As one lawyer said “if two lawyers are in the same room, you’re unlikely to get agreement”; so what happens when you have a room full of lawyer-folk!
Let’s cut to chase, my conclusion from the NBS Bond Dickinson briefing “Understanding Construction Collaboration Contracts” is that the lawyers aren’t that impressed with current collaborative forms.
But if collaboration is called for, aren’t collaborative contracts essential?
Ever since Latham constructed the team and Egan rethought construction, built environment professionals have been urged to find a different way of working. If clients are to have successful projects, improvement must be through COLLABORATION! Ad infinitum the message is that adversarial ways don’t cut the mustard anymore; the latest including the Government’s new procurement routes with collaboration at the heart; and if BIM is to achieve it’s full potential, “the only way is collaborate“.
I attended the NBS Bond Dickinson briefing Understanding Construction Collaboration Contracts because I recognise that if construction needs to collaborate, then collaborative forms of contract must be adopted. [Review my storify]
The briefing reviewed 4 contracts; three I knew about and one whose arrival had recently passed me by! The NEC3 is 20 years old; it’s been around a while and is being used. The PPC2000 has it’s plaudits and is shown in a favourable light by the Government Trial Projects. The JCT adopted the Be Collaborative form as its own and hence we have the JCT Constructing Excellence form. The new kid on the block is the CPC2013 (Complex Project Contract) authored by the CIOB.
The audience were treated to candid and informative series of presentations from principally lawyer-folk. My impression is that the lawyers aren’t that impressed with these collaborative forms. From their legal perspective, they didn’t appear to recognise the management rationale and instead focused on the fact that if the projects go wrong, the contracts will not stand up in Law; afterall what is collaboration in the eyes of the court! Certainly for anyone who attended the event, if they recommend a collaborative form potentially they could be held negligent given that barristers advised to stay well clear of one of the forms!
So I see we have a bit of stand-off. We need collaborative forms, but what client advisors are/will be advising clients to use the current bunch? In my opinion this is a pressing issue, and one that will affect the adoption of the new procurement routes and the implementation of BIM …
…. or shall we just leave the lawyers to have a reasonable disagreement!