Finnie, D; Ali, N A and Park, K (2019) Design development post contract signing in New Zealand: Client's or contractor's cost? Proceedings of Institution of Civil Engineers: Management, Procurement and Law, 172(4), pp. 146-156. ISSN 17514304
Abstract
By offering fixed-price contracts for designs supplied by clients, contractors legally warrant that they can build what has been designed and do so within their fixed price. Yet detailed drawings are often issued during construction in response to contractors' requests for information on the basis that they cannot otherwise build what has been designed. Claim-entitlement decisions are often made by construction professionals (architects, engineers and quantity surveyors) without legal training in contractual interpretation, potentially varying who pays for design development after contract signing, contractors or clients. Prior studies have addressed buildability obligations relating to ground conditions and foundations. This study applies key principles of contract law to consider who should pay for instructed drawing details post contract signing under the New Zealand standard NZS 3910:2013, 'Conditions of contract for building and civil engineering construction', in terms of (a) when a variation claim may be accepted; (b) the effect of contractor involvement on design development; and (c) the effect if claimed from a building subcontractor to a consultant manager (no head contractor). A claim-entitlement flow chart and a table comparing the head contractor's and consultant construction manager's obligations provide practical guides for contract administrators. Identifying terms prone to interpretation informs contract drafters towards reducing ambiguity for contract users and therefore the potential for dispute.
| Item Type: | Article |
|---|---|
| Uncontrolled Keywords: | contracts & law; procurement; project management |
| Index terms: | New Zealand, contract law, quantity surveying, engineer, dispute, architect, construction professional, project management, design development, foundations, buildability, contract administrator, manager, drawing, construction manager, variation, ground condition, subcontractor |
| Subjects: | dispute resolution, profession, technical documentation, professional development, project management theory and practice, contractual condition, contract law, geotechnical engineering, practitioner, design process, Geography, structural engineering, design efficiency |
| Topics: | Project Management, Geographical Context, Engineering Principles, Legal Issues, Roles and Professions, Information Management, Contract Administration, Design Practice |
| Descriptive scope: | 2 PC |
N.B. Descriptive scope is a count of how many of the five facets of empirical research are indicated by the words used in title, abstract and keywords. It is not intended as a judgement on the research; merely a count of the kind of word we would expect to indicate Phenomenon, Concepts, Theoretical framing, Empirical techniques, Analytical techniques. If all five are present, then a code of “5 PCTEA” will indicate this. If you feel the coding for this record is questionable, we welcome discussion around the terms we matched or the way we categorized them. The facet you would expect may not be coded, or a facet may be coded inappropriately. This can also bear on a larger question, of which facets should be treated as defining in construction management research. Please get in touch, and we will look at it. More details here