Almost 11 years have passed since the JCT published its innovative Major Project Form 2003, now the Major Project Construction Contract 2011 (MP).
The JCT’s intent was to produce a form that reflected how its design and build contract, the Form of Building Contract 1998 Edition With Contractor’s Design – currently the Design and Build Contract 2011 (DB) – would typically look after the contract negotiations. The MP did away with the need for schedules of contract amendments. Conditions, schedules and the appendix amounted to only 40 pages.
In spite of its conciseness and plain English drafting the MP has not been widely used. This is not for a shortage of higher value projects. Instead, it highlights an incongruity in the construction world; while design and engineering techniques advance rapidly, as far as contractual relationships are concerned, it is more a case of evolution than revolution.
The MP applied amendments often made with more complex projects, such as introducing a design review procedure, defining practical completion, adding standards for skill and care, professional indemnity insurance and ground conditions risk transfer, and facilitating novation of the employer’s design team. Where obligations in the MP and the DB overlapped, the former opted for a more market-facing approach.
But these are provisions one might already see in a schedule of amendments. The MP went further, delving into conditions that the agreement of, even today, is by no means a slam-dunk on large projects. These include granting the contractor access rather than exclusive possession, permitting acceleration, rewarding early completion and value engineering and allowing testing of the completed works.
Those used to amending DB contracts may find it odd that the MP did not place single-point design liability on the contractor. The now-defunct Construction Confederation, which represented contractors in approving the standard form, would not budge on the issue.
Some contract matters were left to the Employer’s Requirements or contract amendments. There were, for instance, no provisions to deal with retention or off-site materials. The absence of an obligation to secure sub-contractor collateral warranties may, however, have been a cut too far since there was also no requirement for a contractor-procured performance bond or parent company guarantee.
Revisions over the years have focussed on tracking changes in law. As it transpired, the biggest obstacle to the MP achieving mainstream success was the DB’s popularity.
One could question why the MP has not merely been put out to pasture. However, that would discount an interesting alternative. What if the JCT abandoned the idea of keeping the MP concise and market facing and instead used each revision to implement cutting edge construction objectives, unencumbered either by other JCT forms or earlier editions? There’s much discussion regarding how contracts should deal with 21st century concepts such as BIM, payment security, scheduling, collaboration, green construction or expert determination. Perhaps the issue isn’t that the MP is too radical, it’s that it is no longer radical enough.