CREDIT: Jason Farnell, Commercial Risk Management
In an un-amended JCT design and build sub-contract, the specialist Contractor’s obligation in respect of design is to ‘complete the design’ for the sub-contract works, including the selection of the specification of materials if not described in the Contractor’s Requirements or the specialist’s own proposals; and also to comply with directions for integration of its design with the design of the overall work. Meaning that the specialist is responsible for the design of that element of the project for which it has the obligation to design, in the knowledge that it has to be compatible and work in the context of the project as a whole.
Since design & build style contracting first became popular, there has been an increasing reliance by Client design teams and Contractors on designs being undertaken by specialists, particularly in highly engineered packages (e.g. Mechanical, Electrical & Public Health; frames; curtain walling & glazing; lifts; controls; AV; lighting; etc). The designing specialist’s responsibility for design, the ‘standard of care’ owed, mirrors the Contractor’s under the Main or Head Contract, that is the ‘reasonable skill and care’ of an ‘architect or other appropriate professional designer’ – this is an important definition since it is a legally recognized standard by which the competence of the specialist’s design performance is measured. Any complaints about the adequacy of the design which is produced by the specialist would need to establish that there has been a failure to design in accordance with the standard to be expected of a reasonably competent architect, or other professional designer, in order to succeed.
How often is the standard form sub-contract offered in its un-amended state? From my experience, rarely and bespoke amendments vary from minor tinkering to wholesale redrafting imposing onerous obligations. Added to this is the specialist’s position in the contractual chain, being at least one step removed from the Client, usually means there with be a further tier of documents and management & administrative requirements being imposed by the Main Contractor.
When design & build style contracting first became popular, it was envisaged that there would be two sets of designers; the Client’s team which would have developed the basic design for planning consent and procurement; and the Contractor’s designers who would develop the basic design, complete it and build it. This is still enshrined in the JCT contact with the now familiar terms ‘Employer’s Requirements’ and ‘Contractor’s Proposals’ – the ‘What’ and the ‘How’ if you like of the project design. This is seldom however implemented as the Joint Contracts Tribunal intended it to be. Frequently the designers are novated to the Contractor, with responsibility then being transferred to the Contractor as if it had developed the design from the outset, not just the completion of the outstanding detail that remained to be done when the Contract was placed. Inevitably the Contractor will seek to pass on its obligations in respect of design to the designing specialist.
Being remote from the Client and the Contract which has been placed with the Main Contractor, the designing specialist needs to be particularly vigilant to understand the obligations which are expressly placed upon it through the sub-contract and also any that it might be ‘deemed’ to be responsible for due to provisions buried in the Main Contractor’s standard terms and conditions. The specialist should ensure that its PI insurers are fully aware of the design responsibilities that are being imposed, particularly as the specialist is likely to be remote from the initial contract negotiations, and should only accept obligations which it can deliver upon. Standard design and build sub-contracts are far from straightforward, compound this with amendments and proceed with caution!
Compliance with the design approval process is a major area upon which specialists frequently flounder, through failing to adequately define information which is needed in order for the specialist design to be produced, whether from consultants or other specialists, and to define manufacturing and procurement lead-times. The sub-contract should fully articulate both the extent of design, interfaces and co-ordination responsibilities and the relationship between off-site design and procurement activities with on-site production and installation periods. It is therefore essential to document information flows and approvals so that any breaks in the communication chain can be identified.
Specialist contractors are repositories of expertise, engaged for the detailed designing skills that they can contribute to a project – that is what they bring. A caution – watch out for the pass-through of risk.