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Can partnering work in practice or is it merely a pipe dream?

legal matters

Royal Institute of Chartered Surveyors' research reveals that while we all applaud the notion, promoted by the reports of Messrs Latham and Egan, of teamwork, mutual trust and cooperation in construction projects, the grim truth, as reported in Contract Journal (25.9.02), is that, apparently, we find it difficult to incorporate the spirit of partnership into a contract.

This theme was developed by City solicitor Lovells at a recent seminar launch of its swanky new premises on Holborn Viaduct, complete with impressive art in perpetual motion in the lobby and a state-of-the-art auditorium. The seminar, attended by practitioners and representatives from across the construction industry, focused on the management of project risk and the need for change.

The speakers fell squarely into two camps.

There were those who work with construction risk, either by trying to allocate it to someone else at the outset, or by picking up the pieces after the event. Then there were those who believe that we should put all this risk allocation nonsense behind us and take on all comers as a team.

To the surprise of some, Philip Capper, law professor and head of Lovells' engineering group, with experience of major infrastructure projects and the disputes they give rise to, advocated the latter philosophy. He used an analogy familiar to those forced by recent Tube strikes to make their journey to work by car, and conjured the image of irate, traffic-bound commuters, who put aside their differences and against the odds manage to clear the way for the emergency ambulance.

The outcome of any project, he believes, depends entirely upon the attitudes of the people behind it. The 'can doers' are responsible for the success stories, the 'pencil suckers' for the rest.

Relying upon a fundamental jurisprudential text, Capper urged team builders to ask themselves 'why do people do things?'when considering the respective merits of the carrot or the stick.

By contrast, the other speakers looked at large-scale projects and analysed the scope they presented for things to go wrong. They were seen as something of a 'Pandora's box' with the potential to unleash all the ills of mankind upon the world. Risk management depended largely upon recognising and addressing those risks that are within your control and recognising and providing for those that are not.

The discussion then moved on to insurance and the extent to which you can turn to the insurance market, particularly in the aftermath of 11 September, to cover those events beyond your control. Questions and debate from the floor revealed that the audience seemed to be similarly divided between the optimists and the hard-bitten cynics. There were those who believed that whatever the heritage of the past, the modern-day contractor appreciated the benefits of team building. Although they recognised that behind every dispute there was a personality, they were quick to brush aside any suggestion that that particular personality was usually powered by a surfeit of testosterone, even though the new breed of partnering contracts is devised and operated largely by men.

Others subscribed to the notion that the brave new world of partnering was good in theory but not likely to succeed in practice.

One potential vehicle for the dispute-free project was identified as PFI procurement, where the contractor bore the responsibility for all the risks.True, it was pointed out, this inevitably meant that there could be no disputes, since it takes two to argue, but it would not necessarily result in a good-quality end product.

Ultimately, Capper, calling upon another analogy, concluded that a partnership contract was much like the pink blancmange that appeared so unexpectedly on gala night at Faw lty Towers.You dive into it and cut away all the soft, touchy-feely stuff, expecting to find, if not a duck exactly, at least a hard, gritty contract. In the absence of a wellthought-out contractual regime, the project will founder in the face of similar Fawltyesque setbacks. Which brings us back to where we started really - that, apparently, it is easier to dream up a partnering contract than it is to draft one.

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