The question
Our client wants to incorporate the Society of Construction Law (SCL) Delay and Disruption Protocol into the building contract and make it a contract. Are they entitled to do so, and what are the risks of doing so?
The answer
The SCL Delay and Disruption Protocol provides guidance on how to manage and resolve construction project delays and disruptions. The latest version is the second edition, which was published in February 2017.
It is an established legal principle that the parties involved in a contract have the freedom to negotiate the terms of an agreement. Therefore, if your client wants to incorporate the protocol into their building contract, they are free to do so, if the other party agrees.
However, there are some risks to incorporating the protocol into the building contract:
- A lack of clarity. Because the protocol is a relatively complex document, some of its provisions may be unclear or ambiguous. This could lead to disagreements and delays in resolving issues. In addition, while the document is well written so anybody can understand it, those not familiar with delay and disruption may misinterpret its provisions.
- The costs of incorporating the protocol into the contract. Incorporating the protocol into the contract may incur additional costs, both in terms of legal fees and the costs of implementing the protocol itself. The standard building forms are complex enough as they are. Adding further terms to these standard provisions inevitably makes a contract more administratively burdensome.
This article was written by Anthony Hayes who is an associate at Decipher Group, click here to read Anthony’s full response. Should you need help with any of the issues raised in this article don’t hesitate to get in touch with us today.