Negotiating a building contract—design issues

The following Construction practice note provides comprehensive and up to date legal information covering:

Negotiating a building contract—design issues
1. The draft building contract provides that the contractor will be responsible for the whole of the Employer’s Requirements
Employer’s position
Contractor’s position
Compromise/negotiated resolution
2. The draft building contract provides that the contractor confirms that the Employer’s Requirements are satisfied by the Contractor’s Proposals
Employer’s position
Contractor’s position
Compromise/negotiated resolution
3. The draft building contract provides that the contractor is responsible for all design in respect of the works, including that in the Employer’s Requirements

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Employer’s position
Contractor’s position
Compromise/negotiated resolution
4. The draft building contract provides that the contractor is responsible for inconsistencies/discrepancies that occur in/between the Employer’s Requirements and the Contractor’s Proposals
Employer’s position
Contractor’s position
Compromise/negotiated resolution
5. The draft building contract provides that the contractor will exercise the reasonable skill and care expected of a designer experienced in projects of a similar size, nature, complexity etc as the works which the contractor is engaged to carry out
Employer’s position
Contractor’s position
Compromise/negotiated resolution
6. The draft building contract provides that the contractor will exercise all reasonable skill and care in relation to the design of the works
Employer’s position
Contractor’s position
Compromise/negotiated resolution
7. The draft building contract provides that the contractor will exercise the standards of skill and care reasonably to be expected of a ‘contractor’ or ‘design and build contractor’ experienced in carrying out works of a similar scale, nature and value to the works
Employer’s position
Contractor’s position
Compromise/negotiated resolution
8. The draft building contract provides that the contractor will design the works in compliance with performance criteria/other technical specifications
Employer’s position
Contractor’s position
Compromise/negotiated resolution
9. The draft building contract provides that a BIM Protocol will take precedence over the terms of the building contract
Employer’s position
Contractor’s position
Compromise/negotiated resolution
10. The draft building contract requires the contractor to take responsibility for design carried out by a consultant who is not being novated to it
Employer’s position
Contractor’s position
Compromise/negotiated resolution
11. The contractor has requested that the building contract should include a cap on its liability in respect of its design
Employer’s position
Contractor’s position
Compromise/negotiated resolution
12. The draft building contract provides that the contractor waives its right to make a claim under Chapter IV of Part I of the Copyright, Designs and Patents Act 1988
Employer’s position
Contractor’s position
Compromise/negotiated resolution

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 and ‘Contractor’s Proposals’ (CPs) to refer to the document(s) produced by the contractor setting out its proposals for the delivery of the project set out in the employer’s requirements (usually submitted to the employer as part of its tender). These are the expressions used in the JCT suite

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