Of course responsibility and power go together, but the situation is not as simple as Jennie thinks – for one thing, novation is worse for clients than contractors, but intimately linked to single-point responsibility.
In principle, of course, I must agree with Jennie’s proposition that risk and the ability to manage that risk must go hand-in-hand. That does not mean that I do not take issue with her other comments.

We should not be deluded into thinking that any procurement route is a panacea for all projects. There are many ways of skinning the Egan cat and supply-chain management, long-term partnering and proper integration of design and construction can be achieved using other contractual routes.

One of the conundrums with design and build is illustrated by the use of novation: it features on an estimated 37% of design-and-build projects, according to the University of Reading Design- Build Forum’s 1996 report. On a complex project, the employer will want a detailed specification – even if performance-based – so that it is sure of the quality of materials and finishes. It will also often want to control the detailed design, certainly up to planning permission being obtained and perhaps until funding and a pre-let are secured. In these circumstances, the employer will want to involve a professional team at the outset. But if it then wants to transfer all design and construction risk to the contractor in order to achieve the mantra of single-point responsibility, it must novate.

It is also true to say that many professionals would rather negotiate fees and terms at the outset with the employer to ensure that they are properly appointed and properly paid before the contractor is involved. They fear the contractor’s desire to cut corners on fees.

Many employers will also involve the contractor alongside the design team in these early days of the project. In these circumstances, the contractor manages the design team until the contract sum is negotiated and has an involvement and degree of control over the design. This mitigates the risk-dumping aspect of novation to which Jennie rightly objects. But the single-point control that she wants will only arise if the contractor selects and employs the design team from the outset.

As the Design-Build Forum report concluded in relation to perceived quality of completed projects: “The worst outcome results from the employment of design consultants being novated from the client to the contractor, usually after a significant proportion of the design has been completed. Just 28% of clients’ quality expectations are met when novation is used. Conflict stems from a change in priorities part-way through the design process. This disrupts the design process and has a disastrous affect on quality.”

But the remedy lies in the hands of the contracting industry: it must educate its clients; and if it objects to novation, it must price it accordingly.

Postscript

Ann Minogue is a partner in solicitor CMS Cameron McKenna.