By Jeremy Glover
In April 2013, the Chartered Institute of Building (CIOB) published a contract for use with complex projects (known as the Complex Projects Contract or CPC 2013). Speaking about the contract, one of its authors, Keith Pickavance, boldly said:
“This is a modern day contract designed for the data age. It underlines and meets the need for a collaborative and competent approach to how risks are managed utilising transparent systems of data. It can be used with, or without, Building Information Modelling and has been drafted to work in any country and legal jurisdiction around the world.”
The CPC 2013 comes in four parts:
(i) Contract agreement or articles of agreement. These can be freely downloaded from the CIOB website – www.ciob.org.uk.
(ii) Conditions of contract which, as you would expect, contain the terms and conditions for carrying out the works, subject to any amendment introduced by a special condition.
(iii) Seven appendices:
• Appendix A – Definitions;
• Appendix B – Contract data;
• Appendix C – Building information modelling – the contract claims to be the first (UK) K form of contract which is compliant with the recommendations of the UK BIM Task Force for use on Level 2 BIM projects;
• Appendix D – Working schedule and planning method statement;
• Appendix E – Progress records;
• Appendix F – Events; and
• Appendix G – Issue resolution.
(iv) User notes.
What is a complex project?
A good question. The CPC 2013 has been written for use on complex projects, in the UK or overseas – therefore potentially the Middle East. The Guide refers to a complex project as one which “cannot be effectively managed intuitively” and which has one or more of the following features:
• work involving complex mechanical, electrical or plumbing services;
• more than one structure;
• a structure more than 15m (or 50 feet) high;
• useable space below ground;
• a construction period in excess of 1 year;
• design continuing during the construction period;
• multiple main contractors;
• more than 20 subcontractors;
• multiple possession and/or access dates; and/or
• multiple key dates or sectional completion dates.
Dispute (and Issue) Resolution
One of the features of the CPC 2013 is its approach to dispute resolution. The contract notes, at clause 66.1, that the parties may settle any dispute by mediation. Whilst this is always the case, the fact that it is specifically mentioned in the contract can be seen as useful, as it suggests that mediation is a part of the contract set-up. The contract also provides for adjudication and arbitration. However there are two features of note:
(i) Unless the parties agree otherwise, any adjudicator’s decision or arbitral award is to be a public document.
(ii) No dispute can be referred to adjudication unless and until the Principal Expert has made a Determination in accordance with clause 65 of the contract: Issue Determination.
In many respects, Issue Determination appears to be intended to operate like a mini-DAB or adjudication process. The idea is to try and deal with issues immediately, whenever a difference of opinion arises. As a first step, the parties are required to meet to try and resolve the issue; if that is unsuccessful, then the Principal Expert is brought in to issue a Determination within 20 business days. According to Appendix G, the purpose of Issue Resolution is to assist the parties in the management of risks and reduce the possibility of formal proceedings, which means that the expert is given wider powers than might be expected:
“the Principal Expert must issue its Determination on the basis of its own investigations and shall not be limited by the submissions of the parties.”
It remains to be seen just how disputes, if they arise, are resolved, as the timescales, once the formal Issue Resolution process commences, are very tight; contrast the CPC’s 20 business days with the 84 days allowed by FIDIC.
Communications
The CPC 2013 is very much a creature of the electronic age. To this end, all documentation and site information must be “published” either by preparing the submittal into a Common Data Environment to which everyone has access, or by electronic transfer or email. The reason for this is said to be the need to encourage “transparency in the submittal of information requirement for the management of risk”. For example, the Working Schedule or Contractor’s critical path network is expected to be handed over in a native file format, not simply in hard copy on paper.
Collaboration
Clause 5.1 has a familiar ring to those acquainted with the NEC3:
“The parties shall work together in the manner set out in the Contract and shall co-operate in a spirit of mutual trust and fairness.”
The importance of the first part of that sentence should not be ignored. Those of you who have read our articles on Good Faith in Issues 5 and 6 of IQ will know that the English courts take a restrictive view on similar obligations. “What good faith requires is sensitive to context.” LJ Beatson in the case of Mid-Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd1 suggested that one should take a narrow interpretation of any clause that suggests that (in English law at least) parties must exercise the duty of good faith. He said:
“In a situation where a contract makes such specific provision, in my judgment care must be taken not to construe a general and potentially open-ended obligation such as an obligation to ‘co-operate’ or ‘to act in good faith’ as covering the same ground as other, more specific, provisions, lest it cut across those more specific provisions and any limitations in them.”
Time management
It is clear that to the CIOB, this is a key attraction of the CPC 2013. The CIOB on its website describes the CPC 2013 as being the “world’s first time management contract for complex projects”. The CPC 2013 focuses on managing time to ensure projects are delivered to specification on budget and without delays. The CIOB contrasts other contracts which it says “target failure” and “through persuasion” target “financial compensation for failure”. The CIOB says that the CPC 2013 provides the procedures to enable parties to manage time (and cost) risk events in a modern and proactive fashion. How does the contract do this?
One way is through the appointment of a Project Time Manager (“PTM”). The role of the PTM is to advise the Contract Administrator on project time-related issues. This will include analysing the effect of any potential delay events that arise. It is noticeable that such an assessment is not made on the traditional “fair and reasonable” basis, but on the Contractor demonstrating the additional time needed as a consequence of the “event”. The PTM is paid by the Employer but, by clause 5.2 of the contract, is to act “independently and fairly”. The Guidance Notes say that the PTM is “responsible for ensuring that the Contractor’s time management processes are satisfactory” and must:
“check on a regular basis, whatever is produced by the Contractor by way of time related information and to accept it, if satisfactory, or reject it, or accept it subject to conditions…”
There is another role under the contract with similar responsibilities, that of the Auditor. The Auditor is to act as the Time Management Expert, and so may have a role in deciding Issue Resolution. The Auditor must, before work commences and at regular intervals, examine the Contractor’s Planning Method Statement, Working Schedule and Progress Records. The purpose of the Audit is to ensure that the Constructor’s documents comply with the requirements of the contract and the CIOB’s Guide to Good Practice in the Management of Time in Complex Projects.2
This focus on detailed record keeping, as well as the careful monitoring of progress and the way in which progress is being recorded through programmes, is a key part of the approach of this new contract. Indeed, the obligations on the Contractor to produce, maintain and regularly update a Working Schedule and Planning Method Statement are set out in some detail at clauses 26 to 34 and Appendix D of the contract.
Conclusion
When a new contract is launched, it is always difficult to tell just how popular it will prove to be. Often, its take-up depends on whether or not it is able to demonstrate its early adoption on a high-profile project, but certainly the CPC 2013, although long (66 clauses), is written in plain English which helps. However, the answer to whether or not the apparent additional administrative burden (particularly on the Contractor) the CPC 2013 seems to impose is worthwhile, will only be answered once the contract is used and the benefits (or not) of that administrative burden (i.e. reduced delay and costs) are demonstrated. That said, at the very least its focus on time management will act as a stimulus for debate.
Footnotes:
1. [2013] EWCA 200 Civ
2. www.ciobstore.com/Product.asp?PID=