After all, the JCT has primarily been in the business of publishing contracts that generally reflect traditional procurement arrangements and are about striking a balance between the protectionist instincts of the different parties. Has the JCT truly understood the significance and enormity of the task it is thinking of undertaking? I very much doubt it.
The JCT's focus has always been on the main contracts and on maintaining the risk allocation that has been enshrined in these contracts, and that is invariably reflected in JCT subcontracts. So, I will start taking bets on whether we will end up with JCT98 and a partnering supplement as an "off-the-shelf" product available to the odd client and main contractor that get out of bed one morning and decide to try a bit of partnering.
Of course, this is not what it is all about. Contractual arrangements that promote fully-fledged teamworking demand some fundamental rethinking about the way we draft contracts in construction and how we decide risk allocation.
Let's start with Sir John Egan's Rethinking Construction report. It bangs on about a construction project being an integrated process in which everybody works closely together to "exceed clients' expectations".
"The key premiss behind the integrated project process is that teams of designers, constructors and suppliers work together through a series of projects, continuously developing the product and the supply chain, eliminating waste in the delivery process, innovating and learning from experience. Many major and experienced clients are already doing this through their partnering arrangements … The challenge for the construction industry is to develop their own integrated teams to deliver the same benefits to occasional and inexperienced clients," says the report.
The overriding need is to create a contractual framework that binds consultants, constructors and even suppliers and manufacturers into a cohesive unit. Contracts that stick to traditional protectionism have no place in this scenario. We should be producing an overarching contract which ensures that:
- All team members are included as parties
- Each member's tasks are clearly defined
- Each member's share from savings generated by exceeding targets is set out
- Support mechanisms to maintain the team ethic and promote a no-blame culture are listed
- Contracts that promote partnering need to bind team members together
- Traditional protectionist instincts have to go
- Other industries have contracts that embody a team ethic
- Measures are taken to ensure that information flow is handled properly
- Individuals are designated to manage risk
- There are mechanisms for resolving differences
- The extent of liability is appropriate for each team member
- Insurance policies provide cover for the team rather than individuals.
The essential point is that a culture of interdependence has to be promoted among the team members involving mutual support. Their energy can then be diverted towards improving the performance of the team as a whole in order to achieve the performance goals set by the client and even exceed them.
I make no apologies for quoting at length from a paper that was presented by Fiona Hammond, of the airports authority, to the Construction Industry Council's dispute resolution conference on 7 October 1999: "If the team is responsible for a product, then the starting-point should surely be that the team as a whole (including where appropriate the client) should take rsponsibility for the integrity of the design, construction and delivery. This means that the contracts need to be designed so that each member of the team is, together with everyone else, responsible for the finished product without being overly or unacceptably exposed in any individual case.
"The solution that immediately suggests itself is one whereby the contract defines in the case of each team member a proportion of the liability of the whole team for the total product irrespective of individual responsibility for any given problem. This has the merit of encouraging the team to work together to focus on solving problems since it is the entire team that must stand or fall. In addition, it does not leave the client exposed without an effective remedy. To the extent that the client himself is part of the team, he must take his share of the risk. Provision must be included to split the share of any person who becomes insolvent in specified proportions among the remainder."
This, then, is not wishful thinking. If partnering is about teamworking, we should be abandoning all our current thinking about construction contracts and, perhaps, look further afield to industries such as the aircraft industry, which do have contracts that promote the team ethic.
Rudi Klein is a barrister and chief executive of the Specialist Engineering Contractors Group.