In this article, ALA Senior Quantity Surveyor Steven Beever looks at what has changed in the JCT Design and Build Contract 2024.
JCT2024: What’s Changed?
Originally formed in 1931, the Joint Contract Tribunal (JCT) has periodically evolved their suite of Contracts to reflect changes to legislation and construction industry practices. The latest iteration of the JCT Design and Build Contract (JCT DB 2024) was released in April 2024 and replaces the previous 2016 version.
The JCT DB 2024 Edition provides several changes which are embodied under the key themes of
- modernisation,
- legislation, and
- future proofing.
The main features of each are summarised below.
Theme 1: Modernisation
Gender Neutral Language
The wording of the Contract has been amended to reflect gender-neutral wording, with the pronoun “he” replaced with “it” or “they”.
Electronic Communications
While electronic communications have previously been recognised, specific wording around the use of emails for the serving of notices has now been included with Clause 1.7.3 allowing notices to be issued via email to email addresses as stated in the Contract Particulars. Clause 1.7.4 permits termination notices to be issued via email, if clause 1.7.4.2 applies.
Additionally, guidance on Attestation has been amended to include for the electronic execution of the Contract. This has been added to meet the increase in digital working.
Extensions of Time
The timescales for granting or rejecting interim extension of time claims has been reduced from 12 to 8 weeks under Clause 2.25.2. It should be noted that these timescales differ in the JCT DB 2024 Subcontract.
Additionally, clause 2.24.4 requires the Employer notify the Contractor within 14 days of the Extension of Time notice or issue of particulars, if additional information is needed to assess an Extension of Time claim.
A new clause 2.26.7 has been introduced which covers epidemics. A perhaps unsurprising inclusion following on from the impact of Covid-19. This relates to an epidemic which occurs after the Base Date and affects the execution of the works, or an epidemic which existed before the Base Date, but where a change to it after the Base Date affects the execution of the Works.
A further new clause 2.26.8, covers changes to the law, the introduction of a new law, the exercising of a statutory power (excluding where caused or contributed to by the Contractor), and the publication of any guidance, after the Base Date. Reinstatement of loss or damage to the Works are covered under new clause 6.13.5.4 and require this is treated as a Change.
Loss and Expense
Clause 4.21.6 (epidemic) and clause 4.21.7 (change in law) are additional relevant matters. However, these are optional and only apply if they are chosen in the Contract Particulars.
Design Liability and Fitness for Purpose
Clause 2.17.1 has been amended to state the Contractor’s liability for design is no greater than a duty to exercise the reasonable skill and care of an architect or appropriate professional designer. In addition, new clause 2.17.1.2 states: “…the contractor shall have no greater duty, obligation or liability than to exercise reasonable skill and care as provided in clause 2.17.1.1 in respect of such design and in no circumstances shall the Contractor be subject to any duty, obligation or liability which requires that any such design shall be fit for its purpose.” However, the Contractor must still meet their statutory obligations under Building Regulations and The Defective Premises Act 1972. This will give a 15 year timeframe for claims against negligent design for dwellings.
Antiquities
The existing antiquities provision has been expanded to include unexploded ordnance (UXO), contaminated materials and asbestos. These fall under clause 3.15 and the Contractor is not liable for these items and is able to claim an extension of time and loss and expense, provided clause 3.15.3 is complied with. This requires the Contractor to use their best endeavours not to disturb the finding and cease work if continuing would cause a danger or impede its disposal or removal and report its discovery to the Employer. The Employer is to then to issue instructions detailing how to proceed in accordance with clause 3.15.4.
Where the existence of the asbestos or contamination is detailed within the Contract Documents, or if the Contractor brings these materials onto the site themselves, any extension of time and loss and expense claim would be invalid.
Fluctuations
The fluctuation options have been removed from the printed document and are available via the JCT website.
Dispute Resolution
Provision has been made to enable Parties to specify a nominating body or appointer with regard to Adjudication or Arbitration.
Limitation of Liability
The JCT DB 2024 Contract Guide provides suggested clause wording should a cap on the Contractor’s liability be required.
Theme 2: Legislation
Part 2A Building Regulations & Building Safety Act 2022
The Contract contains a new definition of Building Regulations under clause 1.1 and there is now a requirement to appoint the Principal Designer and Principal Contractor in writing under the Building Regulations, as well as under the CDM Regulations. This is part of the new dutyholder requirements which came into effect in October 2023 through Part 2A of the Building Regulations 2010 and the introduction of the Building Safety Act 2022.
Article 6 is used for the appointment of the Principal Designer and Principal Contractor under CDM Regulations. The inclusion of a new Article 7 deals with the appointments of the Principal Designer and Principal Contractor under Part 2A of the Building Regulations.
The Employer is required to provide building information under clause 2.7.2, as required by regulation 11A(4). While clause 3.16 sets out the Contractor’s and Principal Contractor’s obligations in respect of CDM and Building Regulations.
It should be noted that these amendments are not applicable to projects in Northern Ireland as the and are deleted from the Royal Society of Ulster Architects Northern Ireland Adaptation Schedule for JCT DB 2024.
Termination
“Termination Payment” is a new defined term within the Contract with the provisions of section 8 having been amended to incorporate the Construction Act 1996 payment requirements. Clauses 8.7, 8.8 and 8.12 require a due date for the payment following termination, with clause 8.13 detailing the final date for payment along with the obligations for serving an Employers Termination Payment Notice and a Pay Less Notice if required.
Additionally, clause 2.29.5 has been added to accord with the Supreme Court’s decision in Triple Point Technology Inc v PTT Public Co Ltd [2021], which prevents liquidated damages from being recovered once the Contract has been terminated.
Insolvency
Clause 8.1 has been updated to meet for the requirements of The Corporate Governance and Insolvency Act 2020. A company is deemed to be insolvent when either a moratorium under Part A1 of the Insolvency Act 1986 is entered into, or an order is made sanctioning a compromise or arrangement under Part 26A of the Companies Act 2006.
Theme 3: Future Proofing
Collaborative Working, Sustainability and Environment, and Notification and Negotiation of Disputes clause (unamended)
The previous supplemental provisions for Collaborative Working and Notification and Negotiation of Disputes are unamended, however they have now been made mandatory articles. This places a requirement for collaborative working and also for notifying of any potential disputes and for any dispute to be negotiated. The aim being to keep the Parties working together and to resolve disputes where possible without the need for litigation.
The previous supplemental provision for Sustainability and Environment has also been made a mandatory article and has also undergone some slight amendments. This reflects a greater focus on environmental considerations.
Final Word
The changes to JCT DB 2024 and its introduction are likely to see the gradual phasing out of the 2016 Edition. The focus on modernisation is a much needed addition to reflect current working practices and societal trends. While the inclusion of collaboration, sustainability and environment and the notification and negotiation of disputes as a main articles, instead of supplemental provisions, perhaps demonstrate small changes (as these were essentially already part of JCT DB 2016), but it does place greater importance on these values and shows a direction for the 2024 edition to be more collaborative and environmentally aware . This follows the format of the NEC suite of Contracts, where gender neutral language has already been introduced and collaboration is at the heart of the Contract.
The legislative updates were also required to address recent changes to the law. However, not all elements of the new Building Safety Act 2022 are addressed within the Contract itself. For example, the accompanying guidance notes have to be relied upon for use with high risk buildings.
From a practical perspective, the reduction in time for granting or rejecting an EoT claim from 12 weeks to 8 weeks should be welcome news for Contractors.
As with all standard forms, users of the new JCT DB 2024 Contract should be mindful of any bespoke amendments which are made to the standard drafting, which could significantly alter the default position.
At the time of writing, JCT will release further contracts within the suite, and will also add a new JCT Target Cost Contract to the suite in 2024. This will share the gains and losses incurred on a project between the Employer and the Contractor and the format will be familiar to those with experience of NEC Option clauses C and D.
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