In October I reviewed the JCT Design & Build 2016 and commented on the opportunities taken (and missed) by the JCT in the re-write of their most commonly used contracts. Since then, the Intermediate mini-suite has been published, covering both With and Without Contractor’s Design and the associated sub-contracts.
Many of the changes are similar, if not identical, to the changes to the JCT D&B. In its official Guide to the 2016, the JCT states that the changes are not intended to “materially affect risk allocation”.
• Semantics and drafting have been tidied up (and all consents are now not to be unreasonably withheld or delayed).
• Amendment 1 (CDM Regulations 2015) has been incorporated properly
• Optional Parent Company Guarantee/Performance Bond requirements have been drafted in, eliminating the need for one of the most common amendments
• The fleeting reference to BIM seen in the JCT D&B 2016 also appears in the Intermediate suite
• Payment: the tweaks are the same as to the JCT D&B – so note the new entitlement for the Contractor to make monthly interim applications after PC (where this used to be bi-monthly) and also the fact that the final date for payment is now the same for interim and final payments – 14 days from the due date in each case.
• Loss & Expense: the amendments to the Intermediate in terms of timescale for assessment of L&E claims are the same as the D&B and therefore create the same potential problem whereby a Contractor could therefore submit an application for an extension of time and loss and expense in the same letter, and the Employer would have only 28 days to assess the loss and expense but a further 8 weeks to consider the extension of time which is clearly a case of putting the cart before the horse.
• As with the changes to the D&B, the Intermediate 2016 introduces changes to the insurance provisions, which were summarised in my October article.
The only notable change that is different from the changes to the D&B, is actually also importing something from the D&B into the Intermediate: new Schedule 6 to the JCT Intermediate With Contractor’s Design is the Design Submission Procedure, lifted almost word-for-word from the D&B. The key difference is that the approval/status-marking duties which fall to the Employer under the D&B fall to the Architect/Contract Administrator under the Intermediate (WCD).
What isn’t new?
Again, there is little to say here that I didn’t say when reviewing the JCT D&B 2016: BIM may well stand for “Brief Inconsequential Mention” and, talking of consequences, there are still a number of absolute obligations with unclear consequences for breach.
Of course the failure to deal with BIM properly is arguably more problematic for those procuring under JCT ICD than it is for full D&B projects: where there is no single point design liability, the need for a clear rule book to deal with design integration is surely greater?
The JCT has included with the 2016 edition of the Intermediate mini-suite a number of provisions that had become “standard amendments” to previous editions and are now within the published 2016 editions: clarifying payment, insurance, performance bond/parent guarantee guarantees, CDM 2015 and BIM. As with the other JCTs, however, some of the changes have the potential to cause more confusion than they eliminate and a number of opportunities for significant improvement have been overlooked entirely. In the meantime, we continue to recommend that both employers and contractors consider bespoke amendments to any standard construction contract in order to provide clarity, as well as ensuring a risk profile that suits the parties on each specific project.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.