Where Construction Contracts include design, my experience is that the success or failure of the project typically hinges on the success of the design period.
At tender stage, understanding, and successfully negotiating a favourable Design Management Process will help you to plan and deliver the project.
So why is the Design Management Process paid lip service when negotiating the contract? It certainly shouldn’t be…
Where is the Design Management Process?
Some Main Contractors and Employers will include a bespoke Design Management Plan for their project as part of the Numbered Documents, so always keep an eye out for these. In the JCT, head over to Schedule 1 in the back of the Conditions and you will find the “Contractors Design Submission Process”.
If there is both a project specific document in the Numbered Documents and the standard Schedule 1, remember to check which is ranked higher – it is almost always the Schedule (See Order of Precedence for more information on this).
What are the important elements in this Schedule?
With Design, the most important thing – and it may sound obvious – is the programme. My own experience is that design gets delayed for two main reasons:
- The Client doesn’t provide their comments on time; or,
- The Client gives lots of comments that require resubmission of the drawing
It is therefore vital that you understand what the Contract says about both issues and we shall explore the first item this week.
1. When Should the Client be Commenting
The Standard Form reads like this:
Within 14 days from the date of receipt of any Contractor’s Design Document … the Employer shall return one copy of the Contractor’s Design Document…
So, the Standard Form clearly states that, 14 days (2 weeks) after you issue drawings you should receive either A, B or C Status from your client.
What happens if they don’t respond on time?
If the Employer doesn’t respond to a Contractor’s Design Document in the time stated, it shall be regarded as Marked A
It couldn’t be simpler, if they’re don’t respond on time, you get A Status.
The JCT recognises the importance of programme and if all parties don’t act on time, things must still progress or the whole project stops.
So how can I help myself at tender Stage?
At tender stage check two things as a priority:
- Check how long the Client has to respond to drawings? Is it 2 weeks?
- If it is longer, negotiate it back to the Standard Form and insist that 2 weeks is enough time for comments on drawings (it definitely is!!)
- Check what happens if the Client doesn’t provide comments on time. If this happens, it is important that the contract allows you to consider the drawing A Status. Do not relax this condition as it will only bite you if you do!
Both points are as important as each other and more to the point, your insistence on either point is not unreasonable. You’re not changing the industry standard, simply asking for the standard. Remember the JCT was drafted to be balanced for all parties.
Negotiating your contract to mirror this should not be controversial.
If you want to read up further on Design & Build Contracts, we’ve created a free ebook which you can download here.