As regular readers of this column will know, one of my strong beliefs is that the contractual documents used in today’s construction industry need just such a fresh approach, and that selection of the appropriate procurement route and contract conditions should be based equally on the realities of the design and construction process and the aspirations of the client and its legal advisers.
That all sounds very simple, except, of course, it rarely happens. As an industry, we not only want to have our cake and eat it, we want a 30% discount and fresh cream for the price of synthetic. Everyone is in business to make a profit, and that’s fine for other people on other jobs, but we seem to do everything we can to make that as difficult as possible on our projects.
One thing we can all agree on is that projects of different scale and complexity need different types of document to suit the procurement method. A client building a one-off project needs a totally different service from its consultant and construction team than does a professional client setting out on several projects that can make use of economies of scale and repetition.
How can this be achieved? Well, a proper appreciation of other people’s problems and constraints is a good start, followed by the industry being up-front with clients about what is and is not possible. The best way to solve the time/quality/cost conundrum is to enter into contractual arrangements at the optimum moment, using the best information available and giving both parties a clear understanding of what each expects of the other. This includes precisely what remains to be done to complete the design, plus who will do it and how and when it will be done.
This is where the specification plays a critical role. Consider the British Standard’s definition: “A specification is a means of communicating, in writing, the requirements or intentions of one party to another in relation to a product, service, material, procedure or test.”
As an industry, we not only want to have our cake and eat it, we want fresh cream for the price of synthetic
A specification is not, therefore, just a list of materials with instructions on how to fix them. The service to be provided by each party and the procedure to be adopted are a key part of any specification, points which are often overlooked.
The preliminaries and invitation to tender are totally separate documents dealing with other issues and fulfiling a separate function. For example, take a roof design under a JCT98 contract. The tender drawings may show the layout and sections, plus some typical details, but detailed manufacture and construction drawings will be issued post-contract. It is not enough to simply state in the specification the name of a manufacturer and the need to comply with its recommendations. The specification must stipulate the level of information needed to complete the design, who is to produce it and when, as well as describing in detail all the elements and components necessary for a complete installation. In other words, it must fill in the gaps left by the tender drawings.
It must be acknowledged by both parties to the contract that the design is almost never complete at time of tender. We often like to pretend it is, but has anyone ever built a project on the basis of unchanged tender drawings? But it is essential to give the best information available so that the tenderer can price the items adequately without later being able to claim variations on the basis that it had priced tender drawings that proved to be insufficient.
Co-ordination of all the consultant specifications with the preliminaries is essential to prevent repetition or conflict. Producing specifications in isolation is a common mistake, leading to a set of tender documents comprising individual and unconnected volumes. The problem is often exacerbated by using documents from a standard product or the last project.
Postscript
Nick Schumann is a partner in Schumann Smith Davis Langdon & Everest.
