie y ite is t contractor's f ures could give a useful breakdown. An excha e of le er might e su t i any cases, but where a larger amount of work is inv ed, t en as ndarg4(Zrm of contract should be used (e.g. JCT MW05 or a

I e enti w rk is be tr Vtedaavonaecontract, then the client would need to be ident ' d, an woul presume uthority to appoint a contract administrator.

nication would need to be clearly established to avoid the risk of ners issuing instructions directly. If the individual property

to separate contracts with a common contractor, then standard forms are used, and the same contract

ink under each, coordination might be more exacting.

The Ne Cambrian ank, which has premises in major towns throughout the Principality, to embark on a programme of regular maintenance and repair. It is envisaged that parcels of work on a regional basis will be offered for tender, in

some cases with the added proviso that appointed contractors must also make themselves available to tackle emergency repairs at short notice.

14

345

Page 347: Which Contract

-Q-

C--

fl,

,-+

fl,

-.-

D0-

14 Choice scenarios

Consider a term contract. Contractors can be selec

of rates. There may also be a standard call-out contract might cover a specified number of pro Orders would be issued to authorise ad hoc of the approximate total value of the work e

be avoided.

The JCT publishes the Standard Form Mea erri %th

TC%05. Some bodies have their own model docu e s fo uch tracts on acts usually require the presence of a contract dmini ato

Pd

m loyer.

Scenario Q

The Architect engaged by t Allday fa ily h %ve em vic on what i s needed to update the cottage the have cquis a maamount of alteration work and some ainte ance and rk. It i agreed that this work can safely be entrustedo th

Assuming that th archite is se " Vtcesarg, no longer reclfired, and that this is a private residence for oc upatio Vby e AI y, then consumer contract (e.g. JCT

Building Contract a wn r/OccWier) would be a safe recommendation.

An excha ge of rs, or ve asic formal greement (e.g. JCT Contract for Home Repairs d Ma tena ce) c uld b conside ed as an alternative, but neither is likely to provide equa contr ct Condi i n . The fact that this is work to a private resi nc r ner occ ation means that statutory requirements relating to a Judication and ment rovisions under the Housing Grants, Construction and

pply.

346

Page 348: Which Contract

rip

rye

nom

0,v2

Bibliography

Chappell, D.

The JCT Intermediate Building Contra 3rd edn, Blackwell Science (2006)

Chappell, D.

The JCT Minor Works Buildi 3rd edn, Blackwell Science (

Chappell, D.

The JCT Design and B

3rd edn, Blackwell Sc

Davidson, J.

JCT 2005 What's Ne RICS Books (20

Egan, Sir Joh

Rethinking HMSO (1

Egglesto The Bla

am, Constructi HMSO (1

Sarah Lupton Guide to MPF03 RIBA Enterprises (2003)

347

Page 349: Which Contract

E

0-O

Bibliography

Sarah Lupton Guide to SBC05 RIBA Enterprises (2006)

Sarah Lupton Guide to IC05 RIBA Publishing (forthcoming)

Sarah Lupton Guide to MW05 RIBA Publishing (forthcoming)

Sarah Lupton Guide to DB05 RIBA Publishing (forthcoming)

MacRoberts, Solicitors MacRoberts on Scottish 2nd edn, Blackwell Scienc

uilding Co t(forth omi

tracts g)

IAI

Y,1111

348

Page 350: Which Contract

m

Index

ACA, see Association of Consultant Architects

Accelerated Traditional Method, 33

additional work, see variation of work

Agreement for Housing Grant Works H

Edition OCT HG(A)), 187-93

alterations and extensions, buildin minor works contracts)

amended forms of contract, 17, 61,

'approximate quantities',

architect's appointment, 1

architect's instruc

architect's servi

design d

manag

Architec

ons, 3

es, 15, 1

nd buil

ent pro

su

tractors and

4,207,

20, 64

procu men 363

ent, 3

:A 3tanc rtneringg

Conditions o

bills of quantities,

eying Institu 172-8,

58, 299

(ASI)

03-6

hitects

ment 1982 003 Rev

ts, 17,

break provisions, 228, 232

Building Contract (and Consultancy Agreement) for a Home Owner/Occupier (JCT

HOC/HOB), 194-9

CIOB

LOB

36,56 (see also

Contract 2005, 253,

Construction Contract,

of Building (CIOB)

Iding Contract (2004), 173-5

inor Works Contract (2004), 176-7

CIOB°Small Works Contract (2004), 175-6

ini Form of Contract (CIOB Mini Forms),

advising the client, 20-1

basic questions, 59, 60

procurement methods, 46-7

scenarios, 315-46

CIOB see Chartered Institute of Building (CIOB)

Civil Engineering Contractors Association, see ICE

Conditions of Contract

clerk of works, 37

client's representative, 15, 37

client's requirements, 28, 36, 37, 56, 60

collateral warranties, 33, 36, 40

commencement date, 28, 33, 36, 59

design and build contracts, 56

management contracts, 57

Compensation Events (Engineering and Construction Contract (NEC)), 111, 113, 164, 167

'Competitive Design and Build', 36

competitive tendering, 33, 39, 59

349

Page 351: Which Contract

min

Index

C

completion contracts, 343

conservation work, 26

Construction (Design and Management) Regulations 1994 (SI 1994/3140), 335

Construction Industry Board, 50

construction management, 38-9, 58, 297

contractual relationships, 42-3

plan of work, 33, 39-40

Construction Management Agreement C/CM (J

C/CM), 297-306

Construction Manager (JCT Construction Management Agreement), 297

Construction Phase Plan

1CT Design and Build Contrac

JCT Intermediate Building C

JCT Measured Term Contra

JCT Minor Works Building C

Its Ce ification the

h', 41

, 49, 57, 97

ointmen , 16

ntrac' 2005,`Q1

f

Construction Ski

'consultant swit c

m Consultant Tea

consultant's a

and build procu?

itracts, 124

2006

ntract 134

BA-1 S31070

en36, 37,

ment,

al 33

design an

m

rocure

ent, 42 cure

traV4Lo al procureme

tant's design liability, 56

design and buii)6pfzaremenJ, 35

traditional procure?niL4 1-2, 33, 34

consumer contracts, 61, 185, 335-6

JCT Agreement for Housing Grant Works HG(A) 2002 Edition OCT HG(A)), 187-93

JCT Building Contract (and Consultancy Agreement) for a Home Owner/Occupier

tual relations

ontra

19

gn,

88 eg an Cons c1

, 09-10, 15, , 162,

per 24

/ forks rth Q

ICE CchrNtion

on,

ntit

ontra

JCT Irate diate Bui rme

Contra

contrlact t

Contract

C ntract

easu'red Te[m Con

luctua

profile`;

, 60

typks

9ctor ap

design j

uctura

ontractor's design (see also Contractor's Designed Portion)

ACA Form of Building Agreement, 144, 145

Engineering and Construction Contract (NEC), 110

GC/Works/1 With Quantities (1998), 98

ICE Design and Construct Conditions of Contract, 265, 266

JCT Design and Build Contract 2005, 253, 254, 255

JCT Intermediate Building Contracts, 119, 121, 128

JCT Major Project Construction Contract, 71

1CT Minor Works Building Contracts, 131

JCT Standard Building Contract 2005, 85, 86

JCT Trade Contract, 308

Contractor's Designed Portion, 56-7

JCT Intermediate Building Contracts, 121

350

Page 352: Which Contract

w

+-'

O_1

1w.1

u-,

Index

Contractor's Designed Portion (continued)

JCT Minor Works Building Contracts, 132

JCT Standard Building Contract 2005, 85, 86, 89, 90

contractor's liability, 18

ACA Form of Building Agreement, 148

Engineering and Construction Contract (NEC), 109

Engineering and Construction S

Contract (NEC), 165

GCJWorks/1 With Quantities

JCT Design and Build Cont

JCT Intermediate Building Contra

contractor's responsibiliti

design and build c

traditional procure

contractor's staff,

Contracts (Righ

336-7

contractual r

design

tracts

ent, 33, 53

of Thirc! PartiN Act 1

'elationsl

,and bui

lZ-

ontrac

cosy 39-47

racts, 4Y-2

re ment, 4 d d

E6a

mage t rope , see nsurance z

Defective Pr ses Act 19 2, 18, 85

defects re ification, 53

defence cont . 51

7, 91

demolition work, 337-8

Department of Health, NHS ProCure 21/1-IFT, 51

'Design, Manage, Construct', 37-8, 58-9

Design and Build Contract 2005 (1CT DB05),

251-64

BA ,

ps, 15/40 i

and ild

co ariso , 46-7 c tract al relate ships,

forms f contr t, 249-7

n assessme t, 44, 4

sig ty, V 5

ng an

desig

C),

G C/Works,

tanda

(bantities (1998), 98

uild Contract 2005, 254

e Building Contracts, 125

Building Contract 2005, 81, 85

ctor's Designed Portion) r

ctor's designed portion, 56-7

design and build contracts, 35, 36, 55-6

management procurement, 37, 38

traditional procurement, 33

ACA Form of Building Agreement, 145, 151

ACA Standard Form of Contract for Project Partnering, 332

Engineering and Construction Contract (NEC), 110

GC/Works/1 With Quantities (1998), 98

ICE Conditions of Contract for Minor Works, 222

ICE Conditions of Contract Measurement Version, 214

ICE Design and Construct Conditions of Contract, 266

JCT Design and Build Contract 2005, 253, 254

JCT Major Project Construction Contract, 70, 71, 72, 81

JCT Standard Building Contract 2005, 85

domestic work (see also consumer contracts)

CIOB Mini Form of Contract (CIOB Mini Forms), 203-6

JCT Agreement for Housing Grant Works HG(A) 2002 Edition (JCT HG(A)), 187-93

351

Page 353: Which Contract

.-«

Index

0

domestic work (continued)

1CT Contract for Home Repairs and Maintenance (JCT HC/RM), 200-2

JCT Minor Works Building Contracts 2005 OCT MW05/MWD05), 132

Egan Report, 10, 21, 50

employer's representative, see client's representative

employer's requirements, see client's requireme

enabling works contracts, 64

Engineer (ICE Conditions of Contract), 214 223

Engineering and Construction Contract Third Edition (NEC3), 107-16

Engineering and Construction Sho

(NEC3 (Short Contract)), 16

European context, 20, 62

toric buildi

m lmprQveme

home n con

hour gran

ICNCondif1ons 6

Federation of Civil Engine Conditions of Co

Third Edition (2

Financial Control, 25

Ft Contract -7 r

ring Con acto ICE

ract for inor Wok 1), 221/6

fitness for purpose obligat

fitting out wor

forms of ap

forms of c

Framework

Fram

315-17

ements, 1

ctionkrel3itionships, se

relationships

GC/Works contracts

GC/Works/1 Single S,

273

age Design an

GC/Works/1 Two Stage Design and Build (1999), 273-7

GC/Works/1 With Quantities (1998), 96-106

GC/Works/2 (1998), 153-8

GC/Works/4 (1998), 159-61

ditionnN

E C dition Seventh

Design

ICH

inde

InsR

a murrrj nce) co

s, 51, 2

um ice' P) c

g, see

rks 87-9

ement for ou g

differ

ment o

dition (J

nts, CbQstTn<tion

(2001), 221-6

of Contract Measurement Version dition (Sept 1999), 213-20

d Construct Conditions of Contract econd Edition (2001) (ICE/D&C), 265-72

orm of Default Bond, 213

pity, see insurance arrangements

tution of Civil Engineers, see ICE; New Engineering Contract Document (NEC)

nsurance arrangements, 43-4 (see also risk

assessment)

interest payments, 19

interior work, 342

Intermediate Building Contracts 2005 (JCT

IC05/ICD05), 119-29

intermittent works, 338-9

JCLI, see Joint Council for Landscape Industries (JCLI)

JCLI Agreement for Landscape Works, 168-71

JCT, see Joint Contracts Tribunal

jobbing repairs, see repair work

Joint Contracts Tribunal, 10-11, 17, 20

352

Page 354: Which Contract

fl- C

1_

Index

TC06),

Minor Works B

MW

Repair d ainten

mmerc I) 2006, 2

ilding

ilding Standard For

(JCT98), 69

Xtandar SBC651,

Sta rd Fo of Appro ate uanti SBCO /AQ , 09-12

Stan Form of A

me HOB),

laly, scape

to p ent, 7

ay of Co

99,

m Report, X107 of coW

New',Rnai7reeri

ultant; tract 2005 (

nstru

Idin

v 30-

FA), 315-17

!finding (JCT

to Buildi 5), 119,

roject 1

9-82

m Contract 2

Contracts O05 (JCT,

6 Editi

Jojf t Councj}'for Lan cape In stn' f Aare6ment for Lan cape

re co#itractsh342-

cators

Joint Contracts Tribunal (continued)

Agreement for Housing Grant Works HG(A) 2002 Edition (JCT HG(A)), 187-93

Building Contract and Consultancy Agreement for a Home Owner/Occupier who has appointed a consultant to ove the work (JCT HOC), 194-9

Building Contract for a Home Owner/Occupier who has not app consultant to oversee the work(J 194-9

Construction Management C/CM (JCT C/CM), 297-30

Contract for Home Repairs an

1998 Editior-OCT MC98), 281-91

Standard Form of Prime Cost Contract 1998 Edition (JCT PCC98), 239-47

Trade Contract TC/C OCT TUC), 307-12

Works Contract 1 and 2 and 3 1998 Editions (JCT MC98 WORKS), 292-6

6, 31

335-6

ontractor's liability; design liability

1

authority requirements, 63

sum contracts, 25, 53-4

shorter lump sum forms, 117-83

standard lump sum forms, 67-1 16

M41 (Movement for Innovation), 50

maintenance period, see defects rectification

maintenance work (see also minor works contracts)

management contracts, 58

example, 345-6

JCLI Agreement for Landscape Maintenance Works, 168

JCT Contract for Home Repairs and Maintenance (JCT HO/RM), 200-2

JCT Measured Term Contract 2006 Edition (JCT MTC06), 228-35

JCT Repair and Maintenance Contract (Commercial) 2006 edition (JCT RM06), 139-42

Major Project Construction Contract (JCT MP05), 69-82

management contracting, 37-40

contractual relationships, 42-3

plan of work, 32-3, 39-40

353

Page 355: Which Contract

Index

M

management contracting (continued)

risk assessment, 45

types of contract, 57-8

Management Contractor, 282, 283, 292

management of the Works, see site management

management procurement, 37-40, 57-9

comparisons, 46-7

contractual relationships, 42-3

forms of contract, 279-312

plan of work, 32-3, 39

risk assessment, 44, 45

management responsibility, 32 (see also cori administration; coordination of work; site

management)

Measured Term Contract 2006 Edi

MTC06), 227-35

measurement contracts, 54

standard forms, 207-

Mini Form of Contract (Cl

Ministry of Defence, 51

Minor Works Buildin MW05/MWDO

minor works contracts

CIOB Mi

CIOB S

Eng

Contr

orks/

on (JCT

B Mini_Torms`), 203-6

Contrac 005 ,, 130-8

r ns of (2001

,4), 175

1CT Minor Works Building Contracts 2005 (JCT MW05/MWD05), 130-8

Scottish Building Contract Committee (SBCC), SBCC Forms of Contract, 181-3

Movement for Innovation (M41), 50

try (2004),

Version, 2

Buildi g Am6 tesi n Build, 75

JCT edi*',9.uildin 126, 8

JCT Mrafroject Co

inorW(o_UBuildin

era

ndard

JCT S nda

42

CT Wor s

SBCC F

Bering Contract Document (NEC)

Engineering and Construction Contract hird Edition (NEC3), 107-16

Engineering and Construction Short Contract (NEC3 (Short Contract)), 162-7

Partnering Option X12, 318-20

NHS LIFT, 51

NHS ProCure, 51

nominated sub-contractors, see 'named' sub- contractors and suppliers

non-standard agreements, 17, 61

Northern Ireland, applicable forms of contract, 20

GC/Works/1 With Quantities (1998), 105

GC/Works/2 (1998), 158

GC/Works/4 (1998), 161

ICE Conditions of Contract Measurement Version, 220

ICE Design and Construct Conditions of Contract, 272

JCT Intermediate Building Contracts, 128, 137

354

Page 356: Which Contract

Index

Northern Ireland, applicable forms of contract (continued)

JCT Standard Building Contract 2005, 94

JCT Standard Form of Building Contract With Approximate Quantities 2005, 211

novation, 36, 41

Olympic construction programme, 20

Outline Plan of Work, 32

overseas projects, 20

management proc

traditional procur

partial possession (see o

commencement an

ild Contract 20

ng ConMcts, 120

ents,

and forms, 31:

Partnering`B.tion X12,18-20 Party Wall etc. Act 1996, 336

payments to contractor

ACA Form of Building Agreement, 147

ACA Standard Form of Contract for Project

Partnering, 328-9

6ment, 3

nent, 33

o phase

rking

(ding

%ruc

e t, 145

and Co on ditio of

reemen for La dscr V` T , 169

struction nageme) Agreemen

?CT stc Contract,

241

rrange

1CT Trael-PContra ,

ini For of Conic ieerin d Co tructi ), 1 -13

23

f Constructi 165

ICE Condltiorof C

I

rsion, 21

lding Contract (and Consultancy

Contr

JCT

Ag re ent) for a Home Owner/Occupier, 1W, 197

JCT Construction Management Agreement, 301

1CT Contract for Home Repairs and Maintenance OCT HO/RM), 201

JCT Design and Build Contract 2005, 257-8

JCT Intermediate Building Contracts, 123-4

JCT Major Project Construction Contract, 70, 75-7

JCT Measured Term Contract 2006, 230

JCT Minor Works Building Contracts, 133-4

JCT Repair and Maintenance Contract (Commercial), 141

JCT Standard Building Contract 2005, 89-90

1CT Standard Form of Management Contract, 285-6

JCT Standard Form of Prime Cost Contract, 242-3

JCT Trade Contract, 309-10

JCT Works Contract 1 and 2 and 3, 294

SBCC Forms of Contract, 182

performance indicators, 50, 315, 328

personal injury, see insurance arrangements

355

Page 357: Which Contract

356

Index

cts, 337-.40

e also

see 'named' s

iers L

ts, see cost flu

rm of B f lding, gree l7

f Contract, 172,

,f Contrac

uction ) Thir

and Corii

!i's of Contr

CIOB Min`

Engi

(NE

GQVZrrks/1 With Quanti

orks/2 5

f Contract M

Maintena

ten-ftftate Bu

MajdhA.TqjecKo structi

JCT Measured Term

Minor`W6rkss Buildin

d Mai 06 e

JCT

(Comm

tandar

and For

With )appro

Stan ntract

JCT Stan

239, 2}s

price

Prim

act (a1-' Home 0

rac r Home Kepairs a

t Ag re

P

PFI (private finance initiative), 48-9, 71

phased commencement and completion, 28-9, 85 (see also partial possession)

ACA Form of Building Agreement, 145

CIOB Forms of Contract, 174

GC/Works/1 With Quantities (1998), 99, 100

ICE Conditions of Contract for Minor Works,

JCT Intermediate Building Contracts, 1

JCT Standard Building Contract 2005, 8

JCT Trade Contract, 308

plan of work, 32-3

design and build contracts, 3

management procurement, 3

traditional

Planning Supervisor, 335

possession dates, 28-9 possession)

preliminary works con

Version, 213, 216

ICE Design and Construct Conditions of Contract Second Edition (2001) (ICE/D&C),

268

JCT Agreement for Housing Grant Works, 188, 190

Contract, 71

6, 228, 230

Contracts 2005,

g Contract 2005, 89

of Building Contract e Quantities 2005, 209

JCT Trade Contract, 309

uctuations, see cost fluctuations

contracting, 51

e Cost Contract 1998 Edition (JCT PCC98),

239-47

prime costs, 54-5

ICE Design and Construct Conditions of Contract, 268

JCT Design and Build Contract 2005, 253

JCT Standard Form of Prime Cost Contract 1998, 245

Principal Contractor, 335

Private Finance Initiative (PFI), 48-9

ProCure 21, 51

procurement methods, 31-47

traditional procurement, 33-5

design and build contracts, 35-7

management procurement, 37-40

contractual relationships, 40-3

Page 358: Which Contract

000

nn,

Index

1CT Agreeni 1

epair an Main nana 2006 e ti n (JCT

k, see mainte

101, 2

ation work,

RIBA Plan of Work, 3

ods Act 1979,

SBCC, see Sc h B ing Contract Committee (SBCC)

Schedule 2 Quotation, 89

Schedule of Rates, 54

Scotland, applicable forms of contract, 20, 179-83

ent Enginee

i_sk asses5a<ent, -5, 4

', 37

efects

ion wd

onstruc ring an 10, 1

ectiori

CE De

ract,

CLI Aa7semenf

ttisli Cwtrac CC Form

letion

s

'Sing

cial for ectification

(Engine t (NEC))

ent' co

also maint

Housind

rk)

Works,

(Commerc)

nance

irec

krm of %ildiing re'

antities

bf C

procurement methods (continued)

98), 158

998)/ntla

comparison, 46-7

risk assessment, 43-5

recent developments, 48-51

professional services, 16, 64

Project Cost Plan (JCT Construction Managem Agreement), 299

provisional sums, 34

Public Contracts Regulations 2006, 1

public sector contracts, 51, 62-3

quality considerations, 24, 26-7

quantity surveyor, 25, 38, 58

'radar charts', 23-4

'reasonable skill and car

rectification period, see

refurbishment, see renova

Regional Prime

Landscape Works, 169

Committee (SBCC),

tract, 179-83

see phased commencement n

342

sign and Build', 36

of contract, 17, 61, 340

pose vehicle' (SPV), 48

ialist contractors, 15, 27, 33, 38

appointment and management, 34

ulative risk, 44-5

V (special purpose vehicle), 48

stage payments, 19

Stand Alone Capital Projects Prime Contract, 51

Standard Building Contract 2005 (JCT SBC05),

83-95

Standard Form of Building Contract 1998 (JCT98),

69

Standard Form of Building Contract With Approximate Quantities 2005 (JCT

SBC05/AQ), 209-12

Standard Form of Contract for Project Partnering PPC2000,321-33

Standard Form of Management Contract 1998 Edition (JCT MC98), 281-91

Standard Form of Prime Cost Contract 1998 Edition (JCT PCC98), 239-47

standard forms of contract, 17, 61-5

starting date, see commencement date

sub-contractor appointment and management (see also 'named' sub-contractors and suppliers)

357

Page 359: Which Contract

C3)

`-'

Index

5

sub-contractor appointment and management (continued)

traditional procurement, 33

ACA Form of Building Agreement, 146

CIOB Forms of Contract, 174

Engineering and Construction Contract (NEC), 112

Engineering and Construction Short Contract (NEC), 164

GC/Works/1 With Quantities (1998), 100

ICE Conditions of Contract for Minor W,

223

ICE Conditions of Contract Measuremen Version, 216

ICE Design and Construct Con

Contract, 268

JCLI Agreement for Landscap

JCT Agreement for Housing G

300

1CT Design and

JCT Intermediate

JCT Major Pr

70, 75

1CT Me

ply of

SBCC For

ensi

4,27-8,59 comparisons, 46

6, 230

200 88, 94

ACA Form of Building Agreement, 145

ACA Standard Form of Contract for Project

Partnering, 326-7

CIOB Mini Form of Contract, 204

Engineering and Construction Contract

ions of

Works 16'

ant Wo ks,

ild Contract 20,05,

iIding n dacts,

Con ruction

of rti

and Servi

5rk, 19

GC/Wd

ICE ConditO

Con uctio 164

nditi of Co Ver3i9nl 15

I esign CbRs ct Co

Cont 67

greerRgnt or Housi

esign a

ediat

Build Contract 2005, 256

uilding Contracts, 122

Construction Contract, 72-3

Mea ured Term Contract 2006, 229

CT Mino Works Building Contracts, 132-3

JCT Rep it and Maintenance Contract ercial), 140

JCT Standard Building Contract 2005, 86-7

Standard Form of Management ontract, 284

JCT Standard Form of Prime Cost Contract, 241

JCF Standard Form of Prime Cost Contract 1998 design and build contracts, 56

JCT Trade Contract, 308

JCT Works Contract 1 and 2 and 3, 293

Time Schedule (ACA Form of Building Agreement), 145-6

Trade Contract TC/C (JCT TUC), 307-12

trades contracts, 38, 39, 64

construction management, 58-9

example, 338-9

JCT Construction Management Agreement C/CM (JCT C/CM), 297, 300

traditional procurement, 33-5

comparisons, 46-7

358

Page 360: Which Contract

Index

traditional procurement (continued)

contractual relationships, 40-1

measurement forms, 207-35

risk assessment, 44, 45

types of contract, 53-5

consumer contracts, 185-206

cost plus forms, 237-47

shorter lump sum forms, 117

standard lump sum forms,

work stages, 32, 34-5

two stage tendering, 33, 36, 59

GC/Works/1 Design Build, 273

JCT Design and Build Co uaci

types of contract, 53-60

B PDT

B Mini

or s

3

-116

4, 276

'wi

JCT

61

term late ildin or

la Project onstructio

3, 1

1Cair an omrl) 1

J CT'Sta cl'akdki lding

1CT-Tr Contra

ties, s

977, 1

C tracts egulations

nsumer,Contrac

ons, 37>54

ditiorr'of Con

,216 f

Ag ment, 147

f Contra or Proj ct

0

ICE Design-rod-Ce-Kstruct Conditions of Contract, 268, 269

JCT Agreement for Housing Grant Works, 190

JCT Building Contract (and Consultancy Agreement) for a Home Owner/Occupier, 197

'withou

stages,

tr,

, 309

al warranties

84

, 54,84

e plan of work

t 1 and 2 and 3 1998 Editions (JCT

MC98 WORKS), 292-6

Works Contractors, 282, 292

works

ac g"' 39

x Wo Bank funded projects, 20

X12 (NEC Partnering Option), 318-20

359

Page 361: Which Contract

',-Z

fl.

forms of building contract currently available in the U X Ever since i

first publication in 1989, architects and other construction professic have been turning to Which Contract? for guidance on whai procurement strategies to adopt and how to identify the most appropriate contract for a given set of circumstances. It has now been updated to take account of

domestic projects. Many will be using stan4ard forms of contract, and often the frequently difficult choice of which rests with the lead consultant. Fortunately, Which Contract? explains the tried and trusted techniques for

--'-r --- wntractual app;

:u ru :rrn Edition is an invawam ne start of every now project anv

n or her

s.co

9 IIVIIIIIIII111111113711

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