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A New Construction Contract for the 21st Century: Contractor Design

SERIES ARTICLE

By Keith Pickavance

London, UK
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Introduction

The old adage that the more complete the design before commencement of a project the less likely it is to end up in delay and dispute is not always remembered by those concerned with complex construction and engineering projects. They may appreciate its inherent good sense, but they will also be aware that it is difficult to apply it on projects that can be conceived many years before design commences and designed and constructed over many succeeding years during which needs, technology and methods change.

Contractors are almost always responsible for fabrication design and, because of the highly technical and specialized nature of 21st century construction operations, it is common to require the Contractor to take responsibility for much of the detailed design, if not also the conceptual design.  It is thus surprising that, whilst so much delay and dispute concerns continuing design,  the current standard forms of contract contain so little concerning the control of design development during construction. Most current forms do not even require the design process to be planned. Nothing is mentioned, for example in the JCT, FIDIC EPC (Silver Book) or NEC3 about continuing design obligations. The JCT design and build form doesn’t even require the Contractor to produce a schedule for the construction of the works, let alone continuing design. The FIDIC Plant Design and Build form (Yellow Book) is unusual in this respect in requiring the schedule to include “the anticipated timing of each stage of design”. However, it fails to say what is meant by a stage of design, so even that is not much help.

Even where a specification requires the design or fabrication processes to be distilled to a schedule the requirement is nearly always that such design or fabrication is to be provided as a separate schedule not linked to the construction schedule, and without any, or any substantial redress for non-compliance.

If a schedule is to react to change and delay then the constituent elements of design, off-site fabrication, procurement, delivery, on-site fabrication and on-site installation need to be integrated into the same schedule, whether it relates to the permanent or temporary works.

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Editor’s note: This is the 6th article in a series by Keith Pickavance about the CIOB’s new contract for complex construction projects. For information about the new contract, visit http://www.ciob.org.uk/CPC.  The full article includes footnotes for quotations and section references.

About the Author

keith-pickavanceflag-ukKeith Pickavance

Keith Pickavance first qualified as an architect in 1972 and then in 1978 obtained a law degree. After 20 years as an architect in private practice the last 10 years of which also involved construction management, dispute resolution and expert witness services, in 1993 he joined an American company specialising in forensic services and delay analysis. In 1996 he set up on his own again specialising in delay analysis and time management in London and Hong Kong. That practice was acquired by Hill International in 2006, an international construction management and claims consultancy with which he is now appointed an Executive Consultant.

He is a Past President of the Chartered Institute of Building and has led the CIOB’s time management initiative since its inception in 2007.

He is the author of Delay and Disruption in Construction Contracts (4th ed., 2010, Sweet and Maxwell) and numerous other books and articles on delay related issues.

Contact [email protected]