JCT contract selection considerations

Nature of the works

Most UK standard construction forms are prepared by and for specific parts of the construction industry. These standard forms, therefore, reflect aspects of these sectors and are often drafted to accommodate the requirements of these sectors.

The JCT forms were drafted for and are meant for use in general building/construction work particularly in the private/commercial sector. These forms can still be used in other sectors but where such 'transference' occurs, it will be important you understand the contract philosophy of the appropriate form to ensure they are appropriate for the requirements of your project and if necessary amend the contract accordingly.

That said, the JCT is probably unsuitable for works which are mainly:

  • rail or road related;
  • civils or earthworks;
  • landscape or archaeological;
  • ecological or environmental; or
  • mechanical or electrical plant/installations.

Sustainability and environmental concerns

Sustainability and environmental issues are now becoming key concerns of the government and many clients. Traditionally such matters were normally dealt with via the design and specification parts of a construction contract but in recent years this issue has been seen as something so important it should form part of the procurement process and the terms in a standard form.

This is an area of contract that is developing fast and the thinking on this matter changes rapidly. Practitioners will need to keep up to date on this matter and find out what is their client's view on the matter. Often clients will want their corporate environmental policy included in the construction contract although these documents are not meant to be legal documents and will usually be inconsistent with the contract terms. Great care should be taken before including such documents in the contract. Some points to consider:

  • What is this environmental policy trying to achieve?
  • Are the clauses aspiration or do they set particular targets?
  • Can these objectives work with the contract provisions or would they be better being kept outside the contract?
  • What are the cost and other implications of failing to meet targets?
  • Should the sustainability obligations or targets be stepped down to any subcontractors?

Improving environmental performance is probably best achieved via environmentally sensitive design and procurement processes that favour environmentally friendly contractors and construction. Early contractor and supply chain involvement will help, as will value engineering and rewarding the contractor for proposing changes that result in enhanced environmental design. There may well be a short-term cost and quality implication for procuring the works on a sustainable basis (e.g. restricting opportunities to only those contractors/subcontractors local to the site) which will need to be balanced against the wider benefits of such an approach.

Early contractor involvement (2-stage tendering, for example) usually comes out of the procurement process and provisions for using contractor design or encouraging contractor lead value engineering can be found in many contracts (for example, see JCT 2016 Supplemental Provisions Schedule).

There are a variety of sources of information on this subject, particularly from government sources. Examples are:

Construction programmes

There is considerable debate on whether construction programmes (usually a hard copy of a bar chart or critical path analysis - see Planning and programming) should be included in the contract document. There is no direction on the matter in the Society of Construction Law's Delay and Disruption Protocol (2002) although it notes that a contractor's tender programme is often insufficiently developed to be the works programme.

The matter often depends on the view and preferences of the client's project manager and is often included on design and build projects or where there is a hint of fast tracking on a project. Often the contractor will be keen to include the tender programme in the contract arguing that it reflects his or her tender proposals/tender price.

There is a concern that a programme in a contract could be become a defined and contract-required sequence of work for the project and any change to this sequence requires a variation order. Moreover, the programme could reduce project flexibility, set inflexible dates for consultant/contractor interfaces (the supply of drawings, for example) and form the basis for contractor claims.

The JCT contracts give no guidance on the above matters and there is minimal direction on how to deal with or update the contract programme (normally called the 'master programme' in the JCT conditions) during the course of the works.

A programme that is included in a contract is likely to have a certain status although what this status will be is unclear under JCT contracts. It may be the master programme and may reflect the contractor's tender and planned method of work. Alternatively it may be just a guideline to the construction works and can be changed without too much formal contract administration. If a programme is to be included in the contract, then it would be wise to clarify some of the above points and the status of this programme.

In other forms, however, particularly the NEC3, there is a requirement that the programme is incorporated into the contract, and for that programme to be regularly updated and maintained with actual progress.