The JCT appears to have rejected the idea of making its forms compliant. When? Why?
It happened at a debate hosted by the Society of Construction Law on 8 June. Before we look at why, it may help if I take a quick look at where the delay and disruption protocol, published in October 2002, stands. Although the protocol gave us model clauses dealing with the preparation, submission and updating of contractors' programmes, it did not go so far as to provide a full set of clauses (or amendments) to make any standard forms protocol-compliant. None of the drafting bodies took up the challenge, and so in November 2003 Pickavance Consulting and Fenwick Elliott (PFE) jointly created what they call change management supplements, (PFE supplements). These are a schedule of amendments to the JCT98 form of contract designed to make JCT forms protocol-compliant. In an article entitled Keep Taking the Supplements (30 January, page 48) Marc Hanson suggested these would not be widely taken up. The issue for debate was whether the industry did in fact want the PFE supplements.
The position of the "yes" camp (the SCL protocol drafting subcommittee) appears to be that:
- The protocol is what the industry wants and so it follows that the industry wants standard forms, including the JCT forms, to be protocol-compliant.
- Given that change is inevitable there is a commonly held belief that there is a need to address the management and evaluation of such change contemporaneously (rather than retrospectively)
- So, the procedures and records required for this approach must be underpinned by contractual obligations, as set out in the PFE supplements.
The position of the "no" camp (the JCT drafting committee) appears to be that:
- Although the protocol is a good document, it is bad to translate all its recommendations into a prescriptive set of contractual obligations.
- The PFE supplements are too formalistic and focus (wrongly) on the "micro" details of day-to-day management.
- The consultant's role of risk manager will be a prohibitive expense for the employer.
- The PFE supplements will make the JCT contracts complex and inconsistent, which will ultimately lead to disputes.
So, who won? A show of hands concluded that most of the audience thought the industry wanted the protocol, but did not want the JCT forms to be amended by the PFE supplements.
The audience may or may not have been reflective of the industry, but the result raises questions. For example, is it inconsistent to want the protocol but to reject protocol-compliant standard forms? As Hanson said, whether you like the PFE supplements largely depends on whether you approve of the protocol, so does the industry approve of (and want) the move to the contemporaneous management and evaluation of change advocated in the protocol?
The latter question probably sits at the heart of this debate since it is inevitably linked with the issues of ownership of float, concurrency and the use of time-impact analysis. If the drafting bodies accept the SCL protocol position on these issues then it seems natural they would like the overall approach of the PFE supplements. But some think they are too long, prescriptive and complex. Others believe a prescriptive approach is needed.
So where does this leave the protocol? Following the rejection of protocol-compliance by the JCT, how will the other bodies react? Might a much shorter set of amendments dealing only with the key issues of float, concurrency and time-impact analysis be more acceptable?
Until the other drafting bodies decide on their approach, if you really want your (non-JCT) contracts to be protocol-compliant you will need to make bespoke amendments.
Hamish Lal is associate solicitor at the London office of Freshfields Bruckhaus Deringer