JCT Design & Build 2024 – Ground Conditions

JCT 2024

On 17 April this year, JCT published its updated D&B “family” of contracts. You can find an overview of what’s new in the JCT Design & Build 2024 contract here.

Within its update, JCT has included provisions to deal specifically with certain ground conditions, which were absent from its 2016 edition. This may be as a result of JCT acknowledging the developing market trends, which has seen contractors regularly reject employers’ efforts to allocate all risk to them for adverse ground conditions.

However, whilst the 2024 edition does include new provisions to document the allocation of risk for specific ground condition issues, these specific issues are limited in number. Consequently, this leaves the parties to determine many other ground condition risks that may materialise during the course of a construction project.

Ground Conditions

“Ground conditions” in relation to construction projects, is a term that generally refers to the geology, hydrology, hydrogeology, and soil types of a construction site. However, the term is used broadly and can also include the historic use of the site, such as contamination, earthworks, underlying structures, etc.

Evidently, it may, during the course of the construction project, be revealed that certain ground conditions will cause adverse issues, which may delay the progress and or completion of the project or result in additional costs to complete the works, for instance, the discovery and removal of a contaminant within the soil.

The general position (under common law) is that should it be found that there are adverse ground conditions at a site, the risk and any associated costs sit with the contractor. This is because it is for the contractor to determine and decide whether it is capable of constructing what it has contracted to construct having considered the physical ground conditions of the site. Given that the contractor is viewed to have satisfied itself that it can complete the project, the contractor is therefore responsible for any additional costs that are as a consequence of any adverse ground conditions that may be discovered.

“Antiquities”

Whilst the JCT D&B 2016 does not contain specific provisions to deal with adverse ground conditions, the contract does expressly deal with antiquities under clause 3.15.

Antiquities are all fossils, antiquities, and other objects of interest or value that may be found or excavated on any particular site. Due to the requirements of clause 3.15.1, should a contractor discover any said item, it is required to use its best endeavours to not disturb the item, preserve it as necessary, and to cease work should the continuance of work impact the preservation of that item.

Further, the employer will issue the contractor with instructions, which may require the contractor to permit the examination, excavation, or removal of the object by a third party (clause 3.15.2).

Given the contractor’s obligations, the JCT D&B 2016 does provide that the contractor’s compliance with its obligations under the antiquities clause or the employer’s instructions (clauses 3.15.1 and 3.15.2) will be a Relevant Event (clause 2.26.4) and a Relevant Matter (clause 4.21.3).

As such, whilst there are no significant ground condition provisions under the unamended JCT D&B 2016, the antiquities clause does provide some protection to a contractor who would be entitled to time and money in its compliance with clause 3.15. However, clearly, the discovery of fossils, antiquities, and other objects of interest or value will be rare and only impact a very limited number of projects.

Conclusion

The update to the JCT D&B 2024 to deal with asbestos, contaminated material, and unexploded ordinance are welcome additions. These will be accepted as reasonable provisions to mitigate risk. The provisions allow the contractor time and money (should it be necessary) for the discovery and handling of the removal of the relevant material whilst noting that the contractor will not be entitled to time and money should it have already been on notice of the presence of the specific material or if it had brought that said material to the site.

The expansion of the antiquities clause from the previous edition provides a simple drafting update to incorporate new ground condition risks as Relevant Events and Relevant Matters. However, as we have discussed the term “ground conditions” encompasses a broad range of topics and issues that may be discovered on a site and therefore these additional provisions may be seen as narrow in attempting to address all ground condition risks.

However, JCT’s rationale, may have been to not introduce an exhaustive list for that very reason. Allocating the risks of various specific ground conditions to either party given that there are so many unforeseen risks that may be identified during the course of a construction project may have been recognised as unfeasible.

As such, other than the adverse ground conditions identified within updated clause 3.15 of the JCT D&B 2024 the risk will remain with the contractor in accordance with the general common law principle.

Therefore, it is apparent that should the parties wish to change the risk profile, additional terms will need to be negotiated, and should the parties wish to mitigate the risk and potential unforeseen delay and increase costs, site investigations should be undertaken prior to the commencement of a project.

Should you require any further advice in respect of this topic or any JCT matters please contact our construction team.