Speaker: Rob Horne, Previous Partner at Simmons and Simmons, Current Partner at Osborne Clarke
Rob opened the session by asking the audience to define collaboration and drew attention to the Latin origin of the word ‘collaboration’ which means to ‘work together’. The word has become increasingly used in the construction industry as a desirable objective without recognising the need to fundamentally change how to approach the procurement and delivery of a project. The point was emphasised using a quote from Dale Evans of the One Alliance for Anglia Water who stated in a recent interview in New Civil Engineer “At the moment there are too many examples of organisations asking people to collaborate, but then dropping them into a business model that is the same [traditional procurement model]”.
Collaboration can be seen to be an outcome that arises when all parties adopt the necessary behaviours. This requires a level of communication and comprehension skill that is difficult to articulate in a legal document. For example, phrases requiring the parties to work in a spirit of ‘mutual trust and cooperation’ (NEC 4, clause 10.2) or ‘trust, fairness and mutual cooperation’ (PPC 2000, clause 1.3) may set out the intention but are difficult to enforce.
Rob explained that a contract is essentially a mechanism to try and manage risk. If all goes well and the parties are all working towards the same goal, then the contract is rarely required once it has been signed. When projects do not go as planned, then the contract becomes the primary mechanism to agree on differences between the participants. A number of recent cases were used to illustrate the difficulty in applying the provisions around trust, cooperation and good faith. (see slides)
Rob’s purpose was to expose three myths around the concept of collaboration in construction contracts which can be summarised as follows
- Myth 1. A contract can be collaborative. Contracts and Collaboration are different. One is a set of rules the other is the application and implementation of those rules. A contract, of itself, is not collaborative, to be collaborative it would have to do something but contracts are inert and unmoving. Collaboration, of itself, is not creating or performing a contract.
- Myth 2. Collaboration is essential. There is a valid question as to whether the alternative approach of clarity and proper perpetration actually makes more of a difference. Collaboration is a “fashionable” approach to contracting. Take care in what it can actually achieve.
- Myth 3. Collaboration is incompatible with enforcing a contract. Collaboration has to work within a framework and that framework must be capable of enforcement. Enforcement does not have to be through a court or formal tribunal, it could rely on a core group for example under FAC-1 and PPC.
Rob summarised the presentation by pointing out that when genuine collaboration does occur, it happens because humans decide it is in their mutual interest to pursue a particular goal or objective. The role of the contract is then primarily to create a framework for this ‘magical’ process to happen.