Following consultations on the draft held in 2012, the Chartered Institute of Building (CIOB) has launched its Complex Projects Contract 2013, based on the principles in its 2010 publication “Guide to Good Practice in the Management of Time in Complex Projects”.
This new standard form of contract seeks to adopt the principle of collaboration between all parties to avoid disputes arising during complex projects, in a more prescriptive and contractual way than other existing forms of contract such as the NEC3. The contract also intends to provide for greater transparency throughout the project with the Contractor being obliged to share information by way of detailed updated programmes and progress reports, to allow the client actively to manage the project. CIOB also state that this form of contract is the first standard form to adopt the principles of the Society of Construction Law’s “Delay and Disruption Protocol”.
This contract has been drafted for use on complex projects, in the UK or overseas, which are likely to have one or more of the following characteristics:
- work involving complex MEP services, more than one structure, a structure taller than 50m above ground level and/or substructure;
- a construction period in excess of a year;
- design continuing during the construction period;
- multiple main contractors and/or in excess of 20 subcontractors;
- multiple possession and/or access dates, short period possessions, or multiple key / sectional completion dates.
It can be used with a variety of procurement strategies, including traditional (with or without contractor design) and design and build, though the authors of the contract admit it would need further amendment if it were to be used for trade contracting. The contract includes some more unusual provisions such as testing provisions for engineering projects, allowance for notices and other documents being issued by email and File Transfer Protocol (FTP), and assignment of the contract by way of security by either party.
The contract is comprised of three main parts: the Contract Agreement, the Conditions and the Appendices, which sets out the Definitions, the Contract data, a BIM protocol, the details required in the Working Schedule, Planning Method Statement and the regular Progress Reports, and the risk events.
One of the main differences, tabled by CIOB, between this form of contract and others is the use of a detailed programme, known as the “Working Schedule” which must include the calculated critical path network within it. This is used both to analyse the cause and effect of any events that arise as well as allowing the Project Time Manager to audit/review progress.
The Project Time Manager (a new role based on CIOB’s Project Time Management Qualification scheme) is not only to review progress but is to advise the project team on procedures and programming. Where delays or issues arise and the Contractor fails to mitigate them, the Project Time Manager is to work with the Contractor to identify how best any lost time can be recovered. The Project Time Manager has access to all the project records including progress records and hence the facts on which to base any determination of delays and/or losses, removing the need for references to ‘fair and reasonable’ assessments in the contract.
The risk events in the contract are also clearly separated out in to those which are to be Employer risks, those which are usually considered to be force majeure related (for which the parties are to agree which are an Employer Time Risk Event and/or an Employer Cost Risk Event) and project specific risks to be agreed between the parties at the outset.
The dispute resolution procedure under the contract is divided into two parts:
- Issue resolution: the contract provides a process for either party to air any issue that arises within 20 days, and for it to be determined by an agreed principal expert within a 20 day period thereafter. The principal expert has the right to call a conference of the parties, bring on board other relevant experts to assist him, and carry out his own investigations, i.e. the expert does not need to solely rely on the information provided by the parties. The outcome of this ‘informal’ approach is considered to be binding unless either party challenges it within 20 days of the decision being published.
- Dispute resolution: where the outcome of the Issue Resolution process is challenged or where a formal dispute is notified by a party, mediation, adjudication and arbitration are available to the parties.
It will be important to note that the contract includes ‘deeming provisions’ and, for example, if a dispute is not notified within 20 days it may be deemed to be agreed. These ‘deeming provisions’ seek to prevent issues and disputes festering until the end of a project.
The contract is also accompanied by a set of Guidance Notes and a separate Index.
More details on the updated forms can be accessed here: