JCT Design and Build Contract 2011 - what's new?

Most users considering the JCT Design and Build (DB) Contract 2011 will be familiar with the concept of a form of procurement that provides for the design to be developed up to a certain point by the employer and for it then to be developed and the project delivered by a contractor. It is useful to consider whether the method of working that this contract provides for suits your client and their project. The following factors will help in this decision:

Size of the project

JCT DB 2011 is not a contract for use on small projects. The DB form of contract tends to be used on larger projects where the value of the project, or its significance to the end user, justifies the level of administration and professional input required to manage the tender process and subsequent operation of the contract process right through to the end.

Judging which side of the threshold a project falls on is less an issue of the contract sum and more a balance of the skill, resources and experience of the employer, his or her professional team and the contractor.

Complexity and uncertainty

This is not a contract that provides for wholesale change and adaptation during the term of the contract. Making changes and adaptations has serious consequences for the outturn cost and time for the completion of the project. If the end user cannot determine or does not know what is required or advise on how it is to be delivered then this contract is likely to be unsuitable for the job. While there is always a cost to be paid by an employer who changes their mind about the scope of the works during the course of the project, this cost will be significantly higher if a design and build contract is used.

It is anticipated that the JCT DB 2011 will generally not be used on large scale civil engineering projects. It should be used where it is anticipated that there will not be much change to the design once the contractor has taken responsibility for it. Note that while this form of contract is frequently used when experienced parties contract for innovative structures or solutions, this is often led by the concept of transfer of design liability to the contractor and it is important that the requirements are clear and the degree of change minimised.

Team composition

A decision over the procurement method and form of contract lies with the employer who will have taken advice. Certain types of employer will be better disposed to a design and build form of procurement than others. If their familiarity and appreciation of the construction/development process is sufficiently advanced or they have appointed professional advisors they may be able to reap the benefits that design and build procurement offers of speed of delivery and certainty of outturn cost.

This tends to be contingent upon the employer’s own certainty of his or her goals and the extent to which the project he or she seeks tenders on delivers those goals. For those reasons design and build forms are favoured by professional developers and repeat customers. Such organisations will employ experienced professionals on their own staff or appoint them as consultants. Similarly the contractors are best placed to deliver the benefits of design and build both for themselves and their employer tend to be experienced and familiar with the type of project to be delivered.