‘Amended’ standard forms are a cunning ruse that use pages and pages of modifications to pile risk onto subbies. But why do they agree to sign them?
Last week I was the guest speaker at the 30th birthday party of the Confederation of Construction Specialists. I gave them a thick ear: just one ear. I am saving the other thick ear for another group of contractors. Let me tell you more.
In my left hand, Standard Form Design & Build Sub-Contract 2009. The JCT wrestled in its committees to produce this 49-page contract. Nobody actually reads it - not until there is trouble, of course. But that’s the way of things, always has been.
In my right hand, I am holding a document that says JCT Design & Build Sub-Contract. It is the same JCT edition reference, and says it will be incorporated into this subcontract - “subject to the modifications set out below”. And then, let me count, there are 22 pages of modifications to the JCT standard form.
And now I am on the floor rolling around with laughter. The right-hand document is pretending to be the left-hand document and the author of the right-hand document wins the prize for being a comedian. It is a masterpiece of fiddles. It will take hours on end to read the fiddles to compare with the real McCoy. So nobody reads it. One thing that can be said for it is that it is so obviously loaded. If you are a subcontractor taking on the subcontract on these terms, you deserve that thick ear.
Now let me tell you a tad more about this 30-year-old Confederation of Construction Specialists. It was the creation of a chap named John Huxtable, a mild and beautifully mannered man. I knew him from his days as the director of the Federation & Association of Specialist Subcontractors. FASS was an umbrella body to a string of subcontract trade associations.
The right-hand document is pretending to be the left-hand document and the author of the right-hand document wins the prize for being a comedian. It is a masterpiece of fiddles
Huxtable fell out with some of the other folk in FASS. He favoured all-out war with those who piled risk into the subcontract camp. The best risk-piling was to ignore standard form contracts or fiddle the blazes out of them. Some of the FASS folk favoured trying to persuade the fiddlers to, well, stop fiddling. Waste of time, said Huxtable. So he left and set up the Confederation of Specialist Subcontractors.
Soon he authored a report, Corruption of the Commercial Process. It began: “This report exposes a major scandal of truly shocking proportions. The scandal stems from the persistent and continuing imposition as a matter of deliberate policy by Building and Civil Engineering Main Contractors and major Trade Contractors of onerous and unfair subcontract conditions onto Specialist companies …”
That was 30 years ago. And 30 years later I am holding in my left hand the JCT standard form as published; and in my right, a massively fiddled version calling itself JCT Standard Form “Amended”. Moreover, in these 30 years the confederation has published over 200 homemade subcontract forms and fiddled standard forms. All by main contractors. In short, the campaign made no difference at all.Huxtable had a stroke in 2002 at the age of 54. It killed him. Back when he published the report about this so-called corruption of the commercial process I told him that his premise was flawed.
Notice that he says these fiddled forms were a “continuing imposition”. No, no, the shocking proportions are fuelled by continuing acceptance by subcontractors of onerous and unfair subcontract conditions. Haven’t you chaps heard of the word no?
Let me tell you a story. Umpteen squillions of years ago I was instructed by a subcontractor to cast an eye over a form of subcontract order from John Laing Construction. Their form of contract had a great name: Con One. I went to see Laing. I was teased to say what was upsetting in their form. I did.
Then their chap pulled out a standard unamended form. “You want this, don’t you?” “Yes,” said I. “OK,” said he. Laing told me that hardly any subcontractor challenged their tough in-house form. And if they did the order came with the standard one.
The thick ear for the subcontractors is well deserved. The other thick ear is for the lawyers who write these awful revisions. Do you know what it does for “working together”? Work it out. See how even-handed I can be?
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple