Performance specifications allow the industry to work together to produce optimal solutions - as long as the contract fosters teamwork. Unfortunately, JCT98 does not.
I cannot help but think that JCT98 missed a great opportunity to recognise the fact that performance specifications are a critical tool in major projects. Architects rely on them, yet specifications still do not have adequate contractual recognition as to what they are or how they should be used. Worse, the contract tends to force designers and producers into conflict.

In particular, I am referring to the way JCT98 separates performance-specified works and contractor-design elements, which are inextricably linked. For example:

  • There seems to be very little, if any, relationship between the contractor’s proposals referred to in the Contractor’s Designed Portion Supplement and the contractor’s statement, mentioned in part 5 of the main conditions, “Performance Specified Work”. These are, or should be, the same thing. Performance-specified work means that the contractor has a degree of design responsibility.

  • Looking at part 5, my first reaction is that there is little evidence of design influence. My second reaction (as an ex-claim surveyor) is that unscrupulous contractors must be rubbing their hands with glee at the thought of not having to declare their intentions until the contract is signed. By this time, a contractor’s statement can be produced to suit their commercial advantage.

    Having been involved in the production of about 1000 performance specifications, I do not advise their use for contract purposes, and an effort should always be made before award to extract what the contractor has priced so that it can be checked, reviewed and incorporated in any agreement. The criteria can remain unaltered, but at least find out what is being bought.

  • Nowhere in part 5 is there any mention of performance specifications or contractor’s drawings, their use, control, purpose or method, yet they are the means by which the architect reviews what the contractor is going to provide. In addition, the term “contractor’s statement” is ill-defined and could be restricted to a method statement, a statement of quality assurance/quality control policy, and a health and safety section.

    • JCT98 separates performance specification and contractor design – in fact, they are necessarily linked
    • This creates a blame culture at odds with the need for co-operation in the project team

  • Timing is critical to the whole process and therefore clause 42.4 is critical. The clause provides for the contractor’s statement to be issued “by any reasonable date” determined by the architect or the contractor. This is too vague and is almost certain to lead to dispute. The contractor’s statement should be available pre-contract and a date for its final agreement should be stated in the contract. It is essential for a significant amount of review to be carried out pre-contract and in competition. Performance specifications set a problem to be solved and the restraints within which the solution must fit. Contractors know what they have priced for and should divulge it as part of the tender process.

    If timing remains as stated in clause 42.4, the contractor is likely to make a proposal knowing that it will not be acceptable. The architect will then reject it, the contractor will submit a claim for compliance and the architect will get the blame for the cost increase and delay. All very common and unnecessary.

    The only statement relevant to timing is in clause 42.5, where the architect is given 14 days to report or comment on the contractor’s statement. On many large contracts, the final design could never be agreed in that short space of time. Again, blame the architect.

  • There is no reference to design intent, which is initially depicted on concise and detailed tender drawings. These should not automatically be thought of as contract drawings – the latter may comprise amended tender drawings plus contractor drawings reflecting the agreed solution.

    • Postscript

    Nick Schumann is a partner in specification-writer and quantity surveyor Schumann-Smith.