Contractual love triangles are being repeated ad infinitum
There are, so we are told, only a handful of plot lines from which to create any drama: boy meets girl, rags to riches, good conquers evil, the love triangle and small troll-like being goes on a long journey and meets a variety of strange creatures are just the more familiar ones. (There is of course my tale of passion and naked ambition set against a construction law background involving concrete and the JCT standard forms - but that is another story. ) I had cause to think about the dynamics of the love triangle recently when I was asked to look at a contract which was proffered by some fit-out contractors - I shall call them 'the outfit'.
The client was very excited about the contract, not because of any romantic involvement, but because the outfit was offering a 'one-stop shop' for the design of the works, their construction and the management of the contract.
The client was attracted, nay, seduced, by the notion of responsibility-free procurement - what did I think?
Well to begin with I thought it was a jolly good idea. I was reminded of the time we were considering building a conservatory on the back of our home. The designers I approached said that they were project managers and would handle all aspects of the works and I thought, 'how marvellous'.
It was only when comparing the provisions of the proposed contract with the existing standard forms that it dawned on me that the standard forms do not favour a bilateral arrangement between the client and the project manager, single-point-of-contact or miracle worker - call them what you will. The JCT prefers the tripartite arrangement of client, consultant and contractor. Even those contracts which might, superficially appear to combine the functions of design and construction (eg JCT 89 with contractors design) or construction' and project management (the management contract), actually require the client to retain a consultant either to design the works or administer the contract. So given the potential attractions of a 'one stop shop' why do the standard forms stick with this version of the eternal triangle?
A close study of the outfit's contract revealed the answer. The outfit wanted to be engaged in a dual capacity: as design and build contractors, to design and build the works, and as project managers to administer the contract. As an interesting aside, different legal standards would apply to these two functions. As design and build contractors it would be obliged to ensure that the completed works were fit for its purpose, in effect to guarantee that the design would work. As project manager it would be required to exercise reasonable skill and care in the execution of their duties. But the need to suspend one's disbelief really arose when considering how the outfit as project manager would chivvy the outfit as contractor into improving its performance, or whether the outfit would serve itself with a default notice and terminate its own contract, or how meticulously it would scrutinise its own valuations or how it would go about deciding whether its own works were defect free.
The truth is that by relinquishing all responsibility for the works the client loses all control. In the event, that was not what the outfit proposed. They suggested that there should indeed be a certificate of practical completion, extensions of time, a defects liability period and a final account but that the outfit would not actually deal with them. Instead these contractually important and administratively time-consuming matters should be decided upon by, yes, you've guessed it, the client. So, far from stress-free procurement, the client, who may, of course, have no experience of building contracts at all, lets face it, the vast majority of people do not, is required to be involved to an extent which he may find somewhat surprising.
Of course he could alter the dynamic of his relationship with the outfit and engage a consultant, or, to revert to our love triangle, go off with another woman.