With a clutch of awards, including a RIBA National Award 2015, the 2015 Art Fund Prize for Museum of the Year, and shortlisted for the RIBA Sterling prize, the extension to the Whitworth Gallery in Manchester is a masterpiece of transparency and integration with its exterior parkland space. A JCT Standard Building Contract provided the contract solution.

The University of Manchester’s Whitworth Gallery first opened in 1908, and was designed by J.W. Beaumont. The north-south facing façade is the original red brick and terracotta, neo-Jacobean style, with a semi-circular raised entrance. The collection, still housed in the original building, contains one of the world’s best textile collections, dating back to the third century. Additional pieces range from Turner to Bacon, Freud, Peter Blake, Bridget Riley and contemporary works.

The western extension to the Gallery commenced in 2012, necessitated by a doubling of visitor numbers since 2005, and a requirement to properly house and store its collections of more than 55,000 objects on-site. The brief from client, University of Manchester Estates, was to make the Gallery’s internationally renowned collection of art, textiles and wallpaper accessible to a wider range of visitors, make better use of existing space, and establish a relationship between the building and the surrounding grounds and park.

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3 4 6 7 8 10Continues on page 2

WHITWORTH ART GALLERY, MANCHESTER

Chairman’s Letter One building or two?Richard Saxon CBE

JCT Interviews…Michael HasteJCT Director, Royal Institute of British Architects

A question of programmeWill Cooper – Senior Associate, Clyde & Co LLP

Over payment is careless Peter Hibberd

Making good with rectification periodsHugh Saunders – 3PB

Use UK standard forms of contract overseas but take care of cultural and local aspects

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The key factor in establishing a link between the building and its surroundings was developing the building’s concept of transparency – both physically and emotionally. A greater sense of exploration is encouraged by breaking perceived psychological barriers between the traditional Victorian-Edwardian entrance and the unarticulated rear of the building. Physically, it was important for the gallery spaces within the

new extension to be viewable from the park and vice-versa.

What was empty space beyond the western brick wall now forms a promenade around its three sides, paved with Purbeck stone. The promenade section facing west is wide open to the park through a full-height, full-width screen of glazing. Stainless steel mullions that

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View of North Elevation from Denmark Road -The Whitworth, The University of Manchester, by MUMA

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reflect trees and sky vertically divide the glass, beyond which bead-blasted 5mm thick fins form a continuous fringe of brise-soleil. A storey below, a new courtyard garden space – the Art Garden, is enclosed by new extensions, two volumes which push out asymmetrically into the parkland. The left of these houses the new café. This was achieved without the loss of a single mature tree, just one bush which needed to be relocated.

The old suspended ceilings in the rear western space have been removed and barrel vaulted ceilings, each with two rows of skylights, look down from under the long pitched roofs. The northern space becomes the third of three parallel galleries. The central of these has full height oak doors that slide open to provide a transparent, living frame of the park.

The north wing is a shorter extension, but larger overall. The lower ground floor echoes the existing traditional building with solid red brick but adds a contemporary touch with a single long horizontal window. This wing houses the new Landscape Gallery (for land art and sculpture). The floor can take a point load of 7.5 tonnes, or a distributed load of 10 tonnes. The ceiling height is 5.5m. Opposite the Landscape Gallery entrance is the small but tall Conservation Room, which contains a tapestry hoist. It has a higher ceiling than the Landscape Gallery at 7.5m.

At 40m in total length, the café extends from its servery end into a completely glassed 28.5m length for seating. The last 4.5m floats out on a cantilever that hangs from cross-bracing in the roof. Purbeck stone flooring and steel mullions

feature once again. The glass is fritted high up with vertical lines that become double density at the top.

Natural light is diffused via a new long northern skylight. The extension blends with its existing urban edge with red brick and terracotta, but on the northern side the skylight pitches out of the brick building’s roof edge – an unexpected and bold white construction that houses a large light scoop.

The desire for transparency and the choice of materials used on the Whitworth project has helped to open the site, dissolving the barriers between the park and the gallery. The effect of this is not only where the gallery itself extends into the parkland, but is achieved with a lot more depth internally, where interval sight-lines in the galleries and promenades open up. The use of metal, glass, stone and wood makes for a natural, warm palette, more welcoming than the usual gallery white. It makes for a neutral backdrop, neither competing visually with the exhibits or the parkland.

For a project whose brief was focused on transparency and defining clear relationships, it is appropriate that the JCT Standard Building Contract With Quantities was the contract of choice. The JCT Standard Building Contract is one of the industry’s most widely recognised forms, used when clearly defined terms, clear distinction between various roles and responsibilities and an accurate provision of design and bills of quantities is desired at the outset. With the choice of contract, like the project itself, it is transparency all round.

Whitworth Art Gallery: in summaryProject start: November 2012Project completed: February 2015Floor area: 6,000m2

Cost: £15mContract: JCT Standard Building Contract With QuantitiesCO2 emissions: 18.6kg/m2/yearArchitect: McInnes Usher McKnight Architects (MUMA)Client: University of Manchester EstatesM&E: Buro HappoldStructural Engineer: RambollQuantity Surveyor: Appleyard & TrewProject Manager: Drivers Jonas DeloitteProject Manager: Cragg Management ServicesCDM Co-ordinator: AA ProjectsApproved Building Inspector: HCD Building ControlMain Contractor: ISG/Manchester & Cheshire ConstructionCAD software: MicrostationFire Consultant: FEDRABuilding Façade Consultant: Arup Façade EngineeringAcoustic Consultant: Hahn Tucker

Whitworth Gallery: awardsWon:RIBA National Award 2015RIBA Northwest Award 2015RIBA Northwest Conservation Award 2015RIBA Northwest Building of the Year 2015Art Fund Prize for Museum of the Year 2015

Nominated: RIBA Stirling Prize 2015

The new West Elevation and Art Garden Court

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3 Chairman’s Letter

Richard Saxon CBE

The conventional client for a construction project has focussed on achieving success in getting their requirements delivered to quality, on time and on budget. It has been a capital project mind-set, measuring achievement over the period up to the final account. Those clients who own the building tend to change the accounting status and the leadership involved at the end of the capital phase, handing the facility manager, who is rarely involved before this point, a bundle of information from the contractor to help them start to set up the Operation and Maintenance system they will need. Those who sell the building on after completion and letting have even less interest in the life of their creation, passing responsibility to the investor and tenants to make the best of it.

It is no wonder that, as a nation, we have issues with building performance, unexpected operation and maintenance costs and the premature demolition of buildings that we did not maintain properly. There is incredulity when it is suggested that whole-life costs can easily exceed capital costs. Whilst we have strong capital cost benchmarks, those for the life-cycle have been weak. It is common for contractors to achieve capital spending targets by reducing the quality of materials and products specified, thereby raising O&M costs which occur long after anyone involved is in post.

BIM changes the game. The model naturally produces structured information which can, if suitably specified, provide a good basis for the management of the finished building. The concept of BIM is related to Product Lifecycle Management (PLM), the tool which allowed car makers to revolutionise the design process for cars 25 years ago. Information of any sort can be tagged to the components and elements of the design, including how best to operate and maintain a system or product and how long it will last before replacement.

Level 2 BIM, as mandated on central government projects from April 4th 2016, requires buildings and infrastructure to be designed for whole-life performance and cost. The soft-landings concept, where facility management requirements are incorporated in the initial brief and followed through, has been further powered up by the government requiring that the performance of the completed facility be measured in

use and compared to the performance specified in the business case for the project. This is not just technical performance but suitability for purpose. Capital and Revenue accounts will be linked.

The RICS have responded to the arrival of whole-life requirements by launching NRM3, their guide to recording and managing whole-life costs. They are also developing a benchmarking service for whole-life costs to compare with their Building Cost Information Service for new buildings. It won’t be quick to do, but it’s started. The model’s data can generate embodied and operational energy and carbon information also, all answering questions that would not have been easy to do before.

The basic change made possible by BIM is that clients will be able to ask not only for the functional and economic brief that has conventionally been called ‘Employer’s Requirements’. They will also be able to ask for information to support whole-life performance, safety and cost-effectiveness. And they are able to ask for the information they need at each stage of the capital project to enable them to decide whether the project is on track to meet their brief or needs to be reviewed. These together are the ‘Employer’s Information Requirements’ described in BIM guidance.

So what the client of today is buying is two buildings, not one. They get one physical building and one virtual one. The virtual building is the source of information from which to build the physical one, but it then goes on to be the support system for the life-cycle of the facility. The virtual building is a ready-made O&M resource. It allows use to be planned, space to be managed, and preventive maintenance to be done to stretch the life of its parts. It will also link to increasingly automated Building Management Systems to self-manage, and to Enterprise Resource Planning tools to inform asset management of its status and performance. The virtual building comes free with BIM, so it’s two for the price of one.

Richard Saxon CBE has also written ‘BIM for Construction Clients: driving strategic value through digital information management’, to be released by RIBA Publishing in February 2016.

ONE BUILDING OR TWO?

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A QUESTION OF PROGRAMMEWILL COOPER – SENIOR ASSOCIATE, CLYDE & CO LLP

The programme produced and maintained by a contractor is one of the most important documents for any works. Of course, the programme’s primary function is to ensure effective sequencing of the various components of the works. However, it has an important secondary role in assessing contractor applications for extensions of time and assisting with the resolution of disputes between contractor and employer, roles not always readily appreciated by contract draftsmen. It is the second of these two roles of the programme that this article focusses on, while also looking at how the drafting of two contracts from the JCT suite tackles this issue.

The issue

It should be pointed out that it is more in the employer’s interest than the contractor’s that updated programmes are made available at regular intervals. The employer’s project management team may find itself being presented with an application for an extension of time which is unaccompanied by any supporting programme. Alternatively, where programme information is supplied in support of an application, it is often the case that it cannot be read against previous iterations and, perhaps even less helpfully, such a programme may have been prepared solely to justify the application and may lack any objective data. It is perhaps not surprising that this practice is common, given the reputation of construction in the UK for adopting an adversarial approach. Viewed in this light, the reluctance of a contractor to supply information that might reveal its own contribution to the delay in question is understandable.

Meanwhile the employer’s project management team, faced with such an application and a paucity of programme information, often simply put off reaching a decision acceptable to both parties, to encourage continued focus on the project while holding out for more information to support the application. This practice has the effect of increasing the likelihood of disputes, as by postponing an extension of time award the unresolved part of the entitlement will continue to accumulate until, by the end of the works, a substantial claim has arisen. A sizeable unresolved entitlement can, by its very nature, be more difficult to reach compromise on. By extension, the early resolution of disputes of this nature can be facilitated if the parties, at an early stage, exchange their respective

delay analyses for assessment, thus revealing the strengths and weaknesses in each. Without satisfactory programmes in the hands of both parties, it is difficult for this process to take place.

It should be noted that there is no common law right to programme information. So, if this is required for a project, the building contract will need to make allowance for this. This is recognised in the industry, with many standard form contracts addressing these questions around programme, albeit with differing approaches and degrees of prescription.

The solution

To address the issue set out above effectively, the relevant drafting of a building contract should address three distinct points.

Firstly, the contract should seek to establish the agreed methodology for the programme. This can be achieved in a number of ways, but perhaps the most straightforward is for the drafting to make provision for an agreed initial form of master programme which incorporates all packages and work items to a prescribed level of detail. In addition, the contract should set out what information all future iterations of the programme should include and in what manner this should be presented. The question of key dates, logic links and float within the programme should be dealt with, perhaps with reference to the approach adopted by the initial master programme. This should ensure that the scope for disagreements between the employer and contractor as to what programme information is required to be provided is much reduced.

The second consideration with any drafting relating to programme is the frequency with which an updated programme should be prepared and issued to the employer. In particular, care should be taken to ensure that the contractual regime for updating and issuing the programme is not overly onerous as this can add unnecessary cost, and increase the administrative burden on both the employer’s and contractor’s administrative staff. Worse still, an update requirement that is too onerous might ultimately become unworkable and have to be abandoned, leading to uncertainty as to what the parties are in fact required to do once the contractual regime has been discarded. With this caution in mind, the requirement for regular

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periodic updates of the programme should perhaps be eschewed in favour of the requirement for an updated programme to accompany any application for an extension of time.

Finally, the programme provisions should include some form of mechanism for enforcing the obligation on the contractor to produce a programme and/or resolving any related deadlock between the parties. One option is to include a right for the employer to withhold interim payments. However, this is likely to be regarded by most contractors as unacceptable, and may precipitate disruption to the works or lead to a dispute if enforced. In addition to being crude in application, this drafting approach offers no practical remedial step for producing a programme. A better approach in these circumstances, in the absence of a programme produced by the contractor, is to allow for the employer to produce its own alternative programme, the cost of which may be deducted from future payments to the contractor.

The JCT Standard Building Contract 2011

Viewed from the perspective of the proposals above, the JCT Standard Building Contract 2011 adopts a notably pragmatic approach which is married to an admirable economy of drafting. Clause 2.9.2 requires the contractor to produce the master programme at its own cost as soon as possible after the Contract is entered into. Moreover, the Conditions deal with the form that this master programme should take by leaving the detail to be set out in what is presumably meant to be the technical sections of the Contract Documents. Given the technical nature of the information involved, this approach is undoubtedly the most appropriate.

On first reading, the drafting perhaps leaves open the question as to the frequency with which the programme should be provided to the employer and does not seem to address any question of resolving the non-provision of the programme. That said, both of these points could be easily dealt with in the technical sections of the Contract Documents, providing care is taken to tie these requirements back into the relevant contractual terms. On this point, the draftsmen of the relevant part of the Contract Documents should

look closely at clause 2.9.2 and 2.27 (the latter clause dealing with the notices on delay that the contractor is to provide).

The JCT Design and Build Contract 2011

In contrast to its sister contract, the JCT Design and Build Contract 2011 does not expressly deal with the question of programme information. This approach is largely appropriate, given the nature of works carried out by way of design and build and the flexibility as to programming allowed for as a result. However, the employer may still need access to programme information to assess extensions of time, and contractual requirements should therefore be included to address the points set out above. Furthermore, in the event of a disagreement arising between the parties, joint access to the contractor’s programmes may, as discussed above, be the most expeditious and forensic way of resolving this.

As with the JCT Standard Building Contract though, many of these requirements can be (and, arguably, should be, given the nature of the information involved) incorporated in the technical parts of the Contract Documents (with the most appropriate location being in the Employer’s Requirements) without any amendment to the terms of the Conditions being required.

Conclusion

It is essential to ensure that the requirements dealing with the use of programme information for assessment of extension of time applications and resolving disputes are addressed in the building contract. The contractor may feel that the terms outlined above represent an intrusive attempt to look into his underlying management of the works, but the benefits to both parties in fully transparent programme information must ultimately come to be regarded as outweighing this concern.

In light of this, the mechanisms provided for in the two JCT contracts considered above provide pragmatic and unfussy drafting approaches to this point, although they will only be of real benefit to the parties if the relevant technical parts of the Contract Document provide the detail required and dovetail with the drafting of the Conditions.

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Following Galliford Try vs Estura [2015] EWHC412 (TCC), a case concerning summary judgement to enforce the decision of an adjudicator as to payment of an interim application, there were various comments by observers on whether or not the payer has a right to repayment by the contractor on account of an overpayment and speculation as to whether there should be an express term to this effect.

JCT Design and Build Contract 2011 (the contract in that case) makes it absolutely clear that the contractor shall make an application to the employer for each interim payment and when such application may be made. The due date, which is vitally important, is the later of the date for completion of the stage/specified date (whichever option applies) and the date of receipt of the contractor’s application. It determines the final date for payment, the date by which the payment notice is issued, and the date by which any pay less notice must be issued. It is also clear that where the employer (or someone authorised to do so) fails to give both notices then the amount stated in the contractor’s interim application becomes the amount due and payable (the default position). In that situation and for the purpose of that payment only it does not matter whether or not the amount set out in the application is accurate (ISG Construction vs Seevic College [2014] EWHC4007 (TCC)) save for fraud. So does this mean that where there is an overpayment on an interim payment there is a need to have an express term providing for repayment?

Firstly, the employer can prevent the operation of the default mechanism by issuing either a payment notice, which is the intention under the contract, or a pay less notice within the stipulated timescales. There are two opportunities to avoid paying an amount stated in a contractor’s interim application with which one disagrees. Missing both opportunities would or certainly now should be a rather rare event. The main reason why this might arise is one of uncertainty as to when the contractor’s application is made. A communications protocol is necessary to support the payment process so as to ensure that it is known that an application for payment has been made. A proper application should provide the trigger to issue a payment notice and any pay less notice that may be required.

Payment that arises as a consequence of the default position should be few in number but what of those payments that do arise? The contract states that the sum due as an interim payment is the gross valuation less the aggregate of; any retention that may be held, the cumulative total of any advance payment that has become due and the amounts paid in previous interim payments. That means for each interim payment a new calculation is made. This is accepted practice and means any over assessment or error in calculation of the previous payment would then become

adjusted in a subsequent interim payment unless the same error arises. It also means that any over payment that has been made by making a payment in excess of that which would have been made had a payment notice or pay less notice been correctly issued would also be adjusted. Mr Justice Edwards-Stuart in Galliford Try said there is nothing to prevent the employer challenging the value of the work on the next application, even if he is contending for a figure that is lower than the (unchallenged) amount stated in the previous application. Therefore except for relatively few cases the amount of any over payment will be recovered through the interim payment process. There is of course the possibility of an over payment arising towards the end of the interim payment process or a significant over payment which cannot be so recovered: however the contract makes express provision for the possibility of repayment at final account stage.

Furthermore, as stated in Rupert Morgan Building Services (LLC) Ltd v Jervis [2003] EWCA CIv 1563 at paragraph 14:

“If (the client) has overpaid on an interim certificate the matter can be put right in subsequent certificates. Otherwise he can raise the matter by way of adjudication or if necessary arbitration or legal proceedings.”

Additionally, the Supreme Court in Aspect Contracts (Asbestos) Limited v Higgins Construction Plc [2015] UKSC 38 at paragraph 23 held the following implied term under the Construction Act:

(A paying party) “must have a directly enforceable right to recover any overpayment to which the adjudicator’s decision can be shown to have led, once there has been a final determination of the dispute”

This would of course mean a delay in recovery of any overpayment or indeed the possibility that the contractor becomes insolvent in the meantime. There is not only a cash flow problem but the consequences of any insolvency that one has to guard against.

All contracts are reliant on the parties using proper procedures so as to comply with the terms of their contract and this is particularly important in terms of payment. It is often appropriate for a contract to provide for what happens in the event of failure to comply but it is generally accepted that it is not appropriate to try to cover every what-if situation. In that regard, an express term for repayment during the interim payment stage to cover a situation that should only apply in rare and exceptional circumstances would add little, if anything, to the existing processes and current position in law.

It is submitted that the payment provisions within JCT Design and Build Contract 2011 have got the balance right and that they provide a sound legal framework within which to operate.

OVER PAYMENT IS CARELESS PETER HIBBERD

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Do you still talk about the “defects liability period”? So do I, and I don’t blame you because the phrase has been around for so long, even though modern JCT contracts use the term “Rectification Period”. Whatever you call it, problems can arise because although the clauses look quite simple there is actually a number of things going on.

First, neither term really describes what the contract actually means; second, on the expiry of the Rectification Period, there is another chance for Employers and Contractors to get into conflict about the two things that matter most to them: the Works and payment; finally, issuing the certificate of making good triggers the entitlement to retention and starts time for the Final Certificate to be issued.

Let’s start with the terminology. At first glance, the idea of a “defects liability” or “rectification” period can suggest that, after that period expires, so does liability for defects. I have had cases where my clients – surprised to have received a claim – thought this was the case. However, this is not what the clauses say – liability for latent defects survives the end of the Rectification Period even if a certificate of making good has been issued. There is an argument that liability continues even for patent defects that have not been notified to the Contractor. (In both cases, this is because the certificate relates only to the defects notified to the Contractor within 14 days of the expiry of the Rectification Period). Parties should also be aware that the Employer can claim for consequential losses caused by defects, even if they are notified and rectified.

Under the JCT contracts, the default position is that the Contractor must make good “defects, shrinkages or other faults” in the Works that are notified to it in time, at no cost to the Employer. In effect, this means the Contractor can be called back to site and this is often seen as an onerous obligation. There is another side to this, however, which is that unless the Employer chooses not to have the defects made good by the Contractor, it is the Contractor’s right to return and make good. In theory, this a benefit to the Contractor because, first, the Contractor knows the works better than a third party and should therefore be able to make good more quickly; and second, although the rectification is done at the Contractor’s cost, at least it is not being charged for another contractor’s profit on the work.

The Employer can choose not to have the Contractor make good, and to make an “appropriate deduction” from the Contract Sum in respect of the defects. That deduction could be more than the amount of the outstanding retention, requiring the Contractor to make a payment. This is an obvious opportunity for a dispute to start. In my experience, Employers usually take this course of action either when problems during the works have led to a breakdown of trust between the parties, or where the Contractor seems to be being unreasonably reluctant to rectify the defects. There is no easy solution to these problems, but the obvious answer to the second issue is for the Contractor to engage as much as possible in the process of identifying defects during the Rectification Period (and that does not mean having to accept without question everything put forward by the Employer).

This all leads to the most important thing – for contractors at least – about the end of the Rectification Period – the release of retention and starting the clock for the Final Certificate. Different JCT contracts treat retention in different ways (for example, there is no formal “retention” under the Intermediate Form, but there are specific clauses dealing with Retention in the Standard Form and the Design & Build Contract). Whichever contract is being used, following the issue of the certificate of making good the Contractor becomes entitled to claim the retention in any payment applications thereafter. Some employers may (either by accident or design) be slow to certify making good, which leaves the Contractor in a difficult position because it is unable to claim the retention and the issue of the Final Certificate is also delayed. A failure to certify making good in time is a breach of the contract, but it rarely makes commercial sense to threaten an adjudication or legal proceedings as a result. It is easy to see the potential for matters to get heated.

In practical terms, and at the risk of being accused of idealism, I advise both employer and contractor clients to be open and proactive about the way that they operate the defects rectification provisions of their JCT contracts. The way that the contracts are drafted is intended to be beneficial to both sides – the Employer gets defects rectified by a Contractor who is familiar with the works, and the Contractor gets its money. The key remains positive engagement from both sides.

MAKING GOOD WITH RECTIFICATION PERIODS HUGH SAUNDERS – 3PB

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MICHAEL HASTEJCT Director, Royal Institute of British ArchitectsDirector, Pascall+Watson architects

JCT INTERVIEWS…Michael works out of their head office in the City of London, with the practice having branch offices in Dublin, Limerick, Abu Dhabi and Doha. His own works, and those of his practice, are largely based in the transportation design sector, with their major works focussed on airports, both domestic and international and on railway stations. In the UK, Michael has led design teams undertaking significant architectural projects at Kings Cross, London Bridge, Blackfriars and St Pancras International Stations and has also worked extensively with Network Rail, Crossrail, London Underground and Docklands Light Railway.

Internationally, Michael has designed three new underground stations in Johannesburg and provided peer reviews on proposals for the Sydney Metro. Michael studied and gained a Master’s degree in Construction Law and Arbitration at King’s College, London in 1993-5, but he remains firmly in the design field of his work, whilst being responsible for reviewing all contracts that pass through his office. Michael joined the JCT Board in 2013 representing the Royal Institute of British Architects.

JCT: Mike, how did you first come to be involved with JCT? Why do you think it is important to be involved?

MH: Just over two years ago one of my fellow Directors at Pascall+Watson architects, who was involved with our professional institute, the RIBA, returned from a meeting with them and asked me if I was interested in representing the RIBA on the JCT Board. This came about because my colleague knew of my interest in all matters ‘contractual’ and subsequently this led to my liaising with the RIBA Director of Practice, Adrian Dobson, from where I then went onto succeed the previous RIBA representative. I had not before had any direct involvement with the JCT, but had of course been trained as an architect to use all of their main forms of contract since my student days, those obviously being the Minor, Intermediate and Standard forms of contract as they were in the 1980’s.

I see my involvement at JCT Board level as two-fold really – firstly, as a Board Director helping with the necessary running of the business when Board decisions are required, and in doing so working with all of the other Directors in debating the topics of the day leading to those decisions, and then secondly, in representing RIBA members across the country and internationally in being a part of the debate of the role of standard forms of contract across our industry and their necessary development as our working methods continue to change and evolve into new forms of working relationships, procurement methods and ways of designing and constructing buildings.

In this series we shed some light on some of the key people who are involved with or give their time to support JCT, to ensure that all areas of the construction industry are represented and can contribute to the development of our contracts. We will look at how our interviewees contribute to JCT specifically, and gain their views on JCT’s wider role within the industry.

Michael Haste is a graduate of the Sheffield University School of Architecture, winning its Stephen Welsh prize for his final year works in 1986, subsequently joining the architectural practice of Sir Norman Foster and Partners straight from his studies. Becoming a registered architect in 1990, Michael then went onto join the small architectural practice of Pascall+Watson in 1993, becoming a Director in 2000, and helping the practice to develop into an internationally recognised company with a current staff of around 150.

9JCT: You are a member of JCT’s board of directors, representing the Royal Institute of British Architects. There is a long history between RIBA and JCT in terms of the development of the first standard contract. Can you tell us more about RIBA’s current role within JCT?

MH: The RIBA like all other JCT Members has representatives at both Council and Board level and so in representing architects we have a voice at different levels within the JCT, but perhaps most importantly we have an equal voice with the representatives of all of the other JCT member bodies which includes client bodies, consultants and contracting organisations alike. In producing a standard form of contract, albeit there are of course many variant types of standard contracts these days, it is important that as far as possible all parties who may be affected by the terms and conditions of those contracts, are accepting of the duties, obligations and risks that come from those agreements, and to that end each organisation within the JCT obviously must both have its say on change and must represent its members fairly within the day-to day developments that take place. The RIBA has been a founding member of the JCT since its earliest days and it is my hope that I can continue to represent architects for many more years to come and help to continue to deliver change in how contracts are used, understood and developed within the construction industry.

JCT: Do you have any personal career highlights? What are you most proud of about the construction industry as a whole and where do you think it most needs to improve?

MH: Interestingly I think my career highlight came almost immediately after I left my School of Architecture and was asked by the team at Foster Associates to help them develop a new ‘Mediatheque’ building in Nimes in the south of France. This came about because my final year project at University had been to develop designs for this project myself and following help I received from the Foster team I was asked to join them immediately from completing my studies. The building we designed and constructed sat immediately opposite a two thousand year old Roman temple, separated only by a modest three lane town boulevard. In the UK we would rarely be allowed to design contemporary modern buildings in such close historic environments as this, but our work on this particular project turned out to be very successful for the town. Perhaps of a more recent note I am very proud of my design work on the newly redeveloped Blackfriars Station buildings in London, where working off an earlier concept design I developed

designs for the wholesale rebuilding of the station across the River Thames with new Station buildings on the north and south banks of the river. A rarely known fact is that this building has the largest photovoltaic array in London sitting on its roof spanning across the river, being visible only to those who rise above ground level.

In terms of the construction industry as a whole I think when client, consultant and contractor alike all pull together as a single team, doing what each does best without treading too much on others toes, then the best solutions are often arrived at. Equally, in my experience when realistic programmes are developed and design work is not constantly subject to re-design and change, then better outcomes are usually achieved.

Sir John Egan’s Rethinking Construction really told us where the construction industry needed to improve and from my perspective as an architect the one element that we ought to be able to resolve better is the shear unpredictability of construction in terms of cost, programme and quality.

JCT: What do you think makes JCT unique? What are the benefits of the way in which JCT contracts are produced?

MH: JCT’s unique attribute must be that it aims to represent all those who seek to be involved in the construction industry and provides them with a platform for intellectual discussion on the merits of apportioning risk, obligations and duties across different elements of contractual undertakings in a way that provides mutual agreement, as far as it is possible to provide, given the fact that we all approach contractual matters from our own professional viewpoints. When backed up by legal precedent and a wealth of case law this provides possibly as good a provision of certainty as parties to a contract may hope to achieve. And that has to be both the uniqueness of JCT as well as its strength. Within my own practice we sign many contracts for our services that arrive with us from across an international spectrum of countries and the one thing that all of them lack as a rule, is standardisation. So each contract is different, has its own vagaries and is uncertain in terms of legal precedent and not surprisingly, vocabulary. With a JCT contract parties can enter into agreements knowing that the agreements have historic precedent and development. In terms of the way contracts are produced it is clear that we all seek ‘immediate’ responses to our needs these days to develop our own standard contracts for particular projects and the Online and Digital services now provided by JCT have started to provide for this need, which is of course being further developed to cover more contract types in the future.

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JCT: What do you see as the main challenges for the construction industry over the next five years?

MH: Five years in the construction industry seems a very short space of time, bearing in mind that the Latham Report and Egan’s Rethinking Construction are nearly 21 and 17 years old respectively. I myself have had design projects on my drawing board, sorry computer screen, for up to eight years at most, so 5 years does seem short to me. However, the industry does need to improve its efficiencies and reconsider how projects are to be procured and constructed if not simply because the complexity of design we are able to achieve by computer-aided design these days has far outpaced the construction industries’ abilities to manufacture and fabricate the intricate designs that we can produce. So to some degree design is being held back by manufacture and I see that as being the main area I would like to see the industry move into and of course this comes along with all of the needs that Building Information Modelling will happily provide for if used to its maximum potential.

JCT: Does JCT have a wider role to play in the industry beyond producing contracts?

MH: No business can afford to stand still in today’s hectic marketplace and that is as important to JCT as it is to its competitors. With that comes a need for the JCT to regularly review its core business as well as to review what other opportunities it can manufacture to either increase its turnover or enter new sectors or marketplaces. But if it does this then it must be clear as to what its purpose is and whether its main focus becomes in any way affected by a new venture. Personally I came to know and understand JCT contracts through my original professional training as an architect, by way of study at my School of Architecture, and then later in undertaking the MSc course in Construction Law and Arbitration at King’s College. So for me an obvious area for the JCT is to improve and increase its educational impact on students within the construction industry as a whole, in order to ensure for its future. Having said that today’s world offers many opportunities for businesses but we must review such opportunities in detail and not let them distract from what the JCT does best.

The key factors that must be addressed when using UK standard forms of construction contract overseas are the local legal system in use and the cultural differences determining the way in which provisions are interpreted, Sir Vivian Ramsey told delegates attending the JCT Povey Lecture at Local Government House, London on Thursday 12 November 2015.

“English language standard forms have become the norm overseas, which makes UK standard forms of contract an appropriate choice.

“However, the way in which the contract provisions are used and interpreted will differ depending on the cultural or legal systems in which the contract is being operated and care needs to be taken to ensure these aspects are taken into account.

“Unless that is done the provisions will not properly deal with important aspects and may even render the contract or parts of it unenforceable.”

In addition, Sir Vivian explained that the principles and practices of common law systems versus regions that operate primarily through a civil law jurisdiction is another area of conflict when considering the use of UK contracts abroad:

“[…]in English law there are commonly implied terms relied upon by construction lawyers. These terms relate to co-operation and non-hindrance by the Employer [and] carrying out work in a good and workmanlike manner, with good and proper materials by the Contractor.

“In civil law jurisdictions, there is also an obligation of “good faith” in the performance of the contract [but] all relevant evidence is generally admissible [so] there is an ability to rely on conduct which has taken place after the formation of the contract and generally, up to the point where there is a dispute.

“This can alter the approach to the interpretation of the terms of any agreement and can impose wider obligations in terms of the requirement to act fairly than would apply in common law jurisdictions.”

Sir Vivian Ramsey discussed several important areas of the contractual process to highlight differences in practice and approach, including the position of the architect/engineer, interpretation, notices, unforeseen conditions, interest, liquidated damages, termination, limitation of liability, mediation, adjudication and arbitration.

Introducing Sir Vivian, JCT chair Richard Saxon CBE, said:

“As global construction volume rises, UK professionals are increasingly being asked to play a part abroad.

“What better or more appropriate speaker could we have to discuss this than Sir Vivian Ramsey, whose vast experience both in international construction law and in his career as an engineer helps us to understand comprehensively the various aspects we need to take into account.”

A full video of Sir Vivian Ramsey’s lecture, along with lecture notes, can be viewed and downloaded at the JCT Povey Lecture page: www.jctltd.co.uk/povey-lecture.aspx

USE UK STANDARD FORMS OF CONTRACT OVERSEAS BUT TAKE CARE OF CULTURAL AND LOCAL ASPECTS, SAYS SIR VIVIAN RAMSEY

http://www.jctltd.co.uk/students.aspx

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The annual Scottish Building Contract Committee conference aims to bring together professionals from across Scotland for an update on changes that have happened or are expected soon. The chairman is Len Bunton, who also sits on the JCT Council to represent SBCC and the conference was held in the handsome context of the Scottish National Gallery lecture theatre. After an opening statement from Len, the first speaker was consultant Ann O’Connell, giving an update on changes to various forms of contract in Scotland caused by regulatory amendments or the issue of new editions. The 2015 CDM regulation changes affect all contracts and were given their own presenter later.

Ken Lewandowski, deputy chair of the current Procurement Review spoke about the deeply unhealthy pattern of late payments from Tier 1s to subcontractors and suppliers, using them as providers of working capital. Margins of suppliers are slashed by a series of discounts, retentions and interest payments, forcing regular closure of valued SMEs. The conference debated whether anything short of a law could force change, but ministers seem curiously reluctant to move beyond voluntary measures.

David Philp, now at AECOM but still head of BIM for the UK government and chair of the Scottish Futures Trust BIM delivery group, ran through the way that the national mandate will be introduced north of the border. Scotland has until April 2017 to demand BIM on central

government work, a year after England and Wales. They will be able to learn a lot from travails south of the border.

Martin Blencowe, Director of the Procurement Review at Scottish Futures Trust, looked at some of the 66 recommendation they have made. There are four themes: getting a codified approach to community benefits requested by clients; avoiding the Frameworks approach which is seen to punish SMEs; minimising variations to standard contracts; seeking ways to eliminate retentions.

After lunch Richard Saxon, chair of JCT, spoke to the theme ‘serving the evolving construction industry’. Looking back to Latham and Egan and forward to the 2025 Strategy he showed government’s frustration with an industry that doesn’t seem to raise its productivity or customer focus like all others who make things. The onslaught of technology may just be about to change that, with BIM, the Internet of Things and the new business models they will suggest outlined in ‘Digital Built Britain’ in February 2015. New commercial arrangements will be needed to go beyond Level 2.

Stephen Good, chief executive of Construction Scotland Innovation Centre, explained how they play the role of what in England would be BRE and Innovation UK, linking 13 of the 19 Universities in Scotland in developing products and manufacturing concepts with public clients and industry partners. Their labs support offsite

production tests and 3D printing for partners.

The annual flow of cases in the courts never fails to produce controversy. Neil Kelly of MacRoberts took us through three areas of contention: Payment regimes, adjudicators’ fees and perceived penalties within Liquidated and Ascertained damages. You would need access to Neil’s presentation to pick up the nuances of his incisive commentary.

Then contractor Bruce Dickson, commercial director-Scotland for BAM Construction gave a spirited defence of the industry’s progress since Latham, criticising commentary from Simon Rawlinson and Richard Saxon that no movement had occurred and that we looked bad compared to the car industry. Huge steps have been made in safety, leanness, IT and waste reduction. 25% fewer people now work in Scotland for similar output. But he also criticised clients who seek ‘to turn us on and off’ like a tap. Procurement practice was very destructive.

Finally, James Richie, an architect specialist on CDM, briefed us on the 2015 version of the regulation and his concern that few in the industry seem to have understood the changes to the roles of client, principal designer and principal contractor. The implications of the new rules will affect every form of contract.

After a Q&A we all went out into a clear but freezing Edinburgh evening with a half-moon hanging over the Old Town.

SBCC CONFERENCE: EDINBURGH, NOVEMBER 19TH 2015 RICHARD SAXON CBE – JCT CHAIRMAN

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The views expressed in the articles in JCT News are those of the author(s) and do not necessarily reflect JCT’s views.