Standard form contracts: What the papers say

Heaven save us. Save us from these oodles and oodles of standard form contracts. I was brought up on one form for building buildings and one for building roads. Now, oh help me, there are 21 different JCT standard form thingies; 15 NEC standard form thingies; the ACA forms of thingies; the ACE form of thingies; the IChemE form of thingies; and the IMechE form for hot air things. What have I missed? Ah yes, there is a galloping mass of so called standard forms for professional services by the RICS, the RIBA, the NEC, the CIC, ACE, the BPF and no doubt the RAF if you design spitfires. Spike Milligan gets to it:

“’Help, help, said a man ‘I’m drowning.’ ‘Hang on,’ said a man from the shore. ‘Help, help,’ said the man. ‘I’m not clowning’. ‘Yes, I know, I heard you before. Be patient dear man who is drowning, you see I’ve got a disease. I’m waiting for a Doctor J Browning. So do be patient please.’ ‘How long,’ said the man who was drowning, ‘Will it take for the Doc to arrive?’ ‘Not very long,’ said the man with the disease, ‘Til then try staying alive.’ ‘Very well,’ said the man who was drowning. ‘I’ll try to stay afloat. By reciting the poems of Browning and others things he wrote.’

If you spent time trying to fathom the true intention of the contractual bumf, you would have no time to build the building

‘Help, help,’ said the man with the disease, ‘I suddenly feel quite ill.’ ‘Keep calm,’ said the man who was drowning, ‘Breathe deeply and lie quite still.’ ‘Oh dear,’ said the man with the awful disease, ‘I think I’m going to die.’ ‘Farewell,’ said the man who was drowning. Said the man with the disease, ‘Goodbye.’ So the man who was drowning, drownded and the man with the disease past away. But apart from that, and a fire in my flat, it’s been a very nice day.”

The irony in all this explosion of bumf is that as long ago as 1963 a report initiated by the government of that time recommended one, yes one form of contract. Ok, ok they said, if you must have one for building and one for civil engineering, that’s the limit.

That was known as the Banwell Report. It was an inquiry into the Placing and Management of Contracts for Building and Civil Engineering. It came about because in 1962 a survey for the Ministry of Works by Sir Harold Emmerson reported on Problems in the Construction Industry. These chaps said we were all at each other’s throats. And if I remember correctly we were asked to keep to what we called the RIBA form (actual title JCT 1963) and keep to the ICE form. There was one form of ICE subcontract; one form (the Blue Form) for building subcontracts and one form (the Green Form) for nominated subcontracts.

And when today I flick through that old RIBA form, I notice two things immediately - it is a skinny little thing of 34 pages. The ICE form is even skinnier. Today’s JCT whatever is a massive 120 pages. Now multiply that by umpteen alternatives, now plonk them on a desk with all the other so-called standard forms and watch the desk sag and your heart sink. That’s why a few weeks ago I poked a finger in the eye of CIOB because they want to bring yet another form to the game. Drowning already!

Pause. I am hitherto only talking about standard printed forms. Now let’s really have a giggle. These standard thingies are supposed to somehow be tailored to a particular procurement preference. But they obviously aren’t. Obvious because these standard pages are, on each and every individual project, tender documents, “amended”. That’s because the industry simply rejects what standard forms say. Two years ago on this page Rudi Klein pointed to an NEC document where the so-called standard form then had 90 pages of amendments (called “Z” clauses). He said - and so do I - what’s the point of using standard contracts if you are going to add so many extra clauses?

There is another important point. I have said it before on this page. Not only are there too many forms, then fiddled forms, it is a truism that the industry does not understand these “legal” documents. True too that our industry sees no point in trying to understand these legal documents; true too that if you spent time trying to fathom the true intention of the contractual bumf, you would have no time to build the building.

And shall we finish with a final truism? These documents are sold at about £25 a throw. Nice if you can get it. They do.

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