A few clients I advise, across varying sectors in the industry, have had enough. We saw in 2023 a few significant failures of construction organisations left a trail of debt behind causing what I call the “Domino Effect.” This has hit the supply chain very hard, and several businesses are struggling to survive. To counter this I am working with several organisations who are members of the Finishes and Interiors Sector (FIS) led by the force of nature Iain McIlwee, CEO. Looking to run some pilots across the UK to help businesses run the commercial side of contracts much more effectively and efficiently and to help them stay out of trouble. The pilots will include the implementation of the CICV Best Practice Guide (BPG) and in addition will be running a national webinar on the BPG, and will be working with several organisations to present the BPG to their site and contract and commercial managers so that they improve on the way in which they manage projects and in addition we will be providing these organisations with an overview of the JCT and SBCC conditions of contract, to help them look out for onerous contract amendments.

Another aspect I am working on is to help organisations to say NO, and here is the message.

We are going to say NO to the following:

  • Don’t send a tender with onerous contract amendments which increase our risk and reduce yours, and the documents will just be sent back to you.
  • Don’t get us to work with you for months using our “know how” to help you secure a contract and then you come back to us seeking a further discount off our tender, because it won’t happen.
  • Don’t include extended payment periods.
  • Don’t include liquidate damages provisions that are completely disproportionate to the value of our work package, because we will not accept them.
  • Don’t include provisions that retention releases will be dependent upon the completion date of the main contract because we won’t accept that.
  • Don’t issue an instruction to us for additional works before we agree a price with you, because we are not going to do these works without an agreement on price.
  • Don’t tell us you can’t pay us because the client has not paid you, that is your problem and not ours, and pay when paid provisions are outlawed.
  • Don’t keep hitting us with spurious contra charges because we will not accept them, and if you don’t drop them then we will simply refer the matter to Adjudication.
  • Don’t put a clause in the contract that says if we initiate an adjudication that we will be entirely responsible for your costs and those of the adjudicator, because we will not accept that.
  • Don’t keep telling us there was more work in the pipeline which we are going to get provided that we play ball with you on other contracts.
  • Don’t include cross contract set off provisions because we won’t accept that.
  • Don’t forget that you need us to get your projects built. Don’t forget that you need to treat your supply chain properly, otherwise you will have no supply chain.
  • Don’t extend the date of the final account agreement because we want to accept that.
  • Don’t start a contract without there being clear responsibilities in relation to Contractor Designed Portions.
  • Don’t keep telling us that certain things are “design development,” when you don’t even know what that means, and it’s not been defined in the contract documents.

So, to any employers and contractors out there we are going to start saying NO.

To many of the readers of this blog you will nod your head to all of these things and then say, “I’m afraid we need the work Mr Bunton.” I understand that, and I get that, but adopting some of the statements made above should help you to manage the commercial aspects of projects much more efficiently and profitably. In my experience there are plenty of good employers and contractors out there who will look after you and who have long-term building programmes, and who will value your input, and who will want you to help them build successful projects on cost, on time and to a high quality.

Be selective of who you work for, and find out which organisations have long-term building programmes, with whom you can build a successful relationship.

A number of clients I work with are beginning to say NO, and it’s working, and their voices are being heard, and better and fairer contracts are being entered into.

So, the message for 2024 is “We are going to say NO”.


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FIS Contractual and Legal Toolkit
As well as our vocal stance on unfair payment practices, FIS members can access a range of services to support them in managing the complexities of contracting and supplying products into the construction market, this includes template contracts, guidance on standard terms, support in dealing with disputes and a raft of best practice advice.

FIS publishes short blogs by its Consultant Len Bunton on contractual and commercial issues he experiences when supporting FIS members and the wider community – it is designed to help FIS Members avoid common traps and build on the FIS focus on collective experience. The blogs are published fortnightly as FIS member only content and released to SpecFinish two weeks after publication.

Len provides an initial free one hour consultation to FIS members to discuss and review specific issues and to help develop a strategy to address. Should further advice and support be necessary, thereafter then Len will agree the necessary fee levels with each FIS member.

You can find out more about FIS membership here.