The only people who love contracts are lawyers. For everybody else – the plasterers, the foremen, the managers – they’re just long, fuzzy words that bear no relationship to how they do their work. ‘Keep it short and simple’ should be the first rule of a legislator
There is a bit of a row brewing about which forms of contract shall be used for the building works for the Olympics. An awful lot of people pretend to love the NEC thingy. But if you are a plasterer keen to plaster a bit of stadium, well, as an old friend of mine once said in the witness box, “he would say that wouldn’t he”.
A lot of people know an awful lot more about the JCT animal. All I know is that an awful lot of disputes get disputed under all sorts of forms of contract. And I know something else as well; I don’t think it matters one jot, one smidgen, which forms of contract are used. Hardly anyone actually runs the building works according to the damned form of contract anyway.
The work on the building site is carried out, and on the Olympics will be carried out, by myriad small and medium-size companies. The blokes only want to know on each job when the work is to start and finish. The blokes will shout and scream if they are disrupted, sent away, held up. If sent away, they will find a job elsewhere and then it is one helluva task to get them back.
Next, the ordinary floorer, or plasterer of roofer or whatever, will expect changes – variations, alterations. Heaven knows that this will happen whether the contract document is green, blue, indigo or even made in heaven. The type of form makes no odds at all. Next the putter-upperer wants to be paid. No fancy form or document changes that notion. And you and I know that if you don’t pay the putter-upperer company on time and by a fair amount, he will cause you one awful headache. Why? Because he won’t pay his blokes. You can’t not pay the account and expect wonderful service, nor do you deserve it. And by the way, if the main contractor hangs out his subbies for cash, who do you think suffers most? The employer, of course. And if you don’t know why, you don’t know anything about life in building.
When it comes to the programme and progress, for goodness sake don’t have legal waffle about fixing or refixing dates for the umpteenth time
Go further, the guy from the outfit doing the work on a building site knows he is in a risk game every day. His fervent hope is to come through unscathed. He doesn’t go looking for trouble. In fact the truth is he will “fit in” with the daily twists and turns of an unfolding building site as best he can. The plasterer will try his best to move more men in, drop men out. But mess him about with the money flow at your peril.
My truism is that the real people in building and civil engineering pay hardly any attention to the tens of thousands of words jam-packed in contract documents. The lawyer will say, “Oh, they tell the parties what their rights and obligations are”. And the industry yawns. For goodness sake, stop writing those forms – all forms – for lawyers. Write, design and compile the forms for the users. Make the forms working forms. Yes, I know it’s ever so hard to make things simple. The KISS principle, when applied to forms of building contract, means “keep it short and simple”. Print in the document a form, yes, a “standard form”, a pre-printed paper for the account.
And when it comes to variations or instructions or verbal utterances or requests for information, print in the contract document a “standard form”, yes, pre-printed requests for information. Something, please, which says, “Look mate, we think that what you are asking for is an extra.” And, oh dear, oh dear, when it comes to programme and progress, for goodness sake don’t have legal waffle about fixing dates or refixing dates for the umpteenth time. Use a “standard printed form”. Design the contract document not only to plan the “doing” but report and record the progress of the “doing”. Put ticks on pre-printed forms.
Now then, you Olympics folk, don’t you dare use the NEC or JCT or any contract document. Get some real folk to produce a “working form” for the people who manage building work to use on the job. That means the foreman on site in charge of the dry lining lads. That means the supervisor who visits the foreman. That means the surveyor, who visits the supervisor and the foreman to keep tabs on the account. And it means the manager who actually manages all those others. Think KISS. KISS for real people. Not for lawyers, please.
Tony Bingham is a barrister and arbitrator