16 BUSINESS AND TRAINING
The Joint Building Contracts Committee ( JBCC ) The JBCC 1991 publication was regarded as ‘ the first entirely new building agreement to be published by the major partners in the building industry in almost 60 years ’ 5 designated ‘ series 2000 ’ that corrected minor inconsistencies in previous documents and included :
• requirements of the Department of Public Works , and the
• Security for due performance by the contractor ( construction guarantee )
• ‘ selected subcontractors ’ included
• ‘ reconciliation ’ statement included
• ‘ disagreements decided ’ by the principal agent on written submissions by the parties
• or by mediation
• or submitted to arbitration in terms of the Arbitration Act 1965 , with the arbitrator to be nominated by the chairman of the Association of Arbitrators - Southern Africa
The first edition ( 1991 ) of JBCC contracts referred to the architect as the contract administrator , the second edition ( 1998 ) and subsequent editions replaced the ‘ Architect ’ with the ‘ Principal Agent ’ who could be an engineer , quantity surveyor or construction management graduate : “ The Employer warrants that the Principal Agent has full authority and obligation to act in terms of this Agreement . The Principal Agent has no authority to amend this Agreement .”
According to the first three editions of JBCC Contracts ( 1991 , 1998 and 2003 ): – “ Should there be any disagreement between the Employer or his agents on the one hand and the Contractor on the other arising out of or concerning this Agreement the Contractor may request the Principal Agent shall determine such disagreement by a written decision given to both parties . On submission of such a request a disagreement in respect of the issues detailed therein shall be deemed to exist .”
In the subsequent three editions of JBCC Contracts ( 2005 , 2007 and 2018 ):
The Principal Agent does not resolve disagreements between the Parties .
The 2005 edition of JBCC Contracts provided for the settlement of disputes by ‘ adjudication ’ for the first time .
The JBCC 2018 edition ( 6.2 ) Nominated / Selected Subcontract Agreement in clause 30.1 : – “ Should any disagreement arise between the Employer ( or the Principal Agent or an Agent ) and the Contractor ( or the Contractor and the Subcontractor ) arising out of or concerning the action or inaction of the Employer ( or the Principal Agent or an Agent ) or the Contractor , or any other matter concerning this Subcontract Agreement ( including the validity thereof ), either Party may give Notice of a disagreement to the other . The Parties shall attempt to resolve such disagreement between them and record such resolution in writing and signed by them .”
FIDIC : the role of the contract administrator ( CA ) in the 1999 | 2017 editions
“ 1999:3.5 { 2017:3.2 } The Engineer has no authority to amend the Contract and must consult with each Party on any matter to reach agreement failing which make a fair determination { 2017:3.7.1 / 2 }
“ FIDIC { 2017:8.4 } Advance warning – each party shall advise the other and the engineer in advance of any known circumstances which may adversely affect the work of the contractor ’ s personnel and / or performance of the works when completed / increase the contract price and / or delay the execution the works or a section .”
20.1 Claims procedure – engineer to follow [ 3.5 ] contractor 1999 : 3.5
Engineer decides any matter in consultation with the Parties
2017 : 3.7 Engineer ’ s determinations 1999 : 20.2 DAB – one or three members 2017 : 21.2 DAAB – one or three members
1999 : 20.5
2017 : 21.5
1999 : 20.6 Arbitration 2017 : 21.6 Arbitration
Amicable Settlement after Notice of Dissatisfaction with DAB ruling before arbitration Amicable Settlement after Notice of Dissatisfaction with DAB ruling before arbitration
FIDIC – Dispute avoidance clauses in editions … Red Book 1999 ( 20.4 ) DAB = Dispute Adjudication Board consisting of a sole or three members .
Red Book 2017 ( 21.1 ) DAAB = Dispute Avoidance / Adjudication Board consisting of a sole or three members .
Composition of the three-person board – one member nominated by each party , who agree the third member as ‘ chair ’. Thereafter :
• Parties jointly agree , copy to engineer , to attempt to resolve any issue or disagreement by involving the DAAB , or the DAAB may invite the Parties if it becomes aware of a potential matter of dispute
• DAAB assistance may take place at any meeting , visit to site , or while the Engineer is carrying out duties
• The Parties are not bound by informal assistance of the DAAB unless the Parties agree otherwise
• The DAAB is not bound by advice given informally ( orally or in writing )
• Either Party may refer a dispute to the DAAB – following the procedure in the Contract – within 84 days
• DAAB decision on Notice of Dissatisfaction by one Party , the Parties must attempt ‘ Amicable Settlement ’( AS )
• Where a DAAB decision has not become final and binding , or AS has failed the dispute is referred to Arbitration
GCC – the role of the Contract administrator ( CA ) 1.1.1.16 The ‘ Employer ’ s Agent ’ for the purposes of the Contract is a substitute for the Employer
GCC – Dispute resolution clauses in GCC edition 2015 ( similar to GCC 2010 )
5 Eyvind Finsen : the Building Contract - Juta 1991 ‘ foreword ’
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