Beware of using out-of-date contracts

A client of mine recently asked me for advice on a consultant’s appointment that it wished to use.  The contract was GC/Works/5 General Conditions for the Appointment of Consultants to be used with its Model Forms. 

The first question to deal with was whether the correct appointment was the 1998 or the 1999 version.  In this case, the client wanted a framework agreement rather than a one-off appointment, and so the correct version was the GC/Works/5 (1999) General Conditions for the Appointment of Consultants: Framework Agreement.  This is designed for term contracts of between three and five years and includes a form of order for consultants to undertake services.  It is described as an “improved” version of the 1998 appointment. 

The second issue to deal with was to update the appointment as it was published 15 years ago and so refers to legislation that is out of date.  It does not include a general “sweep up” provision to update the references to legislation by including “amendments to, consolidation of or re-enactment of” it.  A separate issue is that the appointment makes no reference to new legislation that has come into force since it was published. 

Several changes needed to be made to the appointment to deal with this.  For example, the CDM Regulations 2007 (in force on 6 April 2007), the Bribery Act 2010 (in force on 1 July 2011) and the changes to the “Construction” Act 1996 made in 2009 (in force on 1 October 2011) all needed to be provided for.  In addition, the Model Forms to be used with the appointment refer to the planning supervisor instead of the CDM co-ordinator.

It is not in the interest of either party to use a contact that is out of date as this can only lead to ambiguity and uncertainty about the terms of the contract.

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