The new one is very useful and to be recommended. It is called "the Short Form of Subcontract". It will horrify lawyers and delight the industry. Pay no attention to the lawyers. This dinky little contract is about the size of a piece of A3 paper. Yes, that's all. What's more, a great lump of the A3 is taken up with guidance notes. The lawyers much prefer small print to run to at least 100 pages, complete with unfathomable phrases, cross references and a touch of Latin, all penned by folk tethered to what Charles Dickens taught us: "The one great principle of English Law is to make business for itself."
The publishers of the Short Form are the Construction Confederation. It publishes the well known DOM 1 and DOM 2, so it is right to call this new little 'un "DINKY 1". The confederation explains that DINKY 1 is a simple form of subcontract. "It is suitable where the main contract is the JCT standard form of minor works contract." Be that as it may, if I were a builder, I would be tempted to use it instead of DOM 1 or even DOM 2. Hell, I'd be tempted to use it all the time whether my main contract was JCT this or that or the other. Tempted, too, to use it in civil engineering contracts, for landscape subcontracts, GC works government contracts … The reason is that its simplicity and "dinkyness" somehow relegates disputes to the back burner – most contract forms coax construction to focus on clauses instead of carpentry.
Of course, DINKY 1 is flawed; it will not stop disputes and will happily keep 500 adjudicators busy. But there is a real chance that your average real live builder, plasterer, sparks and chippy will be able to understand the damn thing. There is even a chance that your average adjudicator will understand it, too – or am I going too far?
The form makes a brave attempt to explain what work the subcontractor is supposed to perform. That is a good start for any contract. You are supposed to write down in the blank space the names of the documents that DINKY 1 rules over. The programme is a bit amateur, though. It has pre-printed that the period for doing the works will be triggered when the main contractor gives 14 days' notice. That's daft. It presupposes that even DINKY subcontractors can begin work on 14 days' notice. The notice period ought to be left blank so that some thought – realistic thought – is given. Most subcontractors are in the hands of key suppliers of materials. It is the suppliers who frequently need more than 14 days' notice. Fourteen days' notice is arbitrary and daft.
This contract is the size of a piece of A3 paper. Lawyers prefer small print to run to at least 100 pages, with unfathomable phrases, cross references and a touch of Latin
By the way, when it comes to actually doing the job, the express duty, says the form, is for the subcontractor to proceed regularly and diligently and achieve completion in the agreed period. There is an implied term, of course, that says the main contractor will allow the subcontractor to proceed regularly and diligently. On the other hand, the main contractor seems to be empowered to issue instructions without additional payment, unless the instruction is a variation. How many adjudications will flow out of that awfully messy drafting? I can hear punters saying: "What the hell does this bit mean?" Extensions of time, however, are simple; they arise for variations and any other reason beyond the control of the subcontractor.
Payment is to be made 28 days after a month's work is done; 5% retention. Adjudication is a simple one liner: "the scheme" applies. Easy, so easy. Mediation is mentioned as an option.
Use this form, please, then let me know where the problems are.
The ICE minor works main contract third edition is now with us. This edition has largely tidied up the payment rules in the light of the Construction Act. The engineer has 25 days at most to certify the previous month's work. This 25-day period runs from receipt of the contractor's application (called a statement). Payment is 28 days from that same statement date. At worst, then, the employer has only three days to get his payment done by the dilatory engineer; surely he doesn't need 25 days to weigh the contractor's application, beat it up and fathom a different figure?
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.