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JCT Design and Build Contract 2024

08 May 2024  |  Legal Update

JCT Design and Build Contract 2024

The latest suite of JCT contracts are arriving, and we have been looking closely at what is likely to be one of the most commonly used forms, the Design and Build Contract.


The Joint Contracts Tribunal have not broken the mould with this updated version.

There are very few changes to core contractual mechanisms, such as payment or termination; rather, the updated form predominantly looks to recognise and incorporate, so far as necessary, changes which have occurred in the industry and legal landscape over the past eight years.

Noteworthy Amendments

Contractor Design Obligations and Fitness for Purpose

Where a ‘fitness for purpose’ clause is engaged in a construction contract, a designer’s design work must not only be carried out with reasonable care and skill but must also satisfy compliance with prescribed outcomes.

Such clauses are typically problematic in the context of mechanical and electrical works, where performance parameters well in excess of industry standard may be dictated by an employer, with a contractor potentially forced to incur additional unforeseen cost to achieve those standards.

The 2016 form of contract was somewhat ambiguous on a contractor’s fitness for purpose obligation, in so far as in the same clause 2.17 it stipulated on the one hand that work be completed “in accordance with the Employer’s Requirements”, and on the other that design liability be commensurate with that of an “architect or other professional designer”; i.e. ‘reasonable care and skill’.

The 2024 form now makes express provision to the effect that (i) the contractor’s design works shall be carried out with reasonable care and skill, and (ii) the contractor shall have no “duty, obligation or liability which requires that and such design shall be fit for purpose”

This will be a welcome change for contractors, but also for the professional indemnity insurance market which typically does not provide cover in the event of ‘fitness for purpose’ liability.

Extension of Time Mechanism

The contractual mechanism for dealing with extension of time claims has been slightly altered in favour of contractors, in so far as:

  1. A request by an Employer’s Agent for further information regarding a delay notification must now be made within 14 days of that notification being made, rather than “at any time”.
  2. A request must now be processed within 8 weeks (down from 12 weeks), starting from the later of (i) the Employer’s Agent’s receipt of a contractor’s notification, or (ii) the receipt of further information requested within the requisite 14-day window.

This is by no means a sea-change, but those acting as Employer’s Agent shall nevertheless need to be acutely aware of these subtle changes if they are to avoid the consequence of missed deadlines.

Additionally on the subject of delay, the JCT drafting committee[1] recently expressed the view that the contractual provision requiring the giving of notices by the Contractor for delay and/or loss and expense is not intended to operate as a condition precedent to payment in the un-amended form of contract.

This is consistent with the approach taken previously by the Courts on the subject of the JCT un-amended form of contract, and is welcome clarification. Whilst the matter shall ultimately remain a question of judicial interpretation, the committee’s view on that matter shall no doubt be influential.

The Apparent Response to COVID-19

The 2024 updates appear to recognise COVID-19 and its unprecedented impact on the construction industry through a series of changes which specifically address (i) epidemics, and (ii) changes to the law, or the publication of guidance, which “affect the execution of the Works”.

The latter category of amendment is particularly interesting, as it potentially goes some way further than the 2016 form which dealt only with circumstances where change of law necessitated “an alteration or modification to the Works”.

Does this mean that a contractor may now – for example – seek additional payment for the ‘Relevant Matter’ of UK government-imposed sanctions on other countries driving up material cost?

We may have to wait for the Courts to provide an answer.

Collaboration, Risk Allocation, and Dispute Resolution

In the 2024 edition we see greater emphasis placed on collaborative working and dispute resolution, with optional supplemental provisions dealing with ‘collaborative working’ and ‘notification and negotiation of disputes’ now elevated to mandatory level.

As previously, the dispute resolution provisions do not remove the right to refer a dispute to adjudication “at any time” but a failure to engage in an invitation to a meeting may be grounds to stay court proceedings or arbitration. Time will tell if Adjudicator’s will penalise a non-complying party in fees if one party complains that the other has not engaged.

Email Notices

The 2024 updates introduce the express option of allowing the service of notices by email.

Inexplicably however, the updates provide that where email service is allowed, notices sent by such mode shall not be deemed as received until the “next Business Day” after the day on which they are sent.

This is at odds with almost all forms of amendment to the 2016 edition tend to allow for deemed receipt on the same day as transmission (albeit often only if sent before 16:00).

It is difficult to imagine a scenario where one would knowingly opt for the 2024 mechanism over an amended or agreed notice by email provision. It is unfortunately easy however to imagine a scenario where an inexperienced party adopts the standard 2024 form, only to get caught out because they were not alive to the deeming provisions.

Notable Omission

It is increasingly common to see the JCT Design and Build Contract 2016 amended in such a way as to facilitate an approach whereby the employer (i) appoints a professional team to carry out a comprehensive design to be incorporated in the Employer’s Requirements, (ii) engages a contractor to assume all design liability for the Employer’s Requirements, and (iii) (sometimes) provides for novation of the professional team to the contractor.

The problem with this approach is that it is entirely contrary to the spirit of the standard form of design and build contract, and it is typically facilitated by way of broad-brush amendments which impose blanket liability with no regard for the contractual dead-ends and/or ambiguity arising therefrom.

It would have benefitted the industry greatly to see an option in the 2024 form of contract for the prevalent ‘absolute contractor risk’ approach to be adopted, but in a sophisticated manner which promotes transparency and better protects less sophisticated contractors.

Instead, we are likely to see more of the same style of amendments to this 2024 form, and more unnecessary disputes arising from the uncertainty and/or inherent unfairness they bring about.

Should You Update?

If you are currently operating an un-amended form of the JCT Design and Build Contract 2016 in your projects, then the risk associated with using new provisions not yet tested by the Courts shall be preferable to the risk of using a form of contract which is eight years out of date. You should update.

For everyone else, the un-amended form of 2024 contract is highly unlikely to achieve the same objectives as whichever form of amendments to the 2016 version you are currently operating, making a simple switch-over out of the question.

However, the 2024 form of contract provides a much better base on which to introduce amendments, and you should therefore be looking to move from an amended 2016 form to an amended 2024 form as soon as possible.

[1] JCT Committee Webinar 01 May 2024

James Rooney

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