Updated JCT design and build form provides relief for unforeseen conditions

The update has added provisions relating to the important question of who is responsible for site conditions. Other than the contractor receiving both time relief and loss and expense for ‘antiquities’ on the discovery of fossils or other objects of value, previous versions of the design and build contract have been silent on this point. As a result, those using the contract had to rely on the common law position if unforeseen ground conditions arose, which imposed the risk on the contractor.

The updates to the 2024 version of the design and build contract on this point “emphasise the importance of pre-condition site surveys and proper analysis of site conditions to establish and mitigate the risks prior to commencement”, said Nigel Blundell, construction and infrastructure expert at Pinsent Masons.

The new version gives the contractor additional reliefs on discovery of asbestos, contaminated material or unexploded ordnance. These are issues which can have a significant impact on the progress and cost of a project due to the need for specialist involvement to remove any items and eradicate the problem to allow work to continue.

The new clauses provide that on discovery, the contractor must avoid disturbing the material or materials and cease work if continuing to do so endangers health and safety, risks damage to the property, or impedes the disposal of the dangerous objects.

Complying with these instructions gives the contractor an extension of time if two conditions are met: firstly, that the contaminated materials or asbestos has not been identified in the contract documents; and secondly, that the material has not been brought on site by the contractor. An extension of time will be granted for ordnance irrespective of those conditions being met since if it is discovered before work starts, it will likely have been removed from the site immediately.

A new right to loss and expense has also been added, if the same two conditions are met. It means that the contractor will be compensated for any financial impact of delay arising from these events.

Blundell said: “Since the JCT deals with build environment, the specific references to asbestos, ordnance and contamination are a sensible approach to the apportionment of risk in that sector, rather than the wide reference to unforeseen conditions in other standard form contracts , such as civil engineering-based contacts.”