On 17 April, the Joint Contracts Tribunal (JCT) published its 2024 edition of the Design and Build Contract. The 2024 edition is designed to address recent changes in the construction industry.

This article looks at some of the key changes to the contract compared to the previous 2016 edition.

Design Liability

Clause 2.17.1, which covers the contractor’s liability for design, has been amended to reflect a more typical obligation on the contractor to use reasonable skill and care expected of a qualified and experienced designer. There is now express wording which provides that the contractor is not subject to any obligation requiring that its design is fit for its purpose. The contractor has no greater duty than to exercise reasonable skill and care in its design ‘‘to the extent permitted by the Statutory Requirements’’. It is not clear which scenarios may warrant a duty greater than the exercise of reasonable skill and care and this will no doubt be a point of concern for employers and contractors alike. 

Relevant Events

The 2024 edition introduces new Relevant Events which entitle the contractor to an extension of time for:

(a) the discovery of asbestos, contaminated material and unexploded ordnance causing delay and compliance with the employer’s instructions in this regard;

(b) an epidemic occurring after the Base Date (or occurring before the Base Date whose effects change after the Base Date) which limits the availability of labour or securing goods, materials or services, which has an impact on the carrying out of the works; 

(c) a change in law, exercise of statutory power or publication of guidance by the UK government, local or public authorities or guidance by the Construction Leadership Council (this extends the position under the 2016 edition in relation to the exercise of government powers after the Base Date). 

Matters (a), (b) and (c) above have been added as Relevant Matters although matters (b) and (c) are optional Relevant Matters and the contract particulars would need to specify whether they are included. It is likely that this will form a key part of negotiations between employers and contractors, and it will be interesting to see if a widely accepted position is reached on whether these should be included as Relevant Matters, or whether this will depend on the specifics of each project.

The Building Safety Act

The role of the principal designer and principal contractor under the CDM Regulations 2015 has been extended to cover new dutyholder obligations for principal designers and principal contractors under Part 2A of the Building Regulations 2010. There is now express wording requiring compliance by the new dutyholders with their respective obligations under the Building Regulations. The principal designer and principal contractor under the Building Regulations can now be identified under new Article 7 of the contract.

The 2024 edition does not however cover responsibilities relevant to higher risk buildings, such as the gateway procedure and how this interacts with the practical completion process, and the golden thread of building information. Parties will therefore need to consider incorporating relevant drafting into their contract amendments where higher risk buildings are involved. 

It remains to be seen how widely adopted the 2024 edition of the contract will be in place of the well-established 2016 version, and how parties will amend the contract to reflect both legal and commercial considerations.