Be CC - Guide to use - 2 Underpinning collaborative behaviour

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Aim and
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Underpinning
collaborative behaviour

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Appendix: Draft risk allocation schedule

2	Guide to use Underpinning, not undermining collaborative behaviour

2.1	The 'Overriding Principle'
2.1.1	The starting point is the use of the concept of the "Overriding Principle" that, in operating individual contracts, the Purchaser and the Supplier must work together with each other and all other project participants in a co-operative and collaborative manner in good faith and in the spirit of mutual trust and respect. This "Overriding Principle" is analogous to the "overriding objective" to be found in Rule 1.1 of the new Civil Procedure Rules (which provides that, in the interpretation of the Rules, the overriding objective will be to enable courts to deal with cases justly). The Overriding Principle is intended to sit above all the other contractual obligations and, in the event of any dispute, any court or adjudicator or other forum to which the dispute is referred shall take account of the Overriding Principle and of the parties’ adherence to it when making any award.
2.1.2	By drafting the main partnering provisions in this way, it is hoped to overcome the uncertainty that can sometimes apply to the interpretation of partnering provisions which have equal rank with the other specific obligations. For example, does a clause providing that the parties will work together necessarily preclude one of the parties acting opportunistically in exploiting another express provision in the contract?
2.2	Avoidance of unilaterial decisions With the exception of the obligation to comply with Purchaser's written instructions, many of the provisions are deliberately drafted on the basis that the parties must either reach agreement on matters or alternatively, resolve any disagreements using the dispute resolution provisions before they can proceed. As a result, the parties must genuinely collaborate and, save for the limited rights for the Purchaser to assess the effect of a Relief Event in the absence of any notification from the Supplier, there is no provision for the Purchaser to make unilateral decisions regarding the balance of interest between the parties.
2.3	The role of the project team
2.3.1	It is intended that for each Project, a Project Team will be set up, comprising the Client and other participants who are considered by the Client to be of key importance for the successful delivery of the Project. It should therefore involve any key specialist subcontractors as well as professional designers and the lead contractor.
2.3.2	The Project Team will be responsible for guiding the successful delivery of the Project. It should meet regularly to share information and to act as the focal point for consideration of the risks and opportunities affecting the Project. Membership need not be fixed. New members may be co-opted and other members may leave although it is important that some continuity is maintained. Different members may take the lead in meetings of the Project Team depending on the stage of the Project: during the early design stage it is likely that the lead designer will take the lead, during construction it may be the lead contractor. Whilst the Project Team will guide the delivery of the Project, it will not make decisions as such that are binding on other project participants. Any need to issue formal "instructions" will be dealt with in individual contracts. The importance of the Project Team lies in the pooling of relevant expertise to inform those decisions.
2.3.3	The Project Team has two specific roles under the "Services" documentation (see paragraph 3 below) in relation to Relief Events and the dispute resolution procedures. Where one of the parties to a particular contract is a member of the Project Team, the Purchaser should notify the Project Team of Relief Events capable of affecting other project participants (for example, under a groundwork subcontract, the discovery of potential contamination requiring specialist removal). The Project Team can then consider this event in the context of the Project as a whole and decide how best to deal with the consequences, involving other project participants. The parties to the groundwork subcontract must give serious consideration to any recommendations of the Project Team which may lead to a more co-ordinated resolution of the consequences of the event, rather than remaining an issue for the parties to the groundworks subcontract to resolve alone. Similarly, under the dispute resolution provisions, disputes involving a Project Team member that are not swiftly resolved by negotiation between the contract parties should be notified to the Project Team. This allows the Project Team to consider the dispute in the context of the Project as a whole and offer objective advice on how the dispute may be resolved. The parties to the particular contract are required to take seriously any recommendation made by the Project Team.
2.4	Preparation of a project protocol
2.4.1	One of the first tasks of the Project Team is the drawing up of a project protocol. This should set out their joint aspirations with regard to the Project and their working relationships.
2.4.2	The Collaborative Construction Terms already set out basic commitments to work together, share information, contribute to regular progress meetings and, if requested, to play a part in the running of the Project via the Project Team. The project protocol is intended to go further to enable the parties to express, in their own words, how they intend to work together, over and above their existing contractual obligations.
2.4.3	Expressed in their own words it is likely to act as a clearer focus of their heart and mind commitment to the project. In many cases it will resemble the already familiar partnering charter which is often drawn up on existing projects. However, reference to a "project protocol" was deliberately chosen to focus attention on defining the means as well as the aims i.e. how the parties hope to work together as well as what they hope to achieve from their collaboration. A project protocol will not create any contractual obligation, to avoid the possibility of conflict with the Overriding Principle and the other express terms of the contract.
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