Contract documentation

5. When

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5.1 Proactive (pre-tender) documentation

‘Pre-tender’ refers to the conventional point of tender (end of RIBA Outline Plan of Work phases F/G), for ‘construct-only’ procurement.

If the project went to tender at the end of any of the earlier phases, the documents produced during the phase would have to serve as the contract documents. They would therefore be different to the usual phase documents, which remain internal to the designers, not intended to cross a contractual divide:

• Phase A/B: inception & feasibility – results in the brief – for ‘full design-build’ procurement.
• Phase C: outline proposals – for ‘design-build’ procurement.
• Phase D: scheme design – for ‘design develop, document & construct’ procurement.
• Phase E: detail design – for ‘document & construct’ procurement.

Tendering at the end of each of these phases results in different types of procurement, each with their advantages and disadvantages. All involve the contractor in work beyond construction.

Tendering at the end of phases F/G (production information) results in drawings, specifications, conditions of contract, bills, for ‘conventional’ procurement. These are the usual documents regarded as contractual.

If the project has been tendered before this, then the contractor would prepare these documents (using consultant, in-house or novated architects and engineers). They could be designed to cross a contractual divide, this time from contractor to subcontractor, or they could be internal to the contractor if the contractor is to do the work itself.

Projects are not tendered after this point.

5.2 Extent of design

The following diagram summarizes the previous discussion. It shows that the more design and documentation that is done by the employer’s team (yellow zone), the less needs to be done by the contractor’s team (white zone), which is pretty logical. The JCT 2005 series provides for contractor design in all scales of project.

Different forms of contract (rules of play) exist to suit each of the different methods of procurement. Some standard examples are given here. Contracts may also be bespoke, to suit the particular needs of the employer and the project.

Actually, even for construct-only procurement the contractor will do some design and documentation (especially on the services side). JCT98 dealt with this formally (clause 42), but many other construct-only contracts gloss over this issue.

Users are not necessarily the employer.

5.3 Reactive (post-tender) documentation

Each phase after tender results in its own series of documents. Some examples are given here. Some come from the employer side, some from the contractor side:

• Phase H: tender action – results in tenders, contractor proposals.
• Phase J: project planning – results in project programme.
• Phase K: operations on site & completion – results in instructions, variations, certificates, contractor proposals, shop drawings, manuals.
• Phase L: feedback – results in post-project review and post-occupancy evaluation reports.

Earlier types of reactive documentation will be prepared if the contractor is involved in design, e.g. contractor's sketch design proposals, submitted at the end of stage C.

5.4 Key points

The proactive documentation can be handed over to the contractor at any RIBA work stage up to the end of stage F/G.

The earlier the handover, the more the contractor is involved in design.

Handover at different stages corresponds to different forms of procurement.

Different types of reactive documentation are prepared at different stages, from H to L.

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