2
Forming the contract
2.1 As noted in the previous chapter, the RIBA Building Contracts are most likely to be used on projects that follow a traditional procurement route, with possibly a degree of contractor and/or subcontractor design input. The decision to use a RIBA Building Contract will normally be made at an early stage in the project, and certainly by the end of RIBA Plan of Work Stage 3,1 as it affects issues such as the distribution of design responsibility between consultants and the contractor and the degree to which the client can control which subcontractors may be used.
2.2 Between the selection of the contract and the start of work on site, various processes will need to be undertaken: preparing the tender package and tendering; post-tender negotiations and appointment of the contractor; and formal execution of the contract. There will also be a pre-contract meeting, at which various matters are agreed. This chapter outlines these processes and considers particular matters that arise in relation to the RIBA Building Contracts.
Tendering
2.3 It can’t be overemphasised that, when a project is sent out to tender, the contractor should be given full and detailed information regarding the project requirements. This is the principal means by which a designer can ensure that the quality of detailing, finish and workmanship will reach the required standards. If the project is not to be fully designed by the client’s consultants, the contractor will require full information about the design that it is to provide, including any performance specifications.
2.4 Most importantly, full details should be given about which standard building contract is to be used, the particular conditions to be applied and any special terms. Consultants tend to focus on the design, technical and budget aspects, but clarity on the terms of the contract is just as important to the tenderer as these will affect the tender price. It is not advisable to introduce matters such as special contract provisions after a long tendering period, or after negotiations on price have been concluded: if they are not acceptable to the contractor, it will be in a very strong bargaining position. Furthermore, if contract documents are never formally executed, the details included in the tender package may subsequently form the basis of the contract between the parties (see para. 2.33).
Tendering procedures
2.5 Normally, for projects of the scale for which the RIBA Building Contracts are intended, one of two methods will be used: competitive tendering with a small number of contractors, or negotiation with a single contractor. The client’s consultants will normally suggest which contractors should be considered, but the client may have worked successfully with firms before, or may have been recommended a firm by others, in which case those firms can also be included.
2.6 With competitive tendering, all tenderers should, of course, be sent identical information, so that they are competing on an equal basis. The tenders are then examined by the client’s consultants, and normally the lowest priced one is accepted. With negotiated tendering, only the identified contractor will submit a tender, which is usually subject to discussion before acceptance.
2.7 An alternative method is a two-stage process: initially, a small number of contractors are asked to tender on the basis of less than complete information. Negotiations will then take place with the one that makes the most attractive submission. This method is frequently used where the contractor is expected to have a significant design input but the client wishes to approve this design before entering into the main contract; the selected contractor can then work with the client’s consultants in finalising the design. It is unlikely that a two-stage tender would be used for a project based on one of the RIBA Building Contracts, but, if it is, an agreement will be needed to cover the contractor’s liability to the client for its contribution to the design process.
2.8 Full guidance on tendering procedures can be found in the NBS Guide to Tendering: For Construction Projects (Finch, 2011), JCT’s Tendering Practice Note 2012 (JCT, 2012) and the RIBA Job Book (Ostime, 2013), but the most important aspect for the purposes of this chapter is what to include in the tender documents.
Information that must be included in tender documents
2.9 The information included in the tender documents will eventually form the basis of the contract itself. Therefore, clearly, the tenderers must be told which version of the contract will be used, i.e. CBC or DBC, and whether it will be entered into as a deed or as a simple contract. It must also be clear which of the tender documents are to be priced by the contractor and, if the documents are to have a priority, what that priority is (see para. 2.16 below).
2.10 The identity of the client (including whether it is acting as an individual or a company) must be crystal clear, as should the location of the site and any restrictions on its use and access. In fact, all matters that will later be entered in the ‘Contract Details’ (located at the front of the two contracts) should be set out in the tender documents. A full list of the items included in the Contract Details is given in Table 2.1.
2.11 Whoever is responsible for arranging the contract (usually the contract administrator) should discuss and agree all of this information with the client prior to tender. Some items are particularly important to raise at an early stage, so that the client has time to consider the matter and take advice, for example insurance and dispute resolution. Most are discussed in detail in other sections of this Guide (see the references in Table 2.1), but a brief introduction to key items in CBC and DBC is given here. There is also helpful information in the guidance notes to the contracts.
Whether the contract will be executed as a deed (Agreement: both contracts)
2.12 The decision as to whether the contract will be executed as a deed or as a simple contract (sometimes referred to as ‘under hand’) will affect the length of time the contractor will be held liable for a breach of the contract. Under the Limitation Act 1980, in the case of a simple contract the time limit for bringing an action for any breach is six years from the date of the breach, and in the case of a contract entered into as a deed it is 12 years. In the latter, the contractor’s risk is obviously greater, which may result in higher tender prices.
The site, and whether the building will be occupied (item C: both contracts)
2.13 If the building is to be occupied during construction, this will have significant implications for the contractor’s programme and the contract price. It is almost always slower, and more expensive, to work around partial occupation than it is if given a free run of the site. For example, added health, safety and security measures will be needed, such as the provision of protected access routes to the occupied parts. It will not be sufficient to simply indicate ‘yes’ as required: full details of the planned occupation will be needed (see para. 4.2). As well as indicating occupation, the client is also required to indicate any working hour restrictions (item H/G), and which facilities (electricity, parking, etc.) the contractor may use free of charge (item I/H, cl 1.5).
The contract administrator and other appointments (items D and E, both contracts)
2.14 The names of the firms engaged by the client should be set out, rather than the individuals, although the main point of contact within each firm could be noted. The contract administrator has a key role in the contract (see Chapter 3) and, although identified, is not a party to the contract (cl 11.5). The client may replace the contract administrator with another firm at any time, provided it notifies the contractor (cl 2.2). The contract administrator may not be the only appointment made by the client as, on all but very small projects, the client may also have engaged engineers, quantity surveyors and, possibly, a project manager (the client’s right to make such appointments is set out in cl 2.3). The other consultants have no defined role under the building contract, and all communication should be with the contract administrator, but it is sometimes useful for the contractor to be aware of who else is advising the client.
Contract documents (item F, both contracts)
2.15 All the documents that will form the contract bundle should be clearly identified in the tender package. Many of these will have been prepared by the contract administrator and other consultants identified above, however there are some exceptions. If a contractor’s design proposal is required, this will also be a contract document, and details of what is required from the contractor at tender stage, and possibly post tender but before the contract is executed, should be set out (this could be referenced here and/or under item U (CBC) or item R (DBC), see para. 2.27 below). The tender documents may include documents prepared by a required specialist, or by other consultants who are not listed.
2.16 Under item F the parties are invited to rank the documents in order of priority. Although this is optional, it would be very sensible to set out a priority in order to avoid arguments later when, as is almost inevitable on most projects, it is discovered that there are inconsistencies between them (note that it would still be possible for a lower priority document to supplement the material in a higher priority document, however it would not be able to contradict it: see RWE Npower Renewables v JN Bentley Ltd). The two matters to consider are, of course, quality and quantity, and it may be that the ranking is different for both these, e.g. the specification being the key document for defining quality, and the bill of quantities for amount. It will be particularly important, where the contractor is undertaking design, to state whether the employer’s requirements for the design (probably included in the specification) or the contractor’s design proposals prevail. Effectively this will determine whether, in cases of conflict, the contractor’s primary obligation is to meet the specification requirements, or merely to provide what was set out in the contractor’s proposals, even if it is later discovered that those proposals do not meet the client’s design requirements. Normally a client would prefer the former approach.
Liquidated damages (item J, CBC; item I, DBC)
2.17 The Contract Details require the parties to insert an agreed amount of liquidated damages per day, and the contractor should be informed of the rate at the tender stage. This is an amount to be allowed by the contractor in the event of failure to complete by the date for completion (cl 10.1, note that if the works are divided into sections under optional clause A3, several different rates may be applied).
2.18 The amount must be calculated on the basis of a genuine pre-estimate of the loss likely to be suffered (see Alfred McAlpine Capital Projects v Tilebox). Provided that the sum is calculated on this basis, it will be recoverable without the need to prove the actual loss suffered, and irrespective of whether the actual loss is significantly less or more than the recoverable sum. In other words, once the rate has been agreed, both parties are bound by it. If ‘nil’ were to be inserted into the contract particulars then this would preclude the client from claiming any damages at all (see Temloc v Errill). If no sum were entered, the client may be able to claim general damages, but if this were the intention it would be better to set this out clearly rather than simply to leave the section blank.
2.19 If completion in sections is selected in item V (CBC) or item S (DBC), rates of liquidated damages are required for each section. Note that in this case, the rate should reflect the realistic losses to the client of not getting access to that section, which (unlike partial possession) may not necessarily relate to the floor area of that part. In addition, the professional fees element may not be proportionally reduced.
Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [2005] BLR 271
This case contains a useful summary of the law relating to the distinction between liquidated damages and penalties. A JCT Standard Form of Building Contract With Contractor’s Design 1998 contained a liquidated damages provision in the sum of £45,000 per week. On the facts, this was a genuine pre-estimate of loss but the actual loss suffered by the developer, Tilebox, was higher. The contractor therefore failed to obtain a declaration that the provision was a penalty. The judge also considered a different (hypothetical) interpretation of the facts whereby it was most unlikely, although just conceivable, that the total weekly loss would be as high as £45,000. In this situation also the judge considered that the provision would not constitute a penalty. In reaching this decision he took into account the fact that the amount of loss was difficult to predict, that the figure was a genuine attempt to estimate losses, that the figure was discussed at the time that the contract was formed and that the parties were, at that time, represented by lawyers.
Temloc Ltd v Errill Properties Ltd (1987) 39 BLR 30 (CA)
Temloc entered into a contract with Errill Properties to construct a development near Plymouth. The contract was on a JCT Standard Form of Building Contract 1980 and was in the value of £840,000. ‘£ nil’ was entered in the contract particulars against clause 24·2, liquidated and ascertained damages. Practical completion was certified around six weeks later than the revised date for completion. Temloc brought a claim against Errill Properties for non-payment of some certified amounts, and Errill counterclaimed for damages for late completion. It was held by the court that the effect of ‘£ nil’ was not that the clause should be disregarded (because, for example, it indicated that it had not been possible to assess a rate in advance), but that it had been agreed that no damages would be payable in the event of late completion. Clause 24 is an exhaustive remedy and covers all losses normally attributable to a failure to complete on time. The defendant could not, therefore, fall back on the common law remedy of general damages for breach of contract.
Regulatory consents, fees and charges (item L, CBC; item K, DBC)
2.20 This item asks the parties to indicate who will be responsible for obtaining and paying for ‘all planning permissions, Building Regulations approvals and party wall consents’. It will almost always be the case that the client takes responsibility for planning permission, as, unless the project is to be entirely designed by the contractor, which is unlikely, the contractor will not be engaged at the time planning permission is usually sought. The application and any permission issues are normally resolved before going out to tender (the RIBA Plan of Work 2013 notes that ‘Planning applications are typically made using the Stage 3 output’). It is possible, however, that the contractor may be required to deal with Building Regulations approval on small projects (by means of a building notice), but for more complex schemes the client will take responsibility. In the case of party wall consents, under the Party Wall etc. Act 1996 the building owner is required to serve notices on all adjoining owners of intended work on or near the site boundaries, and in many cases to appoint surveyors to act on its behalf. It is not possible to simply require the contractor to take on these roles under the building contract; a separate appointment would be needed (with either the contractor or another consultant).
Insurance backed guarantee and new building warranty (items N and W, DBC)
2.21 These items require the client to set out details of any insurance backed guarantee and/or new building warranty that will be required. These are similar products; the term ‘new building warranty’ is used mainly in the context of new homes, whereas ‘insurance backed guarantee’ can be applied to any type of building work. The National House Building Council’s (NHBC) Buildmark scheme is a well-known example of a new building warranty, which covers homes built by NHBC-registered builders. The scheme protects the homeowner against defects for ten years; for the first two years the builder is responsible for putting right any defects, and during the third to tenth years any damage to a home resulting from building defects is covered by an insurance policy. It will also protect the homeowner if the builder goes bankrupt during the course of the work but before completion. Various trade associations offer a range of insurance backed guarantees for domestic and commercial work, for example the Federation of Master Builders’ Build Assure scheme, which offers a variety of packages, from simple liquidation cover to ten years’ protection against structural damage. If selected, the insurance backed guarantee is to be provided before the start date (cl 6.5).
Contract price (item O, both contracts)
2.22 Both contracts give two options for setting the contract price: ‘Fixed amount’ or ‘Amount calculated in accordance with the attached schedule of rates’. Item F makes reference to a ‘pricing document’, so if the fixed price option is selected, the pricing document could be, for example, a fully priced bill of quantities, a schedule of works or a contractor-prepared price breakdown.
2.23 If ‘Amount calculated in accordance with the attached schedule of rates’ is selected then a schedule of rates will be included. This will give rates for all types of work envisaged, but not quantities, and will have been prepared by one of the client’s consultants. Alternatively, if preferred, the contractor can be asked to prepare the document. The schedule of rates option is useful for projects where it is difficult to assess the likely quantity of work in advance, such as in refurbishment work, where the extent of repair work cannot be ascertained until demolition work is complete. However, there will be no overall contract sum, and it will be difficult to control the overall budget.
Dispute resolution (item S, CBC; item P, DBC)
2.24 Three forms of dispute resolution are listed in the RIBA Building Contracts: adjudication, mediation and arbitration. In DBC, all three can be selected, or none, or any combination. In CBC, the adjudication option is preselected to ensure that the contract complies with the Housing Grants, Construction and Regeneration Act 1996 (as amended), which requires that all contracts covered by the Act include the right to adjudication. Otherwise, the same applies as for DBC, i.e. the parties may choose any combination.
2.25 It is important to give careful consideration to the choice of dispute resolution options. The differences between them are significant, and it might not be possible for one party to persuade the other to use a different system after a dispute has arisen; this therefore is the only opportunity to determine how matters will be resolved. The different options are discussed in Chapter 9.
Contractor design (item U, CBC; item R, DBC)
2.26 If this item is selected it requires the client to indicate which aspects of the works are to be designed by the contractor. It is important that any aspect, whether a component, element or system (such as services), is delineated with care, as otherwise there may later be disagreements as to who is responsible for interfaces between these and any consultant-designed areas. In addition, the client must indicate whether the contractor’s liability is to use reasonable skill and care or that the design is to be ‘fit for purpose’ (see para. 3.16). It is very important that this entry is not overlooked as the consultant and client must give careful consideration to the issue of liability before sending out the tender documents.
2.27 As well as indicating which parts are to be designed by the contractor, the client is likely to want to stipulate requirements that the designed parts should meet. It would be sensible for the contract administrator to indicate in item U (CBC) or item R (DBC) where these requirements are set out (quite often this will be in the form of a performance specification). In addition, if the contractor is to be required to submit design proposals at tender stage, then this should be made clear in the tender documents, including the nature and extent of the submission required. Similarly, it may be sensible to set out details of any information to be submitted during the works, and the dates by which it will be required (cl A2.2).
Collateral warranty/third party rights (item AA and clause A8, CBC)
2.28 A collateral warranty is a separate contract entered into by the contractor and a third party, typically a purchaser or tenant of the completed building or a project funder. They are particularly important if the contractor is undertaking design, as without one the purchaser, tenant or funder will not be able to recover its losses should the building later develop defects.
2.29 If the employer wishes the contractor to provide such a warranty, this should be made clear in the tender documents (if not the contractor may later agree to provide one, but the employer would not be able to insist that it does). The details of to whom the warranty is to be provided and the form of warranty to be used should also be given. Standard forms of warranty are published by the JCT, although these may require some modification for use with the RIBA Building Contracts. The contractor must execute the warranties as set out within 14 days of being requested to do so by the employer (cl A8.1).
2.30 As an alternative to the use of a collateral warranty, the contract refers to the use of a third party rights agreement. This facility was introduced by the Contracts (Rights of Third Parties) Act 1999. Until this Act came into force, it was a rule of English law that only the two parties to a contract had the right to bring an action to enforce its terms (termed ‘privity of contract’). Now, the Act entitles third parties to enforce a right under a contract, where the term in question was intended to provide a benefit to that third party. The third party could be specifically named or it could be an identified class of people. The Act, however, allows for parties to agree that their contract will not be subject to its provisions, and many standard forms adopt this course in order to limit the parties’ liabilities. Both RIBA Building Contracts state ‘Third parties have no rights under the Contract unless specifically stated in the Contract’ (cl 11.6). The concise contract, however, provides for the employer to require the contractor to enter into a ‘Third Party Rights Agreement’ (cl A8), details of which must be set out in the Contract Details. It should be noted that there are no standard forms of agreement available for use with the RIBA Building Contracts, but it may be possible to adapt the Draft Third Party Rights Schedule published for use with the RIBA Standard Agreement 2010 (2012 revision).
Rules for valuation of revision of time and additional payment (item DD, CBC; item Y, DBC)
2.31 The parties are given the option of agreeing rules to be used for assessing revisions of time, and additional payment. Item DD (CBC) and item Y (DBC) require an indication that rules will apply, but not what these rules will be. Clause A11/A9 then requires the parties to set the rules that will be used, but the contract does not give any details as to when and how this might be done. It would be sensible to indicate what the rules are in the tender documents, or that they will be discussed and agreed at the pre-start meeting. A set of rules commonly adopted is the Society of Construction Law Delay and Disruption Protocol.
Pre-contract negotiations
2.32 Once the tenders have been returned, the next stage is to finalise the agreement with the selected contractor. Ensuring that a contract is in place before construction work begins is a key task of the contract administrator, and to neglect to do so may constitute negligence.
2.33 A contract is formed when an unconditional offer is unconditionally accepted. In the context of a building project, where contractors have been invited to submit competitive tenders, the tenders constitute ‘offers’ to carry out the work shown in the tender documents for the price tendered. If a tender is accepted unconditionally then a contract will have been formed, and the terms of the contract will be those set out or referred to in the tender documents.
2.34 ‘Letters of intent’ can cloud the picture and should be avoided. If it is possible to accept the tender without qualification then it is better simply to write a letter to that effect, and the contract comes into existence from the moment the letter has been received by the contractor.2 The effect of a letter expressing an intention to enter into a contract at some point in the future will depend on the wording and circumstances in each case, but it is likely to be of no legal effect. Starting work on such a basis could have disastrous consequences for both parties.
2.35 If there is a period of negotiation before the formal contract is drawn up, careful records should be kept of all matters agreed in order that they can be accurately incorporated into the formal contract documents. These documents should always be prepared as soon as an agreement is reached, and before work commences on site. Failure to execute the documents does not necessarily mean that no contract is in existence, but it can often lead to avoidable arguments about what was agreed.
2.36 The formal contract, once executed, will supersede any conflicting provisions in the accepted tender and will apply retrospectively (Tameside Metropolitan BC v Barlow Securities).
Tameside Metropolitan Borough Council v Barlow Securities Group Services Limited [2001] BLR 113
Under JCT63 Local Authorities, Barlow Securities was contracted to build 106 houses for Tameside. A revised tender was submitted in September 1982 and work started in October 1982. By the time the contract was executed, 80 per cent of building work had been completed, and two certificates of practical completion were issued relating to seven of the houses in December 1983 and January 1994. Practical completion of the last houses was certified in October 1984. The retention was released under an interim certificate in October 1987. Barlow Securities did not submit any final account, although at a meeting in 1988 the final account was discussed. Defects appeared in 1995, and Tameside issued a writ on 9 February 1996. It was agreed between the parties that a binding agreement had been reached before work had started, and the only difference between the agreement and the executed contract was that the contract was under seal (thereby extending the time for bringing a claim from six years to 12 years from any breach of contract). It was found that there was no clear and unequivocal representation by Tameside that it would not rely on its rights in respect of defects. Time began to run in respect of the defects from the dates of practical completion; the first seven houses were therefore time barred. Tameside was not prevented from bringing the claim by failure to issue a final certificate.
Executing the contract
2.37 The RIBA Building Contracts have an ‘Agreement’ section at the start of the document that is to be signed by both parties. The contracts can be executed as a simple contract (sometimes termed ‘under hand’ in other contracts) or as a deed; if neither option is selected, the default is a simple contract. It is good practice to sign not only the form itself, but also a copy of all other contract documents, to avoid any arguments about exactly which contract or revisions are included in the contract. In the concise version the employer is given the option of signing as an individual or as a registered company; obviously, if it signs as an individual, the employer will be personally liable to the contractor, whereas as a company its liability will be limited (see Hamid v Francis Bradshaw Partnership). The option of signing as a company is not offered in DBC, because a company would not fall under the residential occupier exception discussed at paragraph 1.16. Therefore, DBC cannot be used by, for example, a homeowner who wishes to engage a contractor through a company they own.
2.38 Once the tender process is complete and the contract has been signed, the contract administrator is required to give the contractor ‘two free copies of the Contract Documents’ (cl 5.2.1). This could be in any format the parties agree; there is no need to sign multiple sets, one set should be signed and then copies made. It may be that the contractor would prefer to have one of these as a secure PDF. The original is usually retained by the client, with the contract administrator holding a copy (or the other way round). Any updates are to be issued to the parties promptly (cl 5.2.2); this might happen, for example, if the parties agree an amendment. Any amendment should be in writing and signed by both parties (cl 11.9).
Interpreting the contract and resolving inconsistencies
2.39 The RIBA Building Contracts are clearly laid out and generally easy to understand. However, it should be remembered that the contract between the parties comprises not only the signed contract form, but all the contract documents as well. Even if great care has been taken in preparing the contract documents, there can be unintended conflicts or inconsistencies between them. As a result, it may be difficult to anticipate their combined effect. This section looks at how the contract itself and the package of contract documents are to be interpreted, and how any errors or problems are corrected.
Definitions
2.40 An ‘Explanation of Terms’ is set out on page 2 of both versions of the contract. Although not described as ‘definitions’, this is effectively what the explanations are, and in any event they would be used to interpret the meanings of clauses. For example, ‘Change to Works Instruction’ is described in the concise contract as ‘an instruction from the Architect/Contract Administrator, as described in clauses 5.12 and 5.13, that alters or modifies the design, quality and/or quantity of the Works’. The contract also includes ‘defined terms’ that are not included in the Explanation of Terms but are defined within the Contract Details. These terms are all capitalised throughout the contract and include, for example, ‘Contractor’, ‘Customer’ and ‘Start Date’.
2.41 There is also an additional definition to be noted, which occurs within the Contract Conditions themselves: ‘a day’ is defined in clause 11.13, which explains that in calculating periods of days, all days including weekends should be included, except for public holidays.
Priority of contract documents
2.42 Clause 11.1 states that:
This means that conflicting provisions in other documents, for example in the preamble to a bill of quantities, will not override the printed conditions. This gives clarity and avoids unintended clashes occurring. However, if the parties wish to agree special terms that differ in any way from the printed conditions, then it will not be sufficient to simply append them in a separate document: amendments must be made to the actual printed contract (note: this is easier to do in the on-line version). This could be done by amending the individual clauses in the printed contract; alternatively, clause 11.1 could be amended by adding a qualification that the revisions set out in another document will take precedence over the printed contract. However, amending standard contracts is unwise without expert advice, as the consequential effects are difficult to predict. Deleting clause 11.1 would be particularly unwise as it may have unintended effects on the contract as a whole.
2.43 Subject to clause 11.1 (i.e. that the printed conditions take precedence), the parties are invited to set out a priority between the other contract documents (cl 11.2). If no priority is set out and a conflict exists that gives rise to a dispute, the adjudicator or court would need to decide, on a balance of probabilities, what the parties’ intentions were when they made the contract. This is done objectively, i.e. the adjudicator or court is not interested in the subjective intention, but in what a disinterested bystander would conclude the parties had meant. A contract administrator trying to resolve conflicts in this situation would need to be equally objective; i.e. when looking at the documents as a whole, what, on balance, do they appear to mean?
Inconsistencies, errors or omissions
2.44 The contractor is required to notify the contract administrator if it finds any inconsistencies within or between the contract documents, and/or any instruction, or between the documents and the law (cl 5.14 CBC, cl 5.11 DBC). The contract administrator is required to issue instructions to deal with the issue, and the contractor must take any minimal action needed to comply with the law while awaiting the instruction (cl 5.15 CBC, cl 5.12 DBC). The contract administrator is also given the power under clause 5.4.6 to issue instructions to correct any inconsistency in the contract documents, which would cover issues that have not been notfied. Although expressed as a power, and not a duty (as in JCT forms), it is suggested that the contract administrator should normally take steps to resolve any problems that emerge.
2.45 An instruction to resolve an inconsistency in the contract documents is stated to be a ground for a revision of time, unless the inconsistency is due to a document prepared by the contractor (cl 9.9.6; note: this would cover both inconsistencies within contract documents and inconsistencies between such documents and any others). Other than this, the contract gives no details as to the consequences of such an instruction. Change to works instructions are dealt with separately (cl 5.4.1, see para. 5.23), and the consequences covered in clause 5.12 in CBC and clause 5.9 in DBC, but there is no equivalent clause to deal with any other type of instruction. However, it is quite possible that a clause 5.14 or 5.4.6 instruction will effectively result in a change to the works. For example, if two different documents showed different quantities of brickwork, and the one with the smaller quantity has been ranked higher in priority, then the contract price will be deemed to only allow for the smaller quantity; if more is needed, this is a change to the works. It is suggested that the contract administrator should take a practical approach and treat the correction of an inconsistency as a change unless it falls within the exceptions set out in clause 9.9.6.