A word from ASAQS on the JBCC

The Joint Building Contracts Committee ® (JBCC) recently made changes to the JBCC ® suite of building contracts. This summary is not exhaustive as there are also differences in the text of a number of clauses without impacting on their meaning. The main aim of bringing out a new edition is to correct errors in the previous edition. It was thought it could be done in a few months, but in the end, it took the subcommittee almost three years.

Changes requested by the Association of South African Quantity Surveyors (ASAQS) Definition of Agreement The defined term “agreement” is used throughout the JBCC principal building agreement (PBA), the contract data (CD) and in Bill No.1 (Preliminaries). There may be documents, other than the PBA and the CD, which could be included in the agreement, even if not specifically listed in the CD

The definitions related to the request have been changed as follows: ‘Agreement: The completed JBCC ® Principal Building Agreement and JBCC ® contract data, the contract drawings, the priced document and any other documents reduced to writing and signed by the authorised representatives of the parties.’

As a result, the definition of “contract documents” was deleted. The definition of “priced document” has changed to include “preliminaries” as follows: Priced document: The document incorporating quantities and/or rates used in the compilation of the contract sum such as bills of quantities, preliminaries and schedules of rates.

44 Precedence (sub clause 5.6 of edition 6.1) Bill No.1 (Preliminaries) is project specific and should therefore take precedence. Sub clause 5.6 of edition 6.1 indicated the opposite as it was worded: ‘The contract documents shall be deemed to be mutually explanatory of one another. In the event of ambiguity, discrepancy, divergence or inconsistency in or between them, this agreement shall prevail over all other contract documents.’ This sub clause was deleted. Employer to identify services connections Sub clause 12.1.5 (edition 6.1) stated: ‘The employer shall identify access to water, sewer, stormwater and/or electricity connections to the site [CD]’

Claims against the employer are possible should the party representing the employer not realise the implications of this clause. This subclause was deleted. Statutory and other notices Sub clause 12.1.6 of edition 6.1 read: ‘The employer shall list statutory and other notices the contractor must submit and/or comply with before possession of the site can be given.’

All parties are to comply with statutory and other notices they are responsible for. Should this clause not be complied with it could lead to claims against the employer. This subclause was deleted Contract data Clause B15.0 of edition 6.1 stated that: ‘The amendments contained herein or in the single referenced Annexure constitute the only amendments to the standard JBCC Agreement that will apply. No other amendments shall be of any force or effect’. This has been changed to read: ‘Reference may be made to other documents forming part of this agreement.’ Payment and adjustment of preliminaries CD clauses D3.0 and D4.0 have been reworded and lump sum contracts are now included. The problem with payment of preliminaries (Option B) where the contractor has fallen behind programme, was solved by adding: ‘Payment of the time-based charge shall be adjusted from time to time as may be necessary to take into account the progress of the works’ Objecting to the final account Previously the contractor had to “give reasons” for objecting to the final account, but in edition 6.1 it was left out. The words “with reasons” have been reinstated (subclause 26.11).

Other changes Disclaimer clause: A disclaimer clause has been inserted in all edition 6.2 documentation.

General Preliminaries: JBCC took over the publication of this document (see JBCC’s website for free copy). Social media: Electronic mail now excludes notices using “social media” (subclause 2.4.2). Definitions: Compensatory and default interest are now defined. Definition for “mora interest” was deleted.

As other countries have different methods of tax calculation, the definition of TAX now reads, ‘Valueadded tax, general sales tax or similar consumption tax applicable by law’. Offer and acceptance: Subclause 3.4 in edition 6.1 was shortened to read: ‘Should any provision of this agreement be unenforceable the parties shall act in good faith to agree alternative provisions in terms of this agreement.’ Insurances: Changes to the insurance provisions have been introduced Builder’s lien: The term “waiver of lien” is extended to include “... or right of continuing possession of the works” (subclauses 11.10 and 25.14.2). Penalty: Subclause 24.2 now makes it clear that penalties shall be applied “on instruction from the employer”. Payment for materials ‘off site’: The clause dealing with the payment for materials ‘off site’ was not transferred to edition 6.1. It has now been re-inserted in subclauses 25.4.1 – 3. Period for issue and acceptance of final account: The periods are now given in working and not calendar days (subclauses 26.10, 11). This overcomes the problem where these periods fall over the annual contractor’s holidays. International use: Constituent members’ names were removed. Currency to be indicated in the CD. The previous reference to the “Association of Arbitrators (Southern Africa)” is replaced by “… a local recognised body …” (subclause 30.10).

Documentation updated or created • Supplementary forms • N/S Subcontract Agreement and CD • Minor Works Agreement and CD • Bill No.1 (Preliminaries) for PBA and MWA • Project Specific Preliminaries for PBA and MWA

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