If a schedule includes for a contractor to carry out M&E works to ‘match existing layout’ or ‘as agreed with the client’ (e.g. rewire following a fire), without any detailed drawings etc, would this work be deemed Contractor’s Design Portion & thus warrant the use of a JCT MWD contract rather than a JCT MW contract?
The JCT MW contract is for use where the design is provided by the Employer and all the Risk of design rests with the Employer.
The JCT MWD is used where either the entire works or elements / portions such as M&E where the design required to be carried out by the Contractor. The contract must state what parts and the ER’s will set out the performance requirments as a minimum.
If the contract is the JCT MW and contains a Schedule of Work with a statement that M&E works to ‘match existing layout’ or ‘as agreed with the client’ then this does not change the Risk profile and the design of the works remain with the Employer and it is for the Employer/EA to instruct their requirements. In this scenario at tender stage a Provisional Sum should be included and instructed during the works phase. It is arguable that the Prov Sum is also Undefined, and therefore no time allowance or Prelim cost should be included in the tender/Contract Sum. (this should be clarified in the tender stage)
Generally agree with the comment by J Kelly. Where you have “match existing” the contractor should be given the “existing” which it is to match. Thus any design is in the “existing”. If you have “as agreed with client” this sounds like the client instructing work so you may need to dig a little deeper into what was actually said.