A round-up of new and updated construction contracts published recently.

• New JCT 2024 editions launched
• Key changes to the JCT Design & Build Contract
• SBCC 2024 (Scottish) editions – update
• RIBA's Building Regulations Principal Designer Professional Services Contract
• CLLS updates its letter of intent

New JCT 2024 editions launched

The Joint Contract Tribunal (JCT) continues to launch the 2024 updates to its various suites of standard forms of contract. We have had the design and build, minor works and intermediate suites and now await the release of the 2024 Edition of the Standard Building Contract family on 21 August 2024 (see the latest press release).

The JCT's aim was to modernise and streamline the contracts and reflect recent legislative changes such as the Building Safety Act 2022 (BSA 2022) which introduced the new Part 2A of the Building Regulations 2010. It has also updated the termination, accounting and payment provisions in keeping with the Housing Grants, Construction and Regeneration Act 1996 (as amended) (Construction Act) and made amendments to reflect the new insolvency grounds introduced in the Corporate Insolvency and Governance Act 2020.

To date, revised suites published include:

• the JCT Design and Build (DB) Contract family, including the Design and Build Contract (DB 2024), associated DB Contract Guide (DB/G 2024), Sub-Contract Agreement (DBSub/A 2024), Sub-Contract Conditions (DBSub/C 2024), Sub-Contract Guide (DBSub/G 2024), Short Form of Sub-Contract (ShortSub 2024), Sub-subcontract (SubSub 2024) and Contract Tracked Change Document;
• the JCT Intermediate Building Contract family which includes:
  • the Minor Works Building Contract (MW 2024);
  • the Minor Works Building Contract with Contractor's Design (MWD 2024);
  • the Minor Works Building Sub-Contract (MWSub/D2024);
  • the Sub-subcontract alongside a pack of Contract Administration Model Forms (MW and MWD 2024 Admin); and
  • a Minor Works Building Contract User Checklist and Minor Works Building Contract with Contractor's Design User Checklist to provide assistance when completing MW contracts;
• the JCT Intermediate Building Contract family which includes:
  • the Intermediate Building Contract (IC 2024);
  • the Intermediate Building Contract with Contractor's Design (ICD 2024);
  • the Intermediate Sub-Contract Agreement (ICSub/A 2024) and Conditions (ICSub/C);
  • the Intermediate Sub-Contract Agreement and Conditions with Sub-Contractor's Design (ICSub/D/A);
  • the Intermediate Named Sub-Contract Tender and Agreement (ICSub/NAM 2024) and Conditions (ICSub/NAM/C 2024);
  • the Intermediate Named Sub-Contractor/Employer Agreement (ICSubNAM/E 2024);
  • tracked change document (IC 2024), Intermediate Contract and Sub-Contract Guides (IC/G 2024 and ICSub/G 2024); and
  • the updated IC and ICD contract administration model forms pack (which includes a Practical Completion statement and certificate of non-completion); and
• an updated edition of the Construction Industry Model Arbitration Rules (JCT/CIMAR) 2024.

Updated pre-construction services agreement, collateral warranties and project bank documents have not yet been released. In the case of collateral warranties, that delay could be down to the JCT drafting committee awaiting the Supreme Court's decision in Abbey Healthcare (Mill Hill) Ltd v. Augusta 2008 LLP (formerly Simply Construct (UK) LLP) (2024) UKSC 23 on whether a collateral warranty is a construction contract.

The Supreme Court gave its decision on 9 July 2024, finding that a collateral warranty is not a construction contract for the purposes of the Construction Act. As Kirsti Olson noted in her recent article on the Abbey Healthcare decision for Construction Law here, the decision might mean that "drafters make a simple change to their contract forms [to give a right to adjudicate] and move on". As the Supreme Court noted, parties may still choose to contract into the adjudication regime. However, Kirsti thought this unlikely to be a common practice: "It is not in the best interests of contractors (or their insurers) to give a third party the right to adjudicate against it [in a collateral warranty], at short notice, at any time in the 12 years after a building project has been completed."

Key changes to the JCT Design & Build Contract

Focusing on DB 2024, the following summarises the key changes and gives a general flavour of the JCT's approach to the 2024 amendments:

• the drafting is modernised to include, for example, the use of gender-neutral terminology and to reflect the use of emails to serve [most] notices and electronic signatures;
• the parties are required to collaborate and involve senior (named) personnel in dispute resolution discussions early on. (You can read our suggestions on practical steps for meeting the JCT's collaboration requirement here and a more general piece on collaborative contracting in the UK construction industry here;
• the Contractor is empowered to suggest changes to the contract works to benefit the environment and required to supply information to the Employer on the environmental impact of goods and materials;
• changes are included to reflect the new building safety regime including: a requirement for the parties to complete new Article 7 confirming who will act as the Principal Contractor and Principal Designer under the Building Regulations 2010; an obligation on the Contractor to comply with its BSA 2022 dutyholder obligations; and changes to reflect the extension of liability under the Defective Premises Act 1972 (as introduced by the BSA 2022) to include liability in relation to any work carried out on an existing dwelling as well as liability in relation to the provision of a building;
• the Contractor's design liability is amended to exclude fitness for purpose requirements;
• time periods for the Employer to take various action in relation to delay assessments are changed;
• epidemics and the publication of government/other bodies' guidance are now included in the list of Relevant Events;
• the liquidated damages provision (clause 2.29.5) has been amended to clarify the position when the Contractor's contract is terminated (to reflect the decision in Triple Point Technology Inc v. PTT Public Co Ltd [2021] UKSC 29 on which you can read more here: Know your limits: can you rely on your exclusion clause?);
• provisions are added to address what happens when asbestos, contaminated materials or unexploded ordinances are found during excavation works;
• changes are made to the termination rights and the consequences of termination; and
• the dispute resolution provisions now require parties to negotiate and to try to resolve disputes that arise. They can also name an adjudicator nominating body and arbitrator appointer.

SBCC 2024 (Scottish) editions – update

The JCT has reminded users in Scotland that JCT contracts are for use in England, Wales and Northern Ireland.

The Scottish Building Contract Committee (SBCC), the Scottish College of the JCT, "will be adapting most JCT 2024 contract suites in the coming year to produce contracts compliant with Scottish law and practice".

In the meantime, current editions of SBCC contracts (mostly comprising the 2016 edition) should be used in Scotland.

Refer to www.sbcconline.com for more information about the SBCC 2024 or get in touch with Mark.Macaulay@dentons.com.

RIBA's Building Regulations Principal Designer Professional Services Contract

The Royal Institute of British Architects (RIBA) has published its Building Regulations Principal Designer Professional Services Contract.

It is aimed at commercial clients or public authorities appointing a Building Regulations Principal Designer on projects using a traditional form of procurement.

"It is suitable for larger, more complex commercial projects and provides a comprehensive set of contract terms, including a clear set of roles and associated services" and … "can also be used for commissions procured on the basis of a traditional form of building contract where tendering occurs at the end of Stage 4 (Technical Design)".

RIBA also advises that this new contract form is "not suitable for the appointment of a Principal Designer on non-commercial work undertaken for a consumer client, such as work done to a client's home" and is also unsuitable for the appointment of a CDM Principal Designer.

CLLS updates its letter of intent

The City of London Law Society (CLLS) has replaced its 2007 edition of the CLLS letter of intent with a 2024 edition for use on construction projects taking place in England.

Key objectives of the letter of intent remain (as highlighted by the guidance at the letter's end): the identification of the contract form into which the parties intend to enter; a statement of a "limited scope of activities" that the contractor is to carry out; and the mechanism for payment of "an agreed/capped amount with an expiry date for the same".

The CLLS's 2024 revisions include changes that reflect the introduction of the BSA 2022 and enable the document to be adapted "for use efficiently from project to project" by including a separate Table of Particulars to allow project-specific details to be added without having to amend the body of the letter.

Finally, the CLLS guidance comes with a sensible reminder that "letters of intent should be regarded as an interim construction procurement solution".

For further information or to discuss any issues arising from the above that affect your business, please get in touch with one of the Key Contacts.