JCT D&B 2024 a ‘step in right direction’ on collaboration and sustainability

The JCT Design and Build 2024 contract form includes new provisions in its main terms and conditions that intend to drive collaborative behaviour among parties working on the same project and encourage contractors to pay more attention to environmental performance and sustainability in the carrying out of building work.

A new article 3 requires parties to work with each other and with other project team members in a co-operative and collaborative manner, in good faith and in a spirit of trust and respect, and that each party to support collaborative behaviour and address behaviour which is not collaborative.

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New clause 2.1.5 states that the contractor is encouraged to suggest economically viable amendments to the contracted works which may result in an improvement in environmental performance and sustainability in the carrying out of the work, if they are instructed as a “change”, which is a variation to the scope of works of the contract and for which the contractor can claim additional time and money.

A new clause 2.2.2 also says that the contractor shall provide all information to the employer that it reasonably requests regarding the environmental impact of the supply and use of materials and goods which the contractor selects.

The terms of article 3, clause 2.1.5 and clause 2.2.2 were previously covered as ‘Supplemental Provisions’ in the 2016 version of the contract and were optional for employers and contractors, who could choose to apply or disapply them on a contract-by-contract basis.

Contract expert Anne-Marie Friel of Pinsent Masons said that by moving these provisions into the main terms of the contract, the JCT is making it mandatory for parties to take steps to work more collaboratively and, where the opportunity allows, to seek improvements in the environmental performance of the works.

“This reflects some of the macro changes we are seeing across the construction industry, which are disrupting the more traditional contracting approaches,” she said.

“The construction industry is facing a period of intense change and disruption, requiring a speedy reinvention of the way it works, to reduce any potential for harm to people and the environment and to increase its contribution to societal and environmental value. These complex modern problems disrupt the status quo and require us to rethink our contracting models,” she said.

There is, however, scepticism as to whether these provisions go far enough on these matters, particularly in comparison to other contract forms such as the NEC Engineering and Construction Contract or alliancing forms such as the PPC2000, according to Friel.

“While the movement of the previously optional drafting on collaborative working, sustainability and early notification of disputes into the main JCT terms and conditions is a step in the right direction, it would be naïve to think that this will be sufficient to drive the behavioural change needed to meet these modern challenges. Successful case studies of collaborative delivery in practice always demonstrates a mindset shift by the contracting parties being made. Such a shift is only enabled through active contemporaneous contract management processes, greater use of digital tools and, most crucially, the alignment of commercial incentivisation around the achievement of the most important project outcomes. For this reason, stakeholders looking to achieve real transformation in project delivery will need to look further than these 2024 amendments,” said Friel.