MDA Law
The Need for consulting engineers to take the lead on infrastructure development in the country
It has to be observed that for a variety of reasons, consulting engineers are not providing the service that we normally and traditionally expect of them. This invariably results in unsatisfactory outcomes during the contract execution. This article will identify and discuss some of these issues.
Very often the employer bodies that appoint the consulting engineers do not have the skill to administer the contracts or the decision-making ability that is necessary and in these circumstances the consultants are filling the void and fulfilling the role of the employer. The employer then performs simply a rubber-stamping role. This means that the checks and balances so important in the symbiotic relationship between the employer and his consultant just doesn’t perform and the project inevitably is compromised. It also means that consultant’s time and energy is diverted from their core activity.
Alternatively, for control reasons, Employer bodies fail to allow their consulting team to fulfill the role required on them by the various contract forms. The Project Manager, Principal Agent or Engineer become “lame ducks” and this has a detrimental impact on the project out comes.
Probably the most deleterious development of recent years insofar as successful contract implementation is concerned, is the tendency for employer bodies to require that consultants work on a lump sum fee. The net result of which is that very often, too little is allowed to do a proper job and the engineering and administration of the contract suffers as a result.
Any one who has driven between Johannesburg and Durban in recent years will have witnessed the effect that contractor led toll operators have on road maintenance. What decides the maintenance work to be carried out is not sound engineering practice but what the budget will allow. Given that there are an inordinate number of abnormal trucks on our roads but the continual maintenance that one witnesses that is constantly being undertaken would indicate in this observers opinion at least that a proper job is not being done.
The effect of the recession in the construction industry since the mid 1980’s is that a lot of skills have been lost and many of the operators have been inadequately or inappropriately trained. Training during the few boom periods that have been experienced (like around the 2010 soccer world cup and the G-FIP contracts) appears to have resulted in some bad practices being adopted and being hard wired into the system. So skills and bad practices (like for example the adoption of adversarial contracting strategies) is also an impediment to successful project implementation. Lump sum professional fees also results in little or no professional development of the consultants staff.
This skills deficiency in respect of contractual practices appears to have been recognized by certain employer bodies and they have resorted to using legal practitioners to assist in drawing up contract agreements. This results either in bespoke contract conditions (as apposed to using one of the standard forms recommended by the CIDB) or special conditions of contract attached to a standard form contract which are intended to make the contract more onerous towards the contractor. This is a very unwise and damaging policy.
There is no doubt that the traditional way that we have run our contracts, allocating risks in an even handed fashion and empowering the consultant to fulfill the roll envisaged by the contract form and remunerating him adequately, is preferable to the current situation. The Employer bodies must come to the party and make the right decisions at the right time for the right reasons.
The starting point should be to recognize the skills deficiencies that we have and to implement a programme to over come these. Secondly to recognize practices that work. Adversarial contracts stacked heavily in the favour of the Employer are a short sighted and unsound contract implementation policy. They are a recipe for disaster. The consulting fraternity should recognize this and make sure that employer bodies are properly advised as to how best to carry out their contracts.
