Suit yourself

Fans of French literature may remember a Eugène Ionesco character who claimed only to like coq au vin. If he was told what was before him was coq au vin, he liked it, but if he was told it was not, he pushed it away.

There are people like that in our industry: people with fixed ideas about the forms of contract they like. They are not just clients but the contractors they employ and the consultants who administer their contracts. There is nothing wrong with this; one of the great benefits of standard form contracts is familiarity with what they say and how they work – warts and all.

The potential problem comes when the contract does not precisely suit the project in hand. Take a client who prefers managed contracts so that it has control over its design team and also controls (and carries the risk of) cost. It may come to a project where third parties demand something different. For example, a design-and-build contract giving a genuine single point of responsibility for design and construction has great benefits for future owners and occupiers, and a lump sum contract gives comfort to the bank that a managed job with a mere cost plan does not.

In this situation, not one of the standard JCT forms will keep everybody happy. But this does not mean we must flee to the untested and lawyer-intensive (and therefore expensive) territory of a bespoke contract. With a bit of thought and skill (and, perhaps, a lawyer), concepts – even clauses – from the different forms can be drawn together to create a hybrid.

Some may see this as a recipe for disaster. Indeed, the JCT practice note on deciding which form of main contract to use warns "ill-conceived amendments can produce unintended results when construed at law" and "this balance [in the JCT forms] should not unwittingly be put at risk – eg, by the ill-considered incorporation into a JCT form of substantive provisions lifted from another form". Are they saying "don't do it" or just "be careful"? The latter, I hope.

Why not import that useful concept of unforeseen ground conditions from the ICE contracts?

Let's look at some examples. The JCT Intermediate and Minor Works forms (IFC 98 and MW 98) do not provide for any contractor design and there is no option of importing a designed portion supplement. However, if there is contractor design (and there nearly always is, in reality) why not cover this with clauses equivalent to the design obligation from the designed portion supplement that goes with JCT 98? There may be elements that are not ideal, but there is a lot to be said for precedent and familiarity over a bespoke design obligation.

The Design and Build form (WCD 98) does not offer any mechanism that gives certainty as to the time and cost implications of a proposed change. Rather than taking a blank piece of paper, look at the clause 13A quotation procedure in JCT 98 and (with a little tweaking and the removal of those words that effectively make it the contractor's option) make this a new clause 12A in your design-and-build form.

For the developer who likes construction management but knows its bank and tenant want a design-and-build contract, there is a middle ground. Take the design-and-build form as your contract. Under this umbrella, pursue a two-stage process in which design is developed under the control of the employer, and works packages priced and let on a joint, open-book basis, converting only to a lump sum at a much later stage. You might need a separate agreement for this, but now that we have the JCT Construction Management suite of documents, take a look at the services of the construction manager in C/CM that relate to the procurement process and use them instead of making up your own obligations.

What if you want one contract for an entire project but there is a particular aspect (ground remediation, say) where it is only fair to allow remeasurement because nobody knows what will be found? Using a provisional sum only gets you part of the way. The ICE contracts have that useful concept of unforeseen ground conditions. Why not import this into your contract? We may be pushing it now, but at least if the ICE wording is adopted rather than something entirely new, people should have a feel for what it means.