New JCT Design & Build 2024 (DB 2024) contracts published

Hot off the press, the long-awaited JCT Design & Build Contract 2024 and Design and Build Sub-Contract 2024 were published on 17 April 2024. We were expecting to see updated terms and conditions to cater for recent market developments, including VAT reverse charge, references to modern methods of construction and Building Safety Act 2022 provisions. Did JCT deliver on these issues in the new contracts?

Yes, but the new contracts only go so far. 

The JCT Design & Build Contract 2016 already facilitated delivery by way of modern methods of construction, and there is nothing new or groundbreaking on this or the VAT reverse charge in the 2024 editions. However, the new drafting in relation to the Building Safety Act and provisions on the new dutyholder regime are a welcome addition. JCT could have gone further with the building safety provisions but chose to opt for a ‘less is more’ type approach to this area. Users will therefore need to satisfy themselves that the Building Safety Act provisions are adequately covered off in the contracts they prepare and manage. 

Other key changes include:

• Future proofing: including terms on sustainable development and gender-neutral language, allowing for electronic signature and issue of notices by email;
• New Relevant Events and Relevant Matters: Covid-inspired provisions relating to epidemics and changes in law have been added (although will only apply if stated in the Contract Particulars) as have terms relating to the discovery of asbestos, contaminated material or unexploded ordnance;
• Termination: termination payments to reflect the Construction Act payment provisions;
• Incorporation of collaborative working and Construction Playbook principles: a requirement for parties to collaborate with each other has been included, although arguably this doesn’t go far enough to embed good working practices into the contract;
• Contractor’s design liability: perhaps one of the more material changes, amendments to the Contractor’s design liability, including that the Contractor has no greater duty than to exercise reasonable skill and care and an express carve out of any fitness for purpose obligation (to the extent permitted by the Statutory Requirements);
• Delay: changes to the terms for liquidated damages for delay responding to case law and further changes such as:
  • Employer’s requests for information supporting a delay claim must now be made within 14 days, and 
  • a reduction in the time the Employer has to notify the Contractor of its decision on a delay claim from 12 to 8 weeks;
• New insolvency grounds: to reflect legislative changes and additional insolvency grounds introduced by the Corporate Insolvency and Governance Act 2020;
• Fluctuations: deleted and available on the JCT website as an option instead; and
• Resolution of disputes: previously included as a Supplemental Provision, DB 2024 includes a requirement for the parties to negotiate to try and resolve disputes. 
   

Overall, many JCT users will welcome the changes to the DB 2024 suite and find them useful in practice. The rest of the 2024 contract family is expected in due course - watch this space. You will be able to find more details on the 2024 suite at the JCT website JCT 2024 Edition – The Joint Contracts Tribunal (jctltd.co.uk).  Contact partner, Steven James, or director, Nia Stewart, for information and advice on the new 2024 editions.