Too many people pretend to partner for the sake of political correctness and, when something goes wrong, automatically regress to their old litigious ways. The credibility of all the initiatives to modernise construction is put at risk by these fair-weather partners.
Take this classic example of an old-fashioned alliance between a public sector client and a specified manufacturer, who hastily joined forces to try to pass blame and remedial cost on to a main contractor and its subcontractor for what was, in fact, a faulty product, faulty design and inadequate specification.
The three principal parties are members of the Movement for Innovation, which means that they are supposedly committed to upholding the principles of Rethinking Construction.
Although the contract was pre-Egan, it was begun at the height of Lathamania. It was informally agreed that the job would be run on non-adversarial lines, but under the standard JCT80 contract.
On the face of it, the project was a success: excellent teamworking overcame some serious problems with the scheme's design and specification, the client was delighted with the finished building, and on completion, plaudits and testimonials were the order of the day.
The reality was different.
As the contract began, a manufacturer withdrew a specified product and replaced it with a new model – so new that the fixing instructions had not been developed for it, and the drawings and specification for the contract were left unamended.
The architect, clerk of works, contract manager and site manager therefore had the wrong drawings and specification and no specific fixing instructions.
Any pretence of partnering evaporated in a desperate search for small print in the contract
In the true spirit of partnering, the team pooled their knowledge and experience and agreed solutions – which were fully accepted by the architect – on how to fix the product in accordance with good practice. And, although the product kept failing during the fixing process, the team persevered. The result was that, despite all the odds, the project was completed to everyone's satisfaction.
After the final certificate had been issued, a relatively minor latent defect exposed continuing failures in the problem product.
At that stage, any pretence of partnering by the client and manufacturer evaporated in a desperate search through the small print of the contract.
Instead of honourably accepting liability for the faulty product, the manufacturer produced a report cataloguing variances between its fixing instructions – printed well after the project was completed – and what had been jointly agreed on site. These variances were rubbished as bad workmanship in an attempt to protect the client and manufacturer and make the main contractor pay for their mistakes.
The manufacturer is still threatening the unfortunate subcontractor who fixed the product and the client has prevented the contractor from tendering for other clients within its covert networking group.
The client and the manufacturer are intent on expensive litigation, despite numerous offers of alternative dispute resolution from the contractor and their own professed commitment to the principles of Rethinking Construction.
If Movement for Innovation members are indulging in this type of gratuitous adversarialism, there isn't much hope for the future of construction reforms.
Postscript
Colin Harding is chairman of Bournemouth-based contractor George & Harding.
