Cruel and usual treatment

Got an invitation to give a talk at an in-house conference. My host was a major contractor. My topic – not my choice – was: "Subcontractors – Why They Don't Deliver." Controversial. Already there will be a reader or 200 jumping up and down and shouting "But we damn well do deliver". The subcontractors' institutes will be writing letters to Building that start "Our members do deliver …"

No, you don't – and what's more, you know you don't. Worse still, there's an awful lot that you don't deliver on. You make a complete mess of getting into contract. You make a complete mess of performing to the contract. You are invariably late, you delay other subcontractors, you disrupt the entire programme, your accounts are late and as for your control of variations … I could go on, you are about to curse me and turn the page.

But wait, just wait.

One of my favourite topics in the law business is "causation". What I mean is cause and effect. You may like to turn the phrase around: "effect and cause". Then tease yourself to see if you have got the true cause for what is an effect, for what is said to be the consequence. "Look," says the main contractor, "my subcontractor performed late, my main contract finished late, ergo the cause of my late main contract is my late subcontractor. It's obvious." But, time and again the real cause is hidden deeply away. Yes, you can see the immediate cause. Don't stop there – look for the cause of the causes.

Take the subcontractors who don't deliver. What is the true cause of, say, late completion? No blokes when wanted, no materials when needed, no managers on site. It happens all the time. Then war breaks out, money gets stopped, adjudicators get appointed, fingers get pointed. And contractually, the subcontractor is often liable. Contractually, the subbie has signed up to perform "as and when required" or perform on "seven days' notice". And not to do so is a breach of contract. Then, when the blokes don't turn up, the contract is broken. Come off it, Mr Main Contractor, you're having a laugh, aren't you? Do you really think that your subbies have got wardrobes full of chippies, plasterers and floorers hanging around waiting for your shout? The real cause of subcontractors not delivering the programme is the absence of a bloomin' programme. Labour isn't planned, materials aren't ordered. The manager is a fire fighter.

So the subbie is cash starved, he starves his self-employed putter-uppers and they tell the subbie’s manager to stick his job and bugger off

And what about quality? Subbies don't deliver, do they? True cause – no planning and no programming. Let's be plain: when the main contractor shouts for "more blokes", the perplexed subbie goes to his local pub to find casual labour. Or rather he finds a labour master who in turn finds someone who pretends to know how to lay floors. But then, if your site is working hand-to-mouth, what do you expect?

And what about accounts? Still widespread is the old, old game where the subbie guesses what is due in his interim account. Then the QS of the main contractor discounts it below the number he first thought of. So, the subbie gets cash starved, then the subby cash-starves his self-employed putter-upperers and then they tell the subbie's manager to stick his job and bugger off. Of course, the work falls even further behind and the subbie's manager does another round of the pubs to see which labour master will still do business.

And what about all these lawyer subcontract documents? There are a mystifying number of standard forms, plus a multitude of in-house and home-made forms designed to execute the subbie at will. Nobody reads any of them, honest. No matter what the small print says, the subbie will do his job in the same way from one project to the next, regardless of the smart alec lawyer's forms. The subbie will not write letters of notice requiring extensions of time or give notice of loss and expense or comply with the need for written inspections … The rules in the contractual bumf remain are a pile of gobbledygook.