Clause 2.8 provides that the contractor must without charge give the employer two copies of its design documents as and when from time to time necessary and in accordance with schedule 1 of the contract or as otherwise stated in the contract documents. The contractor is not to commence any work until it has complied with the procedure.
Schedule 1 sets out the procedure, but with reference to the Employer’s Requirements. Paragraph 1 requires submission in the format stated in the Employer’s Requirements. Therefore, if the Employer’s Requirements do not state the format, it seems the contractor may submit the information in any format it desires. It might even be argued that, in the absence of a stated format, the contractor effectively need not submit at all. That is a very strict view, but one which a contractor is entitled to take. Therefore, it is essential that the format is set out.
The submission must be made in sufficient time to allow any comments made by the employer to be incorporated before use of the relevant document. That must be read in the context of paragraph 2, which gives the employer 14 days from receipt of the submission or, if the contract documents give a later date or a period, from the date or the expiry of the period, to return one copy of the document to the contractor.
The contract adopts the well-known system of lettering the returned documents either ‘A’, ‘B’ or ‘C’, depending on whether or not they are in accordance with the contract. ‘A’ means that the contractor must carry out the Works in accordance with that document. ‘B’ or ‘C’ means that the document is not in accordance with the contract and it must be accompanied by a written statement stating why the employer considers that to be the case. Documents marked ‘B’ may be used by the contractor if the employer’s comments are incorporated and the employer is provided with an amended copy.
Documents marked ‘C’ cannot be used for construction, but the contractor may resubmit after amendment.
If the contractor thinks that the employer is wrong and that the document is in accordance with the contract, there is the option under paragraph 7 of notifying the employer within 7 days of receipt of the comment that compliance with the comment will result in a change (i.e. a variation). The contractor must give a reason, of course. The employer has a further 7 days to either confirm or withdraw the comment. If the employer simply confirms the comment, the contractor must then amend and resubmit the document. Paragraph 8 then sets out some provisos:
- Whether the employer confirms or withdraws comments does not mean that the employer accepts that the documents or amended documents are in accordance with the contract or that compliance with the comments will result in a change.
- If the contractor does not take the option of notifying the employer that compliance with the comment will result in a change, the comment is not to be treated as giving rise to a change.
- The contractor’s duty to ensure that the design documents are in accordance with the contract is not reduced by the contractor’s compliance with the submission procedure or with the employer’s comments.
In brief, the position is that it is the contractor’s obligation to comply with the contract. No submission of documents or comments by the employer will remove that obligation. If the employer makes comments that amount to a change, the contractor must promptly notify the employer of its view on the matter. Failure to notify the employer within the 7 days allotted will preclude the contractor from recovering any payment for such alleged change. However, notification, in itself, will not guarantee payment; it will be a matter of fact whether or not there has been a change.
It should be noted that the contract stays well clear of any suggestion that the employer approves any documents. But use of the word ‘approval’ appears not to make any difference to the principle in any event. In Hampshire County Council v Stanley Hugh Leach Ltd,the court said:
The fact that Leach’s alternative proposals were approved by the architects is irrelevant. No employer is going to be advised to enter into a contract giving the contractor an entirely free hand. The JCT Design and Build Contracts require the contractor’s design be approved and this of course does not relieve the contractor of obligations in respect of his design.