RI BA Publishing
Which Contract?
f ̀ I K
vi H
riginal
Fourth Edition
Hugh Clamp, Stan
RIBA Publishing
3
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
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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
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
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
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
8
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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
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10
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
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
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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
=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
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
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
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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
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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
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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
.-+
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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
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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
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
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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
`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
fl, h(
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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
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
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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
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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.
('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
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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
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3 Which procurement method?
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
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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
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
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
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3 Which procurement method?
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.
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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
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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.
-+0
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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
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
'm'
r+'
r-.
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
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
-p'
,-+
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
-+,
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fl,
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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
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
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.-r
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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
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rip
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rip
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.-t
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Which procurement method?
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
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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.
fl.
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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
r-. 2-6
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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
in'
pto
.-.
.-+
,-
+
G-)
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
52
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nn,
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,-+
-.
o
a"' .01
-°° Im
o-
.-_c
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
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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
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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4 Which type of contract?
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
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
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.+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
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
20'
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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
,-«
-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
30)3
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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.
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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
fl,
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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
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
66
P
nal
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
68
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
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.
L.0
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0
00) fl,
a--_
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
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).
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
73
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6 Traditional procurement: standard lump sum forms
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
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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
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+ew rele
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f6rearly
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If the
hould b
ent
bas o
ag
ense
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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
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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
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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
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
80
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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
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,
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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
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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
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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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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
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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
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
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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.
Nof
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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
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
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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
101
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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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vii
Traditional procurement: standard lump sum forms
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
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
0a)
fl,
0)(D
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'v,
whicNo/tailor
tines ihtfor
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
o
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
rpm
O..
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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
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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
vii
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
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
111
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6 Traditional procurement: standard lump sum forms
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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Traditional procurement: standard lump sum forms
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
113
-Co +
>,
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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
fl- vii
°,v
Traditional procurement: standard lump sum forms
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
c22222-,,
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
(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.
118
00
am=
,-
+
v_0
Q-0
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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
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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.
(110
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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
.-.
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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
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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
.-+
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
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
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
p>>
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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
tai
vii
vii
'"*
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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
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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
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
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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
Q-1
Traditional procurement: shorter lump sum forms
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
Traditional procurement: shorter lump sum forms
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
135
Traditional procurement: shorter lump sum forms
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
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
Traditional procurement: shorter lump sum forms
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.
Traditional procurement: shorter lump sum forms
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
141
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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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Traditional procurement: shorter lump sum forms
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
-0. Q
.. >
.-
(13 N
-0
ms's
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
r''
.-+
,-+
,-
+
.-r
+-.
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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Traditional procurement: shorter lump sum forms
ACA Form
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
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
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
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
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
,-+
,-+
.-+
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
Traditional procurement: shorter lump sum forms
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
-.-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
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
Traditional procurement: shorter lump sum forms
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
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
=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
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
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
,-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,
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
=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).
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
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
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
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).
---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
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
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
-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
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
--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
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
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
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
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
--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
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.
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
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
fl- '+
_
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
184
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
986
00
C,+
,C+
c"'
(.p
L/)
,-
+
'_'
Traditional procurement: consumer contracts
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
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$ 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
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
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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
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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
$ 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
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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
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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
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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
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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
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
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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
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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
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$ 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
--+
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
201
$ 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
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
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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
205
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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
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
208
--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
209
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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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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f'1
f"1
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
(DD
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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
(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
215
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r-° roc
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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='G
tin
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).
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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
219
>>
o °-'
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
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
rt.
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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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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).
fl,
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
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
.---
.
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
227
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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
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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
231
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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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Traditional procurement: measurement forms
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
233
Sin
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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.
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
236
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
238
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
239
'++
J
ti-
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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Traditional procurement: cost plus forms
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
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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u.?
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
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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Traditional procurement: cost plus forms
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
245
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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
248
00 N
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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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
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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.
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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
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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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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).
vii
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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
257
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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).
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to.
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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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rya
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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
263
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
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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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.
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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
267
g°3
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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
269
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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).
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
271
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
273
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 .
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ctor mu prova
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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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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.
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
277
278
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
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ften g
tanda
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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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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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anag
vi
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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
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
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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
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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
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
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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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
.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).
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
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
,-+
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fl,
.-+
+'j
rad
raft d
cons uent odies
txtha rt, 96 rt i, and th
II). The
etween m
d tho
whtheienf y out work p
ind rofe`s
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
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
(_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
`^.
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).
(CD
.-
+
((D
D
ac,
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
301
V'1
rap
(D<
.-t
a,- T'S
... ---_.
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).
,-+
--
I
:-+
r+'
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
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
O_<
fl,
fl,
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
305
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)
306
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
307
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
+-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
309
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
310
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
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
312
((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
314 i6£
_ M
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
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).
,-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
_.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
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
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
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
r_+
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.
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.
13
323
fl,
fl,
fl,
fl,
fl,
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.
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
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
0-0
a"'
`.-
>o+
--0 .>
_
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
Q!°
v
l/,
fl,
`3.
U57
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).
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
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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).
,..
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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
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).
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
W
W
334
0-3D
o
0C:
ro
0-c
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
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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.
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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
P=}
a_.,
vii r(6
SAO
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
0
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Choice scenarios
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
339
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
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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
-f,
0-0
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
.-r
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+-V
0-'
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
fl,
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r-.
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.-+
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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
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
-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
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
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
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
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
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
.-«
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
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
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
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
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
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
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
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
',-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
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