

Follow the Contract...baaah!

Throughout the course of my own career I have been given some great advise about how to think and deal with those problems that we encounter every now and again on a construction project. Taking a few moments to ponder and reflect back in time, I recall one sound piece of advice, way back when now, when I was embroiled in the middle of an almighty contractual wrangle. The advice was provided courtesy of the wisdom of a well renowned consultant at the time.

In short the advice was relatively simple, and I am certain we will all have heard something similar along the way… it went like this “…Follow Your Contract…”!

So what does this mean?

Upon reflection against some of our modern day construction contracts, such as FIDIC, NEC3, JCT2011, etc., a simple statement like “…follow Your Contract…” can encompass many different things… Notices, Applications For Payment, Quotations, Programme ….building or installing what was said/ sold! Very wide ranging set of obligations. Over the course of the next few posts we will look to tackle some of the specific areas separately. This way I can at least avoid any wrath through the comments and hopefully gather some follows, likes and shares along the way.

Following the Contract processes can be a massive challenge for businesses. There are many reasons for this, some are relatively straight forward to understand and appreciate, like a lack of resource or knowledge, but some can be derived from the contracts themselves, through a lack of clarity in the words that have been used or through a process being ill-defined, impractical or for that matter incomplete! In addition to these few examples, it should also be recognised that companies also have variable constraints imposed upon them. These will not only depend upon the business itself, such as the size and I suppose strength of bank balance, but will also arise out of the nature, location and type of work that they are being contracted to do.

A moment for reflection then…. what does your business do to ensure that it can manage the contractual processes that you sign up to follow?

Some answers we have all no doubt heard in the past…. Cross its fingers? Rely upon the good working relationship that you have had with them for years?

Admittedly these are viable options… albeit quite risky ones’!

How many of us actual stop to consider what processes our contracts are actually obligating us to follow? And of course what of those sub-referenced documents, you know the small print hidden away on page 500, paragraph 1000, bullet 25, footnote 110 – you know the one that says you are locked and your documents are locked in, with no passage to the outside world…. Not even to copy your drawings or buy coffee…..!

Going back to the initial tale of woe…. In that dispute a number of principles were under debate, including all the contract administration stuff that the customer was stating had not been done and had contributed to everything going wrong. The pursuing autopsy however did not support this argument and a hefty bill was avoided through simple contemporaneous records, which could in that instance, be supported and demonstrated to be correct, coordinated and of course complete. If this hadn’t have been the case, well let’s not think about that!

So in the real world, in the melee of the hustle and bustle of contracting, construction or just business, remember, cross fingers, seeking inspirations from higher powers are contracting strategies, but are they the strategies that ensure... that the project will have a successful play and a Try every time...