15-02-2022
John Elven recently joined Arbicon as Senior Contracts Consultant, bringing with him a wealth of experience in NEC, civil engineering, and construction contracts. Get to know John a little more by reading our Q&As below….
What made you join Arbicon?
I became aware that Arbicon was looking for a Senior Contracts Consultant and after making some enquiries I was invited to attend an interview with the Directors.
Whilst I have only attended very few job interviews over the years, I can honestly say that I have never been asked such an array of challenging questions. I was primarily impressed by the considerable level of experience and knowledge of my interviewers.
I was delighted to be offered the position to complement their skills with the NEC and Civils expertise that I possess.
What does your job entail?
Possibly, ‘everything and anything’ – the scope for variety in my job is potentially limitless. Even with 30+ years consultancy experience, I still find new situations to investigate.
Whilst I may typically be providing detailed advice in respect of an NEC contract amendment, a contract review, working on a delay claim, or building up our client’s case for adjudication, I may also find myself providing support to clients in respect of a mediation or a case that they have taken to the small claims court.
Any areas that you particularly specialise in?
I became increasingly involved with Construction Adjudication (from its inception in 1998) to the point where I have been party representative in several adjudications.
I have also built up a reputation as being an NEC expert … whilst this is something I have never claimed for myself, it is something that my peers have recognised, and I spend a considerable amount of time providing advice in respect of the NEC 3 & 4 suites of contracts. In addition, I have presented several seminars and webinars on NEC contracts, mostly in respect of Accepted Programmes and Compensation Events.
Another key specialism relates to Delay Analysis. Having produced numerous Forensic Delay Analyses (with countless programmes and a lengthy narrative), I have always preferred (where appropriate) to start with an As-Planned v As-Built which will demonstrate the effect of delays.
By applying a common sense approach to whatever form of analysis is required, with emphasis on the evidence, I have found that tribunals are better able to understand the causes of delay and any entitlements to extensions of time that arise from the delay – notwithstanding the need to also explain any contractor delays (if applicable).
Having become adept at using Asta Powerproject over the years, I have occasionally been called upon to assist with preparing NEC programmes for acceptance.
What is your background in disputes?
Unlike many of my peers, who may have commenced their careers as site-based Quantity Surveyors, I started within a consultancy firm that primarily dealt with construction claims and disputes.
As such, I spent the earlier part of my career revisiting historic claims, providing further and better particulars with a view to renewing negotiations and obtaining a good settlement. Much of this work was also carried out with a view to these claims being included in Arbitration, should negotiations not succeed.
From the late 90s, many of my claims were being prepared with a view to their inclusion in adjudication proceedings. As time progressed, I started writing the submissions for adjudication as party representative.
You clearly love construction contracts, what is the best thing about them?
My first real experience of construction contracts were the ICE contracts. In those days, most of my involvement seemed to relate to Clause 14 v As-Built programmes and claims relating to unforeseen ground conditions (clause 12).
However, my father was part of the committee that was working with Dr Martin Barnes to produce and refine the first ECC contract – we are of course more readily familiar with the more recent NEC 3 or 4 contracts. Whilst I am not a fan of NEC contracts in practice, I do love the potential simplicity of the standard form, when/if followed to the letter.
NEC 3 & 4 clause 10.1 sets out the simplest of requirements – “act as stated in the contract”. Yet, I have spent countless hours dealing with NEC disputes which have only arisen where one or both of the parties (or Project Manager) has not done what the contract requires it to do.
For me, the ‘rules’ are clearly set out in an NEC contract (subject to any inconsistencies that may arise due to copious amendments), that provides the perfect starting point for me to ascertain what has gone wrong, in the event of a dispute.
As I have mentioned amendments – I cannot emphasis strongly enough that all those involved with an NEC contract must familiarise themselves with the contract terms – especially the effect of any amendments – and please do not forget any additional contract requirements that may be stated in the Works Information or Scope!
What would you say is the biggest effect on construction contracts from Covid-19?
Curiously, I co-presented a webinar for the Chartered ICES which looked at the impact of Covid-19 on NEC contracts. Whilst this was with a view to identifying any compensation events that may have been triggered by the impact of Covid, the webinar also considered the impact of government guidance, some of which later became law.
Whilst it must be acknowledged that the government required construction work to continue throughout the pandemic, there remained the reality of people contracting Covid-19 and being unavailable for work. In that situation, there was no guarantee that a contractor could promptly change its workforce.
Further, additional requirements in respect of social distancing, travelling restrictions (which also applied during the governments tiering system), increased problems with supply chains, and the increasing cost of materials.…this has all had an impact on construction during Covid-19.
It is hard to say what has been the biggest effect.…as I speak with Directors of some companies that have done well throughout the pandemic – indeed, they have been profitable. By contrast, others have floundered. This may be related to the size and available resources of these companies, or it could just be that some have been less able to adapt to the impact of Covid-19.
Whatever the case may be, I can say with confidence that as disputes continue to arise in respect of Covid-19, contractors are going to have to retain good quality records if they are to demonstrate that the problems they now face are directly related to the impact of Covid-19, and no other reasons.
If you had to give one piece of advice to contractors/subcontractors, what would it be?
That is an easy one….“make sure the contract is right for you and act as stated in the contract”.
Many larger organisations are likely to have their own legal department which should be able to review all contracts and identify risk. However, it is not the legal department that will be administering the contract on a daily basis, it will be the Site Team (and associated Management at the main office). As such, I have always recommended that the whole team take the time to read and understand the contract so that they can pre-empt and avoid any issues that may lead to a dispute…with particular attention being required for the effect of any contract amendments.
As for smaller companies that may not have the luxury of a legal department, the same principle applies. It may be that these companies need an expert review of their contracts, and I am pleased to say that I have been able to do that for several clients over the years who have then been better placed to avoid getting into disputes. I have also provided training whereby I have been asked to present, for example, an overview of NEC compensation events to the commercial team, which I then adapted in respect of the needs of a particular project.
What are you most proud of in your career?
My ability to adapt to new situations.
As noted earlier, my career started within a consultancy that specialised in construction claims and disputes. As such, I have been required to handle a good number of disputes that may involve an understanding of specific construction techniques – for example, when I handled a dispute related to butt fusion welding of PE pipes. Though my career did not start on site, where I would have had greater exposure to a number of construction methods, this has never caused me any problems. I have developed the art of asking the right questions and, hopefully, the ability to listen and understand the answers.
My favourite example of this, which resulted in my favourite win, relates to the failings of a geotechnical report that had been provided for the construction of an oil pipeline in Scotland. With only a limited knowledge of geology (from school), I managed to overturn a delay claim whereby the contractor was excavating a soft metamorphic rock (schist), which had been further subjected to regional metamorphism, whereby the contractor encountered large formations of quartz.
The SI Report mentioned the schist, and even mentioned the possibility of a few igneous intrusions (dykes and sills) but, in general, the report did not flag up any potential issues that would have significantly affected the excavation of the pipeline.
Hence, the contractor commenced at the Southern end of the site using just an excavator with a breaker/pecker attachment, this was more than sufficient, and good daily progress was being made. However, as the pipeline headed Northwards, the excavation got slower and slower, eventually, only 1m a day progress was being made.
Why? The answer to this was revealed after my undertaking an as-built site survey and some research of the geology of the region. The problem was caused by the regional metamorphism associated with the presence of a huge igneous intrusion (a former magma chamber) North of the Site that had changed the morphology of the surrounding rocks.
Having provided a somewhat damning report on the matter, which my Geologist friend ‘sanitised’ in respect of the correct terminology, the Employer’s claim for damages was overturned.
What would you change about the construction industry?
If I were to step back and consider what causes the most problems in the construction industry (e.g., late payments), I would then answer in respect of those problems and propose a solution, or solutions.
Solutions to commonplace problems have already been provided by means of legislation, and the provision of new or revised contract forms. For example, the payment provisions in the Construction Act have been provided to help prevent problems with late payments. However, the very precise wording used (which attempts to cover all scenarios) just seems to create new problems, as some contracting parties still have problems understanding the legislation.
By contrast, the plain language used in the NEC contract was intended such that there are no ambiguities as to the requirements and obligations of the parties to a construction contact. Both are required to ‘act as stated in the contract’. This would appear to be a straightforward requirement, but as demonstrated at the Chartered ICES Cambridge Lecture in October 2014, the NEC can create considerable debate about the words that are used.
I could probably write a book about this if I spent enough time thinking about it, but for now, and by reference to the above examples, I would ensure that the Construction Act was re-drafted for the benefit of the lay man, such that everyone can understand it. Also, I would make NEC training mandatory for everyone involved with an NEC contract – that really could help to prevent disputes/problems arising, especially if people are encouraged to engage with not just the words, but also the “intention” of the contract.
What do you like to do when you are not working?
I enjoy spending time with family, especially when my wife’s daughter and family come down for a few days.
I am an amateur pianist, violinist, and viola player. When time permits (as serious time and practise is involved), I intend to work towards passing the upper two Performance Diploma levels with Trinity College (i.e., LTCL & FTCL), which will mean that I will become a professional musician. I already play much of the repertoire (e.g., most of Beethoven’s Piano Sonatas, Brahms Viola Sonatas) but need to take the time out to seriously hone my skills to the required level.
On a clear night, and when the opportunity presents itself, I enjoy spending a few hours in the back garden with one of my telescopes (I am down to 4 nr at the moment) exploring the night sky.
What is the best thing about working at Arbicon?
I am confident that as I settle in over the next few months and can contribute more to the business within my key areas of expertise, this is going to be the best career move I have made.
It is early days of course, but I particularly enjoy working alongside such experienced professionals with such a diverse level of experience and knowledge. It will be a privilege to glean what I can from them, and as there is ample encouragement for career progression, I look forward to progressing my career.
If you need any contractual advice, require any clauses to be checked or would like a contract written, please contact Arbicon on advice@arbicon.co.uk or call 01733 233737.
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