Introduction to JCT Design and Build

The JCT Design and Build Contract was updated in 2016. This section is based on the 2016 version of the contract, highlighting changes from the 2011 version. The general layout of the contract remains the same.

The main purpose of the 2016 update of the contract was to incorporate changes under the Construction (Design and Management) Regulations 2015, The Public Contracts Regulations 2015, the government’s fair payment charter and the Insurance Act 2015, along with the JCT practice note on building information modelling (BIM).

The JCT first produced a standard form contract for the design and build method of procurement in 1981. The longstanding conditions of the current version (JCT Design and Build Contract 2016) are well established and widely used by those undertaking construction projects where the contractor is to design and build a project.

It is commonplace for standard form building contracts, such as the JCT Design and Build 2016, to be modified by a schedule of amendments. In practice, employers will often use such a schedule of amendments to allocate risk between the employer and the contractor in a manner which is more acceptable to the employer.

Design and build procurement can offer the employer a single point of responsibility for design and construction, i.e. the contractor may be liable to the employer for the whole of the design and construction of a project.

The extent to which single-point responsibility is achieved will depend on the terms of the building contract.

Under the JCT Design and Build 2016, full single-point responsibility is not achieved because:

• the employer may have to pay the contractor to remedy inadequacies in the employer's requirements or any discrepancies within the employer's requirements; and
• the contractor is not liable for the contents of the employer's requirements, including any design in the employer's requirements.

The standard form is, therefore, often amended to reflect a greater degree of single point responsibility which is usually required by employers.

Novation

When using design and build procurement, the employer inevitably foregoes some control over design. To counter this loss of control, the employer will rarely use design and build in its purest form and will instead commonly specify his or her needs in considerable detail in the employer's requirements.

To assist with the preparation of employer's requirements which accurately reflect the employer's design needs, the employer will appoint a design team prior to the appointment of the contractor.

Following the tender process and the appointment of the contractor, the employer may novate his design team to the contractor who will be required to complete the design using the same professional team.

Novation essentially creates a new contract between the contractor and the design team under which the contractor agrees to perform all the obligations of the design team (and sometimes to assume liability for prior breaches) in return for the employer being released from its commitment to the professional consultants.

A novation will take the form of a tripartite agreement between the original contracting parties and the contractor.

Employer's agent

JCT Design and Build 2016 is administered by an employer's agent appointed by the employer. The employer's agent does not have to be independent of the employer and may even be an employee of the employer. However, the employer's agent must follow the terms of the contract, for example, by independently considering applications for extension of time.

Structure of conditions

The conditions of the JCT Design and Build 2016 are arranged as follows:  

• section 1 - definitions and interpretation;
• section 2 - carrying out the works;
• section 3 - control of the works;
• section 4 - payment;
• section 5 - changes;
• section 6 - injury, damages and insurance;
• section 7 - assignment, third party rights and collateral warranties;
• section 8 - termination; and
• section 9 - settlement of disputes.