Rudi is out of date. Even before Sir Michael Latham identified the exclusion of subcontractors from the design process as one of the factors creating adversarialism in the construction industry, experienced clients had recognised the key role specialists play in the design of a project. Well before 1994, they had started to adapt their procurement arrangements to accommodate this.
There are a number of ways of doing this. For example, management contracting and construction management could encourage the early involvement of specialists on a project. Indeed, one of the main features of management procurement in the 1980s was the recognition of the importance of this involvement.
Nomination under JCT standard forms has always allowed the early involvement of specialists in design. The duties are covered by the employer/nominated subcontractor warranty, NSC/W.
Of course, many employers do not accept the allocation of risk in relation to nominated subcontractors under JCT forms, but clients’ legal advisers do not give the sort of advice that Rudi has suggested. They are quite adept at amending JCT standard forms to include provisions for named and approved subcontractors, requiring the main contractor to engage specialists and “adopt” specialists’ designs. Rudi, of course, may object to the terms on which they do this.
Experienced clients had already solved the problem before Rudi identified it.
However, there are many, many inexperienced customers in the construction industry. They rely on the advice of their consultants. It is perhaps here that Rudi’s comments are nearer the mark. Consultants probably do disguise the extent to which they rely on specialists to design the project. Perhaps that is not surprising.
Rudi produces astonishing statistics to support his arguments. They do appear to measure the unmeasurable. While clients have been involving specialists in design for many years, I am not sure they have noticed a consequential cost reduction of 60% on some elements, but perhaps I am wrong?
Ann Minogue is a partner in solicitor CMS Cameron McKenna.