Living with The Others

I was a guest of the Federation of Plastering and Drywall Contractors the other night. Plasterers are precious. Precious because they are real. Yes, real. Plasterers actually do something in or on or about my building. Look, touch, feel what they do; it’s real. Lose a good plasterer and you lose a precious putter-upperer.

I don’t think any of my plasterer hosts did what I did on the way home from their do. I read Peter Hibberd’s paper to the Society of Construction Law: “The Place of Standard Forms of Building Contract in the 21st Century”. He is the secretary general of the Joint Contracts Tribunal. Oh it’s a good paper, but I wrestled with it; and I wrestled with myself as well. I am in Peter Hibberd’s world of contract bumf and more bumf besides. And as I wrestled with my reading, I wanted to run back to my plasterers and shout: “I am ever so sorry that you folk in real building world have to put up with us folk from the unreal building world”. Me and the JCT and the other umpteen makers of contract forms, textbook writers, lawyers and consultants are an utter pain in the neck to the real builders. Hibberd’s excellent paper makes the case that the contractual forms of contract are at the heart of building. It takes their centrality for granted, talks about their features, their future, even a bit about their flaws. My plasterers are not so rude as to blow a hearty raspberry at these bloody forms; they just don’t need them.

Sir John Egan blew a raspberry in his Rethinking Construction. He questioned whether standard form contracts should be used at all. Hibberd rejects that. But he does accept that construction is not delivering well because of disputes. He suggests that the real problem is that the decision on “which contract” has too often preceded the decision on procurement, rather than the other way round. “Procurement” is defined as the organisational structure adopted by the client for the implementation and eventual operation of a project. But then I thought of my plasterers. They don’t give a damn for your forms; they turn up and plaster.

Living with The Others

Hibberd presses on: “Procurement approaches are now more diverse and the number of standard forms has grown in response.” There is procurement by construction management, management contracting (does anyone know the difference?), procurement by design-and-build, by build only, by partnering, by PFI, by Big Forms, by Minor Forms, by Intermediate Forms, by … oh, just name it and we have it. Meanwhile the plasterer turns up and just plasters!

I tell you this: anyone who actually runs their contract or subcontract by the rules in the contract from the outset has shifted the risks in their favour

Hibberd argues that putting into place a soundly-based written contract that is fully articulated by the parties will seldom become the means for pursuing a dispute; but the lack of such a contract frequently gives rise to disputes. That’s true. The snag is that not many people use even the fully articulated JCT-style contracts properly. They contain sophisticated machinery such as extensions of time and disruption and variations rigmarole that the building manager and heaven help him, the subcontractor doesn’t understand or have resources to operate. As for risk allocation, I tell you this: anyone who actually runs their contract or subcontract by the rules in the contract from the outset has shifted the risks in their favour. Not many do.

As for design involvement, I think Hibberd and I agree that “single-point responsibility [by this I guess he means design and build] is often illusionary”. I say there are real problems where design and construction are brought together but the JCT has produced a document for those that insist on design and build. The document doesn’t produce the disputes here. It’s the procurement choice. Hibberd doesn’t actually give short shrift to the extensions of time protocol talked about in the UK but he doesn’t embrace it, either. He does like the newer approach to pre-pricing variations. Retention has him dithering. Oh come on, it’s time it went.

The future for JCT-type documents is bright. He doesn’t say so but I do wish the JCT would start all over again. It’s time for the standard forms to be reduced to lingo we can understand, with pictures and diagrams. Stop treating the contract document as a contract document. It is the contract handbook. And with any luck my plasterers might take a peep at this handbook. Meanwhile, they will keep plastering.

Tony Bingham is a barrister and arbitrator