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Clause Text

2.14A Insert new clause 2.14A to JCT DBSub/C 2016 as follows: “2.14A - Errors and omissions in Employer's Requirements and Contractor's Proposals 

1. In this clause 2.14A, the phrases ‘Employer’s Requirements’ and ‘Contractor’s Proposals’ shall have the same meaning as in the Main Contract Conditions. 
2. Notwithstanding any provision to the contrary, the Sub-Contractor shall not be entitled to receive or claim any addition to the Sub-Contract Sum or any extension of time under clauses 2.16 to 2.19 or any other relief or remedy whatsoever in respect of or by reason of any Variation, delay, loss, expense or other matter arising out of any inadequacy, error, omission or inconsistency in or between the Employer’s Requirements and/or Contractor’s Proposals and/or the correction of any such inadequacy, error, omission or inconsistency. 
3. For the avoidance of any doubt, clause 2.14A.2 shall apply whether or not there are any SCD Works and irrespective of the part of the Main Contract Works or Sub-Contract Works to which any such inadequacy, error, omission or inconsistency relates or part of the Main Contract Works or Sub-Contract Works to which any such correction, Variation, delay, loss, expense or other matter relates.”

Why is this clause problematic?

Under standard JCT principles, a contractor would usually expect relief where there are defects or inconsistencies in information supplied from above. This clause transfers responsibility for errors, omissions and inconsistencies in the Employer's Requirements and Contractor's Proposals to the Sub-Contractor. 

The Sub-Contractor loses entitlement to additional payment, extensions of time and other relief arising from design defects or coordination errors that originated in documents prepared by others. The clause frequently becomes contentious where the true scope of work proves materially greater than indicated during tendering.

What were the cost consequences?

The clause can have severe financial consequences. Costs arising from design errors, omissions or inconsistencies in documents supplied by the contractor may become irrecoverable. On a Sub-Contract valued at £200,000, even a modest 10% increase in the work arising from a document error could leave the Sub-Contractor carrying over £20,000 of unrecoverable cost, together with any associated delay and disruption expenses. 

Where completion is delayed, the Sub-Contractor may also become exposed to liquidated damages and additional preliminaries costs. The real ClauseWatch lesson is not simply that the clause is onerous but that it creates "blind risk assumption": the Sub-Contractor is asked to accept liability for defects in information it neither created nor controlled.

Amendment to Standard Form

The amendment transfers the risk of design errors and inconsistencies in upstream contract documents from the Contractor to the Sub-Contractor, removing the Sub-Contractor's normal entitlement to claim additional time or money arising from those issues.

Associated Clauses

The clause does not operate in isolation. It forms part of a wider package of amendments that collectively seeks to transfer design risk to the Sub-Contractor. Most relevant associated clauses: 

Clause 2.13.1 The Sub-Contractor is made fully responsible for the design of the SCD Works, including design contained within the Contractor's Requirements and must verify, correct and complete that design. 

Clause 2.13.2 The Sub-Contractor must ensure the design contains no inadequacies or errors and complies with all contractual and statutory requirements. Contractor review or approval provides no relief from that responsibility. 

Clause 2.13.4 Where an inadequacy or error is found within the Contractor's Requirements, the Sub-Contractor must correct it at its own cost and without entitlement to a variation or extension of time. 

Clause 2.14.1 Expands the concept of design discrepancies to include errors, inadequacies and divergences within or between the SCD Documents.

Numbered Document provision Clause 2.2 The Sub-Contractor is deemed satisfied as to the feasibility of the Employer's Requirements and accepts full responsibility for design contained within them. 

Numbered Document provision Clause 2.3 The Sub-Contractor agrees to undertake the verification, development and completion of the design.

Together, these provisions seek to create a comprehensive risk-transfer regime under which the Sub-Contractor assumes responsibility for identifying and absorbing the consequences of design deficiencies originating elsewhere.

Relevant Case Reference

The courts may enforce clear contractual wording transferring responsibility for design adequacy to the contractor or subcontractor, even where the relevant design information originated elsewhere. See MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Ltd [2017] UKSC 59.

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