Guide to DB05: Guidance on Hiring an Architect for Your Project

196 Pages·2009·0.97 MB·English

by  Sarah Lupton

Guide to
DB05

Guide to
DB05
JCT Design and Build Contract (DB)
Sarah Lupton
© Sarah Lupton, 2009
Published by RIBA Publishing,
15 Bonhill Street, London EC2P 2EA
ISBN 978 1 85946 269 0
Stock code 61861
The right of Sarah Lupton to be identified as the Author of this Work
has been asserted in accordance with the Copyright, Designs and
Patents Act 1988 Sections 77 and 78.
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any
means, electronic, mechanical, photocopying, recording or otherwise,
without prior permission of the copyright owner.
British Library Cataloguing in Publications Data
A catalogue record for this book is available from the British Library.
Publisher: Steven Cross
Commissioning Editor: James Thompson
Project Editor: Alasdair Deas
Editor: Andrea Platts
Designed by Casciani Evans Wood
Typeset by Academic + Technical Typesetting, Bristol
Printed and bound by MPG Books, Bodmin
While every effort has been made to ensure the accuracy and
quality of information in this publication, the Publisher accepts no
responsibility for the subsequent use of this information, for any errors
or omissions that it may contain, or for any misunderstandings arising
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v
Foreword
Design and build procurement routes, in which the employer engages a single contractor
to prepare and/or complete the design and construct the works, now account for around
35 per cent of all construction contracts in the UK, and increasingly are the preferred
method of procurement. The desire of many clients to secure single-point responsibility is
compelling, but the extent to which this is achieved using design and build needs to be
understood. This guide will assist with this point and with many other practical and legal
issues surrounding the JCT Design and Build Contract (DB05). This contract was issued
in 2005 as a revision to WCD98, adopting a more logical layout and a clearer style, while
reflecting current working practices, new legislation and a new body of case law. This
guide covers these changes and the subsequent revisions to the 2005 edition, including
those contained in Revision 2 issued in May 2009.
Written in straightforward language, Sarah Lupton’s Guide to DB05 takes the lead from her
excellent Guide to WCD98, to provide a clear, comprehensive and thoroughly up-to-date
analysis of the form of contract. The contract’s provisions, procedures and supplementary
conditions are spelled out authoritatively and are organised by theme, as the guide points
out the important new changes in the contract and illustrates the practical effects of the
wording with concise and helpful case studies. The hard-pressed practitioner familiar
with the now superseded form will be pleased to see the useful indexes and clause
comparison tables, comparing the new form with the old, and will doubtless come to
depend on being able to dip quickly into the guide for specific help during the course of
a project.
As well as being an indispensable guide for practitioners, I would also thoroughly
recommend it to both architecture and other construction students on the threshold of
undertaking their professional examinations. Sarah Lupton’s rare combination of being a
legally trained architect who also runs the MA in Professional Studies at Cardiff University
makes this guide the ideal student companion.
Professor Peter Hibberd
Chairman, The Joint Contracts Tribunal
May 2009

vii
Contents
Foreword v
About the Guide xi
1 Introduction to design and build procurement 1
The architect’s role 3
Novation 3
Consultant switch 4
Some general principles of design liability 7
2 About DB05 11
Key features 12
Deciding on DB05 13
Comparison with SBC05 14
Comparison with WCD98 15
3 Documents 19
Employer’s Requirements 20
Contractor’s Proposals 22
Contract Sum Analysis 23
Health and safety documents 23
Bonds 24
Sub-contract documents 24
Domestic sub-contracts 24
Use of documents 25
Interpretation, definitions 25
Priority of contract documents 26
Discrepancies and errors 26
Custody and control of documents 29
Assignment and third party rights 29
Assignment 29
Third party rights/warranties 30
Procedure with respect to third party rights and warranties 32
4 Obligations of the contractor 33
The design obligation 33
Standards and quality 39
Obligations in respect of quality of sub-contracted work 41
Compliance with statute 42
Health and safety legislation 43
5 Possession and completion 47
Possession by the contractor 47
Progress 48
Completion 49
viii Guide to DB05
Pre-Agreed Adjustment 51
Extensions of time 51
Principle 51
Procedure 52
Assessment 56
Partial possession 58
Use or occupation before practical completion 59
Practical completion 61
Procedure at practical completion 63
Failure to complete by the Completion Date 64
Liquidated and ascertained damages 64
6 Control of the Works 69
Employer’s agent 69
Person-in-charge 69
Site manager 69
CDM co-ordinator 70
Employer’s obligations 70
Information to be provided by the contractor 74
Design Submission Procedure (Schedule 1) 75
Employer’s instructions 77
Changes 80
Goods, materials and workmanship 82
Defective work 82
Sub-contracted work 84
Named sub-contractors 85
Work not forming part of the contract/persons engaged by the employer 87
Making good defects 87
7 Sums properly due 91
Valuation of Changes in the Employer’s Requirements and provisional
sum work 92
Supplemental Provision 4: contractor’s estimate 93
Cost saving and value improvement 93
Valuation under the Valuation Rules 94
Measurable work – Contract Sum Analysis 94
Daywork – fair valuation 95
Reimbursement of direct loss and/or expense 95
Alternative procedure using Supplemental Provision 4 estimate 97
Alternative procedure using Supplemental Provision 5 estimate 97
Matters for which loss and expense can be claimed 98
Fluctuations 101
8 Payment 103
Ascertainment of amounts due 103
Unfixed and off-site materials and goods 105
‘Listed items’ 107
Deductions from the gross valuation 107
Withheld percentage 107
Advance payments and bond 108
Payment procedure 108
Contents ix
Deductions 109
Employer’s obligation to pay 110
Contractor’s position if the amount applied for is not paid 111
Interim payment on practical completion 111
Final payment 112
Conclusive effect of Final Statement 113
9 Indemnity and insurance 115
Injury to persons and damage to property caused by the negligence of
the contractor 115
Damage to property not caused by the negligence of the contractor 118
Insurance of the Works 118
Action following damage to the Works 119
Joint Fire Code 120
Terrorism Cover 121
Professional indemnity insurance 121
Other insurance 121
10 Default and termination 123
Repudiation or termination 123
Termination by the employer 124
Specified defaults 126
Insolvency of the contractor 127
Consequences of termination by the employer 128
Termination by the contractor 130
Consequences of termination by the contractor 131
Termination by either the employer or the contractor 131
Termination of named sub-contractor’s employment 133
11 Dispute resolution 135
Notification and negotiation 135
Mediation 135
Adjudication 136
Arbitration 138
Arbitration and adjudication 140
Arbitration or litigation 140
Appendix A: Clause comparison table: Destinations 143
Appendix B: Clause comparison table: Origins 161
References 173
Publications 173
Cases 173
Clause Index 175
Subject Index 179