The Canadian Construction Documents Committee (CCDC) has developed the new CCDC 14 – 2013 Design-Build Stipulated Price Contract. This new CCDC document replaces the Document 14 – 2000 Design-Build Stipulated Price Contract (which was not an official “CCDC” contract on the basis that not all members of the CCDC endorsed the document and as such it did not achieve “CCDC” status). The CCDC is comprised of: Owners (2 members from the private sector and 2 members from the public sector), the Association of Consulting Engineering Companies – Canada (3 members), the Canadian Construction Association (4 members), Construction Specifications Canada (3 members), the Royal Architectural Institute of Canada (3 members) and an ex-officio member from the legal profession.
Some highlights of the new CCDC 14 – 2013 Design-Build Stipulated Price Contract include:
The Work means the total construction and related services required by the Contract Documents but does not include the Design Services. Under the 2000 document, the Work included the Design Services and the Construction required under the contract.
- There are potentially 5 key entities (in addition to the Owner and the Design-Builder (the “DB”)) involved in the Project being (i) the Consultant who is the architect or engineer engaged by DB to perform the Design Services; (ii) the Other Consultant(s) who is an entity other than the Consultant that may be engaged to perform a component of the Design Services; (iii) the Payment Certifier who is responsible for the issuance of certificates for payment and will also issue the certificate of Substantial Performance; (iv) the Owner’s Advisor, if any, who is appointed by the Owner; and (v) the Subcontractors who are performing aspects of the Work. Note, in the 2000 document the Owner’s Advisor was described as the Owner’s representative if such person was appointed.
- The date for Substantial Performance of the Work is to be fixed upon execution of the contract which transfers the completion risk on to the DB. Under the 2000 document, the parties would establish a date for Substantial Performance of the Work upon obtaining required permits (unless this was amended in the Supplementary Conditions which presumably Owner’s would seek to achieve).
- There are several sections which now formally provide for Notice in Writing which implies an enhanced status for these matters and necessarily involves the contracting parties.
- The confidentiality obligations on the DB only exist where (i) there is a confidentiality agreement in place or (ii) the Owner expressly requires this in the Contract (i.e. Supplementary Conditions).
- The Owner is the interpreter of the Owner’s Statement of Requirements in the first instance. The Consultant or Other Consultant(s) will be the interpreter in the first instance of the Construction Documents they prepared.
- Statutory Declarations in the form of a CCDC 9A are required in required in support of applications for progress payment (typically an Owner would have sought to require this under the 2000 document in the Supplementary Conditions).
- If the Owner requests the DB to submit a proposal for a change in the Work and then elects not to proceed, a Change Order will be issued to reimburse the DB for the costs of preparing the proposal.
- The Owner can terminate the Contract for convenience at any time during the Design Services phase (i.e. before the Work commences).
- The DB is required to carry professional liability insurance /E&O of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate during any policy year. Under the 2000 document, the DB was required to cause its consultants to carry E&O insurance of not less than $250,000 per occurrence and $500,000 in the aggregate during any policy year. Under the 2000 document, the thinking was that this E&O coverage was not available to the DB.
- The Indemnities provided for in GC 12 are expressly stated to survive suspension or termination of the Contract.