JCT Design and Build Contract documents

Article 1 incorporates the contract documents into the contractor's obligations. The contract documents are defined in clause 1.1 as the agreement, the conditions, the employer's requirements, the contractor's proposals, and the contract sum analysis.

The contract documents govern the level of design responsibility that the contractor is to have and can act as guidance when assessing whether the contractor has fulfilled his or her obligations.

Custody of the contract documents is to remain with the employer but they are to be available at all reasonable times for inspection by the contractor.

The first recital sets out the work to be undertaken by the contractor (the works). This brief description is expanded upon in the employer's requirements, which are incorporated into this definition of the works by clause 1.1.

The employer's requirements are a set of instructions that the employer provides to the contractor setting out the standards that are to be satisfied when designing and constructing the building. The employer's requirements should be confirmed prior to execution of the contract as although modifications can be made once the contract is in force, such adjustments are construed as a 'change' under clause 5.1.1 (clause 2.12).

As the contractor is not responsible for either the content of the employer's requirements or for verifying the adequacy of any design within them (clause 2.11) it is the employer that is liable for the consequences of a 'change'. Design and build contracts do not therefore inherently relieve the employer from ‘all design’; retaining responsibility for any deficiencies in the underlying design. These consequences may include a claim for an extension of time (clauses 2.24; 2.25; 2.26.1) and for loss and/or expense (clause 4.20) by the contractor.

An exception to this occurs where the contractor identifies a divergence from statutory requirements in the employer's requirements or the contractor's proposals. If such a divergence arises, the contractor is to give written notice to the employer specifying the divergence and proposing an amendment to remedy it (clause 2.15.1). With the employer's consent, the contractor is to complete the design and construction of the works in accordance with this amendment at its own cost.

Contractor's proposals

The second recital incorporates the contractor's proposals and the contract sum analysis into the contract. The contractor's proposals are the contractor's response to the employer's requirements outlining how the contractor intends to satisfy the standards and requirements set out by the employer.

If there are any discrepancies or divergences in the contractor's proposals, the contractor is to notify the employer (clause 2.13), who will recommend how to resolve the situation. The contractor is to implement the employer's recommendation at its own cost (clause 2.14.1).

If the discrepancy lies in the employer's requirements, it is the contractor's proposals which prevail. If the discrepancy is not dealt with in the contractor's proposals or any of the construction information (as defined in clause 2.8), the employer is to modify the employer's requirements, which will be construed as a change (clause 5.1), potentially giving rise to claims for extensions of time and/or loss and expense.