ACA Advocacy on Unfair Contracts
We need to work together to advocate for improved contracts and procurement methodologies, says John Held.
Sticks and stones may break my bones but (contract) words could still defeat me.
Words are powerful. Legally enforceable words can change outcomes, businesses can disappear, and lives can be changed because of a word or a phrase.
What’s that got to do with the talented designer? Read the fine print! Don’t sign up for clauses that could break you!
Do humble public servants, perhaps guided by lawyers, understand the consequences of their actions? Do they care, and are they getting the best outcome for their political masters?
Laura Harding’s article discusses some of the contracts she has seen recently from government and other large procurement agencies. Many try to minimise risk by shifting it to another party, rather than reducing the amount of risk in the first place. Architects who accept such contract conditions are at risk, and may not be covered by their professional indemnity insurance.
The general advice is to condition your tender accordingly, but in many cases any conditions in a tender submission will rule the bid non-conforming and eliminate it from consideration. It therefore follows that all the advice from lawyers and insurers is of little use. Larger firms might carefully consider and take on extra risk, whilst smaller firms will either not even have read the contract or blithely sign anything to get the work.
Unfair contract conditions are subject to certain consumer laws but often commercial arrangements between “informed” parties are not covered. For this reason, any changes to government procurement policies has to be done as a profession rather than as individual firms. The plethora of procurement methodologies across different Departments in some states makes this even more difficult.
The good news is that in most states there is regular contact between groups like the ACA and government representatives, and the willingness to represent members’ issues to try to change contract conditions. Some states have formal consultation bodies, and we have noticed that in the last year there has been a renewed desire on the part of agencies to be more receptive to the needs of the construction industry. It’s also evident that it is not just architects who are affected by poor procurement. At a national level, the Australasian Procurement and Construction Council, representing most government procurement agencies, meets regularly with the Australian Construction Industry Forum, of which ACA is a member.
Advocacy on procurement is an important part of ACA’s strategic focus. We need to understand what issues you, as our members, consider to be critical, and work collectively to improve contracts and procurement methodologies. We don’t need to throw sticks and stones – but our words need to carry the weight and conviction of our members to improve procurement in Australia.