Beware of the design approval clause in a design and build contract

Where design approval is required under a design and build contract, the contractor will be required to produce designed drawings in respect of the installation before proceeding

Usually, in a design and build contract, a timescale will be included to indicate the time allowed for answering queries with approval or acceptance. If the employer or architect, as appropriate, fails to provide the acceptance within the timescale, there will be an extension of time entitlement.

If no timescale is specified, a “reasonable” time will be implied in the contract; the contractor will be deemed to have allowed in his programme for a reasonable period to obtain approval.

Common problems faced

Problems often arise in a design and build contract when the contractor fails to obtain approval from the employer/architect and commences work without approval.

If the design work is subsequently not approved, the contractor will be culpable for the delay in rectifying the work, the delay in submitting a late design that is acceptable will have to bear the costs of the aborted works and, as appropriate, claims from subcontractors.

A further danger of lack of design approval is if the price had been agreed the contractor takes a risk as design and price have not been fused. It is thus very important that design be produced, identified and approved before the contract starting, or at a very early stage in the works.

It is important to note that a variation cannot arise until the design is approved. Thus, claims that changes have occurred and extra payment due will be entirely invalid.

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