Design and Build Contracts

List of Figures xiii

List of Tables xv

List of Cases xvii

Preface xix

1 Introduction 1

1.1 Some Types of 'Design and Build' 1

1.2 The Nature of Design and Build 2

1.3 A Brief History of Design and Build Contracts 4

1.4 Recent Developments in Design and Build 5

1.5 How to Use This Book 6

2 Construction Contracts 7

2.1 General 7

2.2 The Structure of a Construction Contract 7

2.3 Fairness as a Concept 14

Part I 19

3 Design and Build as Originally Intended 21

3.1 The Parties' Primary Obligations Under a Design and Build Contract 21

3.2 The Employer's Representative 24

3.3 The Relationship Between the Employer's Requirements and the Contractor's Proposals 26

3.4 The Employer's Requirements 29

3.5 The Contractor's Proposals 34

3.6 The Pricing Document 41

4 Consultants and the Employer's Representative 55

4.1 Means of Appointing Consultants 56

4.2 Obligations and Services 58

5 Procurement and Tendering 73

5.1 Procurement 73

5.2 Tendering 75

5.3 Types of Tender Processes 79

5.4 Early Contractor Involvement 83

5.5 Tender Returns and Evaluation 91

5.6 Contractor Selection and Appointment 94

6 Subcontracting 97

6.1 General 97

6.2 Domestic Subcontractors 103

6.3 'Nominated' or 'Named' Subcontractors 106

6.4 Early Subcontractor Involvement 114

7 Collateral Warranties, Third-Party Rights, Bonds, and Guarantees 117

7.1 General 117

7.2 Collateral Warranties 119

7.3 Third-Party Rights 123

7.4 Bonds and Guarantees 125

8 Construction133

8.1 General 133

8.2 Commencement 135

8.3 Completion in Sections (Subdividing the WholeWorks) 138

8.4 Progress 144

8.5 Acceleration 152

8.6 Programme 156

8.7 Interim Payments 162

8.8 Variations 178

8.9 Valuation (or Assessment) of Variations 196

8.10 Extensions of Time 212

8.11 Additional Costs (Loss and Expense) 225

8.12 Testing and Defects 229

9 Concluding the Contract 243

9.1 Termination 243

9.2 Obligations Prior to Completing the Physical Works 265

9.3 Meaning of 'Completion' 269

9.4 Damages for Late Completion 278

9.5 Rectification or Completing Outstanding Works After Completion 286

9.6 Final Account 298

9.7 Resolving Disputes 313

9.8 Concluding the Contract 330

Part II 335

10 Design and Build in Its Current Form 337

10.1 Reduction of the Contractor's Design 337

10.2 Novation of Design Consultants 339

11 Common Amendments to Design and Build Contracts 347

11.1 Project-Specific Amendments 348

11.2 Amendments with a Practical Benefit 349

11.3 Increased Liability for Contractor's Design 350

11.4 Reduced Employer's Risk/Increased Employer's Benefit 352

11.5 Reduced Contractor Rights (Not Design Related) 353

11.6 Increased Benefits to the Contractor 355

11.7 Clarifications 356

12 Possible Future Development in Design and Build 359

12.1 Continuing Trend of Reducing the Extent of Contractor Design 359

12.2 Novation of Design Consultants 361

12.3 Detailed Pricing Documents 362

12.4 Detailed Procedures for Testing and Commissioning 363

12.5 CollateralWarranties (FIDIC and NEC4) 365

Appendix A JCT Design and Build Contracts Reconciliation 367

Appendix B FIDIC Yellow Book Reconciliation 381

Appendix C NEC Engineering and Construction Contract (ECC) Reconciliation 387

Index 395