Historically, most academy building projects have been procured by a local authority on the school's behalf. With the increase in the number of multi-academy trusts, we are starting to see a new trend in the market with the trust being the client under the construction project.
Where the trust has a number of projects, it will first have to enter into a framework agreement; the successful framework contractor will then be appointed for each project. This framework agreement will identify the academy to be the subject of the first design and build contract to be entered into as the "Initial Scheme" with subsequent academies being referred to as "Future Schools". The trust will then enter into separate design and build contracts with the framework contractor.
The current design and build contract is a bespoke form of 238 pages including 26 schedules and 131 footnotes. Practically, the trust's legal team must work closely with the project manager to negotiate and agree it with the contractor on behalf of the trust.
The fact that the standard form template was drafted for the employer of the contractor to be the local authority, rather than the trust, means that some of its provisions have to be amended carefully to reflect this. For example, the provisions novating the contract from the local authority to the trust on practical completion of the works are not relevant. Similarly, the post-novation collateral warranty from the contractor to the local authority needs to be replaced with an ordinary collateral warranty to the local authority.
The overriding principle of the Education Funding Agency is that the only amendments to the standard form template that it will approve are those required to reflect the nature of the employer and any other changes which are purely project-specific. All the amendments to the standard form template have to be reported in a separate EFA Derogations Table. This can be a very time-consuming process, although it becomes much quicker after the first academy in a batch has been dealt with.