Who can you trust?

One would be excused for thinking that the inquiry by Lord Fraser into the rising costs of the Scottish parliament, and the plethora of articles it has prompted in Building and elsewhere, has sounded the death knell for construction management. However, some of the assumptions and statements that have been made indicate a misunderstanding of the subject. The question arises as to who, in fact, is best placed to provide procurement advice in the first place. Let us consider some of the comments.

Ashley Pigott (a lawyer) in his article on 18 January 2002 advised that construction management was not an appropriate procurement route for the proposed rebuilding of the Royal Shakespeare Company’s Theatre in Stratford-upon-Avon. Mr Pigott this year took great delight in the apparent finding by Lord Fraser that construction management “was the single factor to which most of the misfortune that had befallen the Scottish parliament can be attributed” (8 October, page 56).

However, another lawyer, Ann Minogue, in her article (15 October, page 55), concluded that most people would consider that construction management was the correct choice for the procurement route of the Scottish parliament.

Ms Minogue also stated that it was the conventional wisdom that design and build was the least flexible procurement route. Perhaps if Ms Minogue had been called to give evidence, Lord Fraser would have concluded differently.

However, Fraser decided to take advice, not from a lawyer, but from an “independent procurement adviser”. Personally, I was not aware there was such a creature. However, the man who gave evidence, Colin Carter of Gardiner & Theobold, responded to Mr Pigott’s apparent misinterpretation of Lord Fraser’s conclusions (22 October, page 36). Clearly, those working in the construction industry (as opposed to lawyers) have far more experience of advising on procurement and in seeing how procurement routes work. You would think that, as such, they are in a better position to provide practical procurement advice. Clearly Lord Fraser thought so. However, given that Mr Carter considers construction managers “may not be legally accountable” and offers the profound statement that they “certainly feel they are part of the job and they work hard to mitigate risk”, one might question in what circumstances Mr Carter would advise an employer to take on board a construction manager.

Employers were seeing construction managers as easy targets to blame for the failings of an entire job

The notion that construction managers are not legally accountable is one that may come as a surprise to them and their professional indemnity insurers, not to say employers that are advised by procurement experts to retain their services.

One of my own articles in Building (4 July 2003, page 50) pointed out some of the difficulties of claiming against construction managers but also noted that, increasingly, employers were seeing construction managers and their insurers as easy targets to blame for the failings of an entire job. Litigation lawyers like to set up construction managers as the guarantor of the job.

So, ultimately, who should you take procurement advice from? It is, in truth, an area fraught with difficulty. For example, if you take advice from a consultant, it may be in the consultant’s interest to recommend a particular procurement route. Where you seek the same advice from a lawyer, clients must be careful that the lawyer does not simply trot out what is perceived to be conventional wisdom. Possibly a combination of both might be appropriate.

Finally, employers must take some responsibility as well. Most employers (even the apparently uneducated ones) choose the route with their eyes open, not with their heads buried in the sand. Pursuing professionals after the event for poor procurement advice is, however, not easy. For many of the well-known players involved in the Scottish parliament, the findings of Lord Fraser’s report will no doubt be welcome – blaming it all on the choice of the procurement route is nearly as easy as blaming it all on the construction manager.