Construction Law Masterclass:Design and Build: Getting it RightTuesday, 2 September 2014

Francis Ho and Alexandra Laveryfrancis.ho@olswang.com | alexandra.lavery@olswang.com

Usage

Most popular procurement route in UK (RICS Contracts in Use Survey 2010):

•JCT DB most common for £500k to £50m. Used on 15.7% by by number; 33.4% of all contracts by value

•JCT MPCC used on 1% by number; 2.1% by value

Other forms:

•FIDIC Silver and Yellow Books

•ICC Design and Construct Version

•NEC3, PPC2000 and CIOB CPC all suitable (but not strictly D&B forms)

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Advantages

•Single point responsibility

•Cost and time certainty

•Buildability

•Reduced chance of contractor claims

•Start works early

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Disadvantages

•Less control for Employers

•Difficult to make changes during construction period

•Important to ensure proper Employer’s Requirements produced

•Quality of design may be weaker than other procurement routes

•Employer may need to spend money on monitoring design consultants

•Price premium paid to Contractor

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Key areas of negotiation for D&B

•Degree and scope of design responsibility

•Discrepancies in design documentation

•What is Employer’s Agent’s role?

•How is Contractor paid?

•How are drawings approved?

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How is D&B generally used?

•Early start –Contractor required to build before design is completed and appoints architect to help with design

•Works fully designed by Employer’s design team –Contractor takes single point liability

•Employer’s design team produces outline spec and performance spec for tendering –Contractor completes design

•“Mini-D&B” –Contractor designs only part of Works, e.g. foundations

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Varieties of D&B

•Design and build

•Design and construct

•Package deal

•Turnkey/EPC

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Tips from experience

•Recommended for less experienced developers

•Employer’s Requirements are usually drafted to take precedence over the Contractor’s Proposals in the context of single point design responsibility so carefully consider any proposal to do otherwise

•The Contractor’s design obligations should be subject to exercising the standard of care, fitness for purpose obligations are not generally insurable

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Any questions?