This Practice Note is a negotiation guide, looking at some of the most common issues that arise in relation to design in the drafting and negotiation of building contracts. It looks at provisions that are commonly proposed during the negotiation of a building contract, at the issues that provisions that the employer includes in the draft building contract can cause for the contractor and how the contractor will typically respond to them. It also considers how, in order to be able to agree the building contract, the parties might be able to resolve these design-related issues and, where possible, reach a compromise position that is acceptable to them both.

This Practice Note does not focus on a particular form of building contract, the draft contract in which these issues could arise might be a standard form with Schedule of Amendments or a bespoke form of contract.

For ease of reference, this Practice Note uses the expressions ‘Employer’s Requirements’ (ERs) to refer to the document(s) produced by the employer to set out its requirements in relation to the project