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DESIGN OBLIGATIONS IN DESIGN-BUILD CONTRACTS – RECURRING ISSUES

International Construction Law Review

DESIGN OBLIGATIONS IN DESIGN-BUILD CONTRACTS – RECURRING ISSUES JOANNE CLARKE Director, Corbett & Co International Construction Lawyers Ltd Email: [email protected] ANDREW TWEEDDALE Director, Corbett & Co International Construction Lawyers Ltd Email: [email protected] ABSTRACT Standard form design and build contracts differ in how they treat contractor design obligations. They may impose a fitness for purpose obligation 1 or require the Contractor to exercise reasonable skill and care. In practice, standard form conditions are often heavily revised; contractor design obligations may be set out in the conditions as well as other, technical, parts of the contract. The precise scope and nature of the obligations may be unclear, and the obligations may appear contradictory. A number of problems can – and often do – arise as a result. These recurring issues are highlighted in the recent cases discussed in this article. The outcomes may act as a warning to Contractors and Employers who are parties to contracts of this nature. INTRODUCTION There are a number of issues which repeatedly arise in disputes over contractor design obligations in design-build contracts. These include the meaning and effect of specified performance criteria, how a contract is to be interpreted when the specified design is incompatible with the specified performance criteria and the line between design and workmanship. These issues have been highlighted in recent cases in respect of which there has been widespread comment: MT Højgaard v E.ON 2 which concerned the foundation structures for off-shore wind farms and which ultimately was decided by the English Supreme Court, SSE Generation Ltd v 1 Duncan, C and Hudson, S, “Fitness for purpose obligations under international standard form contracts” [2018] ICLR 153 . 2 MT Højgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Ltd, E.ON Climate and Renewables UK Robin Rigg West Ltd (QBD (TCC)) [2014] EWHC 1088 (TCC) (CA) [2015] EWCA Civ 407 (SC) [2017] UKSC 59; [2017] BLR 477 ; [2018] 2 All ER 22. Pt 4] Design Obligations in Design-Build Contracts – Recurring Issues 485

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