- •Introduction
- •List of tables
- •List of figures
- •Table of cases
- •Table of statutes
- •Glossary
- •1 UK construction sector context
- •1.1 The nature of the sector
- •1.2 The nature of professionalism in construction
- •1.3 The nature of projects
- •1.4 Procurement methods
- •2 Roles and relationships
- •2.1 Common problems
- •2.2 Client roles
- •2.3 Consultant roles
- •2.4 Professional services agreements
- •2.5 Architect
- •2.6 Quantity surveyor
- •2.7 Typical terms in professional services agreements
- •2.8 Integrated documentation
- •3 General contracting
- •3.1 Background
- •3.2 Use of general contracting
- •3.3 Basic characteristics
- •3.4 Risk in general contracting
- •3.5 Standardized approaches to general contracting
- •4 Design-build
- •4.1 Background
- •4.2 Features of DB contracts
- •4.3 Use of the JCT design build form (JCT DB 11)
- •4.4 Characteristics of JCT DB 11
- •4.5 Risk in DB
- •4.6 Approaches to DB
- •5 Construction management
- •5.1 Background
- •5.2 Use of construction management contracts
- •5.3 Principles of CM contracting
- •5.4 Overview of JCT CM Contract
- •5.5 Allocation of risk in construction management
- •5.6 Approaches to construction management
- •6 Collaborative contracting
- •6.1 Background
- •6.2 Use of collaborative contracting
- •6.3 Principles of collaborative contracting
- •6.4 Characteristics of collaborative contracting
- •6.5 Risk in collaborative contracting
- •6.6 Approaches to collaborative contracting
- •7 Risk allocation and procurement decisions
- •7.1 Types of risk in construction contracts
- •7.2 Dealing with risk
- •7.3 Procurement
- •7.4 Identifying and choosing procurement methods
- •7.5 Characteristics of procurement methods
- •8 Contract choice
- •8.1 Use of standard contracts
- •8.2 Contract drafting
- •8.3 JCT contracts
- •8.5 The burgeoning landscape of standard forms
- •9 Tendering and contract formation
- •9.1 The meaning of construction contracts
- •9.2 The formation of contracts by agreement
- •9.3 Contracts made by tender
- •10 Liability in contract and tort
- •10.1 Express terms
- •10.2 Exemption clauses
- •10.3 Incorporation by reference
- •10.4 Implied terms
- •10.5 Liability in tort for negligence
- •11.1 Standard of work
- •11.2 Statutory obligations
- •11.4 Transfer of materials
- •12.1 Implied obligations
- •12.3 Responsibility for the contract administrator
- •12.4 Responsibility for site conditions
- •12.5 Health and safety
- •13 Responsibility for design
- •13.1 Design management
- •13.2 Design duties in law
- •13.3 Legal responsibility for design
- •14 Time
- •14.1 Commencement
- •14.2 Progress
- •14.3 Completion
- •14.5 Adjustments of time
- •15 Payment
- •15.2 The contract sum
- •15.3 Variations
- •15.4 Fluctuations
- •15.5 Retention money
- •16.1 Contract claims and damages
- •16.2 Grounds for contractual claims
- •16.3 Claims procedures
- •16.4 Quantification of claims
- •17 Insurance and bonds
- •17.1 Insurance
- •17.2 Bonds and guarantees
- •18 Role of the contract administrator
- •18.2 Contract administrator as independent certifier
- •19 Sub-contracts
- •19.3 The contractual chain
- •19.7 Collateral warranties
- •20 Financial remedies for breach of contract
- •20.1 General damages
- •20.2 Liquidated damages
- •20.3 Quantum meruit claims
- •21 Defective buildings and subsequent owners
- •21.1 Claims in negligence
- •21.2 Statutory protection
- •21.3 Alternative forms of legal protection
- •21.4 Assessment of damages
- •22 Suspension and termination of contracts
- •22.1 Suspension of work
- •22.2 Termination for breach at common law
- •22.3 Termination under JCT contracts
- •22.4 Termination under NEC contracts
- •22.5 Termination under FIDIC contracts
- •22.6 Termination of contract by frustration
- •23 Non-adversarial dispute resolution
- •23.1 Background to disputes
- •23.2 The nature of construction disputes
- •23.3 The role of the contract administrator
- •23.4 Methods of dispute resolution
- •24 Adversarial dispute resolution
- •24.1 Adjudication
- •24.2 Arbitration
- •24.3 Litigation
- •24.4 Arbitration or litigation?
- •References
- •Author index
- •Subject index
General contracting 49
system does not necessarily ensure quality. There is an aspect to quality that cannot be measured at all. This is the subjective reaction to stimulation, a perception that is sympathetic with something in the observer’s emotional make-up. This has nothing to do with measurement. A system that concentrates upon documentation and measurement as evidence of quality may militate against any qualitative reaction in observers. Perhaps this is not the place for a philosophical discussion about what constitutes quality; but the current emphasis on documented quality raises this question in every aspect of construction. The general contracting procurement method and its variants are ideal candidates for documented control systems, because the involvement of the major contributors, those who produce the building, is entirely dependent upon the contract documentation. To the extent that a client wishes to predefine the contractor’s targets, and to have legal recourse in the event of their not being achieved, general contracting has what it takes. However, ensuring that a contractor produces what was specified is not the same as ensuring that the contractor produces a good, high quality building. These aspects are covered in more detail in Chapter 22.
3.5STANDARDIZED APPROACHES TO GENERAL CONTRACTING
General contracting has been around for a little over a century and a half. It was ideally suited to the emerging construction industry between the Industrial Revolution and the post-war boom. More recently, it has been criticized for its inflexibility and attachment to outmoded ideas of construction organization. There are many factors that come together to influence the form and content of standardform contracts. Not all of these factors are in the best interests of the client. Unfortunately, the way the risks are apportioned under a general contract, while fair to all of the parties, is not well understood by many who use the forms. It almost seems that the existence of a drafting committee, representing all of the major interested power groups in the industry, relieves many people of the responsibility for thinking about and understanding the contracts they sign. Every person who engages in the construction process should seek to understand the contracts they are using, especially when they are using amended or unilaterally drafted contracts. The aim is not to become litigious, but to understand better the positions from which adversarial conflicts develop. A good understanding of each other’s positions would enable adversaries to resolve their disputes quickly and cheaply, without recourse to the law. As always, in the final analysis, it is not what the contract says that matters, but how the people in the team interact.
Summarizing the distinctive characteristics of general contracting, the most important features are:
A general contractor is appointed to build what has been documented by the design team. The general contractor’s primary role is to co-ordinate and manage the construction work.
In principle, general contractors have no design liability, although the dividing line between workmanship and design is largely to do with who takes decisions, rather than the nature of decisions.
Sub-contracting of significant parts of the work leads to extended supply chains.
50 Construction contracts
Payment for work in progress demands a high level of financial acumen on the part of the main contractor and throughout the supply chain.
Primarily, general contracting arose as a response to the problem of dealing with the issues of co-ordinating and managing the work on site.