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ARTICLE · 18 JULY 2011

Construction Act Changes: Exclusion Order For PFI Subcontracts - A Missed Opportunity ?

CMS Cameron McKenna Nabarro Olswang
Explore more from CMS Cameron McKenna Nabarro Olswang

In 2009 Parliament enacted changes to Part II of the Housing Grants, Construction and Regeneration Act 1996 ("the Construction Act").

United KingdomReal Estate and Construction
Rupert Choat
Rupert Choat
Paul Smith
Paul Smith

In 2009 Parliament enacted changes to Part II of the Housing Grants, Construction and Regeneration Act 1996 ("the Construction Act").  They will apply to construction contracts (as defined) entered into from 1 October 2011 (insofar as England and Wales are concerned) and 1 November 2011 (Scotland).  The Construction Act, in requiring certain minimum provisions for payment and adjudication, does not (in its current and amended forms) apply as well as it might to the diversity of construction contracts it covers.  The problems arising from the Act's "one size fits all" approach are particularly apparent in the case of PFI and PPP arrangements.

The 2009 changes insert a new section 110(1A) into the Construction Act.  That section seeks to ban, amongst other things, terms in construction contracts that make payment conditional on obligations being performed under another contract.  Examples would be "pay-when-certified" and "pay-what-certified" (collectively,

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