Procurement and Contractual Practice

This document discusses the concepts of procurement and contractual practice in the field of project management. It covers topics such as liability, negligence, public nuisance in construction work, and the Joint Contract Tribunal (JCT) standard form for building contracts. The document provides insights into the rules of law, application of these concepts, and their implications in real-life scenarios. It also explores the different mechanisms for dispute resolution in the JCT forms. Overall, it offers a comprehensive understanding of procurement and contractual practice in the construction industry.

Procurement and Contractual Practice
Procurement and Contractual Practice
[Author Name(s), First M. Last, Omit Titles and Degrees]
[Institutional Affiliation(s)]
Author Note
Contract & Procurement Management (Project Management)

Procurement and Contractual Practice 1
Question 1
Issues
Whether the Architect, the Surveyor, Demolition Contractor, and the building contractor
were liable for the injuries caused to the employee.
Rules of Law
There are three elements that a plaintiff must prove in a claim of negligence. One of these
is a duty of care. The landmark authority for establishing a duty of care was the case of
Donoghue's Case where Lord Atkin stated that a person owes a duty of care to the neighbor who
could reasonably suffer injuries due to omissions and acts of the ignorant party.1 Where a duty of
care is owned by different persons, the court in Clay v AJ Crump & Sons Ltd stated all persons
would be jointly liable.2 The second element requires is a breach of the owed standard duty. This
is mainly an objective test where the claimant needs to establish that the defendant acted in a
different way a reasonable person with the defendant’s circumstances would have acted. Lastly is
the establishment of a causal link between the claimant’s injuries and the defendants’ breach. The
“But For” test established by Lord Denning requires the claimant to establish that the injuries
would not have occurred “but for” the fault made by the defendant.
Application
On application, the employees need to establish the existence of the duty of care, the
breach and establishing that the loss occurred due to the breach. The rule created in the neighbor
principle requires the employees to establish that the Architect, the Surveyor, Demolition
1
Donoghue v Stevenson (1992) 108 LQR.Donoghue v Stevenson (1992) 108 LQR.
2
Clay v AJ Crump & Sons Ltd (1964) 1964 QB 1.Clay v AJ Crump & Sons Ltd (1964) 1964 QB 1.

Procurement and Contractual Practice 2
Contractor, and the building contractor needed to reasonably foresee that their fault would have
harmed the employees. In Lords in Caparo v Dickman, it was established that the claimant must
show that there was the loss instigated was reasonably foreseeable, there was a satisfactory
proximal relationship between the claimants and the defendants, and it would be reasonable, fair,
and just to impose a duty of care to the defendant.3 From the facts provided, Ms. Goodwin had
informed the Architects, Surveyors, and Demolition Contractor clear the site in preparation of the
constructions. Therefore, all these parties were aware that the site would be used by the
employees. On the part of Building Contractor, he should have foreseen the failure to examine
the old garage could cause harm to employees if the garage was not stable. This establishes a
duty of care.
The employees also need to demonstrate that the defendants’ breached their duty of care.
This requires an objective test to demonstrate that any other person given the circumstances of
the defendants would have acted differently to prevent the loss. In Phillips v Whiteley Ltd, the
Court found that the defendant was not liable since the standard of care required was that of a
skilled ear piercer, and that was what was provided.4 Therefore, the defendant should have acted
in the same way a reasonable person in their profession would have acted to prevent the loss.
Also, they should have followed Ms. Goodwin instructions.
The last step is establishing the causal link. On the application of the but for the test, it is
a fact that the employees would not have been injured but for the defendants’ fault in leaving the
structure. In Clay v AJ Crump & Sons Ltd, the court found the architect, the demolition
3
Caparo Industries Plc v Dickman (1990) 1990 AC 2.Caparo Industries Plc v Dickman (1990)
1990 AC 2.
4
Phillips v William Whiteley Ltd: (1938) 1 ER.Phillips v William Whiteley Ltd: (1938) 1 ER.

Procurement and Contractual Practice 3
contractor and building contractor all liable for the damages since they jointly concluded to
retain the wall.5 In the case of Ms. Goodwin, Architect, the Surveyor, Demolition Contractor
would be liable for retaining the garage, while the building contractor would be liable for not
inspecting the garage.
Conclusion
Architect, the Surveyor, Demolition Contractor, and the building contractor would be
liable for injuries caused to employees.
Question 2
Public nuisance in construction work occurs where construction sites are poorly managed
to the extent of causing high levels of noise, intolerable dust emissions, chemical release into the
environment, thus posing risk to visitors and trespassers. Public nuisance is nuisance that
substantially disturbs the reasonable convenience and comfort of other people’s lives, community
and class of persons as described in Attorney general v Pya Quarries.6 Dyson LJ explained that
rights protected by criminal or tort laws in public nuisance prevent unlawful acts or omissions
that can adversely affect or endanger health, life, and safety of the public.7
In establishing a public nuisance, Lord Hanworth MR stated that the claimant must prove
that (a) the defendant unreasonably obstructed the highway; (b) the obstruction caused the
claimant to suffer special injuries or loss beyond injuries or loss suffered by the rest of the
5
Clay v. AJ Crump & Sons Ltd (n 2).Clay v. AJ Crump & Sons Ltd (n 2).
6
Attorney-General v PYA Quarries Ltd [1958] EWCA Civ 1.Attorney-General v PYA Quarries
Ltd [1958] EWCA Civ 1.
7
Register of the Corby Group Litigation v Corby Borough Council (Costs) [2008] EWCA Civ
463.Register of the Corby Group Litigation v Corby Borough Council (Costs) [2008] EWCA
Civ 463. Line 29

Procurement and Contractual Practice 4
affected members of the public; (c) the injuries resulted directly, immediately, and naturally from
the obstruction.8 In Wildtree Hotels Ltd v Harrow LBC, Lord Hoffmann stated that engineering
work or construction can amount to public nuisance even in situations where the obstruction
caused temporary interference.9
Statutory nuisances deal with proscribed nuisance or nuisance that is subject to
regulation, abatement or provided under a statute. For example, the UK has provisions for
statutory nuisance under Part III of the Environmental Protection Act.10 The Act recognizes
statutory nuisances which include noise; odor; artificial light; dust; insects; premises; gases;
accumulation or deposit; fumes; smoke; nuisance effects of animals in a place as provided by
statutory law. The rule developed in the ruling of Rylands v Fletcher stated that people must
restrict things that can become mischief to others within their land.11
Question 3
Joint Contract Tribunal (JCT) is a standard form used in building contracts. The form
dates back to 1902. This is when it was published by the Royal Institute of British Architects. In
1931, the form was republished and issued under the name of JCT. In 1998s, the JCT form was
recognized in England law as a standard form for building contracts. All the JCT forms include
the Standard Building Contract (SBC); Intermediate Building Contract (IC); Intermediate
Building Contract with contractor’s design (ICD); Minor Works Building Contract (MW); Minor
8
Harper v GN Haden and Sons, Limited (1933) 148 LT Rep.Harper v GN Haden and Sons,
Limited (1933) 148 LT Rep.
9
Wildtree Hotels Ltd v Harrow London Borough Council (2001) 2001 AC 2.Wildtree Hotels Ltd v
Harrow London Borough Council (2001) 2001 AC 2.
10
Environmental Protection Act 1990 pt III.Environmental Protection Act 1990 pt III.
11 ibid.

Procurement and Contractual Practice 5
Works Building Contract with contractor’s design (MWD); and Design and Build Contract
(DB).12 The forms were re-released in 2011, and later in 2016 after additional amendments.
Among other sections, the JCT2016 Standard Form Contract contains standard Building
Contract with Quantities (SBC/Q). This one is to be used in larger works designed either by the
employers or their agents where there are requirements for Employers to provide Contractors
with drawings, and bills of quantities. Also needed where the Architect/Contract Administrator
and Quantity Surveyor are needed for the examination of conditions. Standard Building Contract
Without Quantities (SBC/XQ).
The JCT SBC/Q 2016 provide different mechanisms for dispute resolutions. Starting with
Article 7, this one provides for adjudication. Disputes under this article are dealt with under
clause 9.2. Unlike before when provision for ADR was placed at the footnotes as advice,
contracts are now including a provision where parties agree to resolve their disputes through
mediation.13 Once an award by an adjudicator is made, that decision is enforceable in law. In
addition, article 7 recognizes the importance of mediation. Section 9.2 allows the parties to
negotiate directly or mediation in settling their disputes.
Article 8 provides for arbitration. This one involves getting an independent third party to
provide a settlement of the dispute by reviewing the facts available from both sides. Clause 9.3
provides that procedures in which matters would be arbitrated in JTC standard contracts. Like
adjudication, an arbitration award would be enforceable in accordance with the law.14Article 9
12
David Chappell, Understanding JCT Standard Building Contracts (Tenth edition, Routledge
2018).David Chappell, Understanding JCT Standard Building Contracts (Tenth edition,
Routledge 2018).
13
ibid 131.ibid 131.
14

Procurement and Contractual Practice 6
provides for litigation. The provisions recognize the English Courts will have the final decision if
all other mechanisms fail to settle the dispute.
Question 4
The core clause one, general: This one contains a definition of terms, interpretations. It
also provides direction for communication where communication is required to be clear when
read, recorded or copied. The clause also provides instructions for solving ambiguities and
inconsistencies.15The core clause two provide for the contractor's key responsibilities. This
involves providing work as required in the information, designing the requirements of the work,
working with employees, subcontracting, and disclosure. Core Clause three deals with time. This
one provides for the contractor’s entry to the site up to the time of completion. The core clause
four deals with quality management. This clause deals with all matters relating to testing,
inspection, identification of defects, acceptance of defects, and correction. It also deals with
circumstances where the contractor does not accept the defects.
The core Clause five provides for payments. The clause provides for the assessment of
the amount due by the Project Manager, certification of payments and the final costs. The core
clause six provides for compensation events. These are situations arising from changes of work
or instructions and compensation that may come with the changes. The core clause seven deals
with the title. It is basically allowing the employer the title materials and plant. The clause covers
all matters of marking the equipment and removing them from the site. The core clause eight
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70
ConLR.Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70
ConLR.
15
Robert Alan Gerrard, NEC3 and NEC4 Compared (ICE Publishing 2017)
<http://www.icevirtuallibrary.com/doi/book/10.1680/nnc.62016> accessed 10 May 2019.Robert
Alan Gerrard, NEC3 and NEC4 Compared (ICE Publishing 2017)
<http://www.icevirtuallibrary.com/doi/book/10.1680/nnc.62016> accessed 10 May 2019.

Procurement and Contractual Practice 7
provides for liabilities and insurance. The clause provides for identification of both the employer
and contractor’s risks. It also provides for repairs, indemnity, and insurance cover. The core
clause nine is the last clause which deals with matters of termination of the project after
completion
NEC4 has additional provisions known as the main option clauses. Option A has
provisions for the priced contracts with activity schedule. Option B deals with priced contracts
that have terms for the bill of quantities. Option C deals with target contracts that have activity
schedules. Option D provides for target contracts with a bill of quantities. Option E provides for
cost reimbursable contracts. Option F provides for management contracts.
The NEC form meant to promote collaboration. The first clause sets out that parties must
act in a spirit of mutual trust and cooperation. Also, while looking at the language of NEC, it is
simple and geared towards people on site.16 Another important feature is the idea of “early
warnings” which emphasizes early party’s communication to others on issues that could affect
time, cost, and performance. The use of a detailed list in NEC ensures that all involved party is
aware of what is needed. It also helps the project manager in monitoring the work. The NEC
form also provides a compiled structure where changes, risks, and compensation events can be
assessed all at one place which helps the employer in identifying additional costs easily.17 The
requirement for the contractor to take three weeks to submit quotations and to take two for
assessment prevents delay of payments. The NEC also sets a timeline for dispute resolution to
prevent escalation of the disputes.
16
Lukas Klee, International Construction Contract Law (Wiley-Blackwell 2015) 307.Lukas Klee,
International Construction Contract Law (Wiley-Blackwell 2015) 307.
17
ibid 308.ibid 308.

Procurement and Contractual Practice 8
Question Five
In FIDIC forms, clauses for Dispute boards were provided for handling disputes. The
Dispute Review Board (DRB) is an independent board that replaced what was the Engineer's
Decision. The appointment of DRB takes place before the start of the projects, and they
periodically visit the project during the different phases of the construction. The DRB is a pre-
arbitral step to dispute settlement where a board of two- or three-member attempt to get the
disputing parties to reach an agreement on conflicting issues. Parties to a construction may also
at some point ask DRB to provide an informal recommendation on some issues that are not
actual claims. The DRB can hear such claims as an informal process and the parties can freely
present their ideas. The informal process more friendly as none of the parties take it as a formal
process to provide in-depth justification.
On the other hand, the Dispute Adjudication Boards (DAB), makes a binding decision.
The FIDIC introduced DAB into contracts as rational development as the procedure of moving
from the pre-arbitral settlements made by engineers.18 Parties can have either a permanent DAB
or an ad hoc DAB. However, in major works, FIDIC requires parties to establish a mandatory
DAB as an approach for ensuring efficient settlement of the disputes. The Combined Dispute
Boards (CDB) is also referred to as the hybrid board.
18
Bailey (n 12) 1425.

Procurement and Contractual Practice 9
Bibliography
Bailey J, Construction Law (Informa Law 2011)
Chappell D, Understanding JCT Standard Building Contracts (Tenth edition, Routledge 2018)
Gerrard RA, NEC3 and NEC4 Compared (ICE Publishing 2017)
<http://www.icevirtuallibrary.com/doi/book/10.1680/nnc.62016> accessed 10 May 2019
Klee L, International Construction Contract Law (Wiley-Blackwell 2015)
Attorney-General v PYA Quarries Ltd [1958] EWCA Civ 1
Caparo Industries Plc v Dickman (1990) 1990 AC 2
Clay v AJ Crump & Sons Ltd (1964) 1964 QB 1
Donoghue v Stevenson (1992) 108 LQR
Harper v GN Haden and Sons, Limited (1933) 148 LT Rep
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70 ConLR
Phillips v William Whiteley Ltd: (1938) 1 ER
Register of the Corby Group Litigation v Corby Borough Council (Costs) [2008] EWCA Civ 463
Rylands v Fletcher (1868) 3 HL
Wildtree Hotels Ltd v Harrow London Borough Council (2001) 2001 AC 2
Environmental Protection Act 1990
Chappell D, Understanding JCT Standard Building Contracts (Tenth edition, Routledge 2018)
Gerrard RA, NEC3 and NEC4 Compared (ICE Publishing 2017)
<http://www.icevirtuallibrary.com/doi/book/10.1680/nnc.62016> accessed 10 May 2019
Klee L, International Construction Contract Law (Wiley-Blackwell 2015)
Attorney-General v PYA Quarries Ltd [1958] EWCA Civ 1
Caparo Industries Plc v Dickman (1990) 1990 AC 2
Clay v AJ Crump & Sons Ltd (1964) 1964 QB 1
Donoghue v Stevenson (1992) 108 LQR

Procurement and Contractual Practice 10
Harper v GN Haden and Sons, Limited (1933) 148 LT Rep
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70 ConLR
Phillips v William Whiteley Ltd: (1938) 1 ER
Register of the Corby Group Litigation v Corby Borough Council (Costs) [2008] EWCA Civ 463
Rylands v Fletcher (1868) 3 HL
Wildtree Hotels Ltd v Harrow London Borough Council (2001) 2001 AC 2
Environmental Protection Act 1990