Anyway, out today is Be. Be what? I think its full name is the Be Collaborative Contract. It might have something going for it. The first test for the dustbin is: "Can the ordinary man on the top of the builder's omnibus understand this document?"
And now let me tell you about the early education of our managers. Once upon a time these crumblies were Young Turks: wild, ferocious and good at getting a job done. And those wee tearaways had bosses who would scoff at the idea of reading the 1963 RIBA Form of Twaddle. "Stick it in the bottom drawer, laddie, pay no bloody attention. It doesn't work anyway." Recognise that advice? And when JCT1980 came along it was read by neither architect nor builders. Nor was the 1998 variety. Nor was the ICE document. Nor was the NFBTE form of subcontract, nor the DOM1, Intermediate Forms, Nominated, Named and Muddled forms. Nor was the Homemade Form, nor the Fiddled Form. The only people who did read them was, and is, the cold-eyed solicitor who dragged open that bottom drawer and blew hard … My point is: the authors of Be have first got to get building people not to do the bottom drawer trick. They have got to get them to read it. Then they have got to get them to understand it. Then they have got to get them to like it. Missing from this list is use it. Someone else will decide that. The someone else will probably be a lawyer. The client will take the lawyer's advice. And the advice will be: don't use it if it doesn't pass the risk onto someone else.
And do you know what is at the very heart of this Be thing? Collaborative working, that's what. This idea is more readily grasped if I call it "sharing out risk". It is an idea that has been talked about year in and year out. The idea is to allocate risks to those able to bear them. And that's where this document will succeed or fail. Not only does it take some smart thinking to convert theory into contract, it will now take some smart thinking to persuade lawyers to recommend that clients use it.
The RIBA Form of Twaddle? Stick it in the bottom drawer, laddie, pay no bloody attention. It doesn’t work anyway
Lawyers mostly don't twig that rotten building comes from being beaten up by a bad price, and by the realisation that the form of contract chosen by the client has heaped the risk onto that fierce price. As fast as builders and subcontractors price in the blind hope that they will come through the job unscathed, the lawyers will, through force of habit, seek to pile the risk on them.
Tony Bingham is a barrister and arbitrator. You can email him at email@example.com.