The latest instalment of the Joint Contracts Tribunal (JCT) 2024 suite of contracts may have left key aspects of the Building Safety Act (BSA) unaddressed, experts have said.
JCT included 13 documents in its Intermediate Building Contract (IBC) release on Wednesday (10 July). The intermediate form of contract is commonly adopted by smaller contractors undertaking refurbishment or structural alteration works.
As with previous releases, the latest update includes provisions connected with the BSA.
“But these provisions primarily focus on the general duty-holder system and may not fully address the specific requirements for higher-risk buildings (HRBs) under the act,” said Adam Jason, legal director in Manchester law firm Brabners’ construction team.
Contractors involved in HRB projects “should carefully consider additional bespoke amendments to ensure compliance with the complex requirements of the new [building safety] regime,” he told Construction News.
These requirements include gateway sign-offs, and the obligation to compile and update a ‘golden thread’ of building information.
Marc Preston, a qualified surveyor and director of Construction Dispute Experts, said “additional provisions” will be required not only for HRBs but also in other circumstances where funders, insurers and purchasers fail to specify requirements for information and data on buildings that are not strictly defined as higher risk.
In common with the tone of previous JCT 2024 releases, the new IBC includes a mandatory “good faith” clause to strengthen the requirement for clients and contractors to work collaboratively and transparently, in a spirit of mutual trust and respect.
This clause – which replaces a previously optional supplemental provision – emphasises the growing importance of collaborative working in the industry, as promoted by the government’s Construction Playbook, said Jason.
“While this move is welcomed, we’ll have to wait and see how it affects dispute resolution in practice,” he added.
But Preston said JCT had ignored “clear demands” in the private and public sector construction playbooks to prioritise health and safety best practice in the construction process.
Instead, health and safety were optional supplemental provisions in the IBC release.
The 2024 update includes provisions for collateral warranties and bonds for advance payment and the procurement of offsite materials.
It also includes a new general obligation for contractors to suggest environmentally friendly amendments to any planned works – highlighting the increasing need for firms to consider sustainability.
But to fully address specific environmental standards, net-zero targets and other environmental, social and governance goals, “all parties may need to incorporate further bespoke amendments into their contract”, said Jason.
Also echoing previous JCT 2024 updates, the new IBC family includes epidemics in the list of “relevant events” under which an extension of time is allowed.
However, the discovery of asbestos, contaminated material or unexploded ordnance is omitted, unlike in the updated Design and Build family.
Unexploded ordnance will rarely be a key risk factor for projects involving an intermediate contract, according to Jason. But JCT “has seemingly decided to allow parties to apportion risk themselves on a case-by-case basis in respect of the existence of asbestos or contaminated materials, which are usually key considerations for refurbishment or structural alteration works”, he said.
While none of the changes in the new intermediate form will “materially affect risk allocation between contractor and employer, there is an important shift in approach towards better risk and relationship management”, said Anthony Armitage, general counsel at fit-out contractor Thirdway.
“With a refreshed focus on collaborative working, sustainable development and conflict avoidance, the strength of the contractor’s hand to implement productivity improvements is enhanced,” he added.
Preston argued that the new family still falls short in failing to provide clauses that put support for mental health on a par with the provisions for health and safety. “This in my view is a significant failing,” he said.
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