 |
|
|
DESIGN AND BUILD DISPUTES Much has been written about partnering, teamwork, new forms of contract and other progressive ideas designed to reduce conflict whilst improving efficiency within the construction industry. Working in construction dispute resolution and seeing at first hand the type of disputes that arise and the motivating factors that underpin such disputes has made me appreciate that there is more to reducing conflict than simply introducing a new form of contract. Sad as it is to report, practical experience has demonstrated that many of the disputes I have been involved in emanate from poor management and an inability to get the basics right. This applies to both the professional team and contracting organisations and can affect the commercial viability of projects, either by inflating the Client's budget such that he (or rather his professional team) is forced to act in a manner that is not harmonious with the idea of "mutual trust and co-operation" or the Contractor is forced to advance poorly particularised claims in a bid to recover his trading position. One area where I have seen some basic "clangers" being dropped is within the context of design and build contracts and that fruitful area of disputes, the demarcation of design responsibility. When using the JCT Standard Form circumstances may dictate the use of a Contractor Design Portion (CDP) to transfer design responsibility to the Contractor for specified elements of the work. Under JCT 2005 with a CDP Clause 2.2 states: Where the Works include a CDP, the Contractor shall:
The basic requirement of the professional team is to get the description of the works that form the Contractor Design Portion right. If it doesn't adequately describe the full scope of the Contractor's design then there is potential for dispute. The rule, in essence, is that the Contractor designs what the words say he is to design, no more and no less. Although seemingly straightforward this has caused considerable problems, particularly with the design of interfaces, i.e. the junctions between CDP and non CDP works and who is responsible for that design. By way of example: a project for the refurbishment of an office building where the CDP description included the words 'Lantern Lights' requiring the Contractor to design, supply and install new lantern lights to replace existing. Issues arose on site regarding responsibility for the design of the cold bridge between the lantern lights and the existing structure upon which they sat. In this case it was successfully argued that the Architect was responsible for designing the Works as a whole with the exception of those works described in the CDP. If it was the intention that the Contractor should design this interface the CDP should have been wording accordingly. Similar issues arose on a project where the CDP required a Contractor to design, manufacture and install a 'Glazed Bridge' to connect two existing buildings. However the floor levels differed within the two buildings resulting in the requirement for a step and other works and a dispute arose as to whether or not the step was a variation. Finally, there was the project for the construction of new apartments where the CDP included 'uPVC Windows and Doors' and it was discovered that some of the doors would not operate properly as the design of the doors had not been coordinated with the screed and carpet thicknesses. A dispute arose despite clear wording included in the contract stating that the design interface between CDP and non-CDP works was the responsibility of the Architect. All these unnecessary disputes wasted time and money and ultimately did little to enhance the reputation of either consultants or contractors in the mind of the end paying Employer. What is most frustrating is that in all instances the answer seems blindingly obvious however parties become entrenched in their positions particularly when they have to confront their own mistakes. In such circumstances a concept of mutual trust and co-operation becomes secondary when the basic instinct of the party at fault is to cover up its mistake at all cost. Jonathan Bowcott |
||
