Construction Contracts: Conditions and Procedures (SCQF

J50J 35, Construction Contracts: Conditions and Procedures (SCQF level 8) 1

Higher National Unit Specification General information Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) Unit code: J50J 35 Superclass: TE Publication date: October 2020 Source: Scottish Qualifications Authority Version: 01

Unit purpose

This unit is designed to enable learners to gain skills in two key areas of construction contract management and administration: recommending appropriate procurement strategies and interpreting published standard forms of construction contract.

The unit also equips learners with an understanding of the various contract documents used either as tender documents or project management tools during the construction works on site.

The unit is suitable for those who want to prepare for a career in the construction industry in a professional or technician role. It is particularly suitable for those who will oversee or actually supervise construction projects — either on the client’s behalf or for contractor’s organisations.

The unit is aimed at learners taking the HNC or HND in Architectural Technology, the HNC or HND in Construction Management or the HNC or HND in Quantity Surveying. It also may be suitable for learners aspiring to understand construction contracts in other areas of the construction or civil engineering sectors.

Outcomes

On successful completion of the unit the learner will be able to: 1 Recommend and justify common procurement strategies and construction contracts

utilised in the construction industry. 2 Explain the provisions and consequences of the main clauses in a standard form of

construction contract. 3 Describe the procedures available for dispute resolution in a standard form of

construction contract.


Higher National Unit Specification: General information (cont)

Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8)

Credit points and level 1 Higher National Unit credit at Scottish Credit and Qualifications Framework (SCQF) level 8: (8 SCQF credit points at SCQF level 8)

Recommended entry to the unit Entry is at the discretion of the centre. However, it would be beneficial if learners had a knowledge and understanding of the construction industry and the various stages of construction projects: from ‘strategic definition’ through to ‘handover/in use’. Possession of such basic knowledge and understanding may be evidenced by possession of an appropriate National Certificate (NC) or Higher National (HN) Unit that covers the latest RIBA Plan of Work or similar breadth of subject area. Alternatively, relevant experience in the construction industry could provide appropriate underpinning knowledge — especially if that experience is in a supervisory or administrative capacity. It would also be of benefit if the learner comes to the unit with an understanding of the nature and uses of contract documents such as BIMs (Building Information Models) and BIM protocols, drawings, specifications, master programmes and bills of quantities.

Core Skills Opportunities to develop aspects of Core Skills are highlighted in the support notes for this unit specification. There is no automatic certification of Core Skills or Core Skill components in this unit.

Context for delivery If this unit is delivered as part of a group award, it is recommended that it should be taught and assessed within the subject area of the group award to which it contributes. The Assessment Support Pack (ASP) for this unit provides assessment and marking guidelines that exemplify the national standard for achievement. It is a valid, reliable and practicable assessment. Centres wishing to develop their own assessments should refer to the ASP to ensure a comparable standard. A list of existing ASPs is available to download from SQA’s website at https://www.sqa.org.uk/sqa/46233.2769.html

Equality and inclusion This unit specification has been designed to ensure that there are no unnecessary barriers to learning or assessment. The individual needs of learners should be taken into account when planning learning experiences, selecting assessment methods or considering alternative evidence. Further advice can be found on our website www.sqa.org.uk/assessmentarrangements.

http://www.sqa.org.uk/assessmentarrangements


Higher National Unit Specification: Statement of standards

Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) Acceptable performance in this unit will be the satisfactory achievement of the standards set out in this part of the unit specification. All sections of the statement of standards are mandatory and cannot be altered without reference to SQA. Where evidence for outcomes is assessed on a sample basis, the whole of the content listed in the knowledge and/or skills section must be taught and available for assessment. Learners should not know in advance the items on which they will be assessed and different items should be sampled on each assessment occasion.

Outcome 1 Recommend and justify common procurement strategies and construction contracts utilised in the construction industry.

Knowledge and/or skills

Types of contract

Standard forms of construction contracts

Contract documents

Outcome 2 Explain the provisions and consequences of the main clauses in a standard form of construction contract.


Clauses of a given standard form of contract covering the definition and control of time and programme

Clauses of a given standard form of contract covering the definition and control of cost and payments

Clauses of a given standard form of contract covering the definition and control of specification and quality

Outcome 3 Describe the procedures available for dispute resolution in a standard form of construction contract.


Adjudication or similar contractual procedure

Mediation or similar non-binding procedure

Arbitration

Litigation

Termination or similar contractual procedure


Higher National Unit Specification: Statement of standards (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8)

Evidence requirements for this unit All assessments in this unit should be open-book in nature, under controlled, and supervised condition within an appropriate assessment environment, carried out outcome by outcome, with learners permitted to refer to class notes, handouts, textbooks and the internet. A copy of a relevant published standard form of contract (with which the learner is familiar) should be provided — either in hard copy or electronically — especially for outcome 2. It is recommended that assessment is carried out for each outcome separately after the learning for each outcome — and in numerical order. However, the order in which the outcomes are delivered and assessed is not vital. Where evidence for outcomes is gathered on a sample basis the whole of the knowledge/ skills lists must be taught and available for assessment. Learners should not know in advance which of the items in the lists will be sampled in any one assessment. Evidence can be written and/or oral. It would be ideal if evidence was submitted in a paperless fashion via an electronic portfolio of coursework and oral presentation. However, if written, it can be submitted and stored via an electronic portfolio or hard copy. It is possible that assessment components for this unit might be integrated into other appropriate units. This might involve the learners’ applying the learning outcomes and subsequent evidence requirements within the unit, by responding to each outcome on within an integrated/combined project-based scenario. Therefore, use of online assessment, electronic portfolios of evidence and presentations would be most appropriate — although hard copy evidence is equally valid. Also this allows the possible integration of the assessment evidence into a single portfolio of learner work thus providing an integrated approach to assessment which closely mirrors workplace practice. Where available, relevant evidence from the workplace can also be incorporated to enhance the learning outcomes, provided that this evidence is appropriate and authenticated as the learner’s own work. If an integrated approach is used to gather evidence, mapping matrixes and checklists should be used to record learner progress as a formative record of achievement prior to the substantive submission of all completed solutions for the corresponding outcomes. Learners will need to provide evidence to demonstrate their knowledge and/or skills across all outcomes by showing that they can: For outcome 1: Recommend and justify common procurement strategies and construction contracts utilised in the construction industry. For any one assessment, the tasks must cover all three listed knowledge/skills bullets:

Types of contract

Standard forms of construction contracts

Contract documents


Higher National Unit Specification: Statement of standards (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) For the first bullet point learners must recommend (with reasons) an appropriate type of contract. The justification for any recommendations regarding type of contract should be given in terms of the client’s priorities for the project. These priorities may be explicit in the given task or can be implied or assumed. The priorities are most likely to be in terms of quality, cost and time — but can include any other factor that is important in the context of the project. For the second bullet point learners must recommend (with reasons) an appropriate standard form of contract. The choice of standard form of contract should be in harmony with the choice of type of contract. Again, the choice of standard form of contract needs to be justified in the learner’s response. If the use of a standard form of contract is inappropriate for any one project scenario then the learner should say so and justify this conclusion. For the third bullet point learners must recommend contract documents that would be appropriate for different construction projects. The learners must explain the purpose of each contract document. Learners’ responses should cover contract documents used at tender stage and those used during the construction works on site. They should include contract documents typically generated by a design team and those generated by contracting organisations. The documents recommended should be in harmony with the types and forms of contract recommended for the first two knowledge/skills bullets. The assessment for outcome 1 is not time-bound, however it should take no longer than 60. The assessment for outcome 1 should carry a cut-off score of 60%. For outcome 2: Explain the provisions and consequences of the main clauses in a standard form of construction contract. For any one assessment, the tasks must cover two out of the three listed skills/knowledge bullets:

Clauses of a given standard form of contract covering the definition and control of time and programme

Clauses of a given standard form of contract covering the definition and control of cost and payments

Clauses of a given standard form of contract covering the definition and control of specification and quality

The assessment must refer to a given standard form of construction contract with which the learner is familiar.


Higher National Unit Specification: Statement of standards (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) The learners’ responses must provide an explanation of clauses in a standard form of contract. The responses can be either in concise detail (implying detailed understanding) or be more extended. The learners must, in either event, make reference to specific contract clauses in their response. In order to cover the knowledge/skills aspects of outcome 2 the assessment must focus on (two out of three) contractual issues or challenges respecting:

Definition and control of time, eg claims for extension of time; practical completion or similar; information release schedules; contractor’s master programme

Definition and control of cost and payments, eg contract sum; claims for loss and expense; valuation of variations; interim payments and final accounts

Definition and control of specification and quality, eg contract documents (including BIM and BIM protocols where appropriate); contract administrator’s instructions

The assessment for outcome 2 is not time-bound, however it should take no longer than 90 minutes. The assessment for outcome 2 should carry a cut-off score of 60%. For outcome 3: Describe the procedures available for dispute resolution in a standard form of construction contract.

For any one assessment, the tasks must cover the first-listed skills/knowledge bullet (adjudication) plus any one other from the list:

Adjudication or similar contractual procedure

Mediation or similar non-binding procedure

Arbitration

Litigation

Termination or similar contractual procedure

The assessment should — as far as is applicable — refer to a given standard form of construction contract with which the learner is familiar. The learner’s response must include descriptions of the steps/stages of two means of dispute resolution. The steps must be given in chronological order. The response should refer to any notices served as part of the process. It should include the details of the process from initiation and through to the award and potential enforcement of the award. The steps/stages can be described either in concise detail (implying detailed understanding) or take a more extended form. The learner should make reference to specific contract clauses and/or external references (eg statutes or regulations and their clauses/sub-clauses) in their response. The assessment for outcome 3 is not time-bound, however it should take no longer than 60 minutes. The assessment for outcome 3 should carry a cut-off score of 60%.


Higher National Unit Support Notes Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) Unit support notes are offered as guidance and are not mandatory. While the exact time allocated to this unit is at the discretion of the centre, the notional design length is 40 hours.

Guidance on the content and context for this unit This unit forms part of several HNCs and HNDs in construction technician disciplines. It allows learners to develop understanding of types and forms of construction contracts. It may allow them in industry to become more effective contract administrators and contracts managers. It must be stressed that this is a specialist unit: it helps learners gain skills in interpreting complex standard forms of contract — documents that are at least in part drafted by legal experts. It allows learners to appreciate in detail some of the finer aspects of the working relationships between the parties to the contract and their agents. It is therefore beneficial for learners to come to the unit with prior understanding of how design teams work together – and how they work during the project with contractors. The unit allows for consideration of other procurement scenarios apart from the traditional designer-led situation. Design-and-build (D&B) is increasingly popular. Management contracting is also used where it is the best solution. Outcome 1 is designed to enable learners to understand clients’ priorities for different construction projects and how procurement strategies can assist in accomplishing a client’s goals for the project. The client’s priorities are likely to include the three main items of cost, quality and time — but there may be several other priorities for any one client in any one project scenario. It is important that the focus of outcome 1, as far as procurement route is concerned, should be on the three main types of contract: traditional, design-and-build and management. There are, however, some mainstream variants of the three main types of contract that are worth looking at if time permits. For traditional procurement it may be worth spending some time looking at novation — even if it is often just a handy sidestep into the design-and-build route. For design-and-build it may be worthwhile considering DBFO (design-build-finance-operate).


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) For management there are the two main types: management contracting and construction management — but when you understand one the other is relatively simple to comprehend. Both types of management contract are characterised by fast-tracking (parallel design and construction) and by the use of separate work package contractors for the actual works on site. None of the above types of contract are difficult to understand in principle — and it can be made clear when they might be employed and where their use would not be recommended. There are other types of contract that can be introduced during learning and teaching — again none of them difficult to understand in principle, for example: term maintenance contracts; DIY, serial contracts and separate trades. However, in a single-credit HN Unit it makes sense to focus on arguably the three main types of contract: traditional, design-and-build and management. During consideration of procurement options, the learner should be taught to think about allocation of risk and what is important or acceptable as far as risk is concerned to different construction clients — and their contractors. Examples of the scope of scenarios that might be covered in learning and teaching (and assessment) are:

anything from new build to refurbishment, repairs and maintenance

clients from private sector, public sector or even voluntary sector (charities, etc)

anything from major projects to minor ones such as loft conversions or house extensions

projects that have aesthetics as an important factor and those in which function is far more important

projects for buildings with a limited lifespan

projects with extreme deadlines

emergency repairs, for example following a flood

Examples of the types of contract that might be considered as appropriate for any one procurement scenario might include one or more of the following:

Traditional

Design-and-build (D&B)

Design, build, finance and operate (DBFO)

Serial contracting

Construction management

Management contracting

Term maintenance

Lump sum

Fixed price

Cost reimbursement

Target cost


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) Learners must become aware of the different contract documents that are used in construction projects. These may vary from one project to another and even from one type of contract to another — and learners should be helped to see why this is so. Examples of contract documents that are typically used in the construction industry include documents that spell out precisely what the client wants the contractor to price for:

Building Information Modelling (BIM) and/or numbered drawings

Building Information Modelling (BIM) protocols

Specifications (prescriptive and occasionally performance)

Bills of quantities

Client-provided pre-construction information (Construction, Design and Management (CDM) Regulations refer)

Schedules

Method statements

Specialist reports on, eg ground conditions or the condition of an existing building

Standard forms of construction contract

Information release schedules

Videos and photographs of existing premises or installations

Contractor’s master programme (often not produced until after the awarding of the contract)

The above list is not intended to be exhaustive. Neither would all of the above-listed documents necessarily be used on any one project. Other types of contract introduce distinctly different contract documents. For example: unplanned maintenance contracts likely use a schedule of rates in order to establish an element of cost certainty. And in unplanned maintenance projects there may be no drawings whatsoever. For design-and-build projects a key contract document would be the ‘employer’s requirements’. This document allows the design-and-build contractor to develop their own design and still provide what the client really needs from the finished building. Learners need to understand why the different contract documents are used for different types of construction project. It is also important for learners to appreciate that BIMs may well incorporate in themselves several of the above-listed contract documents. Outcomes 2 and 3 are set in the context of a given standard form of construction contract. These standard forms are relatively complex documents with numerous inter-related clauses. The form selected for study should be up to date; it should be industry-recognised and should suit the learners taking the unit. For example, learners in Scotland studying in a building industry context would best be served by looking at the Scottish Building Contract Committee (SBCC) Standard Form with Quantities — latest version. This is a traditional (designer-led) form of contract.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) The Joint Contracts Tribunal (JCT) website is also worth looking at even though their contracts are generally not published for use in Scotland. SBCC is a member of JCT and the SBCC contracts are very similar to JCT contracts. JCT guidance is virtually all applicable in Scotland. Textbooks on JCT are also virtually all relevant to the study of SBCC contracts. The SBCC and the JCT produce suites of contracts to cover not just traditional (designer-led) situations. These other contract families cover design-and-build, management contracts, maintenance contracts and others. It is recommended that outcome 2 in particular is delivered with traditional (designer-led) contracts in mind. It is likely that learners will more readily grasp the starkness of the traditional procurement route — with its potentially adversarial contract relationships — more readily than the others. For learners from either an engineering or construction backgrounds the NEC4 (or latest) contract may be the one for their focused study in outcomes 2 and 3. Increasingly popular (but at the time of writing still behind the JCT/SBCC forms) the NEC suite of contracts are also well served when it comes to industry guidance and textbooks. Outcome 2 asks learners to explain the main provisions of a given standard form of contract. Learners will be expected to gain an understanding of the provisions and consequences of clauses that cover the following areas:

Time or programme:

— dates for commencement and completion — master programme — information release dates — extension of time — practical completion — non-completion and damages

Cost or payments:

— contract sum — interim payments — retentions and monies withheld — valuation of variations — final accounts and payments

Quality:

— contract documents (which may include BIM and a BIM protocol) — instructions:

– requirements for the format of valid instructions – non-compliance with same by contractor – variations

— inspection and testing


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) It is unlikely that time will permit a detailed study of less mainstream clauses such as those covering, for example, the discovery of antiquities and detailed fluctuations clauses. Nevertheless, it is recommended that learners be given a brief overview of all the contents of the conditions of contract. This will give them an appreciation of the scope of the areas covered by the contract under study. Outcome 3 asks learners to describe the procedures for dispute resolution under a given standard form of contract. Not all of the means of dispute resolution listed appear explicitly in every published standard form of contract. Furthermore, not all of them are mandatory in any given standard form of contract. Nevertheless, adjudication was introduced by the UK Government as a statutory means of construction dispute resolution and as such is available even if it is not mentioned in the form of contract. Moreover, most standard forms of contract include (or at least don’t exclude) the use of the others in the knowledge/skills list for outcome 3. The description learners must provide of these procedures should start with the initiation of the procedure — be it via a notice or completion of a summons, etc. The subsequent steps taken by both parties should be described briefly and in chronological order. The description should finish with the steps involved in enforcement if applicable. The description need not include the advantages and limitations of any one means of dispute disposal. For outcome 3 learners must not merely describe the content of the clauses in the standard form of contract. In fact, the actual procedures for dispute resolution are unlikely to be spelled out in any detail in the contract itself. The standard form of contract assumes that the parties are familiar with the actual mechanics of initiating and pursuing any particular method of dispute resolution. Consequently, learners will have to be guided to sources other than the standard form of contract to research and study the actual processes involved in adjudication, arbitration and litigation, etc. For example: the procedures for statutory adjudication are contained in a separate Scheme published by the Scottish Government — the Scheme for Construction Contracts (Scotland) Regulations 1998. These were amended in 2011 — The Scheme for Construction Contracts (Scotland) Amendment Regulations 2011. These regulations may well be amended again in the future. It would be important for learners to make sure that they are describing current procedures. It is a similar story with regard to how little published standard forms of contract sometimes say about arbitration and litigation: the actual procedures involved in taking a case to arbitration or court are almost certainly not spelled out in the conditions of contract. The legislation and protocols relating to these methods of dispute disposal are published separately (eg The Arbitration (Scotland) Act 2010) or in published protocols on the official courts website (eg www.scotcourts.gov.uk). Learners must gain an understanding of contractual termination procedures from a standard form of contract and be able to explain these clauses — again in chronological order. The termination provisions are likely to be spelled out in the standard form of contract itself, for example section 8 of the SBCC Standard Form (2016 edition refers).


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) Most contract forms contain some provision for termination of the contractor’s employment under the contract. The client to bring to an end the contractor’s employment if, for example, the contractor defaults in some significant way. Similarly, there may be provision for the contractor to terminate his own employment under the contract following some significant default of the client. The word ‘termination’ may not be the one used in all forms of contract — but there will be something equivalent in most cases. Outcome 3 includes non-binding dispute resolution procedures. Mediation is a method of non-binding dispute resolution commonly found in standard forms of construction contracts — but there are several other methods potentially available and in regular use, eg neutral evaluation and expert appraisal. Look at the given contract to see what, if any, non-binding dispute resolution procedures are included as options or recommendations. Learners would be required to describe the procedures involved in the use of mediation or other non-binding method of dispute resolution. The description should be in chronological order — as far as possible — and cover all main steps from initiation to conclusion. The fact that these methods are non-binding should be stated and it would be expected that the response mentions the fact that failure to find agreement through such a procedure generally leads to the adoption of one of the binding procedures such as adjudication. Again, the description need not include the advantages and limitations of any of these means of dispute disposal.

Guidance on approaches to delivery of this unit Hopefully learners come to this unit with an understanding of the latest RIBA Plan of Work. It is beneficial if learners have an understanding of the workings and interactions of clients with their design team and contractors. After a brief introduction to general contractual arrangements it may be best to guide learners through a discrete consideration of the three main types of contract: traditional (designer-led); design-and-build (contractor-led); and management (characterised by fast-tracking). The roles of the different parties to the contract (and their agents) can be spelled out for each type of contract in turn. All of the above implies that tutors delivering this unit should be experienced industry practitioners — ideally with a working knowledge of contract administration. Tutors should certainly have a comprehensive grasp of the specialist content of outcome 2 — the details of a standard form of construction contract. It might be advisable for learners in this unit to start with outcome 1 and focus on types of contract and procurement strategy. Within the study of procurement strategy, it would probably be a good idea to start with a few case studies and discuss the clients’ priorities in each case. Starting with simple examples such as a single garage or house extension and building up the learners understanding and reasoning skills until they can comment effectively on major projects such as new motorways and those that are complex in nature such as phased university campus refurbishments.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) It can be stressed to learners that procurement strategy is not difficult to grasp in principle because in our daily lives we all deal with budgets and deadlines and defining what we want of a purchase in terms of quality and performance. These are everyday matters. It is also easy to explain the concepts of open versus selective tendering and competitive tender as opposed to negotiation. Most learners will be familiar with online shopping and with bidding — potentially against the world — for items online. They will also, no doubt, have haggled with a limited number of friends over the cost of items and negotiated how the costs should be allocated for mutual purchases for example. Tendering options are not part of the assessment in this Unit. Nevertheless, learning about them briefly might well help learners grasp the overall procurement picture. Learners should be helped to associate different priorities — in terms of time, cost and quality — with the types of contract that help facilitate the achievement of the client’s main goals. Tutorials should be arranged that test the learners’ increasing understanding of these priorities and how they can be met by the chosen procurement route. Group discussions can help the learners share their ideas on different procurement situations. Clients’ priorities can, in the main, be considered under the headings of time, cost and quality. Client’s priorities can be sub-divided as follows:

Time:

— certainty (specific deadline) — economy (completion as soon as possible) — use of BIM to facilitate pre-contract planning and reduce re-working

Cost:

— certainty (eg a strict budget) — economy (as cheap as possible while still complying with building regulations) — use of BIM to get things right first time reduce the requirement to instruct variations

during the works

Quality:

— effectiveness of design/aesthetics — function and performance — robustness and build quality — use of BIM for design and for FM function after the build — ability to instruct variations during the build

The above lists are not comprehensive — but should be sufficient for most case study considerations in this unit. Learners are at liberty to consider whatever other priorities may be important to clients in the given scenarios. After having looked at several case study scenarios and listed clients’ priorities for each it makes sense to sit down with a list of possible types of contract and choose one for each situation. Learners might be armed with a list of pros and cons of the different types of contract: traditional, D&B, management. They can debate which the best fit for each scenario is.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) Of course, there may be different opinions on what is the best type of contract for any one project. This is not a problem in our academic situation because in practice in industry there may be more than one acceptable solution for the type of contract for any one project. For any given case study scenario in tutorials or formative assessment some learners may have made assumptions that inform their choice of contract type — but not explained them fully. Organised group discussions should help learners become more able to explain their choices fully — or even in more concise detail — which will all be useful when it comes to summative assessment. The tutorials may throw up cases that do not fit any of the three main types of contract. This may be the time to intervene and give the learners more options as tutors explain the purpose of term maintenance contracts, serial contracting and other options. It would make sense to physically look at the contract documents that would suit different project types. Learners should be helped to consider how the proposed building works are designed and how the design is best communicated to potential contractors. At this point learners should be helped to better grasp the purpose and uses of documents such as building information models (BIMs), BIM protocols, drawings, specifications, bills of quantities and schedules. The advantages of 3D modelling and of animated BIMs and walk-throughs might be stressed and even demonstrated. Electronic tendering processes may be demonstrated if such systems are available — at the least hard copy or pdf bills of quantities and specifications can be examined and their uses discussed. In addition, it would be a good idea to consider here the concept of the master programme and the use of project management software. Perhaps project management software applications could be demonstrated — either separately or as part of BIM packages. Next — and because outcome 1 also requires learners to recommend a standard form of contract to suit the given scenarios — it might be a good idea to spend some time looking in outline at a range of published standard forms. Suites of standard forms such as JCT/SBCC often include versions such as: with/without quantities; minor works; measured term; design-and-build; and with contractors’ design portion. This list is not exhaustive. There are nowadays even JCT/SBCC standard forms specifically designed for very small domestic projects that have not in the past employed such formalised contract conditions. Other suites of standard forms of contract comprise mandatory core clauses and a raft of optional clauses that are adjoined with the core clauses to form what is needed for any one project. NEC4 is typical of this contract suite. It might therefore be helpful for learners to look on the internet at lists of suites of contracts such as those published by JCT/SBCC or NEC. The lists often include a description of the purpose of each form and the uses for which it was intended — and also spell out the limitations of each and where each should not be used.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) In addition, publishers often produce guides on selecting the correct form of contract to suit particular scenarios. These are often in the form of — or accompanied by — user-friendly flow charts guiding you through the process of ‘correct’ selection of the best form of contract for your particular project. Learners could be set tasks that require them to explore these guides in order to select appropriate forms of contract for given case studies. This is an especially useful task as the assessment in this unit is open-book with access to the internet permitted. After having looked at the mainstream types and forms of contract it would be worthwhile (if time permits) spending some time examining the other aspects of procurement that might be important to any one construction client. These areas might include: the use of a project manager; the phasing of a project; how to prioritise ‘green’ and environmental issues and solutions; how to facilitate collaborative working — maybe even follow-on projects and partnering; how to encourage the use of BIM and software that can be used in the management of the design, the management of the building works and the management and running of the completed building by the FM team. None of these aspects may be assessable in the unit — but are useful to know about if time permits. These important but non-assessable ‘sub-issues’ may be best learned through case studies and real-life examples. The JCT website contains case studies where the use of their different forms of contract has worked well. Tutorials could be set up to discuss which construction clients might most need to use a project manager (in effect a surrogate client). Presentations on the procurement of award-winning BREEAM building projects might shed light on how clients and designers have established and met environmental priorities for their projects. The benefits of the use of BIM and project management and facilities management (FM) software might be best demonstrated through practical presentations of the use of BIM (which might incorporate project management and master programming applications) and BMS (Building Management Systems). Most new-build colleges and other modern buildings have teams that can demonstrate how this software is used and how it facilitates the effective running of the buildings and estates. There are videos on the internet and on software suppliers’ websites highlighting the significant advantages of these software applications at various stages in a project’s life. Eventually learners will be familiar with different types and forms of contract and the various contract documents that might be used in different projects. When all of this understanding comes together then learners will be able to take the outcome 1 assessment. For outcome 2 it might make sense to start by looking at a straightforward published form of contract such as an SBCC Minor Works form or even a contract form intended solely for domestic projects, eg the SBCC Homeowner forms. This would introduce learners to the basic format of such contract forms. It would also introduce contractual basics such as start dates, completion dates and contract sums as well as the more complex concepts of variations and interim and final payments.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) At this point it might be a useful exercise to get learners to fill in the blanks in one or more of these standard forms — this learner-centred task would force the learners to think about the key variables in each contract and would require that they read the contracts with a bit of care.

Soon the learners will be ready to build on their understanding and explore the detailed provisions of one of the major forms such as JCT/SBCC Standard Building Contract With Quantities or one of the NEC4 major forms. These documents are drafted by legal experts and are often couched in legalise wording. The JCT/SBCC forms in particular have this reputation — which it could be argued has its advantages. It might help learners to understand the various inter-related clauses by spending time simply reading the standard form of contract in a quiet corner. This directed study could be facilitated and focused by using a set of specific tasks or sending them off with a set of specific questions to answer: the aim being to build up an understanding of a specific area of the contract ‘jigsaw’. Again, it might be beneficial if learners are asked to fill in the ‘blanks’ (complete the variables) contained in the appendix of one of these ‘major’ standard forms. However, this may best be done in class as some of the more obscure items in the appendices will certainly require some explanation. The detailed study of contract conditions can be facilitated by either a clause-by-clause approach or a topic-by-topic approach. There probably isn’t time for both approaches. It is likely that learners with less experience in the construction industry will make more sense of a topic-by-topic approach. For example, the study of architect’s instructions and variations encompass a variety of clauses but only one general topic — which is easier to digest as a topic than by a page-by-page consideration of the contract clauses. Learners with experience in the industry might be able to take the clause-by-clause approach as they already have a greater understanding of the administrative ‘blanks’ that might confound the ‘novice’. It would be fair to say that those with experience in the industry have more ‘pieces’ of the contract administration ‘jigsaw’ in place when they start with this unit. To reinforce learning it might be a good idea to ask learners to consider the contract conditions from the point of view of different parties’ rights and duties. It might also be of benefit to get learners to practise completing some of the standard templates that are associated with the standard forms of contract, for example Architect’s Instructions or Extension of Time pro formas. Eventually learners will be sufficiently familiar with the given standard form — and the contracting parties’ rights and duties — that they will be ready for assessment in outcome 2. Learning and teaching for outcome 3 should open with a reasonably detailed study of the termination clauses in the given contract. This makes sense as this follows on from the detailed learning of contract clauses in outcome 2.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) After that learners may find it easier to study the procedures involved in litigation because aspects of that might already be part of their general knowledge. The local courts might be worth a visit in order to see how the system works in reality. The Scottish Courts website is a very good source of information on the correct steps involved in litigation. The Citizens Advice website also contains a user-friendly guide to the court process. After looking at litigation it might be an idea to compare and contrast the procedures involved in arbitration. These two methods — litigation and arbitration — are widely acknowledged as the ultimate forms of dispute resolution in the construction industry. It might be worthwhile getting learners to produce a table comparing the steps involved in these two ‘big-hitting’ dispute resolution methods. At the time the Arbitration (Scotland) Act was introduced in 2010 a number of Scottish solicitors put guides to the process on their websites. These are still available and are very useful sources of information about the processes involved in bringing a case to arbitration. Following this it might be appropriate to look at statutory adjudication which was introduced largely as a consequence of the potential shortcomings involved in arbitration and litigation — for the most part because of the long timescales (and sheer waiting time) involved in the two ‘big-hitters’. Again, a number of Scottish solicitors put guides to the adjudication process on their websites at the time this method of dispute resolution became mandatory. There are also published guides on the steps involved in adjudication. Once again it might be a good idea for learners to add a column to their step-by-step table — this time to include adjudication. By this point learners might be convinced that it would be best to avoid if possible, any form of dispute resolution that involves the expense of legal representation. It might therefore be a good time to look at the idea of alternative dispute resolution (ADR). ADR encompasses a variety of possible methods such as mediation, conciliation and mock courts. There is a lot of information about the uses and limitations of these forms of dispute resolution. Some of the methods under the ADR banner may be mandatory in some standard forms of contract — in others they are merely advisory. Some of the methods may be binding — others may not be. It is important to read the contract clauses with care.

Learners might be helped to understand the procedures involved in ADR by taking part in a mock mediation devised around a realistic construction industry scenario. This might work best with learners who have experience in the construction industry — possibly evening class learners. However, unless this is well planned and the learners are well primed, this idea may prove more problematic that beneficial. At all stages of outcome 3 it would be useful for learners to practise the letter writing and the form-filling that would be associated with the different methods of dispute resolution. This might include the completion of, for example, a summons pro forma from a Sheriff Court for an action to recover unpaid monies under a construction contract. Alternatively — or in addition — it might be useful for learners to practise the drafting of a notice of adjudication. All of this would allow them to build up skills that will be of direct benefit to their future work in the construction industry. It would also allow them to build up general and transferable communication skills.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) Eventually learners will have built up their understanding of the different methods of dispute resolution and be in a position to take the assessment for outcome 3. General comments for all outcomes: Throughout all of the learning and teaching in this unit the use of case study scenarios may be helpful. In fact it might help learners if lecturers devise a series of case studies that are used throughout the unit to illustrate clients’ priorities, recommended types of contract, standard forms of contract, contract documents and dispute resolution situations. In summary — learning and teaching activities that might suit this unit include:

Quiet reading

Lectures/tutorials on clients’ priorities in different scenarios

Lectures/tutorials on specific contract types

Lectures/tutorials on specific contract clauses

Lectures/tutorials on the rights and duties of individuals within a given standard form of contract

Group discussions and/or presentations on case study scenarios and clients’ priorities

Examination of websites for articles and guidance on types and forms of contract

Examination of actual contract documents from industry — hard-copy or electronic

Demonstrations of the uses of BIM and FM software

Demonstrations of the uses of project management software

Examination of websites detailing procedures for dispute disposal

Site visits and presentations by construction industry practitioners on the use of BIM, computer applications, running of projects and on procurement routes

Presentations by construction industry practitioners on the use of BIM protocols

Site visit to a local court to view court procedures first-hand

Mock mediations or adjudication hearings —– as long as these are very well prepared and the participants are well primed and familiar with the case study scenarios

Draft completion of proformas for contract administration or dispute resolution

Drafting letters for contract administration or dispute resolution

Guidance on approaches to assessment of this unit Evidence can be generated using different types of assessment. The following are suggestions only. There may be other methods that would be more suitable to different learners. Centres are reminded that prior verification of centre-devised assessments would help to ensure that the national standard is being met. Where learners experience a range of assessment methods, this helps them to develop different skills that should be transferable to work or further and higher education. Where evidence for outcomes is gathered on a sample basis the whole of the Knowledge/Skills lists must be taught and available for assessment. Learners should not know in advance which different items in the lists will be sampled in any one assessment.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) All assessments should be open-book under a controlled assessment environment with learners permitted to refer to class notes, handouts, textbooks and the internet. It is recommended that the assessment is carried out on an outcome by outcome basis. Assessment in this unit should therefore be carried out by means of three separate tasks: each task will cover each of the three outcomes in order. This unit requires written and/or oral evidence. This is appropriate here because most of the Unit is about justifying recommendations for procurement strategies, explaining provisions of contracts and summarising processes for dispute resolution. Therefore, use of online assessment, electronic portfolios of evidence and presentations would be most appropriate — although hard copy evidence is equally valid.

In this unit the use of case study scenarios in addition to more traditional tasks and questions can be used to illicit suitable responses from learners. Outcomes 1 and 2 in particular may benefit from the use of case study scenarios — whereas outcome 3 is more about general processes in dispute disposal. Outcomes 1 and 3 in particular may lend themselves to oral presentations. These may be aided by means of slides or otherwise. For outcome 1, a presentation will allow learners to demonstrate their understanding of procurement strategies, forms of contract and contract documents. The presentation would outline the learner’s recommendations for type and form of contract for each of two out of, say, four case studies selected. The presentation can be followed by a question and answer session to clarify the learner’s understanding. The presentation can be videoed and stored in the electronic portfolio of evidence. Electronic copies of associated slide presentations may be stored as evidence in the e-portfolio. A presentation may also be used as assessment for the other two outcomes — but probably most appropriately for outcome 3. Thus, the presentation would outline the steps involved in pursuing a dispute via an adjudication plus one of the other means listed in the knowledge/skills list for the outcome. Again, the presentation can be followed by a question and answer session to clarify the learner’s understanding. The presentation can be videoed and stored in the electronic portfolio of evidence. Again, electronic copies of associated slide presentations may be stored as evidence in the e-portfolio. Outcome 2 requires evidence of an understanding of contractual subjects and the detailed clauses that govern them during construction projects. This could be assessed by a presentation in response to a case study scenario but would more likely lend itself readily to an assignment. Again, the use of online assessment or an electronic portfolio of evidence would be appropriate here. If a case study scenario is used as a vehicle for assessment in outcome 2 then the learner could be asked to provide advice in response to a given contractual problem such as a claims situation or potential dispute over time, payment and/or quality. The learner, for the purpose of the assessment, could play the part of a contracts manager or a member of the design team.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) Assessment of outcome 1 as a paper-based or online task should be allocated about 60 minutes — although a strict allowance of time is not essential. Of course, if it is assessed as an assignment or via a presentation there will be less of an issue with time. Nevertheless, deadlines for assignments and a minimum/maximum time for the duration of the presentation proper should be agreed in advance. Assessment of outcome 2 as a paper-based or online task should be allocated about 90 minutes — although a strict allowance of time is not essential. Again, if it is assessed as an assignment or via a presentation then deadlines for assignments and a minimum/maximum time for the duration of the presentation proper should be agreed in advance. Assessment of outcome 3 as a paper-based or online task should be allocated about 60 minutes — although, once again, a strict allowance of time is not essential. If it is assessed as an assignment or via a presentation deadlines for assignments and a minimum/maximum time for the duration of the presentation proper should, once again, be agreed in advance. Regardless of the type of assessment adopted by centres, learners should generally carry out their own work. If some collaboration is permitted, for example, in the preparation (and even delivery) of presentations, then each learner should have his or her understanding of the subject matter confirmed by their individual input to the oral presentation and/or by separate supplementary questioning. If assignments and presentations — and the use of electronic portfolios of evidence — are not used for assessment, and more paper-based tasks are preferred, then assessments should be carried out in controlled, supervised conditions. Learners should carry out their own work. All the same assessments should be open-book with learners permitted to refer to class notes, handouts, textbooks and the internet. Internal and external verification as well as sampling of learners’ evidence overall should be carried out in accordance with SQA and centre quality procedures. If an electronic portfolio of evidence is used then centres should ensure that learners’ evidence is clearly identified and signposted as required and as pertaining to this Unit. This will aid the internal and external verification processes. The appropriate and correct use of hyperlinks is advised. This is true not just of learners’ evidence but of assessor feedback and observations — which may be stored electronically alongside (or hyperlinked to) learners’ evidence in the e-portfolio. Learners may have to be coached as to how to store and present their e-portfolio evidence in a structured fashion — one that makes it easy to locate. This may include the use of a given index of evidence template. In addition, centres may require learners to store first and subsequent drafts of evidence chronologically and/or using version control for file names and dates. This may aid in authentication of individual work. Again, learners may need coaching in this aspect of storing e-portfolio evidence.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) If evidence is produced without supervision, for example by an assignment — then questioning learners on their work may be sufficient to confirm authenticity of work. Notes on this supplementary questioning may be stored in the e-portfolio. If necessary, then further authentication measures may be employed on any one occasion. These measures may include one or more of the following measures/requirements: the ‘locking’ of evidence (made ‘read only’) in the e-portfolio ready for marking; referencing of sources as part of the submission; the use of electronic signatures for learners and for assessors; anti-plagiarism software; supervised write-ups of single elements of the assessment tasks; evidence of uploading dates and times; photographs, video clips and statements from observations of presentations. Indeed, some of these above-mentioned supplementary authentication measures may simply be good e-portfolio practice and should be adopted generally by all centres using e-portfolios. Evidence can be generated using different types of assessment. The following are suggestions only. There may be other methods that would be more suitable to learners. Centres are reminded that prior verification of centre-devised assessments would help to ensure that the national standard is being met. In designing the assessment instrument(s), opportunities should be taken to generate appropriate evidence to contribute to the assessment of Core Skills units. Where learners experience a range of assessment methods, this helps them to develop different skills that should be transferable to work or further and higher education. All assessments in this unit should be open-book in nature, under controlled, and supervised condition within an appropriate assessment environment, carried out outcome by outcome, with learners permitted to refer to class notes, handouts, textbooks and the internet. It is recommended that assessment is carried out for each outcome separately after the learning for each outcome — and in numerical order. However, the order in which the outcomes are delivered and assessed is not vital. Assessment in this unit should therefore be carried out by means of separate tasks: each task will cover each of the individual outcomes in order. This unit requires written evidence and /or oral evidence. It is recommended that evidence for learning outcomes is achieved through well-planned course work, assignments and projects. Whilst assessments, must be focused on the individual achievement of each learner, group work and role-play activities may contribute to the assessment. The volume of evidence required for each assessment should take into account the overall number of assessments being contemplated within this unit and the design of the overall HN teaching programme. Therefore, it is possible that assessment components for this unit might be integrated into other appropriate units. This might involve the learners’ applying the learning outcomes within the unit, by responding to each outcome on within an integrated/combined project-based scenario. Therefore, use of online assessment, electronic portfolios of evidence and presentations would be most appropriate — although hard copy evidence is equally valid.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) Also this allows the possible integration of the assessment evidence into a single portfolio of learner work thus providing an integrated approach to assessment which closely mirrors workplace practice. Where available, relevant evidence from the workplace can also be incorporated to enhance the learning outcomes, provided that this evidence is appropriate and authenticated as the learner’s own work. If an integrated approach is used to gather evidence, mapping matrixes and checklists should be used to record learner progress as a formative record of achievement prior to the substantive submission of all completed solutions for the corresponding outcomes.

Open-book Controlled Supervised Assessments For any HN Unit assessment within the Construction Technician Suite of Qualifications stipulate ‘open-book assessment’, SQA is comfortable that these can now be assessed under the following conditions: 1 Integrated combined assessment model, within the context of ‘project-based’

learning and assessment, ie carried out holistically with the learning and assessment of other relevant HN Units based on a centre devised project.

Centres are reminded that prior verification of centre-devised assessments would help to

ensure that the national standard is being met. Documented evidence of these processes needs to be retained for verification purposes

If an integrated approach is used to gather evidence, mapping matrixes and checklists should be used to record learner progress as a formative record of achievement prior to the substantive submission of all completed solutions for the corresponding outcomes.

2 Assessed individually: As an online timed assessment, require to adhere to the

following criteria: Long answer questions/responses Plagiarism detection engine/tool Large question bank to allow randomised question generation to individual learners, in

order to create unique exams for each learner. Centres are reminded that prior verification of centre-devised assessments would help to ensure that the national standard is being met. Documented evidence of these processes needs to be retained for verification purposes. If assessed individually: as an online timed assessment to gather evidence, mapping matrixes and checklists should be used to record learner progress as a formative record of achievement prior to the substantive submission of all completed solutions for the corresponding outcomes.


Higher National Unit Support Notes (cont) Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8)

Opportunities for e-assessment E-assessment may be appropriate for some assessments in this unit. By e-assessment we mean assessment which is supported by Information and Communication Technology (ICT), such as e-testing or the use of e-portfolios or social software. Centres which wish to use e-assessment must ensure that the national standard is applied to all learner evidence and that conditions of assessment as specified in the evidence requirements are met, regardless of the mode of gathering evidence. The most up-to-date guidance on the use of e-assessment to support SQA’s qualifications is available at www.sqa.org.uk/e-assessment.

Opportunities for developing Core and other essential skills Throughout this unit learners will be able to develop skills in Communication — both Written and Verbal. They will read complex contractual documents and will explain their understanding of relatively complex contractual situations. This unit has the Critical Thinking component of Problem Solving embedded in it. This means that when learners achieve the unit, their Core Skills profile will also be updated to show they have achieved Critical Thinking at SCQF level 6.


History of changes to unit

Version Description of change Date

© Scottish Qualifications Authority 2020 This publication may be reproduced in whole or in part for educational purposes provided that no profit is derived from reproduction and that, if reproduced in part, the source is acknowledged. Additional copies of this unit specification can be purchased from the Scottish Qualifications Authority. Please contact the Business Development and Customer Support team, telephone 0303 333 0330. Unit template: June 2017


General information for learners

Unit title: Construction Contracts: Conditions and Procedures (SCQF level 8) This section will help you decide whether this is the unit for you by explaining what the unit is about, what you should know or be able to do before you start, what you will need to do during the unit and opportunities for further learning and employment. This unit is about construction contracts. It is about how clients decide what contractual approaches to take to bring in their project on time, to specification and within budget. Before you get started you should know a bit about who makes up design teams and how they work with contractors. If you had a general understanding of construction contract administration and documents that would be great: Architect’s Instructions, drawings and Building Information Models (BIMs), specifications and bills of quantities. If you take this unit you will learn how to select different types and legal forms of contract for different situations. You will learn about the different contract documents that are used in designing the project, in pricing the works and for running the project once it starts on site. You will spend a fair bit of time looking at detailed legal contracts that set out the rights and duties of the client, the contractor and the clients design team. You will learn how to avoid contractual disputes — and the procedures involved if you actually do have to take a dispute further. You will be assessed by looking at case study situations and making recommendations to suit these. You may also have to answer questions about contract clauses. You will have to research and spell out the processes involved in statutory adjudication and other methods of resolving construction disputes. You will probably pick up skills in contractual letter-writing. You should definitely pick up skills in interpreting complex contract documents. Your understanding of how the construction industry works will be significantly increased. In addition, you should learn about how construction clients and design teams are building environmental and safety considerations into their project requirements. You should gain a heightened appreciation for how BIM and other computer applications are enhancing the work of both design teams and contracting organisations — reducing errors, increasing safety and setting up the building for its use on completion.

Documents

Construction Contracts: Conditions and Procedures (SCQF