AS 4902, more formally known as AS 4902-2000 General Conditions of Contract for Design and Construct, is one of the most widely used forms of head contract for design and construct projects in Australia.
It closely follows the risk profile, drafting and format of the commonly used AS 4000 which is the construct only contract from the same suite. (You can read more about AS 4000 here.)
There are various considerations that may impact which is the best type of construction contract to use in different circumstances. You can read more about the different types of construction contract, and which may be best suited to your particular needs, here.
AS 4902 is published by Standards Australia Limited, which is part of Intertek Inform (previously known as SAI Global Standards). It is protected by copyright and you must pay a licence fee to use it.
You can purchase a copy of the AS 4902 here.
When buying AS 4902, be sure to buy the right version. You will notice that different types of licence are available (reference version, multiple use versions, editable versions and so on). Licence fees vary, and you will need to choose the version that best suits your circumstances.
As the formal title suggests, AS 4902 contains the general conditions of contract. You will need to compile the other contract documents and complete the Annexure Part A.
One thing you will need is a document to formalise your entry into a contract that contains the AS 4902 general conditions. (If you buy AS 4902, you will notice that there is nowhere to sign.)
This is normally done in one of two ways:
Both documents serve much the same purpose, although most principals prefer a formal instrument of agreement to ensure there is no doubt about which documents are included in the contract.
You can purchase the Australian Standard Formal Instrument of Agreement (AS 4950), which is designed to be used with AS 4902, here.
Some of the basic features of AS 4902 are as follows:
There are a number features that set AS 4902 apart from other standard form contracts. They include:
Many principals will not agree to sign AS 4902 in its unamended form. Instead, they will often seek to incorporate amendments or special conditions. This is principally for four reasons.
First, AS 4902 is almost 20 years old. Since then, various pieces of legislation have been passed that can affect the parties’ rights and obligations under the contract. Examples include legislation concerning GST, security of payment, proportionate liability, personal property security and work health and safety.
Second, and as mentioned earlier, many principals consider the risk profile of AS 4902 to be too heavily weighted in favour of the contractor. For example, principals will often incorporate time bars, remove any deemed approval provisions, and introduce clauses that will reduce the circumstances in which adjustments to the contract sum or date for practical completion can be claimed.
Third, principals will sometimes seek to use AS 4902 as the foundation for an ECI contract. (You can read more about ECI contracts here.) AS 4902 can be a good document to use for this purpose, but would require modification because it is not written as an ECI agreement.
Finally, principals will sometimes seek to clarify how the design approval process operates. For example, when documents are required to be submitted, how the design review process will work and how a deadlock between the contractor and the superintendent is to be resolved.