Len’s consultancy has never been busier dealing with so many commercial and contractual issues for clients – a sign of the times as financial pressures continue to mount within the UK construction industry.

A consistent problem is the price that so many contractors are now paying for entering into contractual terms some time ago, with the problems coming home to roost now because sadly they’ve entered into contracts that have significant amendments and onerous and unfair provisions, and they are now having to fight their way out of a difficult situation, because of this.

In this article, Len provides some advice to help members to avoid getting into a contractual mess, as they chase work opportunities.

FIS Chief Executive Iain McIlwee will be speaking at the Conflict Avoidance Conference on 2 October in London. Iain will be discussing the Conflict Avoidance Pledge including the tools required to avoid and manage emerging disputes.

Speakers include Sir John Armitt, Chair of the National Infrastructure Commission, Tim Tapper, Director of Contract Services at Turner and Townsend, Sue Barrett Head of Contracts & Procurement at Houses of Parliament Restoration & Renewal and FIS CEO Iain McIlwee. 

Commenting on his contribution on one of the panels, FIS CEO Iain McIlwee said:

“I will be using data from the Reading Report and the ongoing research and dialogue Finishes and Interiors Sector has with our community to make the case that better buildings need better contracting. Better Safety and Sustainability are for many locked away by irresponsible contractual appointments and punitive combative behaviours. If you want to unlock better mental health in construction, better occupational health, genuine net zero deliverables, a collaborative approach to building safety and the strategic planning that underpins investment in the skills and technology needed to improve productivity, then we do need to start here. If you disagree, come along and tell us why, if you agree support the Pledge, come along and share ideas and if you aren’t sure get yourself along and listen to the debate”.

Places at the conference are limited, so please book early to avoid disappointment – you can secure your place here.

Should you sign the Conflict Avoidance Pledge?  Find out why FIS is supporting it here.

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A recent flurry of organisations have signed the Conflict Avoidance Pledge and FIS is proud that our members are front and centre in this.  The new momentum coincides with a new Chair of the Conflict Avoidance Coalition who many members will recognise, Len Bunton, one of the FIS Contract Reviewers and a provider of contractual guidance via the FIS Helplines.

The Conflict Avoidance Process is a contractual mechanism which helps parties to avoid getting embroiled in pro-longed and damaging disputes. Where disagreements begin to develop, CAP enables parties to address and resolve matters early, collaboratively and inexpensively.  CAP is included in contracts via a sample standard clause.  If a dispute arises, the process involves the nomination of an impartial CAP professional (a highly experienced and knowledgeable subject matter expert). The role of the CAP professional is to inquire in the disputed issues and provide a report with recommendations on how they can be resolved.  For example, an issue about interpretation of a contractual clause can be referred to a CAP Professional who is a lawyer with immense experience in building contract interpretation. If the problem that needs resolving is about the costs of variations, it can be referred to a highly experienced and impartial chartered quantity surveyor.

The CAP Professional would undertake an investigative role. They would, if appropriate, visit the relevant project site and talk to people who do the work and/or oversee delivery of the project. The CAP Professional would endeavour to get a clear understanding of the problem and apply their experience to provide a report with fully reasoned recommendations on how matters ought to be resolved.

Each party will normally bear its own costs and expenses and will bear in equal share the remuneration and expenses of the CAP Professional.  Companies using CAP can promote their support by signing the Conflict Avoidance Pledge.

Conflict Avoidance Coalition chair Len Bunton thanked FIS for their support through the Coalition and added:

“I am greatly encouraged at the number of FIS members who are Signatories to the Pledge. The process is all about early intervention to ensure that issues on projects do not escalate into costly and time-consuming disputes. Wherever possible, I am working with FIS members to have this embedded into contracts, and I am 100% sure this will reduce the number of payment and cash flow issues currently surfacing”.

FIS Member and Pledge signatory John O’Connell, Managing Director of  O’Connell’s Drywall stated:

“By signing the conflict avoidance pledge this demonstrates to our clients and supply chain that that we are committed to sending clear and consistent applications and expect the same in return with payments, this assists regular payments and cashflow and enables us to pay our suppliers on time. This also enables us to build strong ongoing business relationships with our supply chain and clients.By doing this providing consistency to all enables us all to have reduced stress and concentrate on our core businesses.”