International Construction Law Review
BOOK REVIEW
Partnering and Alliancing in Construction Projects.
By Sally Roe and Jane Jenkins. London: Sweet & Maxwell. 2003. 210pp. + Appendices, Index and Tables. ISBN 0–421–74040–X. Hardback. Price £125.
Partnering has a long history although it was never recognised as such. Organisations and companies have always preferred contractors whom they could trust and vice versa
. The essential elements of partnering have been present whenever those responsible for a project work together as a team. Cost control was not normally top priority. The advent of competitive tendering and its equation with value for money precludes such elements. But even in the public sector collaboration continued where necessity dictated, such as work in wartime, or defence or other work of national importance. Partnering was present before any contract was negotiated— indeed there might never be a contract. The authors refer early on to Baird Textile Holdings Ltd
v. Marks & Spencer plc
[2001] EWCA Civ 274 which concerned the sad consequences to the claimant of trusting the latter and not having a contract. It is salutary to recall that with great success Marks & Spencer pioneered with Bovis Ltd the fixed fee form of contracting in which the contract documents were at times nominal. In an instructive and valuable Foreword Mr Bob Scott recalls the advantages to BP and the contractors involved of an alliance developed in the 1990s for a North Sea project. This was a natural development of trends in the oil industry which has rarely forgotten that pre-planning and co-operation pay dividends and that it does not usually pay to fall out with someone (and certainly not irretrievably as one never knows when they might be needed again).
However, as this excellent work notes in its first chapter, partnering in the form discussed in it traces its origin to the United States where partnering was developed over 20 years ago by the US Army Corps of Engineers. It is now a key feature of the way in which the Corps operates. Its aims are to reduce conflict and to resolve problems by discussion and ADR. Whereas the focus was originally on improving relationships with contractors, it was found that the principles of partnering could be applied to others and to every project. In a country so litigation-minded as the United States I found striking evidence of the success of partnering: in Bruner & O’Connor’s massive and definitive seven-volume treatise on Construction Law
there does not appear to be a single case on a partnering contract.
That does not of course mean that lawyers as eminent and experienced as Sally Roe and Jane Jenkins should not have written about partnering or alliancing. Both are partners in the construction and engineering group at Freshfields Bruckhaus Deringer. Sally Roe is the head of the group. Notwithstanding the changes in attitude brought about by initiatives such as the New Engineering Contract (now the ECC) we have not yet reached some
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