The JCT Design & Build 2016: what does it mean for you?

The JCT Design & Build 2016 was released on 22 September.

The principal changes are:

• the incorporation of the provisions of the JCT Public Sector Supplement 2011 relating to Fair Payment Transparency and Building Information Modelling;
• adjustments to reflect the Construction (Design and Management) Regulations 2015;
• the inclusion of provisions to reflect relevant aspects of the Public Contracts Regulations 2015;
• an extension of Insurance Option C to allow alternative solutions to the problems for tenants of obtaining Existing Structures cover for Contractors. There are also changes to the general provisions of Insurance Options A, B and C relating to evidence of insurance, insurance claims and reinstatement work;
• revisions and simplification of the Section 4 payment provisions, including:
  • the introduction of a procedure for prompt assessment of loss and expense claims;
  • the establishment for Fair Payment purposes of Interim Valuation Dates that are also to apply at sub-contract and sub-subcontract levels;
  • further flexibility in relation to Fluctuations Provisions; and
  • consolidation in a single sub-section of the notice requirements of the Housing Grants. Construction and Regeneration Act 1996;
• inclusion of provisions for the grant of Performance Bonds and Parent Company Guarantees;
• the option for Third Party Rights from sub-contractors;
• minor updating and clarification of the JCT IPR provisions;
• updating of the wording of clause 1.8 (Effect of Final Statement);
• a new clause 1.10 (Consents and approvals): this eliminates the need for multiple iterations of the requirement that particular consents or approvals are not to be unreasonably delayed or withheld. (The giving of consent by either party to an assignment of rights by the other remains entirely discretionary);
• Part 2 of the Contract Particulars has been deleted;
• The order of the clauses in Section 4 (Payment) have been altered; certain clauses are now grouped for ease of reference into new shorter sub-sections

JCT’s opinion is that the 2016 edition amendments or changes in format do not, in practice, materially affect risk allocation.