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- Herausgeber: John Wiley & Sons
- Kategorie: Wissenschaft und neue Technologien
- Sprache: Englisch
DESIGN AND BUILD CONTRACTS Design and build (D&B) construction procurement relies on a project's main contractor shouldering the responsibility for creating the design and executing the construction for a project. While the extent of contractor-produced design can vary, this method of construction procurement affords the contractor a greater level of input and responsibility than traditionally procured contracts (where the employer has greater design responsibility). Over the last decade in the UK, it has become clear that D&B contracts are becoming the most popular method for procuring construction projects; often echoing the ways in which contracts for infrastructure and process plant can be procured. Whilst D&B can provide a greater degree of contractor input for producing feasibility and concept designs, then the detailed design to deliver a project, many clients amend standard forms of D&B contracts to alter the contractors' design input. This can significantly change D&B, deviating from the procedures set out in the standard forms of D&B contract. This book firstly takes the reader through each stage of a project (based upon the RIBA Plan of Work 2020) to provide guidance on how D&B contracts were intended to operate, then secondly, identifying how D&B contracts and their procedures have changed. Readers will find: * Outline commentary and guidance on commonly used standard forms of D&B contract, including: JCT Design and Build 2016; FIDIC Conditions of Contract for Plant Design-Build 2017; and NEC4 * How each D&B contract is intended to operate during each stage of the RIBA Plan of Work 2020 * How the operation of D&B contracts and their procedures are often amended. An ideal resource for contractors, employers, and consultants, as well as those studying construction at university, Design and Build Contracts offers helpful commentary and guidance for how each stage of a D&B engineering or construction project should progress.
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Table of Contents
Cover
Table of Contents
Title Page
Copyright
List of Figures
List of Tables
List of Cases
Preface
1 Introduction
1.1 Some Types of ‘Design and Build’
1.2 The Nature of Design and Build
1.3 A Brief History of Design and Build Contracts
1.4 Recent Developments in Design and Build
1.5 How to Use This Book
2 Construction Contracts
2.1 General
2.2 The Structure of a Construction Contract
2.3 Fairness as a Concept
Notes
Part I
3 Design and Build as Originally Intended
3.1 The Parties' Primary Obligations Under a Design and Build Contract
3.2 The Employer's Representative
3.3 The Relationship Between the Employer's Requirements and the Contractor's Proposals
3.4 The Employer's Requirements
3.5 The Contractor's Proposals
3.6 The Pricing Document
Notes
4 Consultants and the Employer's Representative
4.1 Means of Appointing Consultants
4.2 Obligations and Services
Notes
5 Procurement and Tendering
5.1 Procurement
5.2 Tendering
5.3 Types of Tender Processes
5.4 Early Contractor Involvement
5.5 Tender Returns and Evaluation
5.6 Contractor Selection and Appointment
Notes
6 Subcontracting
6.1 General
6.2 Domestic Subcontractors
6.3 ‘Nominated’ or ‘Named’ Subcontractors
6.4 Early Subcontractor Involvement
Notes
7 Collateral Warranties, Third‐Party Rights, Bonds, and Guarantees
7.1 General
7.2 Collateral Warranties
7.3 Third‐Party Rights
7.4 Bonds and Guarantees
Notes
8 Construction
8.1 General
8.2 Commencement
8.3 Completion in Sections (Subdividing the Whole Works)
8.4 Progress
8.5 Acceleration
8.6 Programme
8.7 Interim Payments
8.8 Variations
8.9 Valuation (or Assessment) of Variations
8.10 Extensions of Time
8.11 Additional Costs (Loss and Expense)
8.12 Testing and Defects
Notes
9 Concluding the Contract
9.1 Termination
9.2 Obligations Prior to Completing the Physical Works
9.3 Meaning of ‘Completion’
9.4 Damages for Late Completion
9.5 Rectification or Completing Outstanding Works After Completion
9.6 Final Account
9.7 Resolving Disputes
9.8 Concluding the Contract
Notes
Part II
10 Design and Build in Its Current Form
10.1 Reduction of the Contractor's Design
10.2 Novation of Design Consultants
Notes
11 Common Amendments to Design and Build Contracts
11.1 Project‐Specific Amendments
11.2 Amendments with a Practical Benefit
11.3 Increased Liability for Contractor's Design
11.4 Reduced Employer's Risk/Increased Employer's Benefit
11.5 Reduced Contractor Rights (Not Design Related)
11.6 Increased Benefits to the Contractor
11.7 Clarifications
Notes
12 Possible Future Development in Design and Build
12.1 Continuing Trend of Reducing the Extent of Contractor Design
12.2 Novation of Design Consultants
12.3 Detailed Pricing Documents
12.4 Detailed Procedures for Testing and Commissioning
12.5 Collateral Warranties (FIDIC and NEC4)
Notes
Appendix A: JCT Design and Build Contracts Reconciliation
Appendix B: FIDIC Yellow Book Reconciliation
Appendix C: NEC Engineering and Construction Contract (ECC) Reconciliation
Index
End User License Agreement
List of Tables
Chapter 1
Table 1.1 Project stages in the 2020 Royal Institute of British Architects'
Chapter 2
Table 2.1 Specific information contained in a construction contract.
Table 2.2 Categories of risk for the employer and the contractor.
Chapter 3
Table 3.1 Employer's requirements for JCT DB 2016, FIDIC Yellow Book 2017, a...
Table 3.2 Contents of Employer's Requirements (NRM2 and CESMM4).
Table 3.3 Contractor's proposals for JCT DB 2016, FIDIC Yellow Book 2017, an...
Table 3.4 Contractor's proposals – common format and contents.
Table 3.5 Comparison of JCT and FIDIC design review procedures.
Table 3.6 ‘Contract price’ for JCT DB 2016, FIDIC Yellow Book 2017, and NEC4...
Table 3.7 Pricing document for JCT DB 2016, FIDIC Yellow Book 2017, and NEC4...
Table 3.8 NRM2: Fixed and time‐related charges.
Table 3.9 NRM2 template for the contract sum analysis
Table 3.10 Provisional sum procedures.
Chapter 4
Table 4.1 Roles in the RIBA Professional Services Contract (PSC).
Table 4.2 Contract administration duties for JCT DB 2016, FIDIC Yellow Book ...
Chapter 6
Table 6.1 Subcontracts for JCT DB 2016, FIDIC Yellow Book 2017, and NEC4.
Table 6.2 Subcontracting criteria under JCT DB 2016, FIDIC Yellow Book 2017,...
Table 6.3 Instructions for ‘Named’ subcontractors under JCT DB 2016 and JCT ...
Chapter 7
Table 7.1 Bonds and guarantees under JCT DB 2016, FIDIC Yellow Book 2017, an...
Chapter 8
Table 8.1 JCT DB 2016 entries for completion by sections.
Table 8.2 Summary of sectional completion provisions.
Table 8.3 Summary of milestone/key date provisions.
Table 8.4 Summary of acceleration procedures.
Table 8.5 Requirements of the contractor's programme (FIDIC and NEC4).
Table 8.6 Requirements of revising the contractor's programme (FIDIC and NEC...
Table 8.7 Reasons for rejecting the contractor's programme – and procedure (...
Table 8.8 JCT DB ‘Gross Valuation’ under Alternatives A and B.
Table 8.9 NEC4 – ‘Price for Work Done to Date’ (Main Option Clauses A–E).
Table 8.10 Conditions of Engagement complying with HGCRA 1996.
Table 8.11 NEC4 Compensation Events cross‐references.
Table 8.12 Applicable definitions of ‘Defined Cost’.
Table 8.13 Explanation of actual and forecast Defined Cost.
Table 8.14 Summary of NEC4 Main Option Clauses' assessment of compensation e...
Table 8.15 Critical Path Analysis (CPA) methods.
Table 8.16 JCT DB 2016 Relevant Events (clause 2.26) and Relevant Matters (c...
Table 8.17 Matters under clause 8.5(b) which entitle the contractor to an ex...
Table 8.18 Summary of testing and defects procedures.
Chapter 9
Table 9.1 Grounds for termination.
Table 9.2 Consequences of termination under JCT DB 2016.
Table 9.3 Consequences of termination under FIDIC Yellow Book 2017.
Table 9.4 NEC4 – Clause 93 (A4): application of ‘fee percentage’ on terminat...
Table 9.5 Summary of NEC4's termination reasons, procedures, and methods of ...
Table 9.6 Summary of obligations/procedures on ‘Completion’.
Table 9.7 Summary of damages for late completion.
Table 9.8 Summary of rectification provisions after ‘completion’.
Table 9.9 NEC4: Elements of the ‘contractor's share’ calculation.
Table 9.10 NEC4 clause 53.3 Options W1, W2, and W3.
Table 9.11 Dispute resolution methods.
Table 9.12 FIDIC Yellow Book 2017, clause 3.7.3(a) determination or agreemen...
Table 9.13 Summary of dispute resolution methods.
Table 9.14 Summary of methods of concluding the contract.
List of Illustrations
Chapter 5
Figure 5.1 Contracts for construction and engineering projects.
Chapter 8
Figure 8.1 Pre‐commencement stages under the FIDIC Yellow Book 2017.
Figure 8.2 FIDIC Yellow Book 2017 interim payment (including HGCRA 1996 amen...
Figure 8.3 NEC4 Compensation Event Procedure.
Chapter 9
Figure 9.1 FIDIC Yellow Book 2017 (tests on completion).
Figure 9.2 FIDIC Yellow Book 2017, Clause 10.1, taking over procedure.
Figure 9.3 JCT DB 2016, procedure for the employer to deduct liquidated dama...
Figure 9.4 JCT DB 2016, procedure for submitting the Final Statement.
Figure 9.5 JCT DB 2016, Final Statement and Final Payment procedure.
Figure 9.6 FIDIC Yellow Book 2017, procedure for the Final Payment Certifica...
Figure 9.7 FIDIC Yellow Book 2017, clause 3.7, procedure for agreement or de...
Chapter 10
Figure 10.1 Novated consultant's liability transfer.
Guide
Cover
Table of Contents
Title Page
Copyright
List of Figures
List of Tables
List of Cases
Preface
Begin Reading
Appendix A: JCT Design and Build Contracts Reconciliation
Appendix B: FIDIC Yellow Book Reconciliation
Appendix C: NEC Engineering and Construction Contract (ECC) Reconciliation
Index
End User License Agreement
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Design and Build Contracts
Guy Higginbottom
This edition first published 2024© 2024 John Wiley & Sons Ltd.
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Library of Congress Cataloging‐in‐Publication Data
Name: Higginbottom, Guy, author.Title: Design and build contracts / Guy Higginbottom.Description: Hoboken : Wiley‐Blackwell, 2024. | Includes index.Identifiers: LCCN 2023023395 (print) | LCCN 2023023396 (ebook) | ISBN 9781119814825 (cloth) | ISBN 9781119814832 (adobe pdf) | ISBN 9781119814849 (epub)Subjects: LCSH: Construction contracts. | Construction industry–Law and legislation.Classification: LCC K891.B8 H54 2023 (print) | LCC K891.B8 (ebook) | DDC 343.07/8624–dc23/eng/20230802LC record available at https://lccn.loc.gov/2023023395LC ebook record available at https://lccn.loc.gov/2023023396
Cover Design: WileyCover Images: © ivanastar/Getty Images
List of Figures
Figure 5.1 Contracts for construction and engineering projects.
Figure 8.1 Pre‐commencement stages under the FIDIC Yellow Book 2017.
Figure 8.2 FIDIC Yellow Book 2017 interim payment (including HGCRA 1996 amendments).
Figure 8.3 NEC4 Compensation Event Procedure.
Figure 9.1 FIDIC Yellow Book 2017 (tests on completion).
Figure 9.2 FIDIC Yellow Book 2017, Clause 10.1, taking over procedure.
Figure 9.3 JCT DB 2016, procedure for the employer to deduct liquidated damages.
Figure 9.4 JCT DB 2016, procedure for submitting the Final Statement.
Figure 9.5 JCT DB 2016, Final Statement and Final Payment procedure.
Figure 9.6 FIDIC Yellow Book 2017, procedure for the Final Payment Certificate.
Figure 9.7 FIDIC Yellow Book 2017, clause 3.7, procedure for agreement or determination.
Figure 10.1 Novated consultant's liability transfer.
List of Tables
Table 1.1 Project stages in the 2020 Royal Institute of British Architects' Plan of Work.
Table 2.1 Specific information contained in a construction contract.
Table 2.2 Categories of risk for the employer and the contractor.
Table 3.1 Employer's requirements for JCT DB 2016, FIDIC Yellow Book 2017, and NEC4.
Table 3.2 Contents of Employer's Requirements (NRM2 and CESMM4).
Table 3.3 Contractor's proposals for JCT DB 2016, FIDIC Yellow Book 2017, and NEC4.
Table 3.4 Contractor's proposals – common format and contents.
Table 3.5 Comparison of JCT and FIDIC design review procedures.
Table 3.6 ‘Contract price’ for JCT DB 2016, FIDIC Yellow Book 2017, and NEC4 (main option clauses A–E).
Table 3.7 Pricing document for JCT DB 2016, FIDIC Yellow Book 2017, and NEC4.
Table 3.8 NRM2: Fixed and time‐related charges.
Table 3.9 NRM2 template for the contract sum analysis
Table 3.10 Provisional sum procedures.
Table 4.1 Roles in the RIBA Professional Services Contract (PSC).
Table 4.2 Contract administration duties for JCT DB 2016, FIDIC Yellow Book 2017, and NEC4.
Table 6.1 Subcontracts for JCT DB 2016, FIDIC Yellow Book 2017, and NEC4.
Table 6.2 Subcontracting criteria under JCT DB 2016, FIDIC Yellow Book 2017, and NEC4.
Table 6.3 Instructions for ‘Named’ subcontractors under JCT DB 2016 and JCT ICD 2016.
Table 7.1 Bonds and guarantees under JCT DB 2016, FIDIC Yellow Book 2017, and NEC4.
Table 8.1 JCT DB 2016 entries for completion by sections.
Table 8.2 Summary of sectional completion provisions.
Table 8.3 Summary of milestone/key date provisions.
Table 8.4 Summary of acceleration procedures.
Table 8.5 Requirements of the contractor's programme (FIDIC and NEC4).
Table 8.6 Requirements of revising the contractor's programme (FIDIC and NEC4).
Table 8.7 Reasons for rejecting the contractor's programme – and procedure (FIDIC and NEC4).
Table 8.8 JCT DB ‘Gross Valuation’ under Alternatives A and B.
Table 8.9 NEC4 – ‘Price for Work Done to Date’ (Main Option Clauses A–E).
Table 8.10 Conditions of Engagement complying with HGCRA 1996.
Table 8.11 NEC4 Compensation Events cross‐references.
Table 8.12 Applicable definitions of ‘Defined Cost’.
Table 8.13 Explanation of actual and forecast Defined Cost.
Table 8.14 Summary of NEC4 Main Option Clauses' assessment of compensation events.
Table 8.15 Critical Path Analysis (CPA) methods.
Table 8.16 JCT DB 2016 Relevant Events (clause 2.26) and Relevant Matters (clause 4.21).
Table 8.17 Matters under clause 8.5(b) which entitle the contractor to an extension of time/EoT.
Table 8.18 Summary of testing and defects procedures.
Table 9.1 Grounds for termination.
Table 9.2 Consequences of termination under JCT DB 2016.
Table 9.3 Consequences of termination under FIDIC Yellow Book 2017.
Table 9.4 NEC4 – Clause 93 (A4): application of ‘fee percentage’ on termination.
Table 9.5 Summary of NEC4's termination reasons, procedures, and methods of calculating the amount due on termination.
Table 9.6 Summary of obligations/procedures on ‘Completion’.
Table 9.7 Summary of damages for late completion.
Table 9.8 Summary of rectification provisions after ‘completion’.
Table 9.9 NEC4: Elements of the ‘contractor's share’ calculation.
Table 9.10 NEC4 clause 53.3 Options W1, W2, and W3.
Table 9.11 Dispute resolution methods.
Table 9.12 FIDIC Yellow Book 2017, clause 3.7.3(a) determination or agreement subclauses.
Table 9.13 Summary of dispute resolution methods.
Table 9.14 Summary of methods of concluding the contract.
List of Cases
Atkins Ltd v Secretary of State for Transport [2013] EWHC 139 (TCC)
Balfour Beatty Construction Ltd v Grove Developments Ltd [2016] EWCA Civ 990
Blyth & Blyth Ltd v Carillion Construction Ltd [2001] ScotCS 90 (18 April 2001)
Bovis Lend Lease Ltd v Braehead Glasgow Ltd [2000] EWHC Technology 118
Bramall & Ogden Ltd v Sheffield City Council (1983) 29 BLR 73
Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67
City Inn Ltd v Shepherd Construction Ltd [2008] BLR 269
Costain Ltd v Bechtel [2005] EWHC 1018
Costain Ltd v Tarmac Holdings Ltd [2017] EWHC 319 (TCC)
Courtney & Fairbairn Ltd v Tolaini Bros (Hotels) Ltd [1975] 1 WLR 297
Dairy Containers Ltd v Tasman Orient Line CV [2005] 1 WLR 215
Darlington Borough Council v Wiltshier Northern Ltd [1995] 1 WLR 68
Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 HL
Emoson Eastern (in receivership) v EME Developments Ltd (1991) 55 BLR 114
English Industrial Estates Corporation v Kier Construction Ltd (1991) 56 BLR 93
Grieves & Co (Contractors) Ltd v Baynham Meikle & Partners [1975] 1 WLR 1095
Hampshire County Council v Stanley Hugh Leach & Others (1990) 8 Const LJ 174
Henia Investments Inc. v Beck Interiors Ltd [2015] EWHC 2433 (TCC)
HW Nevill (Sunblest) v William Press (1981) 20 BLR 78
Independent Broadcasting Authority v EMI Electronics Ltd and BICC Construction Ltd (1980) 14 BLR 1 (‘IBA v EMI & BICC’)
J Crosby & Sons Ltd v Portland UDC (1967) 5 BLR 21
J Jarvis & Sons Ltd v Westminster Corp (1970) 1 WLR
John Barker Construction Ltd v London Portman Hotel Ltd (1996) 83 BLR 31
Kaye Ltd v Hosier & Dickinson (1972) 1 WLR 146
London Borough of Merton v Stanley Hugh Leach Ltd (1986) 32 BLR 51
Luxor (Eastbourne) Ltd v Cooper (1941) AC 108 HL
PC Harrington Contractors Ltd v Co-Partnership Developments Ltd (1998) 88 BLR 44
Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) 1 BLR 111
Percy Bilton v Greater London Council [1982] 1 WLR 794 HL
Piggott Foundations Ltd v Shepherd Construction Ltd (1993) 67 BLR 48
Robinson v Harman (1848) 154 ER 163
Rotherham MBC v Frank Haslam Milan & Co Ltd [1996] 78 BLR 1
Strachan & Henshaw Ltd v Stein Industrie (UK) Ltd and GEC Alsthom Ltd (1998) 87 BLR 52
Sunlife Europe Properties Ltd v Tiger Aspect Holdings [2013] EWHC 1161 (TCC)
Sutcliffe v Thackrah [1974] AC 727
Taylor Woodrow Holdings Ltd v Barnes & Elliott Ltd [2004] EWHC 3319 (TCC)
Temloc Ltd v Errill Properties Ltd (1987) 39 BLR 30
Vinci Construction UK Ltd v Beumer Group UK Ltd [2017] EWHC 2196 (TCC)
Walter Lilly & Co Ltd v Mackay & Another (No. 2) [2012] EWHC 1773 (TCC)
Weldon Plant Ltd v Commission for the New Towns [2000] EWHC 496
West Faulkner Associates v London Borough of Newham (1994) 71 BLR 1
Preface
For the 10 years leading up to 2020, I worked in both private practice and latterly as a commercial director for a building contractor. When working in both types of organisation, it quickly became apparent that ‘design and build’ seemed to be the most popular means of procuring buildings and large‐scale plant and civil engineering projects. Of course, this evidence was initially anecdotal and taken as a selective sample from the types of contract with which the particular multi‐disciplinary consultancy I worked for (albeit, a large, global one) was involved. Firmer evidence of the popularity of ‘design and build’ was provided in the form of the RIBA's Construction Contracts and Law Reports, which were published on four occasions between 2012 and 2018. The RIBA's reports showed a gradual decrease in ‘traditional’ procurement (where the employer is responsible for design), seemingly at the expense of a growing ‘design and build’ market. The RIBA's 2022 report indicates that these trends have continued.
The possible effects of these trends on the construction and engineering industries are likely to be widespread. In my experience, industry usually leads the way, and academia follows. However, ‘industry’ is not a uniform entity, and within it misunderstandings and mistakes can be rife. The concept of ‘design and build’ ought to be a simple one, in which the contractor is responsible for design. At one end of the spectrum, many contractors, employers, and consultants still treat ‘design and build’ as an offshoot of ‘traditional’ procurement, and on relatively simple projects experience difficulties over the extent of design responsibility. At the spectrum's other end, the increasingly complex nature of construction and engineering projects often requires different parts of the works to be designed by different parties, such as the contractor's specialist sub‐contractors, the contractor, and the employer. Difficulties in integrating the various designs may arise, not only in terms of physically joining the contractor's and employer's designs, but also in terms of who bears responsibility for doing so.
Ordinarily, industry relies upon academia to provide it with graduates that it goes on to train to become the likes of engineers, project managers, architects, quantity surveyors, and so on – often to become chartered professionals. However, despite industry's increasing use of ‘design and build’, it is surprising how few UK universities teach dedicated ‘design and build’ modules, for what (at time of publication) could be the most popular means of procuring construction and engineering works. This should not be taken as a criticism of university courses for the following reasons. First, there are only a handful of what could be described as ‘design and build’ textbooks to rely upon, and many of these were published decades ago. Second, in order to effectively teach students about ‘design and build’, the courses will almost certainly have to teach students how ‘design and build’ was originally intended to operate – with the contractor carrying out the design and being responsible for it. ‘Design and build”s original intention is often very different to the way it operates today. The design is produced by the employer and passed to the contractor, whose only design input is effectively limited to a design coordination role. Nevertheless, the contractor remains responsible for the entirety of the project’s design. There may be variants of this method, with the employer's design consultants being passed on to (or ‘novated’) to the contractor, or the contractor working alongside the employer and design consultants from a much earlier (pre‐contract) stage of the project.
I have attempted to write this book in the general order that a construction or engineering project is carried out. Following the sequence of the RIBA's ‘Plan of Work 2020’ (which is often followed by the Institution of Civil Engineers' ‘Civil Engineering Procedure’), I have attempted to set out the practical steps under three of the most popular forms of building contract: namely, the JCT Design and Build 2016 contract, FIDIC's Conditions of Contract for Plant and Design‐Build 2017 (the Yellow Book) and NEC4. Whilst this book necessarily examines the various procedures under these contracts, it is not intended to be a ‘commentary’ on those forms, as far more comprehensive guides to each of those contracts (and their predecessors) are widely available. The book also considers subcontracting and the engagement of consultants (in both supervisory and designing roles).
I would like to express my thanks and appreciation to Dr Paul Sayer, along with all the copyediting staff at Wiley for their forbearance, encouragement, and support.
1Introduction
The concept of engaging a single organisation to carry out both the design and construction for a project is nothing new. In various subsets within the engineering and construction sectors, the concept is regularly adopted, used to varying extents, and continues to evolve to suit the prevailing market conditions.
This book examines the methods of what we now know as ‘design and build’ by considering how works are procured under three of the UK's standard forms of building contract. The book begins with a general introduction to ‘design and build’ and construction contracts in Chapters 1 and 2. Part One (consisting of Chapters 3–9) looks at how these contracts are intended to function in their unamended form throughout each stage of a project, from bidding to the project's conclusion. Part Two (comprising Chapters 10–12) examines how those procedures have changed in recent years, who brought about these changes, and the effects these changes have had on employers, contractors, and consultants (such as designers and those with responsibility to certify matters under the building contract).
1.1 Some Types of ‘Design and Build’
The terminology for engaging a single entity to design and construct the works can be varied and depends upon (i) the nature of the works themselves and (ii) the extent to which the employing party is involved. For projects within what can be described as the ‘construction sector’ (such as constructing commercial buildings and residential construction by a non‐housebuilder), this type of procurement is usually called ‘design and build’.
For projects of a more ‘engineering’ nature, such as civil engineering infrastructure or process plant projects, terms such as ‘engineering, procurement, and construction’ (EPC), ‘design, build, operate’ (DBO), and ‘turnkey’ may be used. The EPC and DBO terms usually apply where the employing party retains an element of control over the design. However, ‘turnkey’ is often used where the employer has little involvement with the project until its completion, when he or she takes possession of the finished works to ‘turn the key’ to begin their operation.
1.2 The Nature of Design and Build
Any project, whether its nature is construction or engineering, can be procured in a number of ways. All projects begin with a concept, and depending upon their nature, the ‘initial brief’ will vary in form, length, and detail. The initial brief may consist of no more than an idea, and it may never even be written down. All projects must be designed. The extent of the design can range from a general idea of what to build to a design that's fully developed, specified, and coordinated for each of its constituent elements.
To understand the nature of ‘design and build’ as a concept, it is useful to compare the project stages at which the employer engages the design team and the contractor under more ‘traditional’ procurement. ‘Traditional’ procurement is often used to describe projects for which the employer firstly obtains the design and then engages the contractor to construct that design but without being responsible for it. The Royal Institute of British Architects (RIBA) publishes its Plan of Work, which divides a project into distinct stages. Its most recent version was published in 2020 and divides the work into eight stages as shown in Table 1.1.
For each stage, RIBA's 2020 plan of work describes the common activities under the following headings:
○ Stage Outcome
○ Core Tasks
○ Core Statutory Processes
○ Procurement Route
○ Information Exchanges
It seems appropriate to refer to the 2020 plan of work for two reasons. Firstly, the 2020 version is substantially the same as its predecessor (from 2013), and it is likely that the building contracts referred to in this book were drafted with the plan of work in mind. Secondly, the Institute of Civil Engineers' Civil Engineering Procedure (7th ed., 2015) contains key references to RIBA's 2020 Plan of Work, so it has obvious applications to both construction and engineering projects.
Table 1.1 Project stages in the 2020 Royal Institute of British Architects' Plan of Work.
General description
Project stage(s)
○ Initial brief
‘Strategic Definition’ and ‘Preparation and Briefing’ (Stages 0 and 1)
○ Design
‘Concept Design’, ‘Spatial Co‐ordination’ and ‘Technical Design’ (Stages 2, 3, and 4)
○ Construction
‘Manufacturing and Construction’ and ‘Handover’ (Stages 5 and 6)
○ Operation
‘Use’ (Stage 7)
Initially (through RIBA Stages 0, 1, and 2), the employer develops the project's general requirements – often with a design team comprising an architect, engineer, and possibly a cost consultant (such as a quantity surveyor). Subsequently, and following the latter design stages (RIBA Stages 3 and 4), a contractor is selected; this is done either following negotiations, such as a pre‐qualification process, or in a competitive tender. The contractor's involvement usually starts at this point and will normally be formalised by entering into a building contract just before the start of RIBA Stage 5 (Construction). The employer remains responsible for the project's design and bears the risk if the design is incorrect, uncoordinated, or causes delay if it is not provided to the contractor on time. The employer firstly will have to assess and pay the contractor for any rework and overruns and must then take action against the offending member (or members) of the design team.
For design and build projects, the contractor's involvement may begin at any point between RIBA Stages 0 through 5. Depending upon their detail, the employer's requirements may be finalised at any point between RIBA Stage 1 (Preparation and Brief) and Stage 5. The contractor reviews the project's requirements (normally called the ‘employer's requirements’) and then develops proposals for carrying out the works. The contractor's proposals normally include any contractor's design, the specification for the works, a method statement, and health and safety information. The extent of design provided by the contractor will depend upon the extent of design provided by the employer's requirements. This may simply be ‘filling in the gaps’ in cases where the employer's requirements are quite prescriptive, but it may include a more detailed design if the employer's requirements are fairly brief.
Allied to the proposals, the contractor will normally set out a price for the works in a separate document. Typically, this provides far less detail than in bills of quantities, with the price simply being broken down into building elements (such as substructure, superstructure, etc.). Importantly, and unlike traditional procurement, the contractor assumes responsibility for the adequacy, accuracy, completeness, and consistency of the design. If it has any shortcomings, including an undue delay in its development or coordination, then the contractor will have to bear the cost of putting this right. The main advantage to the employer is that he no longer carries the design risk, as this is now held by the contractor. For example, if the design contains errors, isn't properly coordinated, or takes longer to develop, this remains the contractor's problem. The employer only has to manage dealing with the contractor (and not a design team), which is called ‘single point responsibility’.
In the past, many contractors marketed their design and build expertise by claiming it added ‘buildability’ to a project. This term implied that the contractor would optimise the design so it became more practicable and would avoid design that was unnecessarily complicated and difficult to construct. Whilst the concept of ‘buildability’ may have originated from a desire for more efficient construction, it also provided the contractor with opportunities to increase profits by adopting a cheaper design. If the employer's requirements did not set out a precise specification or standard, contractors were often able to reduce their build costs by using cheaper materials and products, whilst still complying with the contract and remaining entitled to the same contract sum. Many employers soon countered this by ensuring their requirements contained specific quality standards. They also sought continuity of design from pre‐contract (RIBA Stages 0–4) into construction (RIBA Stages 5 and 6), by transferring the employment of its pre‐contract design team to the contractor for the construction phase. This concept is called novation and remains very popular.
1.3 A Brief History of Design and Build Contracts
Standard forms of building contract in the UK have been around for some time. The Institute of Civil Engineers (ICE) published its first contract in 1945, and the Joint Contracts Tribunal (JCT) published its standard form of contract in 1963 (JCT 1963). Both of these were contracts for ‘traditional procurement’, and since then both have been subject to many revisions. ICE produced a further six editions (up to the seventh edition in 1999) before becoming the Infrastructure Conditions of Contract in 2014, when ICE began to solely concentrate on publishing its suite of New Engineering Contracts (NEC). JCT 1963 was revised in 1980, and this was subject to around 18 amendments up to 1998, before JCT adopted its modern format (nine sections of clauses) in 2005. JCT's standard building contracts underwent further revisions in 2011 and 2016.
Design and build contracts, as we now know them, did not appear until 1981 when JCT published the ‘with Contractor's Design’ contract (CD 1981). This followed the format of the 1980 edition of JCT's standard building contract. CD 1981 was revised in 1998, and again (adopting the nine‐section format of the standard building contract) in 2005, 2011, and 2016. This has become one of the most popular contracts for procuring construction projects in the UK.
Since 1943, government and public sector procurement used the CCC/Works/1 contract, until the General Conditions of Contract for Building and Civil Engineering (GC/Works/1) were published in 1959. In 1977 and 1989, second and third editions followed, and soon after, a ‘GC/Works/1 (Edition 3) Single Stage Design and Build Version’ was published in July 1993. Ultimately, three versions called GC/Works/1 (1998) were published in 1998, which included the single‐stage design and build version. However, since then, use of the NEC contracts replaced GC/Works/1 (1998) as the preferred route for public procurement.
For engineering projects (such as civil and process engineering), contracts published by ICE and FIDIC are very popular. ICE published the first edition of its ‘Design and Construct’ contract in 1992. A second edition followed in 2001 – each edition being based upon the sixth and seventh editions of what was then known as the ICE Conditions of Contract. ICE did not publish any subsequent versions, as it chose to concentrate on the NEC suite of contracts. The Association for Consulting Engineers took over publication, and in 2011, issued a revised ‘Design and Construct’ contract – re‐badged as the Infrastructure Conditions of Contract.
The NEC contracts were first published in 1993 and contained provisions for a contractor's design. These provisions remained largely unchanged in NEC2 (published in 1995) and NEC3 (issued in 2007 and revised in 2013) and, although slightly expanded, remain in the current NEC4 contracts that were published in June 2017. NEC contracts have been adopted for use by public bodies, for many high‐profile projects such as the 2012 Olympic Games and Crossrail. They have largely replaced the previous suite of government contracts – GC/Works/1.
The newest version of a design and build contract was developed by FIDIC (the Federation Internationale des Ingenieurs‐Conseils) when it published its Conditions of Contract for Plant Design‐Build (Yellow Book) in 1999, with a second edition following in 2017.
The JCT design and build contract provided the most comprehensive procedures for a project with the contractor's design. The contract documents consist of the ‘Employer's Requirements’ and the ‘Contractor's Proposals’ (this terminology is also adopted by the FIDIC Yellow Book), and the price for the works (Contract Sum) is shown in the ‘Contract Sum Analysis’. The conditions also deal with design matters such as the contractor's liability for design, resolving discrepancies, divergences and inadequacies, the employer's approvals, design changes and their valuation, along with the rights of the employer (and third parties) to retain and use the contractor's design. Almost every version of JCT's standard forms of contract now contain some kind of design and build provisions. These are either provided in ‘with design’ versions of contracts (such as the Intermediate or Minor Works contracts) where the entire works will be contractor designed, or as options where the contractor is only designing part of the works under the JCT Standard Form of Building Contract.
The FIDIC Yellow Book contains some procedures analogous to those in the JCT design and build contract, but NEC's design and build procedures are far more comprehensive. NEC contracts do invite some adaptations by providing for ‘Additional Conditions of Contract’ (the Z clauses), and it is fairly common to find design and build procedures added here. Owing to the relative decline in use of the ICE and GC/Works/1 contracts, many of their specific provisions are now inserted as Z clauses. Indeed, some Z clause amendments have also been seen to introduce JCT‐style design and build provisions into NEC contracts.
1.4 Recent Developments in Design and Build
On five occasions since 2012, RIBA Enterprises' NBS Limited has published its National Construction Contracts and Law Survey, with the latest edition arriving in July of 2022. These surveys have shown a number of trends in the UK, the following two of which are particularly pertinent:
○ Between 2012 and 2018, the use of design and build contracts increased from an average of 30% to around 40%, whereas the use of traditional procurement declined from 60% to just over 40%.
○ Between 2015 and 2018, the use of JCT contracts rose sharply (from below 60%) to 70%, whereas the use of NEC contracts has dropped by almost 15% (decreasing from 53% to 39%). Whilst there was a slight increase in FIDIC contracts in 2015 (to around 18%), their usage has returned to around 10%.
○ From 2018 to 2022, the use of JCT contracts (both design and build and traditional procurement including a CDP) increased slightly to 71%. The usage of NEC contracts fell by 8% (from 39% to 31%) and the use of FIDIC contracts fell by 4% (from 10% to 6%).
These trends may be partially explained by the changing economic climate over the last 10 years. When UK construction felt the effects of the global financial crisis around 2010, there was a decline in privately funded development. Many contractors and consultancy firms adapted by taking on more work in the public sector. This may explain the growth in NEC usage from 2012 to 2015. Private sector developers and funders became more risk‐averse, so this may explain the increase in design and build procurement, seemingly at the expense of ‘traditional’ procurement, and the private sector's preferred vehicle remains the JCT design and build contract. Not only does this offer the employer ‘single point responsibility’ and the most comprehensive procedures, but by introducing bespoke amendments, employers can reduce their risk even further. The relative reduction of design carried out by the contractor and the transfer of risk away from the employer have often led to design and build being called ‘risk and build’ and ‘design and dump’! However, these developments do not come free of charge. Commercially astute contractors will include added risk contingencies within their pricing, and depending upon the prevailing market, contractors may be prepared to reduce their price in return for the employers accepting a greater share of risk.
Perhaps owing to the Covid‐19 crisis from 2020 to 2021, RIBA did not commit to a further survey until July 2022. Their 2022 inclusion of CDP elements within the published figures for ‘traditional’ procurement is unfortunate, as it does not allow a consistent comparison with the data from 2012 to 2018. It therefore remains to be seen if design and build has overtaken traditional procurement to a significant degree. Furthermore, with the publication in 2017 of NEC4 and FIDIC's second edition contracts, it is difficult to predict whether the increasing trend in using JCT contracts will be maintained. However, given that JCT design and build procedures are often adopted even if the JCT contract itself is not, it seems likely that JCT will remain an influential force in design and build procurement – for both construction and engineering projects.
1.5 How to Use This Book
This book attempts to bridge the gap between how design and build is meant to be operated under the standard forms of contract and how it is now commonly operated in practice. It may be more accurate to suggest that there are two bridges to overcome. Firstly, as a concept, design and build is not widely taught in universities at the undergraduate level, as most construction courses focus on traditional procurement. In the event that design and build overtakes its traditional counterpart, it is increasingly likely that employers, consultants, and contractors will not be able to select candidates who are familiar with what may become the UK's most popular construction procurement method.
Secondly, the way design and build is widely practiced is very different from how it may be taught if the student purely studies the standard forms of contract and how they were originally intended to operate. For example, neither JCT, NEC4, nor FIDIC contracts provide for the novation of designers – a common and widespread practice. In another example, and as briefly described above, a contract may state ‘design and build’ on the front cover, but there may be little design for the contractor to undertake. He or she will just be ‘building’, but subject to a very different allocation of risk to that set out in an unamended design and build contract.
This book is not intended to provide purely a clause‐by‐clause commentary on particular forms of design and build contracts, as there are far more comprehensive texts available to the reader which provide precisely that for the JCT, NEC, and FIDIC forms of design and build contract. This book's principal focus will be on appropriate procedures at each stage of the project from a practical perspective (following the RIBA Plan of Work) and will reference particular contracts and their clauses where applicable.
2Construction Contracts
2.1 General
All contracts contain a set of reciprocal obligations for each party to perform. In its simplest form, a construction contract provides that the employer pays the contractor who, in return for payment, constructs (and in this book's context, also designs) the works. The contract should create certainty so that each party knows the extent of its obligations to the other. All construction contracts should include (what lawyers refer to as) the following ‘essential terms’:
○ Scope – what the employer requires the contractor to design and build.
○ Time – when the contractor can start and when the works must be completed.
○ Price – how much the employer will pay for the work. This can be either as simple as a single lump‐sum or a basis for calculating the price (such as a schedule of rates and prices).
2.2 The Structure of a Construction Contract
Clearly, contracts for modern construction projects contain far more than just the three essential terms. They should have enough conditions to cover statutory provisions (such as interim payments and health and safety), instructing and valuing changes to the scope, testing and rectifying defects, various types of insurance, guarantees, bonds, and collateral warranties, and they should provide a mechanism for resolving disputes. The scope of work may also be very detailed and is normally found in drawings and specifications for each major element of work (such as structural and mechanical engineering, along with architectural design). All of these elements must be effectively pulled together by incorporating them under the umbrella of the construction contract.
Most construction contracts are made up of two main sections:
○ One section contains specific information that relates directly to the project.
○ The other section contains the conditions of contract, setting out in detail how the parties conduct themselves (see
Section 2.2.2
). The conditions of contract contain the general conditions and any optional clauses that the parties choose and are drafted with a ‘one size fits all’ approach, so that they can be applied to any project. These are often called the ‘standard conditions’, as found in contracts published by the JCT, NEC, and FIDIC (see
Section 2.2.3
).
2.2.1 The General Nature of Standard Forms of Design and Build Contract
This book examines typical procedures found in the three design and build contracts; namely JCT DB 2016, FIDIC Yellow Book 2017, and NEC4. However, whilst many of the procedures explored in this book operate within the terms of these contracts, the contracts themselves can operate very differently. JCT and FIDIC contracts share many features and in many respects operate in similar ways, whereas the NEC4 contract is intended to operate differently. Later in this book, these similarities and differences are examined, compared, and discussed in more detail, but it is useful to summarise the general differences at the outset:
○ The general principle of JCT and FIDIC contracts is that the parties eventually obtain the right result. Both contracts provide:
– Confirmation that payments made during the course of carrying out the works are not conclusive
1
and can be revised; and
– What can be described as a ‘final account’ procedure,
2
which effectively concludes the contract after the works are completed and defects have been rectified.
○ The NEC4 contract, on the other hand, provides that the parties obtain quick answers to their questions whilst carrying out the works, even though they might be incorrect. Previous NEC versions didn't include a ‘final account’; however, a ‘final assessment’ procedure
3
was introduced with NEC4. Whilst initially, this appeared to contradict the NEC ethos, it is currently understood that this new procedure will not permit wholesale reassessments, so its application is relatively limited.
2.2.2 The Specific Information
The specific information sets out the essential terms in greater detail, along with other important matters.
Depending upon the form of contract, the specific information (see Table 2.1) is usually found in the section setting out what the parties have agreed to. This also contains the part of the contract that the parties sign, which for JCT DB 2016 is the ‘Attestation’ and for FIDIC Yellow Book 2017 is the ‘Contract Agreement’.
NEC4 adopts a different format. Firstly, it doesn't have an agreement section as such. It sets out and incorporates all the specific information, along with the conditions of contract, within a section called the ‘Contract Data’. Secondly, NEC claims that the lack of a signature page is deliberate, leaving the method of execution up to the parties, and as NEC4's use is intended to be international, the formalities of signing a contract in the UK may be different from those for signing a contract outside the UK. This does seem odd, particularly as the FIDIC contract contains a ‘signature’ page and is widely used outside the UK.
Table 2.1 Specific information contained in a construction contract.
○ General
– The identity of the employer and contractor, along with their addresses, and any key personnel (NEC4)
– The contract conditions
– General description of the works
– The identity of the supervising officers such as the employer's agent (JCT), project manager and supervisor (NEC4), or engineer (FIDIC)
– Any other personnel such as persons engaged to fulfil requirements of the Construction (Design and Management) Regulations 2015 (CDM)
○ Scope
– The contract documents – such as the Employer's Requirements and Contractor's Proposals (JCT and FIDIC) or Scope (NEC4) (including the design provided by the contractor in Section 2 of the Contract Data Part Two). The contract documents will contain the necessary drawings and specification for the project, including particular subcontractors or suppliers.
– Division of the works into sections (see the ‘Time’ section of
Table 2.1
)
○ Price and payment
– The Contract Sum (JCT), tendered total of the Prices (NEC4), or Contract Price (FIDIC)
– Currency or currencies of the contract
– The payment provisions (e.g. stage or ‘milestone’ payments), or periodic payments (e.g. monthly)
– The Contract Sum Analysis (JCT), the Schedule of Rates and Prices (FIDIC), or the
activity schedule
and schedule of cost components (NEC4)
– Retention (JCT, NEC4 Option X16), Retention Money (FIDIC)
– Fluctuations (JCT) or
○ Time
– Date(s) of Possession (JCT), Starting Date (NEC4), or Commencement Date (FIDIC)
– Completion Date (JCT, NEC4), Time for Completion (FIDIC) Including any start and completion dates that apply to separate sections of the works
– Key Dates (NEC4)
– Rectification Period (JCT),
defect correction period
(NEC4), or Defects Notification Period (FIDIC) – may differ for sections
– Damages for late completion – Liquidated Damages (JCT), or delay damages (NEC4 Option X7, FIDIC) – may differ for sections
○ Insurance
– Contractor's public liability insurance
– Employer's insurance
– Professional indemnity insurance
– Terrorism cover
○ Guarantees
– Collateral warranties
– Parent company guarantees
– Bonds
– Third‐party rights
○ Dispute resolution
– Adjudication: identifying the adjudicator or the adjudicator nominating body, or the adjudication procedure
– Means of finally resolving a dispute: arbitration or litigation, including a tribunal (NEC4) or dispute board (FIDIC)
○ Miscellaneous
– Framework agreements
– BIM protocol
– Collaborative working
– Performance indicators, benchmarking
– Sustainable development
– Other employer policies or requirements
JCT and FIDIC contracts adopt the ‘agreement’ format. This begins with a general description of the parties and the works, before formally setting out what is known as the ‘operative’ part of the contract. For JCT contracts, the operative part commences with the words, ‘Now it is hereby agreed as follows’, and FIDIC adopts similar wording – ‘The Employer and Contractor agree as follows’.
The JCT contract includes a section entitled ‘Agreement’, which is divided into the following subsections:
○ ‘Recitals’ is the introductory section that includes the date of the contract, identifies the parties, and gives a very general description of the works.
○ ‘Articles of Agreement’
– This is the operative part of the contract.
– Articles 1–9 set out the contractor's obligations by incorporating the Conditions
4
and identifying the Contract Sum, the Employer's Agent, relevant CDM personnel, and the methods of dispute resolution.
○ ‘Contract Particulars’ sets out the remaining specific information (from
Table 1.1
) that is not already described in the Recitals or the Articles of Agreement. This remaining information is likely to consist of the contract documents (such as drawings and specifications provided by the employer and the contractor, and the contractor's pricing documents).
○ ‘Attestation’ is the part that the parties sign to execute the contract either as a deed or under hand.
The FIDIC contract is similar, as its ‘Contract Agreement’ contains the following:
○ An unnamed introductory section sets out the date of the contract, identifies the parties, and gives a brief description of the works.
○ The operative part of the contract then incorporates the specific information (as in
Table 1.1
) and the conditions of contract by reference to the following documents:
– The ‘Letter of Acceptance’,
– The ‘Letter of Tender’,
– Any addenda,
– The ‘Conditions of Contract’, which comprise the ‘General Conditions’
5
as amended by the ‘Particular Conditions’,
6
– The ‘Employer's Requirements’,
– The ‘Completed Schedules’,
– The ‘Contractors Proposals’, and
– The JV Undertaking (for use where the contractor is a joint venture).
○ A signature section is for the parties executing the contract and their witnesses.
Each form of contract has a particular name for the section containing the specific matters. JCT calls this section the ‘Contract Particulars’, whereas for NEC4 and FIDIC it is called the ‘Contract Data’. NEC4 divides the Contract Data into two sections; part one is completed by the employer (which NEC4 calls the ‘Client’) and part two is completed by the contractor. FIDIC is similar, although the ‘Contract Price’ is not shown in the Contract Data; rather it is shown in the ‘Letter of Acceptance’ (one of the documents incorporated by reference and listed in the ‘Contract Agreement’).
2.2.3 The Conditions of Contract
The second main section of a construction contract contains the general conditions and (in the case of NEC4) any optional clauses. JCT refers to these as the ‘Conditions’, which include Sections 1–9, along with any applicable ‘Schedules’ (which contain the optional clauses such as the ‘Supplemental Provisions’ in Schedule 2). NEC4 contains the ‘Core Clauses’ in Sections 1–9, along with the ‘Main Option Clauses’ (Options W1, W2, and W3), and the ‘Secondary Option Clauses’ (Options X1 to X21, Y(UK)1 to Y(UK)3, and Z). The ‘Contract Particulars’ (JCT) or the ‘Contract Data’ (NEC4) set out which options apply. FIDIC contains optional clauses in ‘Particular Conditions Part B – Special Provisions’. Similar to NEC4, FIDIC's Special Provisions contain wide‐ranging amendments that can be incorporated within the Conditions.
2.2.4 The Documents Comprising the Contract
The construction contract needs to contain all the necessary agreements and information for the works to be designed and constructed, and for the contract to be administered in the manner agreed to by the parties. The JCT and FIDIC contracts achieve this in similar ways, whereas NEC4's method is slightly different.
JCT DB 2016 very clearly provides that the contractor must design and build the works in accordance with the ‘Contract Documents’. This obligation is firstly set out in Article 1 (of the Agreement) and again at clause 2.1.1 of the Conditions. The JCT definitions are set out in clause 1.1 of the Contract Documents as follows:
○ The Agreement – includes the Recitals, the Articles of Agreement, and the Contract Particulars.
○ The Conditions – means all the clauses included in Sections 1–9, and any other clauses in the Schedules (numbers 1–7).
○ The Contract Documents – includes ‘the Agreement and these Conditions, together with the Employer's Requirements, the Contractor's Proposals, the Contract Sum Analysis, and (where applicable) the BIM Protocol’.
The ‘Employer's Requirements’, ‘Contractor's Proposals’, and ‘Contract Sum Analysis’ are each described against the entries for Article 4 in the ‘Contract Particulars’ (itself, forming part of the Agreement). Similarly (and if applicable), the BIM Protocol is described against the entry for clause 1.1. in the Contract Particulars. The scope of work is set out in the Employer's Requirements and Contractor's Proposals, and details of the Contract Sum are set out in the Contract Sum Analysis.
FIDIC Yellow Book 2017's approach is similar to that of JCT. In the ‘Contract Agreement’ (in part 3), the ‘…Contractor hereby covenants with the Employer to design, execute and complete the Works and remedy any defects therein, in conformity with the provisions of the Contract’. The similarities with JCT continue, as this obligation is repeated at clause 4.1 of the Conditions. FIDIC's definition (in clause 1.1.9) of the Contract is as follows:
‘Contract’ means the Contract Agreement, the Letter of Acceptance, the Letter of Tender, any addenda referred to in the Contract Agreement, these Conditions, the Employer's Requirements, the Schedules, the Contractor's Proposals, the JV Undertaking (if applicable), and the further documents (if any) which are listed in the Contract Agreement or in the Letter of Acceptance.
NEC4 is slightly less straightforward. Unlike JCT and FIDIC, it does not contain a succinct definition of the ‘contract’. Instead, the parties must refer to the following:
○ Clause 10.1 provides that ‘The Parties…shall act as stated in this contract’.
○ Clauses 20 and 21 provide that the contractor respectively constructs and designs the work in accordance with the ‘Scope’.
○ ‘Scope’ is defined in clause 11.2(16) as being contained in the ‘Contract Data’.
○ The introductions to both Parts 1 and 2 of the Contract Data state as follows: ‘Completion of the data in full, according to the Options chosen, is essential to create a complete contract’.
○ The Contract Data incorporates the following documents (assuming no Secondary Option clauses are selected):
– ‘Scope’ and ‘Site Information’ are in Contract Data
Part 1
.
– The ‘scope for [the contractor's] design’, and the priced ‘activity schedule’, the bill of quantities, and date for the schedule of cost components (including the data for its shorter version) are in Contract Data
Part 2
.
When read together, it should be clear that the ‘Contract Documents’ in NEC4 are the ‘Core Clauses’ (along with any ‘Main Option Clauses’ and ‘Secondary Option Clauses’ that are selected), ‘Contract Data Parts One and Two’, the ‘Scope’, the ‘Site Information’, the ‘scope for the contractor's design’, and the priced ‘activity schedule’.
