Why should the Contractors Design Submisson Procedure not apply post-Practical Completion under a JCT DB 2016 contract?

Question

Schedule 1 of the JCT DB 2016 sets out procedures for the Contractor to submit his design to the Employer, and also how the Employer is to respond, and the results of a failure to respond in time by the Employer.

A failure if the Employer to respond to a submission within 14 days, leads to the Contractors design being approved at Status A - ie proceed to build.

If defects are present post-PC ( or to be more accurate in the instant case I am referring to, minor outstanding works exist that were always envisaged by the Parties to be completed after PC for operational reasons ) and these defects/works require a design submisson to be made, and the Employer failed to respond in time, is the Contractor right to assume a status A has been achieved, simply on the basis of what Schedule 1 says, or are there any contractual reasons (or cases) why the process should not operate in a post-PC environment?

Andrew Crawford · Answer

Oliver

The issue here I believe is which of the Conditions/Schedules only apply prior to PC and which ones operate both before and after PC?

Schedule 1 does not distinguish between pre/post PC for the Design Procedure and the issue is complicated by the facts that you say the parties agreed that PC occurred, but that certain works will be completed after PC and which were not defective.

I cannot see where in the Conditions/Schedule this scenario is contemplated since to achieve PC all design would have had to be completed and subsequently incorporated into the Works. I therefore do not think that there is a clear answer to the issue.

What I would suggest though is to notify the Employer that they have failed to provide the Contractor design with a Status, and give them a further period, say 14 days in which to respond, failing which, the Contractor will proceed after the expiry of the 14 day period in the notice as the submitted design and incorporate that said design into the Works.

I cannot see how the Contractor can be criticised for issuing such a notice and giving the Employer more time to respond.

Why should the Contractors Design Submisson Procedure not apply post-Practical Completion under a JCT DB 2016 contract?

JCT

Design-interfaces

Defects

O. Cleghorn MCInstCES

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