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THE AUSTRALIAN BUILDING INDUSTRY

CONTRACT (ABIC) SUITE: PRINCIPLES AND


PRACTICE

Richard Calver

National Director Industrial Relations and Legal Counsel,


Master Builders Australia Ltd

Introduction
Let’s start with a slogan that my members could, in Queen, Bourke or Pitt
Streets, rally around: loading risk on parties down the contractual chain
usually produces additional costs without additional benefits.

The Interim Report of the Building the Education Revolution (BER)


Taskforce 1 provides a link between that proposition and the reality of an
outcome influenced by increased prices where risk is loaded onto specific
industry participants. The Interim Report made the preliminary finding that the
Managing Contractor model identified as one of three delivery mechanisms
for BER projects charged higher management fees than the other models, but
that this ‘prima facie reflect[ed] a higher assumption of risk.’ 2

In its final report 3 this issue was even more cogently expressed:

Business as usual arrangements, with managing architects in the


equivalent superintendent’s representative role, would have been more
suitable for BER school projects given their relatively small size,
complexity and risk profile. This approach would have maintained a
more traditional relationship with building contractors than has been
the case of the more complex outsourced, multi-site procurement models

1
See Building the Education Revolution Implementation Taskforce Interim Report (Cth of
Aust, 6 August 2010); http://www.bertaskforce.gov.au/pages/publications.aspx.
2
Ibid at 42.
3
See Building the Education Revolution Implementation Taskforce Final Report (Cth of Aust,
July 2011); http://www.bertaskforce.gov.au/pages/publications.aspx.
2

used by the Victorian and NSW governments. These education


authorities have had the vast majority of complaints, value for money
concerns and quality issues.

NSW elected to engage seven managing contractors across nine NSW


regions. Managing contractors are responsible to arrange for the
scoping, budget and quality delivery of projects through the engagement
of their own design and sub-contractors to perform the projects in
accordance with a modified GC21 contract form which transfers design,
procurement, construction and commercial risk. NSW has paid
relatively high fees (documented in our previous report) to managing
contractors in order to transfer considerable performance and
commercial risk away from the NSW Government. 4

This phenomenon seems to reflect what has been identified by Ulbrick 5 as


follows:

During the contracting phase little consideration is given to how the


risks associated with construction ought to be allocated. Rather, the
focus during the contracting phase is dedicated to how risks will be
allocated where each party to the contract acts on a self preservation
basis. 6

In the case of the BER projects in New South Wales and Victoria, this
perspective appears to have backfired. Recently, Charrett and Shnookal 7
have drawn on a Japanese publication to list the consequences of self-
preservation risk loading:

 higher bid price;

 bid failure and disruption of project implementation;

 non-participation in the bid of conscientious and capable contractors;

 contract award to a bidder who fails or was not capable of estimating


the risks properly;

 poor construction quality and delay to the progress of the work


due to lack of risk contingency;

 undermining the relationship of mutual trust and respect between


the employer and the contractor;

 repetition of groundless claims from the contractor;

 frequent disputes between the employer and the contractor; and

4
Ibid at 63 (my emphasis).
5
D Ulbrick, ‘No Dispute? Testing the Wisdom of Abrahamson’ (2010) 21 Insurance LJ 96.
6
Ibid at 100.
7
D Charrett and T Shnookal, ‘Standard Form Contracting – The Role for FIDIC Contracts
Domestically and Internationally’, ACLN 138, May/June 2011 at 6.
3

 in an extreme case eventual termination of the contract. 8

This paper rejects the “self-preservation” perspective that frequently


engenders the negative outcomes listed and shows how the approach adopted
under the Australian Building Industry Contracts (ABIC) is more balanced.
The risk allocation principles established under ABIC are examined and, the
principles applied illustrated by focusing on two specific elements and
showing how the suite is intended to operate in practice in applying those
principles.

ABIC Principles
Master Builders provides various standard form contracts, either at the
national level, the State or Territory level or through joint ventures. Master
Builders’ philosophy in promoting standard forms is that these contracts
minimise the time spent negotiating commercial transactions, and time is an
all-important element in our members’ working lives. Members also become
familiar with the standard forms. The obligations the parties assume are made
clear from use over time. This is far from a new observation. Cullen 9 in 1993
put the proposition as follows:

The more well known and the longer established are these conditions (or
rules), the more chance will there be for a reduced incidence of disputes
and, hence, more likelihood of a well-managed outcome. 10

This familiarity with how risk and responsibility are allocated in turn reduces
disputes as participants become used to administering the terms of the
contract.

In many instances, standard form contracts can be a useful tool for businesses
contracting with a large number of, particularly, domestic consumers or
subcontractors. But standard form contracts have come under increasing
attack from authorities and have been questioned as, for example, entrenching
out-of-date practices. 11 In my view, this criticism is more resonant of the
truism that application of the law preserves the status quo as well as being
derived from the factor of familiarity discussed above. Legal order in itself
may be viewed as a device to preserve the social status quo, 12 and without
regular review standard form contracts can become moribund.

That is not to say industry participants blindly follow the terms of standard
forms without modification. Construction industry contracts are not “take it or
leave it” contracts where the service is provided on the strict understanding
that no part of the standard form may be negotiated. Contracts with that effect

8
Ibid at 9.
9
A Cullen, ‘Standard Conditions of Contract in the Building and Construction Industry’
(1993) 9 BCL 89.
10
Ibid at 92.
11
See M Bell, ‘Standard form construction contracts in Australia: Are our reinvented wheels
carrying us forward?’ (2009) 25 BCL 79 at 92.
12
See Roscoe Pound, ‘The End of Law as Developed in Juristic Thought’ (1914) 27 Harv LR
605.
4

are generally known as ‘contracts of adhesion’. They operate in a number of


other sectors and have tainted the use of standard form contracts generally,
including their ability from 1 July 2010 to be impugned under the unfair
contract terms provisions of the new Australian Consumer Law. 13 Standard
forms endorsed by Master Builders should have no “take it or leave it”
flavour.

The ABIC suite is produced by a joint venture between the Australian Institute
of Architects (AIA) and Master Builders. There have been three versions of
the ABIC suite since the joint venture commenced: the 2001 version, the
2002/2003 version and the 2008 version, which was released for sale in 2009 14
and which has been adjusted in minor regards via running changes as feedback
about various provisions is obtained. 15 A 2012 version is planned.

The ABIC Joint Venture has applied a number of factors which we believe
should guide the process of determining how a balanced risk profile may be
reached in the context of establishing a suite of standard form contracts. The
following criteria have been adopted:

 risk allocation consistent with the “Abrahamson principles” set out


in No Dispute – Strategies for Improvement in the Australian
Building and Construction industry 16 as the starting point of the
risk allocation in ABIC but with the caveat that so-called neutral
obligations are specifically allocated;

 plain English drafting; and

 contemporary concepts used, not concepts which are unbalanced


and which provide unfair unilateral rights in the nature of, for
example, termination for convenience. 17

Linked to these broad criteria, the joint venture agreement between Master
Builders and AIA requires certain principles (described in the agreement as
‘foundational’) to be applied as follows:

 Risk allocation must be consistent with the Abrahamson principles.

 Wording must be in the plain English style adopted for ABIC


contracts.

13
See s23 Australian Consumer Law which forms part of Schedule 2 to the Competition and
Consumer Act 2010 (Cth). For an explanation of the provisions of the unfair contract terms
law see RV Miller, Millers Australian Competition and Consumer Law Annotated (Thomson
Reuters, 33rd ed, 2011) at 1673 et seq.
14
See discussion of changes by R Calver, ‘The Australian Building Industry Contract (ABIC)
Suite–2008 Contract’ ACLN 130, January/February 2010, 22.
15
R Calver and R Barton, ABIC Major Works Contract: Differences between the 2003 and
2008 versions (Master Builders Australia and Australian Institute of Architects, 2nd edition,
December 2010).
16
NPWC/NBCC Joint Working Party 1990 (National Public Works Conference, 1990).
17
Albeit labelled by some authors as an important protection for principals see for example,
TE Uher and P Davenport, Fundamentals of Building Contract Management (UNSW Press,
2002) at 131.
5

 The architect must act independently (i.e. not as agent of the owner)
when acting as assessor, valuer or certifier.

 Subject to statutory requirements, the owner must be responsible for


the construction documents, approval to construct the project and for
the site.

 The contractor must notify its intention to make a claim and the details
of the claim within an agreed time or default time.

 The architect must deal with claims within a specified time.

 The contractor must provide appropriate security.

 The circumstances under which the owner can draw on the security
must be narrowly defined.

 The owner must promptly release the security when required.

 Consistency with Commonwealth, State and Territory legislation


including for particular building types must be maintained.

The original authors of ABIC actively applied these principles and modified
Abrahamson principles to derive a specific risk allocation as set out in Table 1
published by Booth. 18

18
R Booth, ‘The ABIC Suite of Building Contracts – Development and Particular Features’,
ACLN 85 August/September 2002 10.
6

Table 1
EVENT NO DISPUTE ABIC RISK ALLOCATION
RISK/OBLIGATION
ALLOCATED
MODEL
Programming Contractor’s Risk Contractor’s Risk
Submission of Priced Bill Contractor’s Risk Not Applicable
Giving possession of site Owner’s Risk Owner’s Risk
Physical Conditions Contractor’s Risk Contractor’s Risk
Latent Conditions Neutral Owner’s Risk
Defective work or materials Contractor’s Risk Contractor’s Risk
Subcontracting Contractor’s Risk Contractor’s Risk
Separate contractors Owner’s Risk Owner’s Risk
Opening up and testing
(a) If defective work Contractor’s Risk Contractor’s Risk
discovered
(b) If defective work not Owner’s Risk Owner’s Risk
discovered
Variations & Late Instructions Owner’s Risk Owner’s Risk
Contractor Efficiency Contractor’s Risk Contractor’s Risk
Time & Associated Costs:
(a) Inclement Weather Neutral Time given but no cost so
effectively Neutral
(b) Site Industrial Action Neutral except where Contractor’s Risk
caused by act or default
of Contractor
(c)Industry Industrial Action Neutral Owner’s Risk
(d) Authority Approvals Neutral Owner’s Risk
(e)Disputes with Neighbours Neutral Owner’s Risk
(f)Acts or default of Owner’s Risk Owner’s Risk
Architect, Consultant
Breach by Contractor Contractor’s Risk Contractor’s Risk
Breach by Owner Owner’s Risk Owner’s Risk
Force Majeure Neutral Contractor’s risk but insurable
so effectively Neutral
Shortages
(a) Labour Neutral Contractor’s Risk
(b) Materials and Plant Neutral Contractor’s Risk
(c) Finance Owner’s Risk Owner’s Risk
(d) Offshore sourced materials Neutral Contractor’s Risk
& plant
Superintendence Contractor’s Risk Contractor’s Risk
Legislative Changes after Neutral Owner’s Risk
Contract Commenced
Late Payment Owner’s Risk Owner’s Risk
Failure to Certify Owner’s Risk Owner’s Risk
Insolvency
(a) By Owner Owner’s Risk Owner’s Risk
(b) By contractor Contractor’s Risk Contractor’s Risk
Cost Fluctuations Neutral Contractor’s Risk
Provisional Sums Neutral Owner’s Risk
Contract Documentation
(a) Discrepancies Owner’s Risk Owner’s Risk
(b) Omissions Owner’s Risk Owner’s Risk
7

The ABIC Suite is Dynamic


The joint venture parties regularly review feedback from both architects and
contractors to determine whether the form is achieving appropriate balance in
risk allocation and is sufficiently clear as to the responsibilities of the parties,
having regard to the foundation principles. Regular revisions, while resource
intensive, are necessary to reflect the dynamic nature of the industry. This
practice requires users to be alerted to the changes and has the capacity to,
perhaps, lessen the familiarity that frequent use engenders. The joint venture
parties are, however, committed to this process as it makes for a contract that
responds to market conditions and provides ease of use for parties. For
example a monograph is produced which compares each iteration of the ABIC
suite. 19

The 2008 version of the suite contains a number of provisions that make its
administration easier than was the case with the 2003 version, especially
where an architect fails to act. For example, one of the common complaints
received by Master Builders during the currency of the 2003 contract was the
fact that there were inadequate measures to deal with an architect simply
failing to make a decision or issue an instruction. This issue was pressed
under the foundational principle that the architect must deal with claims within
a specified time.

This concern resulted in changes to the contract. In particular the dispute


resolution mechanisms at section P of the contract (I refer to the MW contract
as other elements of the suite derive from this form) may now be clearly
invoked where a party wishes to challenge the architect’s failure to give a
decision. 20 This trigger will, however, not be effective unless the party
wishing to dispute the failure has given the requisite notice which contains a
time bar, in line with the foundation principle at dot point 5 above 21 relating to
the contractor being required to make a claim within an agreed or default time.
The ABIC suite contains many time bars, 22 which have become confused with
risk allocation. Placing time bars on both parties is not risk allocation per se
because risk is able to be eliminated by procedural rigour i.e. by meeting the
time bars.

Because of that confusion, more needs to be said on the issue of


administration. The ABIC suite relies upon processes and procedures to deal
with changes under the contract as they arise. It is this dynamism that assists
with the early resolution of disputes and which facilitates the efficiency in
bringing about change. As Bell has remarked, 23 there have been relatively few
cases on ABIC. We believe this to be no coincidence.

19
Richard Calver and Richard Barton, above, note 15.
20
Clause A8.1.
21
Clause A8.2.
22
The User Guides published by the joint venture parties contains a table setting out the time
bars that are in the relevant contract forms.
23
Above, note 11 at 91.
8

Change during the construction process is, of course, an underlying feature of


building and construction contracts. The recognition of this process in ABIC
has attracted criticism because it is alleged that it requires more ongoing
administration than if other standard form contracts are used. This so-called
administrative burden can actually assist with efficiency because it enables a
continuing check on the status of various elements of the contractual process
and brings discipline to, for example, the costings associated with carrying out
variations. That is the important point – avoiding the consequence of time
bars, in particular, comes from active engagement. ABIC is not a contract
form to be left in the bottom drawer, only to be reviewed if there are major
problems. It requires this element of active engagement.

This latter point is illustrated in changes to section J dealing with variations in


the 2008 suite. It has been amended in a number of ways to clarify the rights
and obligations of the parties. Among other things, it is now clear that, subject
to minor exceptions, 24 the contractor must continue with the works until an
instruction to proceed with a variation is received. 25 This is a paramount
consideration in the administration of variations.

When the architect gets the information requested, such as a variation


quotation, or is provided with the notification about an increase in the contract
price or the date for practical completion by the contractor, the architect has
five (5) working days to decide a number of courses. 26 The first is not to
proceed with the work. 27 An instruction should be issued to that effect.
Secondly, the architect can issue an instruction to the contractor to go ahead
with the variation and should indicate any quotation or estimate that is
accepted. 28 Thirdly, the architect can issue an instruction to the contractor to
negotiate on the scope, cost or time of the variation and the time by which an
offer in negotiation must be accepted. 29 If the architect issues the contractor
with an instruction to proceed with the variation, the contractor must do so
promptly. 30

Section J is drafted on the basis that all or part of a quotation might not be
accepted. It proceeds on that basis because it contains the implicit
acknowledgment that the owner has accepted that the variation will proceed
without agreement as to the price covered by a quotation if the quotation is not
referred to in the instruction to proceed. This is a new process in the 2008
contract. The owner in effect loses an opportunity to formally accept any
future claim for cost or time prior to the cost or time occurring. This is
because once the work has commenced where no quote or a partial quote
covers the work, the change will be based upon information kept by the
contractor in detailed records. 31 Whilst the administration associated with

24
See Clauses J1.8 and J2.2.
25
Clause J1.1.
26
Clause J3.1.
27
Clause J3.1(a).
28
Clause J3.1(b).
29
Clause J3.1(c).
30
Clause J4.1.
31
Clause J4.2(a) and J4.2(b).
9

keeping those records has lifted the administrative burden associated with
variations, compared to an accepted quotation, the contractor is advantaged
because the cost risk is with the owner. In turn, the owner has obtained the
benefit of the variation but with the architect, under section H, assessing the
records that must be kept before a claim is accepted. 32

Specific Elements
The next step I will take in examining the ABIC Suite is to further show how
some of the principles I have mentioned are translated to the practice of the
contract. I have chosen to examine the manner in which delay costs and
design risk are treated as these are subjects that Ulbrick 33 analysed when
looking in detail at the application of the Abrahamson principles, finding them
to be an incomplete answer to the practical application of risk assessment and
risk allocation.

Delay Costs
Section L of the ABIC Suite deals with adjustment of time. It sets out
particular causes of delay that entitle the contractor to make a claim for an
adjustment of time with costs.34 For other delays, the contractor is also able to
claim for an adjustment of time without costs but only where the delays
exceed the allowances provided for in particular items of Schedule 1 of the
contract. 35 Overlapping delays are specifically dealt with in Clause L6.

The structure of Clause L1.1 dealing with adjustment of time with costs
follows the risk allocation set out by Abrahamson, with the numbers shown
below being of my making:

 if the progress of the works is delayed by a principal caused delay, the


Contractor is entitled to be compensated in full for the costs incurred
as a result of such delay; [Principle 1]

 the contract should state the extent to which the contractor will be
compensated for delay costs incurred as a result of neutral events.
This is best done by allocating risk to a list of neutral causes of
delay…. The contract may provide that a certain percentage of delay
costs will be reimbursed for certain neutral causes of delay….
[Principle 2]

 the contractor is not entitled to delay costs for contractor caused


delays. 36 [Principle 3]

The ABIC contract reflects these principles by recognising in Clauses L1.1a to


m certain causes of delay as entitling the contractor to adjustment of time with
costs. In Table 2, I have taken those causes and allocated to them the relevant
32
Clause H2.1h.
33
Above note 5.
34
Clause L1.1 and item 24 at Schedule 1.
35
Clause L2.
36
Above, note 16 at 136.
10

principle number or numbers that is attached to each category set out above.
This allocation is intended to expand on the broader categorisations made by
Booth in Table 1.

Table 2 – ABIC Causes of Delay and Abrahamson Principles


Causes of delay Principle

Loss of or damage to the works, or material or equipment on the site


that are intended to be incorporated in the works, or plant or equipment
used on the site, provided that loss or damage was not caused by an act 2 and 3
or omission of the contractor

The owner failing to give possession of the site in accordance with


clause F1 1

An architect’s instruction 1

Relevant authorities, including a private building surveyor, failing to


promptly give approve for the works (except when the delay is caused by
an act or omission of the contractor) 2 and 3

A dispute with a nearby owner or occupier (except one caused by an act 2 and 3
or omission of the contractor)

The owner’s consultants failing to promptly provide necessary


information which is properly due to the contractor or which the
contractor has specifically requested in writing 1

Widespread industrial unrest not limited to the site or to any other sites
on which only the contractor any of its subcontractors is working
2

A suspension of the necessary work under clause Q12 1

A breach of this contract by the owner 37 1

An act of prevention by the owner not otherwise covered by this clause 1

Any act or omission of a separate contractor which causes interference


to the contractor beyond that which a competent contractor might have
anticipated, having regard to the contract documents and the 2
requirements of clause G14

Where clause F8 applies, a delay in relation to dangerous or


contaminated material, including any reasonable suspension of
necessary work 2

Any delay shown in item 24 of Schedule 1 – these are causes which are 1, 2 and 3
agreed to trigger adjustment of time with costs

37
See M Bell, ‘Scaling the Peak: The Prevention Principle in Australian Construction
Contracting’ (2006) 23 ICLR 318.
11

In line with the concept of Principle 2, Clause L2.1 enables a contractor to


claim for an adjustment of time without costs but only where the delay time
exceeds the provisional allowances for delay set out in two items of Schedule
1. 38 This notion particularly reflects the substance of Principle 2 by providing
that the percentage of delay above the agreed level in relation to an allowance
for delay due to disruptive weather conditions will be taken into account when
making the relevant adjustment.

In other words, the contract through this prescription requires the contractor to
make an estimate of the risk of disruptive weather conditions on the date for
the expected completion of the works. Ulbrick labels this approach as
“hybrid”. 39 In respect of an earlier version of ABIC he then asserts that “it is
unclear from the form whether inclement weather beyond the number of days
allowed entitles the contractor to an extension of time.” 40 L2 operates so that
the date for practical completion may be the subject of a claim for change
where the disruptive weather conditions exceed the number of days set out in
item 25 of Schedule 1, but no costs are able to be claimed. That is the
meaning of the words in Clause L2.1a of the 2008 version. Hence the
contractor must actively engage in assessing the risk of inclement weather.

That process is reinforced by clause L4. L4 contains a warranty that links to


the issues in L2.1a. The contractor warrants that the number of working days
it has allowed to complete the works include a reasonable allowance for delay
due to weather conditions or the effect of weather conditions that is
reasonable. In practice, the contractor has been asked to accommodate this
allowance in establishing the construction programme and therefore the
principal has an interest also in ensuring that the allowance is the best estimate
having regard to the risk, as the project may be delayed where additional
disruptive weather beyond the contractor’s estimate occurs.

The contractor would obviously benefit from placing “nil” in the relevant item
in Schedule 1. This is because any amount of disruptive weather would hence
mean a claim could be made to change the date for practical completion.
However, the articulation of the amount in that way would mean it would be
difficult to meet the warranty required by L4 which acts as a check for the
principal’s interests. It is this tension which provides a balanced risk
allocation for this difficult subject.

Clause L5 also makes it abundantly clear how the estimates in L2.1a as


crystallised in Clause L4 are to be administered. L5 sets out that the
contractor is not entitled to an adjustment of time for the cause in L2.1a as
modified by L4 until the provisional allowance has been exceeded although no
specific reference is made in Clause L5 to L2.1a.

There is a provision, L2.1b, which in effect enables the contractor to specify a


cause against which an allowance is made that is specific to the nature of the
contracts or the works. In practice, I have not had feedback from contractors

38
Items 25 and 26 Schedule 1.
39
Above, note 5 at 120.
40
Ibid, author’s emphasis.
12

as to when this provision is used. Richard Booth 41 has indicated to me 42 that


the possibility of contamination on sites where the owner expects the presence
of contaminants, (such as where a former petrol station site is to be developed)
or likely effects of contamination to be manifest, is in his experience one
example of where the provision has been used in practice. L4 and L5 interact
with this provision in the same manner as described for L2.1a.

Clause L3 sets out that the contractor must, within two working days of
becoming aware of the start or end of the delay, in respect of any of the causes
in Clauses L1 or L2, notify the architect in writing with a number of details
relating to the delay as set out in Clause L3.1a and b.

As mentioned earlier, Clause L6 deals with overlapping delays. It permits the


contractor to claim for overlapping delays that affect one or more critical
construction activities. The contractor may claim for the time commencing at
the first overlapping delay to the end of the last overlapping delay that extends
the delay begun by the first overlapping delay. The contractor may only claim
costs for an overlapping delay set out in Clause L1 that is not simultaneous
with a delay set out in Clause L2. This in essence precludes the contractor
from claiming adjustment of time costs where the contract vindicates only an
adjustment for time without costs.

Design Risk
For consistency I have used the broad definition adopted by Ulbrick as
follows:

The design risk associated with a project is the risk that the design is
found to be flawed and either cannot be constructed or upon
construction in accordance with the design, the structure fails. 43

Feedback from members is that the risk flowing from poor design is becoming
increasingly common and is correlated with a decline in contract
documentation generally. 44

Ulbrick’s admonition that when compiling its tender an astute contractor ought
to assess the progress and adequacy of the design and exercise due diligence at
that point is becoming increasingly difficult for contractors. This is in part
because tenders which might have taken an owner six months to put together
are placed in the market for a very short period, sometimes only a week or a
fortnight. Hence, quite often, as Ulbrick, elsewhere identifies, 45 design risk is
principally dealt with in clauses dealing with variations to the contract which
reflect design risk being the owner’s.

41
Above, note 18.
42
Telephone conversation with Mr Booth, 20 July 2011.
43
Above, note 5 at 108.
44
See the charting of this trend in Getting it Right the First Time (Engineers Australia,
October 2005); http://www.bdaq.com.au/pdf/Quality_of_Documentation_Report.pdf.
45
Ibid, at 122.
13

I have earlier dealt with variation clauses. However, in the ABIC Suite
section B deals with documents and is relevant to the subject of design risk.
Clause B1 sets out the requirement for the owner or the contractor to notify the
architect promptly if a discrepancy, ambiguity or omission in the contract
documents is discovered. Once notified, the architect must issue an
instruction to the contractor promptly, having regard to the order of
precedence of documents set out in Schedule 3 of the contract. Where the
order of precedence is not shown in Schedule 3, Clause B2 sets out the order
of precedence of documents. If the architect issues an instruction to resolve a
discrepancy, omission or ambiguity in the contract documents that is not in
accordance with the order of precedence, the instruction is an instruction for a
variation. Obviously, in that case, the process set out in Section J applies.

Contractors have informed me that increasingly in tenders there is a clash


between the drawings and the specifications. As with most contracts,
specifications come before the drawings in the order of precedence. I have
been informed that builders are increasingly discovering that specifications
might have, for example, a general reference to flashings or capping to a
manufacturer’s requirements rather than the details of that flashings or capping
or the drawings would just show that flashings or capping must be installed.
This would be accompanied, for example, by a statement on the drawings that
box gutters are to comply with AS3500 Part 4 yet there is no specification of
the size of those gutters. This situation, I believe, would under ABIC be
resolved at the owner’s risk because the ambiguity would need to be clarified.
Previously, ambiguities were not mentioned in ABIC Section B but have been
included in the 2008 suite.

Conclusion
Blind adherence to the Abrahamson principles is not a feature of the ABIC
suite of contracts. They are a starting point to the allocation of risk that from
2001 have been palpably applied. As indicated earlier, Booth, 46 in 2002
charted each major risk allocation from Abrahamson to the ABIC risk model
to show how the risk had been translated. This general translation tempered
with the other more practical features that I have set out still drives the joint
venture. Standard form contracts have as a central function the allocation of
risk. As the ABIC suite gains currency in the market, the risk allocation and
the practices that flow from the clauses adopted by the drafters should become
increasingly discernible and practical. They certainly add a more balanced
perspective to the landscape of building and construction contracting practices
than the approach which loads risk onto the parties doing the work.

46
Above, note 18 at 19