The ability to deliver consistent quality is inhibited by a process that is fragmented, hierarchical and disjointed. The design process has to contain opportunities for robust dialogue between all those contributing to it. Sadly, procurement and contractual arrangements (as well as insurance arrangements) impede this dialogue.
Put simply, designers are not talking to designers, whether they be consultants, specialist contractors or key manufacturers. The design process is about engaging those who can add most value to the process irrespective of titles or description. Well, you would think so. But I still read documents produced by official bodies that regard the design process as the exclusive province of the architect or engineer.
A recent report by CABE, for example, refers to the supply side "informing the design". The implication is that the supply side does not actually design; this role is reserved for a certain class of people – the professional designer. In any event, I have always thought that the so-called professional designer was a part of the supply side.
CIRIA Special Publication 138 says: "The basic defect in this system is that the specialist contractor is a de facto member of the design team but this is not properly (or at all) reflected in contractual relationships, documentation or terminology."
We have examples of this outdated baggage in our contracts, which treat non-professional designers as lesser mortals. Consider the JCT employer/subcontractor agreement. In certain circumstances this allows for early payment to the subcontractor for design work in the following terms: "The employer shall pay the subcontractor the amount of any expense reasonably and properly incurred by the subcontractor in carrying out work in the designing of the subcontract works …" So, the overheads associated with producing the work are recoverable but not the profit. How many consultants out there would accept this nonsense?
There has never been a standard form of contract for procuring design from specialist contractors, although this was proposed by Latham almost 10 years ago! In fact, many years ago my own organisation tried to persuade the JCT to publish a specialist contractor design agreement, but this proposal, like many others, was lost in the JCT mire.
We tried to get the JCT to publish a specialists’ design agreement but this proposal was lost in the JCT mire
The GC/Works subcontract simply provides for two options that relate to the standard of care. The subcontractor either has to apply the care normally expected of a professional designer or agree to a fitness-for-purpose warranty.
Some nonstandard subcontracts are horrendous. "The subcontractor shall design … on the basis of data supplied by the contractor and to his complete satisfaction …" On the other hand, the traffic in the standard form of agreement for architects is one way: everybody is required to co-operate with the architect, but not vice versa. A difficulty with this is that key specialists are appointed as subcontractors and, therefore, are not bound to co-operate with anyone other than their contracting parties.
Rudi Klein is a barrister and chief executive of the Specialist Engineering Contractors Group.