Three cheers for the ACA
The Standard Form of Building Contract is now beyond a joke. Eighteen amendments since its introduction in 1980 have produced a document of 86 pages of text, plus five sets of amendments which are not included in the text and have to be bound in separately. The last of these (Amendment 18), which introduces the new Construction Act clauses, and a lot more besides, is itself a 60-page document.
It is surely high time there was a radical re-think by the new jct (Limited) to address the fact that this contract is now so user-unfriendly that its future must be seriously questioned.
What are its natural competitors? And why has the New Engineering Contract (now re-entitled the Engineering and Construction Contract) not made greater headway in the jct's market place?
Those who are familiar with the nec will be aware that its apparently simple linguistic style conceals a complicated contract that has to be put together with great care by people who really know what they are about. It is a 'do-it-yourself' contract which provides optional standard clauses for different approaches to procurement methods and risk allocation. Opportunities for getting it wrong are legion, and it would seem unlikely that the very conservative world of construction will ever embrace it with much enthusiasm.
What about the Association of Consultant Architects' (aca) Forms of Building Agreement? There is reason for thinking that this set of documents, first written for the industry in the early 1980s, may be better placed to become a serious competitor to the Standard Form of Building Contract. Hitherto the aca forms have been used relatively infrequently, but their merits should now stand a better chance of recognition as the jct's popularity looks set to wane.
I was recently asked by the aca to undertake the task of preparing amendments to the form to make it compliant with the new Construction Act. This relatively modest undertaking obliged me to re-acquaint myself with a form I had not had occasion to consider for some time. I was reminded about the flexibility of the document, its user-friendliness and down-to-earth drafting style.
Where, for example, the jct needs to invent a whole new document, the Sectional Completion Supplement, to deal with situations where separate phases of the works have their own mini-completion dates, the aca form has an optional recital ('delete if Works not divided into sections') and the clauses relevant to time and completion all contain appropriate references which take effect if sectional completions have been adopted.
Take another hoary old legal problem which the jct has made a meal of over the years - the question of privity of documents. In jct 80 the hallowed formula still appears: 'Nothing contained in the Contract Bills shall override or modify . . . the Conditions or the Appendix.'
Every schoolboy knows that these words have, on occasions too numerous to particularise, sabotaged the parties' intentions by subordinating material in the preliminaries bill of the bq (tailor-made for the contract) to the printed conditions.
The aca form deals with this in more subtle fashion, stating that the provisions in the form of agreement take precedence over the contents of any of the other contract documents save only those which are specifically listed in the relevant clause, and which prevail over everything else. This is a neat solution which, by prompting the drafter to think about priorities, is calculated to avoid the everyday problems caused by the standardised jct approach.
One of the controversial features of aca is its offering of alternative clauses for situations where contractors undertake some (or all) of the design work as well as situations of traditional consultant's design. In this area the aca form was the first to offer alternative clauses in the same contract, and the nec has merely followed its lead. What a wonderful way of dispensing entirely with the need for a jct 81 equivalent! But does it work? In my view it does, provided the relevant optional clauses are correctly and consistently deleted.
Contractors, of course, are not enamoured of a contract which places a 'fitness for purpose' obligation upon them for works of their design. But this clause, if not acceptable, can always be deleted.
One last example may show how far ahead of its time the aca Form has been. In Amendment 18 the jct has belatedly introduced the idea of an Information Release Schedule which, where incorporated into the contract, places obligations on the architect to release production information to the contractor on stipulated dates.
Where no schedule is included, the obligation is to release such information at reasonable times.
It takes the jct 18 opaque lines of text to convey this simple message. aca does the job in less than half the space.
I could go on making these comparisons ad infinitum. Perhaps in conclusion I can make one very serious point. Clause 19.5 of aca reads as follows:-
'No certificate (including the Final Certificate) issued by the Architect under this Agreement shall relieve the Contractor from any liability arising out of or in connection with this Agreement.'
How simple, and how obvious!
To those clients who have suffered under jct 80, and perhaps been advised that Final Certificates have shut out their rights in respect of defective work against contractors, what better inducement could there be to give the aca form an opportunity to show its mettle?
And while we're on the subject, and being constructive, why doesn't jct Limited invite the original drafter of the aca Form to produce the 'new' jct 80?
Tony Blackler is a partner at solicitor Macfarlanes