Is the JCT PCSA the way forward for 2026?

Often referred to as two-stage procurement or two-stage contracting, early contractor involvement can involve the early appointment of a contractor by way of a pre-construction services agreement (PCSA), usually, but not always, before entering into a building contract for the construction phase to carry out the main works to which the PCSA services relate.

This method of procurement has several benefits, such as early contribution to the design process, the ability to develop a more accurate cost plan and providing assistance with planning applications. When implemented effectively, it enhances the ability to create cost certainty as well as the ability to build an integrated project team.

Often the same contractor is used for both the pre-construction and construction stages, but sometimes a different party is instructed for the main works – so, in its own way, the PCSA can act as a ‘test-run’ on a limited scope between contractor and client teams.

Contractual matters

An employer will usually enter into a PCSA with a contractor in a form akin to a consultant appointment. The services to be provided should be clearly defined.

The Joint Contracts Tribunal (JCT) has published two standard forms of PCSA. One is for general contractors, and the other for specialists, with both also suited for use with the future main build contract on other JCT contracts such as Design and Build (D&B), the Standard Building Contract, Major Project Construction Contract, or the Intermediate forms, either with or without contractor design.

They can also be used, via some minor adaption, with a JCT Construction Management Contract procurement for the provision of pre-construction services by trade contractors.

The PCSA for General Contractors (GCs) does not reinvent the wheel. The usual provisions for skill and care, payment, insurance, termination, suspension, copyright, CDM Regulation and dutyholder compliance, as well as assignment and the provision of collateral warranties are included. The PCSA envisages that prior to execution, the contractor has submitted a first stage tender and provides for the detailing of pre-constructions services and fees listed in annexes.

A straightforward mechanism is also included for the contractor to claim further sums, whether related to additional services or costs incurred relating to any event beyond its control that materially alters or delays the performance of the pre-construction services.

One aspect worth noting is the JCT’s approach to design liability, and the limit on the contractor’s liability for any design provided under the PCSA. Clause 2.8 of the GC form exempts the contractor from liability for design carried out during the pre-construction phase, with a carve out for cases of personal injury, which we would argue is off market for PCSA-type drafting.

The contractor is exempt for design work unless the main contract is entered into. This is something to consider when considering using the JCT PCSA, particularly if another contractor is appointed for the main contract, as it may risk a contractual gap for design liability during the pre-construction phase.

Points to consider

All this raises an important question: if the PCSA is easily used with other JCT forms, why is it not used as much as the wider JCT suite?

The JCT forms of PCSA do not tick every box so amendments will be required to align the form with market standards. We would always advise either amending the JCT form or using a bespoke PCSA that is suitable for your project, which is more in line with market norms. Design liability must be addressed, and whilst the dutyholder roles introduced by the Amendment to Building Regulations 2010 have been addressed, the forms do not address the regime for Higher Risk Buildings, or the process of applying to the Building Safety Regulator for gateway 2.

Amendments would also be required to deal with the complexities arising on a project, whether in relation to the design itself; to ensure the contractor is responsible for any design; and/or to cater for any specific requirements, or property requirements to deal with responsibility regarding ground conditions and site preparation.

Ultimately, it is important to remember that a PCSA is not the same as a letter of intent, which is often used to instruct a contractor to commence some early works on site. The PCSA is focussed on pre-construction activities.

However, a well-drafted PCSA can include early contractor involvement with design liability included, but these tend to be for preliminary physical works such as site investigations or enabling.

Written by Isobel Moorhouse of Pinsent Masons