Design and build (D&B) construction procurement relies on a project’s main contractor shouldering the responsibility for creating the design and executing the construction for a project. While the extent of contractor-produced design can vary, this method of construction procurement affords the contractor a greater level of input and responsibility than traditionally procured contracts (where the employer has greater design responsibility). Over the last decade in the UK, it has become clear that D&B contracts are becoming the most popular method for procuring construction projects; often echoing the ways in which contracts for infrastructure and process plant can be procured.
Whilst D&B can provide a greater degree of contractor input for producing feasibility and concept designs, then the detailed design to deliver a project, many clients amend standard forms of D&B contracts to alter the contractors’ design input. This can significantly change D&B, deviating from the procedures set out in the standard forms of D&B contract.
This book firstly takes the reader through each stage of a project (based upon the RIBA Plan of Work 2020) to provide guidance on how D&B contracts were intended to operate, then secondly, identifying how D&B contracts and their procedures have changed.
Readers will find: - Outline commentary and guidance on commonly used standard forms of D&B contract, including: JCT Design and Build 2016; FIDIC Conditions of Contract for Plant Design-Build 2017; and NEC4 - How each D&B contract is intended to operate during each stage of the RIBA Plan of Work 2020 - How the operation of D&B contracts and their procedures are often amended.
An ideal resource for contractors, employers, and consultants, as well as those studying construction at university, Design and Build Contracts offers helpful commentary and guidance for how each stage of a D&B engineering or construction project should progress.
Table of Contents
List of Figures xiii
List of Tables xv
List of Cases xvii
Preface xix
1 Introduction 1
1.1 Some Types of 'Design and Build' 1
1.2 The Nature of Design and Build 2
1.3 A Brief History of Design and Build Contracts 4
1.4 Recent Developments in Design and Build 5
1.5 How to Use This Book 6
2 Construction Contracts 7
2.1 General 7
2.2 The Structure of a Construction Contract 7
2.3 Fairness as a Concept 14
Part I 19
3 Design and Build as Originally Intended 21
3.1 The Parties' Primary Obligations Under a Design and Build Contract 21
3.2 The Employer's Representative 24
3.3 The Relationship Between the Employer's Requirements and the Contractor's Proposals 26
3.4 The Employer's Requirements 29
3.5 The Contractor's Proposals 34
3.6 The Pricing Document 41
4 Consultants and the Employer's Representative 55
4.1 Means of Appointing Consultants 56
4.2 Obligations and Services 58
5 Procurement and Tendering 73
5.1 Procurement 73
5.2 Tendering 75
5.3 Types of Tender Processes 79
5.4 Early Contractor Involvement 83
5.5 Tender Returns and Evaluation 91
5.6 Contractor Selection and Appointment 94
6 Subcontracting 97
6.1 General 97
6.2 Domestic Subcontractors 103
6.3 'Nominated' or 'Named' Subcontractors 106
6.4 Early Subcontractor Involvement 114
7 Collateral Warranties, Third-Party Rights, Bonds, and Guarantees 117
7.1 General 117
7.2 Collateral Warranties 119
7.3 Third-Party Rights 123
7.4 Bonds and Guarantees 125
8 Construction133
8.1 General 133
8.2 Commencement 135
8.3 Completion in Sections (Subdividing the WholeWorks) 138
8.4 Progress 144
8.5 Acceleration 152
8.6 Programme 156
8.7 Interim Payments 162
8.8 Variations 178
8.9 Valuation (or Assessment) of Variations 196
8.10 Extensions of Time 212
8.11 Additional Costs (Loss and Expense) 225
8.12 Testing and Defects 229
9 Concluding the Contract 243
9.1 Termination 243
9.2 Obligations Prior to Completing the Physical Works 265
9.3 Meaning of 'Completion' 269
9.4 Damages for Late Completion 278
9.5 Rectification or Completing Outstanding Works After Completion 286
9.6 Final Account 298
9.7 Resolving Disputes 313
9.8 Concluding the Contract 330
Part II 335
10 Design and Build in Its Current Form 337
10.1 Reduction of the Contractor's Design 337
10.2 Novation of Design Consultants 339
11 Common Amendments to Design and Build Contracts 347
11.1 Project-Specific Amendments 348
11.2 Amendments with a Practical Benefit 349
11.3 Increased Liability for Contractor's Design 350
11.4 Reduced Employer's Risk/Increased Employer's Benefit 352
11.5 Reduced Contractor Rights (Not Design Related) 353
11.6 Increased Benefits to the Contractor 355
11.7 Clarifications 356
12 Possible Future Development in Design and Build 359
12.1 Continuing Trend of Reducing the Extent of Contractor Design 359
12.2 Novation of Design Consultants 361
12.3 Detailed Pricing Documents 362
12.4 Detailed Procedures for Testing and Commissioning 363
12.5 CollateralWarranties (FIDIC and NEC4) 365
Appendix A JCT Design and Build Contracts Reconciliation 367
Appendix B FIDIC Yellow Book Reconciliation 381
Appendix C NEC Engineering and Construction Contract (ECC) Reconciliation 387
Index 395
