In August 2011, the Institution of Civil Engineers (ICE) took the surprising decision to withdraw its sponsorship of the Conditions of Contract, which had borne its name since 1945.
The ICE decided to devote its support to the NEC Forms which it had sponsored and funded, now over three editions. While the assumption was that the old ICE Conditions would fade away, it quickly became apparent that this was not going to happen.
The remaining two sponsors, the Civil Engineering Contractors' Association (CECA) and the Association of Consulting Engineers (ACE), decided that there was sufficient and continuing following for the ICE Conditions, and that they should be taken over and re-launched under the new title of the Infrastructure Conditions of Contract (ICC). Thus, all the old ICE Contracts and documentation have now been republished under the ICC banner and are reported to be still selling well.
However, the new sponsors also decided that it was time for a major update and moved to establish a development forum representing the full range of users of the Conditions and, with their support, a Restructuring Committee tasked with the production of a new set of Conditions.
The intention is that these will retain much of the feel and balance of the traditional ICE Conditions as well as the basic risk structure, while taking the opportunity to reflect improvements in contract and management strategy and expanding to cover the whole gamut of construction, rather than just civil engineering.
The new Conditions are thus intended to provide a serious alternative to NEC3; and in pursuance of the aims of the ICE itself, to provide an alternative platform for international projects which hitherto have had only the FIDIC Conditions.
The new Conditions will adopt a drafting style that is clear and direct but also traditional, and recognises both the multi-disciplinary nature of construction and the increasing emphasis on a collaborative approach.
Among the traditional features being retained will be the appointed Engineer, who will administer the contract and retain the role of rendering the first decision on disputes, but now within 14 days rather than the traditional three months.
The parties will then, whether operating in the UK or elsewhere, have the right to proceed either to adjudication or to arbitration at their option.
Innovations will include re-defining and clarifying the placing of risk and a new regime for claims and additional payment. The basis of payment for the work will be changed to allow for either lump sum or re-measurement or, more usually, a combination of the two.
The first 'Main Contract' form is programmed to be launched by the end of 2013 and will be followed by other forms within the contract suite, including a Target Cost contract and a new form of subcontract.
Perhaps the most difficult decision will be the renaming of the new suite, given that the title ICC may be seen as ambiguous. The present front runner is the "Standard Form of Construction Contract", but other suggestions will be welcomed.
Keating Chambers is represented on the Restructuring Committee, by John Uff CBE QC (Chairman) and includes Robert Evans, both being dual-qualified in engineering and law.
The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.
This material is prepared for Chambers by our Director of Research and Professional Development, Professor Anthony Lavers (LL.B. M.Phil Ph.D. D.Litt MCI.Arb FRICS Barrister) Visiting Professor of Law, Oxford Brookes University.
