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VIEWS: 16 PAGES: 3

									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.

								
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