As the season of good will approaches with the pace of a galloping reindeer, I cannot help but contemplate collaborative working. Having recently overheard comments that “lawyers are ruining all prospects of collaborative working: all they want to do is sue people” I do feel slightly defensive about my fellow professionals – we’re not all the sprout on the Christmas dinner plate you know!
Good solicitors who advise on construction contracts (and professional appointments) have to contemplate the situation when it all goes wrong: to (snow)plough on with blind positivity would not only be naïve, but it would be negligent. We also have the job of balancing competing interests and often negotiating between the rock (the funder) and the hard place (the contractor/professional) for our employer/developer clients. We can therefore often come across as the Scrooge when really it is simply a case of other factors in play.
Collaborative working in construction is all about early involvement of all members of the team, to facilitate better design and VE from an early stage. Often this early team does not involve legal advisors (or, indeed, the funder). This can lead to problems later on and can actually damage relationships that have been carefully f(r)ostered from the start. These issues can be avoided if solicitors are involved at the beginning (even if their level of involvement then drops off for a while to keep costs under control). Again, good solicitors will mould contracts to the job and not expect the job to be re-structured to fit an off-the-shelf contract.
There are numerous guides out there for collaborative working that all focus on the design side of projects. Whilst I absolutely agree that this must be the core focus of collaborative working, as my little Christmas gift to you, here are my top tips for collaborative working from the contracts side of things:
1. Get the funder on board early (or at least get an early understanding of what funders may require).
2. Get solicitors on board early (not just for the employer/developer) – take proper legal advice on structure and wording of contracts.
3. Ensure that the team is aware of the legalobligations they are likely to be asked to take on (including accurate information about levels of PI, 6 vs 12 year liability, collateral warranties etc).
4. Give prospective professionals and contractors a copy of the anticipated form of contract (including schedule of amendments and ancillary documents such as collateral warranties) as early as possible.
5. Don’t be too fixated on the form of contract. Yes, there are certain contracts that are structured and phrased in a more collaborative way than others on the face of it, but no contractual wording is stronger than a team that wants to (or doesn’t want to) work together.
6. Take a collaborative approach to negotiating contracts – if you’re rejecting the inclusion of a clause, say why and propose a compromise. Parties can work together to find wording that is acceptable to all but “just say no” is a phrase that should be left for Zammo and not permitted in contract negotiations.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice