VIEWS: 16 PAGES: 3 POSTED ON: 4/3/2010
Discussion Smeaton to Egan—the extraordinary history of civil engineering management M. Barnes, Civil Engineering, 138, No. 2, May 2000 G. E. Bratchell Dr Barnes refers to the 120 years of use of the earlier model of contract. Conditions as ‗stagnation‘ but I suggest that most practitioners would regard it as being a period of stability, despite its faults and updates. He writes ‗stagnation‘, no less than 6 times, reminding one of a politician who denigrates a traditional system, so as to get a new one adopted. The NEC has existed for only 7 years, a small proportion of the 120, and Dr Barnes implies that no-one who has used it has gone back to the previous model which is still available. Well, there is a long way to go to catch up with such an enviable record. The portents are not good, however, because following the Heathrow tunnel collapse – the worst civil engineering disaster in the UK in the last quarter century – the effect of using the NEC has attracted criticism from the HSE. Lack of familiarity with a relatively new form is understandable but why risk using unfamiliar documents on such a major and technically innovative contract? And has the NEC really led to an improved management system? It also appears that ―Quality Assurance‖ and ―Self-certification‖ have been shown to be the illusion that many engineers thought they might be. As for abandoning adversarial attitudes, any party can always avoid adversity by simply caving to the demands of the other, however unreasonable, but that is hardly responsible management. The HSE report is quoted as stating that the management systems failed to challenge the contractor sufficiently robustly. How do they do that without an adversarial situation arising? Political correctness doesn't work in such conditions. It will be interesting to see whether the number of disputes decreases as a result of using the NEC. That will be possible to ascertain, only if somebody has been keeping the appropriate records. At present, it appears to be no-ones responsibility to collate ―failures‖ and act on them. H. Moores Dr. Barnes describes as fanciful the Egan notion of no contract – almost as fanciful, perhaps, as the idea of Partnering would have appeared to an engineer ―stagnated‖ in the ICE contracts tradition. He says that without a contract there is no clarity and no commitment. I had always thought that it was the other way round – that clarity and commitment were two elements required to bring a contract into existence – if that is what the parties want. If they do not want to bring whatever is clear and committed between them into the realm labelled ―contract‖ they need not. Core clause 10.1 of the PSC enjoins mutual respect and trust (MRT for short). So taking MRT as our underpinning concept, we can formulate agreements which set out how we want to conduct our affairs. And however much it may look as if there is a contract, however firmly embodied are the elements necessary for a contract, however closely our behaviour approximates to the behaviour of contracting parties, we shall state clearly on page 1 of the agreement that we do not intend to create legal relations. Some points arise. (1) With such a system in place, can we avoid having created a contract? There is some evidence to suggest that the statement ―we do not intend to create legal relations‖ may be sufficient to avoid it. At any rate, some judges have said it may very well be sufficient. (2) Tort will still apply. No one within the enterprise would dream of bringing an action in tort against his co-workers; that would not be in accordance with MRT. If an outside party brought such an action against any individual member of the enterprise, the operation of MRT would see the other members falling over each other to resist the action (the Three Musketeers effect). (3) Would the members of the enterprise ever be able to muster and maintain the necessary degree of confidence in the solidity of MRT? If we cannot imagine this being so, we are not ready to move in that direction, and we must stick with contract even if we do not want to. (4) Shareholders and insurance companies may balk at the commitments proposed by their Principals without legally enforceable contracts to regulate them, and underpinned only by ephemeral MRT. Statutes may be contravened, or public policy offended, and that would never do. It has always been possible to operate MRT whatever contract conditions applied. The incidence of disputes may be taken as evidence that it has seldom been operated with sufficient enthusiasm, and I suppose there is something in the argument that the terms in which ICE conditions were couched did not foster MRT. If we do not know what the effect of ―no contract‖ would be in the context of major civil engineering projects, and the notion itself is not ridiculous, should we not try to find out – if we want to know badly enough? Author’s reply to G. E. Bratchell I don‘t apologise for using the word ‗stagnation‘ six times. I think it is remarkable, puzzling and disturbing that civil engineers should have tolerated a defective management system for so long when they were seeking and adopting technical improvements to their science without restraint throughout the same period. Mr Bratchell must have read the press summaries of the HSE report on the Heathrow tunnel collapse but may not have read the NEC itself. I am pleased to have the opportunity of putting the record straight. The HSE report is wrong in alleging that the use of the NEC contributed to the risk of occurrence of the collapse. Their principal criticism is of the self certification system used at Heathrow and how it was implemented. The fact is that the NEC does not impose self certification, nor does it impose ‗quality assurance‘ of which Mr Bratchell also disapproves. If an employer or his engineer wishes to use absolutely traditional means of control of the technical compliance of the contractor with what has been specified, he can use this as easily as anything else. The NEC does not require anybody to use the systems of quality control of which the HSE complained or to use any other system. It is silent on the matter. Mr Bratchell suggests that objective records should be kept in order to establish whether using the NEC really does reduce disputes. I support the suggestion. At the moment, we only have the data which people choose to pass back to the ICE. This is currently saying very clearly that using the NEC reduces disputes dramatically. Data about the small number of disputes which have occurred when the NEC is used are particularly welcome. They go straight into the deliberations of the ICE‘s NEC panel as an important input to the process of continuous improvement of the system. Author’s reply to H. Moores Mr Moores advances an intriguing argument for the parties contributing to a civil engineering project agreeing at the outset about almost everything included in a modern collaborative contract such as the NEC but making sure that they have not, by so doing, created a legal contract. I suspect that this is impossible as the recent litigation against Marks and Spencer by one of their suppliers with no contract exemplifies. However, I do not disagree with Mr Moores‘ proposition. The important thing about the NEC is that people should work together to achieve their objectives as client, contractor or consultant. If this can be achieved without actually signing a contract, the only problem is the uncertainty and expense,which lawyers will introduce if the parties fall out. Why take this risk? The example of the BPF system for building projects, referred to in the paper, is relevant to Mr Moores‘ comments. This was a management system,which included many of the reforms subsequently included in the NEC. It did not achieve significant usage because it was a way of working, not a legal contract.