JCT Design and Build Contract 2024

The Documentary Hierarchy

JCT DB 2024 Recitals; Articles; clause 1.3

The contract is built from the Recitals, the Articles, the Conditions, the Employer's Requirements (ER), the Contractor's Proposals (CP), and the Contract Sum Analysis (CSA). Where the ER and CP conflict, the Contractor's Proposals generally prevail because the contractor has reviewed the ER and offered a price for delivering them. This is a fundamental reversal of the traditional position and a frequent source of disputes if the ER are not drafted with care.

Design Responsibility Shift

JCT DB 2024 Article 1; Recitals

Article 1 obliges the contractor to complete the design and construct the Works in accordance with the Contract Documents. Unlike JCT SBC, the contractor assumes responsibility for the design from the point of contract execution. Any design work the employer's consultants have completed before contract becomes the contractor's responsibility once incorporated into the Employer's Requirements or the Contractor's Proposals, subject to the novation arrangements.

Contract Sum Analysis

JCT DB 2024 clause 4.5; CSA Annex

The Contract Sum Analysis breaks down the Contract Sum across elements of the Works. It is the basis for valuing interim payments and any variations (called Changes in DB 2024). The CSA is not a bill of quantities; it is provided by the contractor and reflects how they have priced their proposals. The Employer's Agent uses the CSA when assessing applications for interim payment.

Contractor's Design Documents

JCT DB 2024 clause 2.7 to 2.10; clause 2.17

The contractor must prepare and submit Contractor's Design Documents in accordance with the Design Submission Procedure at Schedule 1. The Employer's Agent reviews and returns documents as Status A (proceed), Status B (proceed subject to comments), or Status C (do not proceed, revise and resubmit). Review by the Employer's Agent does not relieve the contractor of design responsibility. The contractor remains liable for the design even if the Employer's Agent has marked the document Status A.

Design Liability Standard

JCT DB 2024 clause 2.17.1

Clause 2.17.1 sets the contractor's design liability at the level of a professional designer holding themselves out as competent in the same field: reasonable skill and care, the standard set by section 13 of the Supply of Goods and Services Act 1982. Crucially, this is NOT a fitness for purpose obligation. The 2024 edition preserves the equivalence to professional consultancy liability. This alignment is essential for the contractor's PII to respond and for novated architects to maintain insurance.

Cap on Design Liability for Loss of Use

JCT DB 2024 clause 2.17.3

Where stated in the Contract Particulars, the contractor's liability for loss of use, loss of profit, and other consequential losses arising from a design defect is capped at a financial limit. The cap protects the contractor and its insurer but is often resisted by employers. Architects advising on DB procurement should flag whether a cap is being agreed and whether the employer is taking professional advice on its commercial implications.

Role and Authority

JCT DB 2024 Article 3; clause 1.1 (definitions)

Article 3 names the Employer's Agent. The Employer's Agent acts on behalf of the employer in administering the contract, issuing instructions, receiving notices, and assessing applications. The Employer's Agent is the employer's representative, not an independent certifier. This distinction matters because the Employer's Agent has no quasi-judicial duty to act impartially between the parties.

Instructions and Changes

JCT DB 2024 clause 3.5 to 3.9; clause 5.1

The Employer's Agent may issue instructions, including instructions for a Change (the DB equivalent of a Variation). Instructions must be in writing or confirmed in writing within a short period. A Change is a change to the Employer's Requirements and is valued under the Valuation Rules at clause 5.4 to 5.7. The contractor may object to a Change if it would be impossible or unreasonable, but the threshold is high.

No Certification Duty

JCT DB 2024 clause 4.7 to 4.10

Unlike a Contract Administrator under SBC, the Employer's Agent does not issue interim certificates. Instead, the contractor makes Interim Applications, the Employer's Agent (or the employer) issues a Payment Notice, and the employer pays. The Employer's Agent's role in the payment chain is to assess the application and notify the sum the employer considers due, not to certify it as an independent third party.

Why Novation Happens

CIC Novation Agreement 2018; JCT DB 2024 (no internal novation clause)

Where the employer commissions design work before procuring the contractor (typical for two-stage tenders), the consultant team is usually novated to the contractor on appointment, commonly at the end of RIBA Stage 3 or during Stage 4. The Construction Industry Council 2018 Novation Agreement is the most widely used form. Post-novation, the consultant's contractual relationship is with the contractor, not the employer, and the consultant's design is brought within the contractor's single-point liability.

Ab Initio Novation

CIC Novation Agreement 2018, clause 2; case law (Blyth & Blyth v Carillion 2001)

The CIC 2018 form is an ab initio (from the beginning) novation: the contractor is treated as if it had been the consultant's client from the outset of the appointment. The consultant therefore owes the contractor the same duties of care it previously owed the employer for work already performed. The contractor may bring claims for pre-novation breaches. Blyth & Blyth v Carillion confirmed that in a switch novation (the older form) the contractor cannot claim for losses suffered by the employer pre-novation; ab initio novation closes that gap.

Residual Liability to the Employer

Collateral Warranty or Third Party Rights Schedule; CIC Novation Agreement 2018 schedule

After novation the employer loses its direct contractual link to the architect. To preserve a route of action for breaches that affect the employer (such as defects in pre-novation design), the employer usually requires a collateral warranty or third party rights from the architect. The CIC 2018 form ordinarily includes a duty of care deed or warranty in the schedule. Architects must check what residual liability they are accepting and confirm their PII responds to claims from both the contractor and the employer.

Switch of Reporting Lines

RIBA PSC 2020 clause 7; CIC Novation Agreement 2018

Once novation completes, the architect's instructions, fee invoices, and design submissions are channelled through the contractor, not the employer. The architect must not continue to take direction from the employer in the same way. A common pitfall: the employer's project manager continues to instruct the architect informally after novation, creating duplicate and conflicting instruction lines. The architect must close this out at the novation date and confirm the new lines of authority in writing.

Interim Payment Mechanism

JCT DB 2024 clause 4.7 to 4.9

The contractor submits an Interim Application by the Interim Valuation Date stated in the Contract Particulars (typically monthly). The application states the sum the contractor considers due. The due date is 7 days after the Interim Valuation Date. The employer must serve a Payment Notice within 5 days of the due date stating the sum the employer considers due and the basis of calculation. The Final Date for Payment is 14 days after the due date.

Payment Notice and Pay Less Notice

JCT DB 2024 clause 4.9.3 to 4.9.5; HGCRA 1996 s.110A and s.111

If the employer fails to issue a Payment Notice, the contractor's Interim Application becomes the default Payment Notice and that sum is the notified sum. If the employer wishes to pay less than the notified sum, it must serve a Pay Less Notice not later than 5 days before the Final Date for Payment, specifying the sum considered due and the basis. Without a valid Pay Less Notice, the notified sum must be paid in full. This regime mirrors the requirements of HGCRA 1996 sections 110A and 111.

Loss and Expense Application

JCT DB 2024 clause 4.20 to 4.21

The contractor must apply for direct loss and expense as soon as the likely effect of a Relevant Matter on regular progress becomes apparent. Relevant Matters at clause 4.21 broadly mirror those in JCT SBC: Changes, Employer's Instructions causing delay, deferment of possession, suspension for non-payment, and impediments by the employer. The application must include an initial assessment and updated assessments at monthly intervals. The Employer's Agent assesses and notifies the ascertained amount within prescribed periods.

Contractor's Right of Suspension

JCT DB 2024 clause 4.11; HGCRA 1996 s.112

If the employer fails to pay the notified sum by the Final Date for Payment, the contractor may, after giving at least 7 days' written notice, suspend performance of any or all of its obligations until payment is received. The suspension does not constitute a breach. The contractor is also entitled to a reasonable amount of costs and expenses arising from the suspension. This right derives from section 112 of HGCRA 1996 and cannot be contracted out of.

Statement of Practical Completion

JCT DB 2024 clause 2.27

When the Employer's Agent considers Practical Completion has been achieved, it issues a written Statement of Practical Completion. There is no statutory definition of Practical Completion; the established case law position (Mears v Costplan Services 2019 in the Court of Appeal) is that PC requires the Works to be substantially complete and capable of being used for their intended purpose, even with minor outstanding items. Issue of the Statement triggers release of half the retention, the start of the Rectification Period, the end of the contractor's insurance obligation for the Works, and the cessation of liquidated damages.

Rectification Period and Schedule of Defects

JCT DB 2024 clause 2.36

The Rectification Period runs from the Statement of Practical Completion for the period stated in the Contract Particulars (commonly 12 months on DB projects). During the period, the contractor must make good defects that appear and are notified by the Employer's Agent. At the end of the period the Employer's Agent issues a Schedule of Defects listing remaining defects. Once all listed defects are remedied, the Employer's Agent issues a Notice of Completion of Making Good, releasing the second half of retention.

Final Statement

JCT DB 2024 clause 2.38; clause 4.12

After making good defects and resolution of the final account, the contractor submits a Final Statement (or the employer issues an Employer's Final Statement if the contractor fails to do so). The Final Statement, once it becomes conclusive, is binding evidence of the sum due and that all matters that should have been raised before the Final Statement have been raised. Conclusivity is subject to a 28-day challenge window during which adjudication, arbitration, or litigation may be commenced.