Forget chick lit – the best summer reads address building procurement and the JCT contract. And, gratifyingly, the authors come up with exactly the right conclusions
Come on, line up shoulder-to-shoulder, all you contractors and architects and engineers and QSs. If asked, is “early contractor involvement in building procurement a good idea”, all of you, yes all, would yell “yes!” And this “early involvement” is the title of a new book by David Mosey and he says yes to it, too. Mosey, a construction solicitor with Trowers & Hamlins and fellow Building columnist, has been hanging around this industry since we were all young dudes. He, like me, is a fan of partnering.
But talk about partnering and, for that matter, collaborative working, and nobody can fathom what all that guff is all about; the words are too big! But “early contractor involvement in building procurement”, well now, that means something … it means what it says! And we all know it makes sense.
“So, what’s stopping us?” asks one of Mosey’s headings in his book. His proposition is that we abandon traditional single-stage procurement for the construction phase. He proposes a preconstruction contract followed by the construction contract. Why? Well he wants the contractors to mix it with the designers. And I’m with him – just so long as he isn’t expecting design to be dumped onto the contractors.
Mosey points to Emmerson in 1962 worrying about the “separation of design phase from the construction phase”. Then Banwell in 1964 saying “those who continue to regard design and construction as separate fields of endeavour are mistaken”. Then Latham 1994, saying, “the traditional separation of design and construction has long been a source of controversy”. But now let me tell you what Bingham says in 2009: “The design and specification of what goes into buildings is by the designer; the person who obeys the specification and installs it is the builder.” Please, please let’s have Mosey’s model of early contractor involvement, but not for risk dumping, not for allocating a design solution away from the designer. And, if you are about to suggest using the builder in a preconstruction phase for the dreaded word “co-ordination”, watch those disputes queue up. I know because I decide them every day.
Early contractor involvement is, I think, intended by Mosey to identify how the designer’s specification can be scrutinised by the contractor insofar as programming is concerned. And he wants key subcontractors to be in on the preconstruction dialogue. He’s right. It’s oh so useful to have the specialist subby talk to the architect and engineer before a sod is dug about whether something is half-baked or needs more detail. If that’s what Emmerson, Banwell, Latham and Mosey mean, then hurrah. But, not if the engineer with all those letters after his name wants the subby to provide a design solution for the ground conditions or the roof structure. Dear me, no.
Mosey’s book is a treasure. It mulls over why things go belly up and over ways to prevent disputes. Take a look: Wiley-Blackwell ISBN 978-1-4051-9645-1
I have also been won over by Issaka Ndekugri and Michael Rycroft, and their latest book JCT05 Standard Building Contract: Law and Administration. Lo! They remind us that this is a “standard” form. The intention is to develop familiarity and understanding as distinct from in-house or heavily amended “standard forms”, which breed suspicion.
The JCT has been an industry standard for generations; it is still the most widely used, the most popular document. Sometimes, though, it is a daunting task to decide which of the JCT suite is best suited. The authors begin with useful guidance here. Then they take your hand on a guided tour. As much as a chippy has to know the what and how of a mortise and tenon, so the construction manager has to know the contractual rules and machinery to dovetail with real life on site. I found myself wanting more from the authors’ inquiry into extensions of time, but the book is already 550 pages, so no surprise that it is a tour and not an in-depth analysis of a piece of JCT machinery. A friendly book. Paperback. Needed on the shelf and regularly on the desk. Butterworth Heinemann Elsevier ISBN 978-1-8561-7629-3.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple