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Top 5 JCT ReachBack Questions from our Community

Top 5 JCT ReachBack Questions from our Community

One of the most popular categories on ReachBack is JCT, with over 250 FAQs, and new ones being added every month. It holds some pretty interesting answers to construction contract questions you’ve stumbled upon in your day-to-day project delivery tasks, as well as answers to questions you had no idea you should ask.

ReachBack provides a place for engineers, contractors, quantity surveyors, subcontractors, architects and others construction professionals to find answers to an issue that they’re facing, or at least set them on the right track towards a solution.

We can always learn something new, and that’s exactly what we decided to search for the most popular answers to questions we didn’t know we had. Let’s check it out.

Our Top 5

Here are our most upvoted JCT ReachBack questions. If we've missed your question, add it to our comment section!

What to do if there are no construction drawings at the time of signing the contract? 

Would you sign a JCT contract with no construction issue drawings in place and the contract still refers to tender drawing and a scope of works that is very broad sweeping statements in its language? 

Top answer 

“No. Or perhaps, not unless there is a clear recognition that this is not a fixed-price contract with a proper price and scope to be agreed. In other words, if this is set up properly as a two-stage process and an employer wants to involve a contractor early in some form of ECI then yes this can be a good idea. If it is an attempt to short cut proper, reasoned and thought out procurement then the risk is going to be high and difficult to quantify”. 

Rob Horne - Head of Construction and Engineering Disputes & Risk

JCT D&B16: How do I Deal with Joint responsibility for design defect?

How and by what mechanism does the Employer calculate a payment certificate when there is joint liability for a design defect?

For instance, when the Contractor Acknowledges partial responsibility for design flaws but also points to the fact that elements of the design were included in the Employers requirements, and therefore the employer is partially responsible?

Top answer 

“Assuming this is an unamended JCT liability for failure or discrepancies in the Employer's Requirements does not rest with the contractor (this is usually deleted, however, and all responsibility placed on the Contractor).

There is no simple answer to this I am afraid. You need to start with the defect, identify what it is, then how it arose and what actions could or should have been taken to deal with it. The difficulty for the Contractor will always be that he should have spotted the problem and notified of it before continuing with his design, that is, the defect should never have materialised. A reasonable starting point may, therefore, be that it is never going to be more than 50% the fault of the employer (the worse the fault the more obviously the Contractor should have picked it up). Beyond that very broad starting point, it really did become entirely reliant on the facts”.

Rob Horne - Head of Construction and Engineering Disputes & Risk

JCT: What do I do if the Contractor Refuses to enter into arbitration

We have made a claim against the main contractor, they have refuted this, and we asked for them to agree to arbitration giving seven days for their response. They have not replied - what should we do next?

Top answer

“Assuming you have arbitration in your contract then you issue a notice of arbitration inviting them to agree an arbitrator (possibly suggesting some). If still no response you go the appointing body named in your contract.

If arbitration is not specified and you were trying to agree it in any event (which you can do) then you will need to adopt an alternate route so either adjudication or court depending on the nature of the dispute and other factors”.

Rob Horne - Head of Construction and Engineering Disputes & Risk

Can a client put back the date for practical Completion on a JCT Standing Building Contract?

If a client wants to defer possession of a building and hence put back the date of completion is there any mechanism in the JCT Standard Building Contract (SBC) to allow this?

Top answer

“Your questions actually addresses two separate issues.

So, the question you asked, can the Employer put back the date of practical completion. The answer here is no, practical completion is a matter of fact and it occurs when the works are complete (with the exception of small items/snags).

The second question is can the Employer alter the Completion Date to defer possession.  Technically, the Completion Date can only be altered after an application by the Contractor or by prior agreement. However, the Contractor's obligation's generally run to practical completion so why an Employer would want to alter the Completion Date is not clear, once practically complete the Employer can take possession (in the sense of physically) or not, that is his choice but he cannot slow down or impede the Contractor without giving rise to a variation”.

 Rob Horne - Head of Construction and Engineering Disputes & Risk

Under JCT Can we use agreed "all in" daywork-rates to value verified standing time? 

We are working for a subcontractor who is contracted to a JCT subcontract with partial design with their conditions stepped down from their subcontract. We are also working to sectional possession and handover. The Client is responsible for provision of Tower Cranes to erect our work. We have suffered late granting of possession to erect our work resulting in our labour standing due to no other work available or the withdrawal of Tower Cranes, again resulting labour standing. We have daywork sheet records of these events verifying the standing time and have submitted these valued at the "all-in" contract daywork rates. These costs have been downgraded by our client on the basis that the standing time is not daywork but Loss and Expense and valued at a much lower rate than the agreed daywork rates, reduced by about 40% on the basis that this is the direct cost only, no on-costs or overheads.

We contend that our daywork rates include all costs of employment, overheads and margin and see no reason to reduce our submission as our at-risk tender price assumes access to the works at all times stated on the contract programme and all periods of Tower Cranes stipulated in the contract. Can you please advise your opinion?

Top answer

It is open to the parties, for simplicity, to use daywork rates for standing time and often this is used. However, there is no obligation to use the daywork rate.

Standing time is very likely to be loss and expense and should be valued accordingly complying with the contract rules for valuing such time-related cost”

Rob Horne - Head of Construction and Engineering Disputes & Risk

Final Thoughts

ReachBack is more than just a question and answer site. It’s a community, where people help each other out. If you need help with an issue on NEC3 or NEC4 or have a fun contract riddle that you can’t solve, it’s the perfect place to go. These questions make up just a small part of what you can find there, and if you’ve seen questions that you think deserve a spotlight, we want to know! Post your favourite answers or unanswered questions in the comments below.

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