What is CCDC 33?
The CCDC 33 is the first standardized service contract published by the CCDC for use between a design-builder and a consultant on a progressive design-build project. It is the downstream companion to CCDC 32, the prime contract between the owner and the design-builder. While CCDC 32 governs the owner/design-builder relationship, CCDC 33 governs the design-builder’s engagement of the consultant who provides the professional design services required by the project. Under CCDC 32, the design-builder is required to engage the consultant on terms based on or consistent with CCDC 33 (CCDC 32, GC 4.2.4).
How Does CCDC 33 Relate to CCDC 32?
The two contracts share a common structure, including the same two-phase framework (the Project Development Phase and the Design/Construction Phase) and use consistent terminology, definitions, and project gate mechanisms. When the owner accepts amendments to the schedules to the design-build contract or the Owner’s Statement of Requirements as part of a project proposal at a project gate under CCDC 32, the counterpart documents under CCDC 33 are deemed to have been amended accordingly (GC 2.3.3). The consultant does not have a direct contractual relationship with the owner, and all communications between the consultant and the owner are to be forwarded through the design-builder (GC 4.3.3).
Key Features
The consultant’s scope of professional services is defined in Schedule A. The consultant is required to provide those services with the degree of care, skill, and diligence normally provided by consultants performing comparable services on similar projects (GC 3.1.4), and to endeavour to meet the construction budget (GC 3.1.6). The contract acknowledges that the consultant has obligations arising from the consultant’s professional status and by law, which oblige the consultant to exercise judgement and take actions to protect the public (GC 3.1.3).
During the Project Development Phase, the consultant and the design-builder jointly prepare project proposal submissions at each project gate (GC 2.3.2) and jointly prepare the Final Project Proposal at the final gate (GC 2.3.5). Before the Final Project Proposal is submitted, the parties must agree on the consultant’s remuneration for the Design/Construction Phase (GC 2.3.6).
The design-builder, in turn, is required to make available all pertinent project information (GC 3.2.3), provide a copy of the design-build contract documents (GC 3.2.12), and include the consultant in value analysis and the preparation of the construction budget (GC 3.2.14).
Payment follows the two-phase structure. During the Project Development Phase, fees may be structured as a stipulated fee, a percentage fee, a fee based on time-based rates, or another arrangement, or any combination of these (Article A-5). During the Design/Construction Phase, the consultant’s remuneration is based on the fees agreed by the parties prior to the submission of the Final Project Proposal (Article A-5, GC 2.3.6). For any early work authorizations issued under the design-build contract, the consultant is remunerated separately for the professional services required (GC 2.2.1).
Invoices are to be paid by the design-builder within 7 calendar days after the design-builder receives payment from the owner, but in no event later than 60 calendar days after submission (Article A-6). This contractual “pay-when-paid” mechanism, subject to the 60-day longstop, reflects the downstream nature of the consultant’s position in the contractual chain, although provincial prompt payment rules, where applicable, may still apply.
The Instruments of Service, including drawings, plans, digital and physical models, designs, specifications, studies, reports, and other deliverables, remain the property of the consultant, whether or not the project is completed (GC 6.2.1). The owner and design-builder receive a non-exclusive licence for project-related use, provided the consultant’s fees and reimbursable expenses have been paid (GC 6.2.3).
Things to Note
Because CCDC 33 is intended to align with CCDC 32, parties should ensure the schedules and scope of services in both contracts are consistent. Any design services contemplated under CCDC 32 should be reflected in the CCDC 33 agreement, and the project gates and submission requirements should be coordinated to avoid gaps or inconsistencies.
Attention should also be given to the limitation of liability provisions. The consultant’s liability for claims arising from errors, omissions, or negligent acts is limited, where insurance coverage applies, to the liability insurance limit for one occurrence (GC 8.2.3). The parties are also required to specify the amount of damages payable to the consultant on termination during the Design/Construction Phase and the mutual cap on liability for uninsured losses (Article A-5). These provisions should be carefully considered and completed at the time of execution.
The termination provisions reflect the downstream nature of the contract. The design-builder may terminate if the consultant defaults (GC 6.1.4 – 6.1.6) or if the design-build contract itself is suspended or terminated (GC 6.1.10). The consultant may suspend or terminate if the design-builder fails to correct a default (GC 6.1.9) or suspends performance for more than 30 consecutive or non-consecutive calendar days through no fault of the consultant (GC 6.1.11). Where the consultant terminates, the consultant is entitled to payment for all professional services provided and reimbursable expenses incurred, and, if terminated during the Design/Construction Phase, to the specified amount for other damages (GC 6.1.12).
As with any standard-form contract, supplementary conditions may be necessary to address project-specific requirements.
Here’s the Drill
CCDC 33 provides a standardized framework for the downstream relationship between the design-builder and the consultant in a progressive design-build project. It is intended to complement CCDC 32 and to help ensure that the consultant’s scope, responsibilities, and remuneration are clearly defined and aligned with the design-builder’s obligations to the owner. As with all standard-form contracts, supplementary conditions should be considered to address the specific requirements of the project and the parties involved.
The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.
