Good intentions vs reality: Collaborative working

In what seems like a few minutes’ time, my generation of crumblies will be replaced by all you up-and-coming surveyors, managers, architects, engineers, consultants and soffit-fixers. Thirty-something middle-managers will soon become 40-something chiefs and policy-makers with an appetite for change and improvement. And I have begun to wonder what you are hankering for; what inkling, what hint is there that you will manage building differently?

I mused on this last week when I wrote about three contract documents, JCT, NEC and PPC2000, all of which go on about “collaborative working”. And the honest truth about my generation is that when we read about this we smile, mutter “yeah, yeah” and stifle a yawn. We are set in our ways and it needs the next generation to pick up the baton. And then a little light went on in my cranial conference hall. I seemed to recall that a bunch of missionaries came proselytising this idea when I was “the next generation”.

The smile fades a little at interim 15, when the amount payable has exceeded the contract sum. The mutual trust and co-operation become just a little strained, don’t they?

Look, lots of us old constructors were brought up on a diet of Sir Harold Emmerson and Sir Harold Banwell. They were a sort of Flanders & Swan duo. They sang about “mud, mud, glorious mud, nothing quite like it for cooling the blood”. Emmerson did a “survey of problems in the construction industry” in 1992; Banwell did the same in 1964. And do you know, they went on about “collaborative working”, or rather, the want of it. Banwell said our main problem was “that the sections of the industry have long acted independently”. It was said that the most important single sentence in the report was “while we make suggestions for alterations in practices and procedures, these will be of no avail until those engaged in the industry think and act together”. Then there’s “we again find it necessary to emphasise the importance of building as a product of a team … all our recommendations bear upon the general objective of thinking and acting together”. Wow, doesn’t it make you want to jump up and shout: “Amen, amen – praise the Lord!” And do you know what happened after all this 1964 hype? Oh, we just ignored it.

You next lot were weaned on Latham. He, too, was charged with carrying out a survey of problems in the industry. And he soon discovered that “each of the sections of the industry has different concerns and priorities, which are vital to their section but are often of much less interest to the others … the industry has deeply ingrained adversarial attitudes”. It needs “each employer and contractor to affirm that they intend to undertake the project in a spirit of mutual trust and co-operation, and to trade fairly with each other”. Praise the Lord!

If you put a lump of money in the price for all the usual shenanigans, there needn’t be a fuss, need there?

Well it’s 15 years on from Latham and 45 years on from Banwell. How, is collaborative working going for you? I mean, when the two QSs differ on the amount payable under interim account one, do they smile and reach a fair agreement in the spirit of mutual trust and co-operation? Of course they do. The smile fades a little at interims 13, 14 and 15, when the amount payable has exceeded the contract sum. The mutual trust and co-operation become just a little strained, don’t they? Oh, and by then the job is running weeks late and the liquidated damages sword hangs by a thread and the mutual trust and co-operation and promise to trade fairly has faded a tad. Collaborative working requires the contract administrator to dish out extensions of time that deprive his client of £10,000 a week in liquidated damages … or, to be fair, requires the contractor to say “no, I don’t deserve an extension of time, I will pay the 15-weeks damages”. Praise the Lord! Final accounts are a doddle. Variations are agreed at the drop of a hat. Disruptive working and costs are compromised … let’s split it down the middle, say the collaborative working missionaries. No, no, says the contractor: forget about it.

How might all that collaboration happen? It’s easy. But it wasn’t mentioned by our learned gurus. It was an idea of my old Auntie Nell. “Well son,” she said, “it’s like this: if you put a lump of money in the price for all the usual shenanigans, there needn’t be a fuss, need there?” And I said: “Do you think prices are too low, auntie?” And she said: “Let’s go to the pictures; Flanders & Swan are on”.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple