MDA Law
The importance of an informed client in helping to deliver infrastructure on time and in budget. How do we Bridge the skills Gap?
When considering the plethora of unhappy contracts currently under construction and how they came to be in this situation, it is apparent that poor decisions concerning project implementation have been taken by Employers. In many instances, Employers have been reliant on experts to guide them for example in the choice of the contract form to be adopted and the alterations to standard forms that should be made. In most cases, this has resulted in adversarial contracts being even more adversarial. As a result a great deal of energy that should be directed at getting the job done is focused on commercial issues and pursuing claims.
One would find it hard to identify better examples of this scenario, than the Eskom contracts currently under construction. It must be concluded that the decision making on these projects demonstrated very little wisdom or appreciation of the consequences of adopting highly adversarial contracting strategies.
Contractors involved in these contracts must also accept their share of the responsibility for an unsatisfactory out come, notwithstanding that the performance of most contractors is dependent on the environment created by the Employer.
In a skills scarce environment adopting a strategy that results in polarization of the parties to the contract simply does not make sense. We have to set our projects up so people all pull in the same direction. Collaborative contracting has to be the way to go.
The challenge is to persuade Employer bodies that what they are doing is inadvisable. No doubt they feel that they are in a comfort zone and that keeping contractors at arms length is a preferable approach particularly as anything that could be interpreted as being preferential treatment could be misconstrued as being “tenderpreneurial”.
We have written previously about the polarization between the various parties in the industry. There is mistrust and suspicion between employer, contractor and consulting bodies and this has to be overcome before common ground and an understanding that we actually have no choice can be achieved. The current situation is making the successful execution of projects an impossibility. The result is a lack of jobs and job opportunities and an environment where emerging contractors will inevitably founder. The established contractors are fairing no better. It would be a brave (not to say unwise) investor that put his hard earned cash into a construction company under the current circumstances.
So we need a forum for discussing these issues and breaking down the barriers of mistrust. Policies must be adopted whereby we set our selves by agreement, rather than by government statute what our objectives are for training, for job creation and job opportunities, for the creation of viable emerging contracting organizations. This must not be a “ band aid” approach it needs to be a well thought through strategy with established out comes against which we as industry participants can measure our success and achievements against this blue print.
It’s time for the industry to take control of its own destiny and to stop following the lead set by the unions and by government. We should be performing above and beyond anything that the government or a union can envisage for our businesses or for the people that we work together with in the industry. Who better to decide what is achievable or acceptable either from a business or moral perspective than we who have devoted our lives to the well being of the industry?
