Last month the Joint Contracts Tribunal (JCT) released its new suite of Design and Build Contracts 2024 (D&B Contracts). In this insight we discuss some of the key changes employers and contractors will need to be aware of on future construction projects.

The key areas of change can be summarised as follows:

• incorporating the new Building Safety Act 2022 and related legislation
• the Construction Playbook
• extensions of time & relevant matters
• new communications clauses.

Building Safety Act 2022 and related legislation

It is worth noting that the Building Safety Act 2022 (BSA) was wide-reaching; not only in terms of the legislation itself, but the changes it made to other legislation - namely the Building Regulations 2010 and the Defective Premises Act 1972.

A whole new regime relating to high-rise building safety has been introduced by the BSA (applying to buildings over 18m in height/7 storeys, with a minimum (in England only) of 2 residential units).

The high-rise regime has not been reflected within the new suite of JCT D&B Contract documents because the nature of the JCT itself is designed as a general building contract accessible for a range of projects. Where employers are dealing with projects involving high-rise buildings, bespoke amendments are still suggested to account for the BSA’s regime in order to represent matters ranging from the golden thread of information, to Building Safety Regulator approval (and subsequent issues that can arise such as delays to the programme).

The JCT D&B Contracts instead focuses on making explicit references to the new ‘dutyholder’ regime brought into the Building Regulations 2010 (via part 2A).

The dutyholder regime creates a list of roles (client, designer, principal designer, contractor, and principal contractor) who all have clear and specific obligations in respect of building safety throughout the lifecycle of the works. From the employer’s perspective (namely as ‘client’) this will be to ensure that the persons they are hiring to do the work are competent. Employers should carefully consider how they provide clarity about who takes each ‘role’.

Construction Playbook

The Construction Playbook was published in 2020, and updated in 2022. Its aim was to support recovery from Covid-19, to reform building practices, and to steer employers and contractors alike towards the construction of safer and ‘greener’ buildings.

The playbook itself contains a total of 14 key policies, with two themes:

• collaboration in the supply chain
• sustainability.

It was created for the public sector (where compliance is mandatory), but also serves as ‘best practice’ for the private sector.

In the 2016 JCT D&B Contract, parties could simply opt in or out via including the policies in supplemental provision 5 of the draft contract, whereas now the playbook forms part of Article 3 and is mandatory. Private sector employers will need to consider whether bespoke variations are needed to exclude policies (where inappropriate/not relevant) from Article 3.

Extensions of time/relevant matters

Under the JCT D&B Contracts, a contractor can request an extension of time from the employer where an event outside of their control happens. These events are defined under the contract as relevant events.

When the contractor encounters a relevant event they must make a written request to the employer setting out the relevant event and the amount of additional time they are requesting.

The employer then considers the request and has at that time an opportunity to request additional information for the request. Crucially, the JCT D&B Contracts has now placed a limit of 14 days for the employer to request additional information from the contractor. The 2024 contract has also shortened the overall time the employer has to decide whether to grant the extension to eight weeks under the JCT D&B Contract. Employers will need to be aware of these deadlines throughout the lifecycle of their projects, so as to not get caught out by lapsing extension of time requests, which if occur may lead to delayed completion.

A new relevant event has been inserted into the 2024 suite to account for epidemics, which has stemmed from the Covid-19 pandemic. Employers should give consideration to the contractor’s supply chain when considering the appropriateness of this relevant event. Epidemics are now also accounted for as a mutual termination event, and there is an option to include it as a relevant matter too (which would entitle the contractor to additional costs if it happens).

The ‘change in law’relevant event has also been expanded to not only include statutory powers, but also a statutory change or advice given by the Construction Leadership Council (CLC). Change in law is also now a relevant matter too and employers will need to be careful going forward to ensure that these expansions do not undermine the allocation of risk for upcoming changes in legislation affecting the works.

The ‘unforeseen conditions’relevant event and relevant matter now includes unexploded ordnances (UXO), contaminated materials and asbestos. Employers need to consider whether they have commercially agreed pre-construction due diligence with the contractor and the extent to which such due diligence has been agreed, as this will determine whether the expanded grounds for requesting time/money are appropriate.

Communication/execution

The general language of the JCT has been changed to gender-neutral language.

Communications clauses (for example service of notice) have been expanded to allow for the use of electronic communications (i.e. via email). Addresses for service will need to be accounted for in the contract particulars.

The execution clauses of the 2024 suite now explicitly recognise electronic signatures too.

How Capsticks can help

We are construction and building safety experts. We have extensive construction expertise and provide support to our clients from the development of their business case through to completion of the project. We work with our clients to support the development of their construction strategy and to appoint their professional team and build contractor.

We have experience of all of the industry standard form contracts such as NEC and JCT, as well as bespoke arrangements, sub-contracts, consultant appointments and collateral warranties.

To discuss how the new suite of JCT D&B Contract, could affect your projects, please get in touch with Spencer Vella Sultana or Wilton Thomas.