HIGHWAYS AGENCY DESIGN AND BUILD CONDITIONS OF CONTRACT.

Abstract

The Highways Agency Design and Build Conditions of Contract (HAD&B) has recently been published by HMSO. The HAD&B has in fact been around for a number of years and has been used successfully on a number of contracts. During this time it has been under constant review and various amendments have been made before finally being submitted to the EC for approval. Besides the complex legal issues of due skill and care and fitness-for-purpose, the contract embodies a number of novel concepts that provide for the obligations and duties of the key players, the certification process before construction can commence, and the procedure for employer and contractor changes, to name a few. The original contract, prepared by solicitors Mckenna & Co. in 1989, underwent a number of revisions, the last of which was scheduled for winter 1994 to enable the publishing of the document in spring 1995. This time-scale proved to be optimistic and the Highways Agency launched a fundamental review of procurement last year which led to the publication of its Consultation Document on Contractual Arrangements. The document set out 14 new contract initiatives of which eleven could be, or already are, incorporated in the HAD&B contract (a) transfer of risks to the contractor (b) payment by lump sum milestones (c) long-term defects correction period (d) named subcontractors (e) key personnel clause (f) shorter tendering list (g) advanced works to remove selective risks (h) quality premia in tendering (i) whole-life costing (j) risk sharing (k) design, build and comniission. The benefits perceived by the Highways Agency are (a) cash flow certainty for both parties (b) greater responsibility for the contractor which assumes more flexibility and control (c) adversarial attitudes will be reduced or even eliminated (d) a move away from the claims culture of conventional contracting. The contract has some unique features (a) long and short form (b) the appendix has provision for Clause 13 (adverse physical conditions) to apply or not apply (long form) (c) the designer, in addition to producing designs, also has to comply with the certification procedure of Clause 7 (d) two QA plans (i) design quality plan (ii) construction quality plan (e) 13 schedules (f) Schedule 6 comprises 17 certificates (ten short form) (g) key personnel to be listed in Schedule 10 (h) disputes resolution procedure (i) time limits table in Index Part II. This paper will present an overview of the HAD&B with emphasis on its practical application and management and makes extensive use of current research based on case studies.