The expert goes to Majorca to deliver a paper about the contractual side of building – and learns a lot about how it really works from a man who doesn’t even go to his lecture …
L ast week I chaired the RICS Annual Legal Update conference. Speakers were good; there were one or two evangelists, but no matter. Two favourites made my day. One was Ian Heaphy, a partner in EC Harris. He did a pros and cons on the NEC contract documents. The other favourite was the audience. Someone from the floor mentioned partnering. I asked what that was. “Don’t know,” he said. I like that sort of honesty.
Ian spoke my language, too. This chap knows the NEC contract document upside down and inside out. He’s an NEC-designated tutor and partnering expert and he lectures on it.
He drops bombs, as well. He told us that in his 12 years of working on projects with the NEC documents as the contract “he has never seen anybody actually use it … People don’t comply with the contract and they don’t follow the procedure”. See what I mean by a bomb? Oh, and by the way, that’s my experience, too.
Now, let’s not have you JCT folk gloat over all that. If it’s true that NEC building contracts pay only lip service to its use, it is my experience that the same goes for JCT. Come on, be frank. When I was a strippling surveyor, my boss saw me thumbing JCT1963. “The best place for that thing is in that bottom drawer.” Then he added: “Pull it out once the other side want to fight.” Did you get the same advice? Bet you did. That’s what I mean when I say, it matters not one jot what the contractual bumf is said to be; builders build, roofers roof and plasterers plaster … from one job to the next irrespective of all your fancy forms.
Oh, I nearly forgot. I met someone else last week who really did explain partnering to me. I was a guest of the Association of Interior Specialists. They invited me to give a paper at their annual get-together. Come to Palma in Majorca, do a bit of carousing. And I did. I was to talk about the contractual side of building and contracting. It was the night before I gave my paper that I met this partnering expert. This fellow has been in the industry for 40 years. We sipped a glass or two together. He knew his stuff. So, said I, when it was time to circulate, “See you in the morning when I give my paper?” He was polite and measured when he announced to me he wasn’t coming. Nor would any of his staff who were at the conference. No, no, he had got the hang of contracting in his 40 years. Contracting in the building game, he said, was all about forming relationships. I chimed in, “You mean partnering.” “That’s just a slogan,” he replied. “There’s a lot of people bandying it about … They don’t mean it.”
His system was simple. He tried his best to accommodate everyday true-life building ups and downs. Neither he nor the main contractor played contractual hardball
So what was he on about?
This chap subcontracted to a collection of main contractors year in, year out. It was continuous trading. No, his company doesn’t win all the work, but it is a favoured subcontractor. His system is simple. He tries to accommodate the everyday true-life ups and downs of the building game. Neither he nor the main contractor play contractual hardball. Yes, yes the order may point to this or that or the other form of contract, but woe betide anyone who goes contractual.
As for programming the work, real life required upping the labour force and next week upping it some more then next week dropping it down. No whinging. As for variations, real life says they have to be done. As for getting paid, the truth is that pay when paid is part of the relationship. But the trick is to know full well that you will get paid even if it’s a tad late. None of his successful business was “arm’s length” trading; it was all close relationships based on give and take both ways.
But in these 40 years he had also worked as a subcontractor on what he called a “one-night stand”. Strangers doing business was an invitation not to give a damn for each other’s interest. It was an invitation to play contract. It was an invitation to exploit the other bloke’s mistakes. And that would include not having complied with a rule in JCT or NEC or whatever document. “Look, I’m what you call in your weekly column a “putter-upper”. I’m not a lawyer nor a surveyor bursting to become a lawyer. The art of building is to form relationships; I don’t call it partnering; I call it common sense.”
Tony Bingham is a barrister and arbitrator