What’s the best test?

Regarding Rab Bennetts’ article (15 July, page 26), as an architect-turned-procurement-of-architects-specialist for a large software company, I am interested in seeing an example or a little more detail about the system for procuring architects that he would use to get a better qualitative assessment. He makes some valid points, but I still have to justify numbers to the chief financial officer. Large corporations, based on the the fiduciary responsibility to the shareholders have to be able to trace and demonstrate the decision to justify the expense. (I understand that he knows this, but I thought it was worth saying.) So, how would he do it?

Jeremy Macdonald, via www.building.co.uk

Quality will out

Rab Bennetts’ article says that the evidence is consistent - when choosing a design team, the lowest fee always wins. However, Rab’s research seems to have been based on only two bad examples. I have looked at the results of the last six competitions we have managed on behalf of public sector clients and, by balancing quality and price, in only one case the lowest fee came out on top (coupled with the highest quality score); in four cases the second highest of five fee bids was successful; and in the other case it was the highest of four fee bids that won. The quality/cost ratios were the same as those quoted in this article. So our evidence is also consistent - highest quality tends to win. Surely a much more reassuring message for Rab’s fellow architects.

Brian Moore, director, RIAS Consultancy

Fire protection in action

In reference to your story “Insurers call for review of fire regulations” (15 July, page 10), I am currently involved in the installation of a residential fire suppression contract in a 24- apartment new-build timber-frame project. We are installing the system live during the project so there is active fire protection throughout the construction phase.

Andrew Kelleher, via www.building.co.uk

A Tolent mess

John Riches is right to criticise the drafting in the new Construction Act (8 July, page 46) that is supposed to outlaw “Tolent” clauses - clauses that force one party to pay the adjudication costs of the other. But, looking the overall picture, I suggest that he is worrying unduly.

Parliament’s intention is clear from debates recorded in Hansard. It is inconceivable that a court would interpret the amended Act so as to frustrate that intention and create an anomaly - even if a court might be tempted to teach the Department for Business Innovation and Skills a lesson in drafting.

Ian Yule, partner, Shakespeares

Tolently divided

The amendments John Riches refers to are intended to close a loophole, but it is the wording that is causing concern and debate, and has resulted in two bodies of opinion. The first is that the Act has failed to close the loophole.

The second argues a narrower interpretation. This sets out that the only contractual provision regarding the costs of adjudication that parties may include, is one that confers on the adjudicator the power to decide how their fees and expenses are allocated between the parties. The Act does not, therefore, allow any provision for the inclusion of a Tolent clause in a contract.

There is at least consensus that the Technology Construction Court (TCC) will find ways to rule that Tolent clauses are not intended by the Act, but we will have to wait for the differing opinions to be tested in court before we have the clarity we all anticipated the Act would provide.

Subbies should take comfort that it would be unwise for employers and contractors to assume that Tolent clauses are allowed and will be enforceable under the Act. As an industry we should be advocating that Tolent clauses have no place in our contracts irrespective of what interpretation one can make of the Act’s unsatisfactory wording.

Simon McGrail, associate director, Blake Newport

 

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