Following the announcement by the Joint Contracts Tribunal at the beginning of the year that it was to issue a new 2016 series of its building contracts, replacing the 2011 series, the first products of this reform programme were the publication in June of 2016 editions of the Minor Works and Minor Works with contractor's design Building Contracts, along with a new form of sub-contract "with sub-contractor design".
The long-awaited 2016 edition of the very popular JCT Design & Build Contract (DB 2016) has now arrived, along with a host of revised or re-dated ancillary JCT documentation, including a revised Guide, a non-binding partnering charter, a revised D&B Sub-Contract, framework agreement, pre-construction services agreement, collateral warranties, adjudication agreement and arbitration rules.
Apart from the abolition of Part 2 of the Contract Particulars (which dealt with third party rights and collateral warranties, these now being catered for elsewhere in the contract conditions), the structure of DB 2016 is unchanged from the 2011 edition and the amendments to the contract have not been designed to alter in any significant way the established allocation of risk between the contracting parties.
The main changes adopted in the 2016 edition are as follows:
- incorporation of JCT Amendment 1 (CDM Regulations 2015);
- simplification of the insurance provisions, including consolidating parts of Insurance Options A, B and C in the main insurance clauses. Option C is expanded to allow for bespoke solutions to certain insurance complications affecting existing structures, these being particularly relevant where the site is part of a building not wholly owned by the employer, or where he occupies the premises under a lease;
- revision and simplification of the payment clauses, particularly with respect to the notice requirements of the Construction Act 1996, as that legislation was amended in 2009, and the inclusion of provisions requiring the speedier assessment of applications for reimbursement of loss & expense;
- inclusion for the first time of a requirement for the contractor to provide a performance bond or (in the alternative) a parent company guarantee;
- augmentation of the provisions for sub-contractors' collateral warranties by the option for third party rights, in a form to be specified in a bespoke document;
- inclusion of provisions relating to fair payment, transparency (ie relating to the Freedom of Information Act 2000), and Building Information Modelling as per any bespoke BIM protocol. Those provisions are partly based on the JCT Public Sector Supplement 2011, which was a response to the OGC's 2007 Guide to 'fair payment' practices. The changes do not however go as far as requiring the setting-up of a project bank account, as recommended by the OGC in 2007;
- the addition of provisions relating to sub-contracting, where they apply, in conformity with the Public Contracts Regulations 2015. Those regulations implement (in England & Wales) Public Sector Directive 2014/24/EU, reforming EU rules for the tendering of public contracts for works, services and supplies; and
- some modest improvements in terminology and drafting style.
The greater part DB 2016 will continue to be very familiar to most users of the 2011 edition. Although these latest, relatively limited, changes go further than before in accommodating the requirements of developers, it is likely that for most commercial projects it will continue to be necessary to amend the standard form to a greater or lesser degree.
