Design and construct contract lawyers

A design and construct contract is different from a traditional construct-only arrangement because the contractor may assume responsibility for both the design and construction of the project.

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That allocation of responsibility needs to be reflected carefully throughout the contract.

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We advise on D&C contracts including:

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• Design and construct head contracts

• Design and construct agreements

• D&C procurement arrangements

• Builder and developer contracts

• Principal and contractor agreements

• Design responsibility and performance requirements

• Consultant and designer arrangements

• Subcontracts supporting D&C projects

• Contract amendments and special conditions

• Contract negotiations and departures from standard forms

• Contract administration and risk management

Our advice is focused on the commercial realities of the project, not simply the wording of individual clauses.

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Design and construct contract review

Before signing a D&C contract, it is important to understand exactly what the contractor is required to design, construct and deliver.

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We review design and construct contracts to identify provisions that may create disproportionate commercial or legal risk.

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Our review can consider:

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• Scope of works

• Design obligations

• Performance requirements

• Design responsibility

• Fitness for purpose obligations

• Site conditions and existing information

• Contract price and pricing mechanisms

• Variations

• Extensions of time

• Delay and liquidated damages

• Defects and rectification

• Payment provisions

• Security and retention

• Warranties

• Insurance

• Indemnities

• Intellectual property

• Dispute resolution

• Termination rights

• Principal-directed changes

• Latent conditions

• Risk allocation between the parties

We can identify provisions that warrant negotiation and explain their practical implications before you commit to the contract.

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Design responsibility in D&C contracts

One of the fundamental issues in a design and construct arrangement is determining who is responsible for the design and what standard that design must meet.

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A D&C contract may contain detailed employer or principal requirements alongside contractor design obligations. The interaction between those documents can become particularly important if the completed works do not meet the project's requirements.

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We advise on contractual provisions dealing with:

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• Design development

• Design approvals

• Design coordination

• Design liability

• Design warranties

• Performance specifications

• Employer's requirements

• Contractor's proposals

• Design changes

• Consultant responsibilities

• Professional indemnity exposure

• Design defects and non-compliance

The objective is to ensure the contractual allocation of design responsibility is properly understood before the project begins.

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D&C contract drafting and negotiation

For principals, developers and contractors, the drafting and negotiation stage is often where significant project risk can be addressed.

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We can assist with preparing or negotiating D&C contracts and associated documentation, including special conditions and amendments to standard form contracts.

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Our approach considers both the legal position and the commercial consequences of the proposed terms.

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We can assist with negotiating:

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• Scope and deliverables

• Contract price

• Risk allocation

• Design obligations

• Time and delay provisions

• Variations

• EOT entitlements

• Latent conditions

• Security

• Warranties and indemnities

• Defects liability

• Insurance requirements

• Termination provisions

• Dispute resolution mechanisms

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Design and construct contracts and AS 4902 / AS 4300

AS 4902 and AS 4300 are commonly encountered Australian Standard forms for design and construct projects. AS 4300 was first published in 1995 and was subsequently revised and redesignated as AS 4902. AS 4902 is the later form and remains a recognised standard form for design and construct procurement.

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We advise principals, developers, builders and contractors on AS 4902 and AS 4300-based design and construct contracts, including the review and negotiation of special conditions, amendments and project-specific departures.

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A standard form contract is only the starting point. Special conditions, schedules, specifications, scope documents and other contractual documents can materially alter the allocation of design, time, cost, performance and liability risk between the parties.

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We can assist with:

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• AS 4902 contract review

• AS 4300 contract review

• Special conditions and amendments

• Design responsibility and performance obligations

• Risk allocation and indemnities

• Variations and extensions of time

• Delay and liquidated damages

• Defects and rectification

• Payment, security and retention

• Insurance and professional indemnity requirements

• Contract administration and disputes

Our lawyers can review the complete contractual package and advise on how the standard conditions operate alongside project-specific amendments and other contract documents.

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Design and construct disputes

D&C disputes can arise when the parties disagree about responsibility for design, scope, performance, delay, variations, defects or additional costs.

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We advise clients in relation to disputes involving:

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• Design defects

• Construction defects

• Scope disputes

• Design changes

• Variations

• Delay and extensions of time

• Liquidated damages

• Latent conditions

• Payment disputes

• Contract interpretation

• Performance requirements

• Rectification obligations

• Termination

• Contractual claims

Where a dispute develops, early legal advice can help establish the contractual position before the parties' respective positions become entrenched.