It's unfair to expect contractors to criticise consultants at the tender stage – it will jeopardise their chance of winning the contract. A better solution is to appoint the contractor earlier in the process.
Oh dear. I thought it was the season of goodwill, but having read Ann's article, I'm not so certain. One of the difficulties I find in speaking up on behalf of contractors is that they are frequently asked to be all things to all people. Let us analyse for a moment what it is that Ann is saying. Our inexperienced client has appointed a consultant who is advising that client on:

  • type of procurement structure
  • how to obtain tenders
  • planning and other related issues
  • design and budget.

    At this point, the poor old contractor has neither been identified nor has it become involved in the process. However, Ann is expecting the contractor at tender stage to criticise the performance of that consultant. It must be remembered that the contractor has not yet been awarded the contract.

    Who is likely to advise the client on the most advantageous bid? The consultant, of course. How can the contractor at this stage be expected to criticise the consultant by saying to the client: "Actually, I think your consultant is doing a bad job. Did you know that 50% of the contract sum is accounted for by provisional sums, and do you know what this means in practice?"

    As I have already said, not only is the consultant going to be the principal party involved in awarding the contract, but even if the employer accepts the contractor's advice, the consultant will be responsible for the administration of the contract. What contractor wishes to irritate the consultant when his future cash flow depends on the consultant's valuation?

    In addition, while Ann is saying that contractors play the game, this is somewhat unfair. Frequently, in traditional procurement arrangements, contractors are asked to produce compliant bids. Indeed, the more inexperienced the employer and consultant, the more likely

    they are to be prescriptive in the manner in which bids are to be submitted. Any deviation, including criticism of the size of PC sums, is therefore likely to be deemed non-compliant and the contractor runs the risk of its tender being dismissed.

    Does this doom traditional procurement and the use of provisional sums as unworkable? No, of course not. What it needs is for the industry to work together. However, Ann can't expect contractors to take on the role of industry policemen, and judge and evaluate the performance of consultants.

    The contractor has not been involved in the selection of the consultant, and is not in a contractual relationship with him. What needs

    to happen is for contractors to be appointed earlier in the process, so that their views on provisional sums and other issues, such as buildability and cost control, can be incorporated at a far earlier stage. Somehow, this seems to be an all-too-familiar tune: involve all the relevant parties earlier in the procurement process. Integration of the supply chain will eliminate many of the problems identified by Ann.

    • Postscript

    Clare Edwards is director of legal affairs at the Construction Confederation.