Ten years after that in 1944 (over 70 years ago) the Simon Report was published which, amongst other things, recommended a more collaborative approach to design and construction with earlier contractor involvement. Then, if we move forward a further twenty years to 1964 (over 50 years ago) the Banwell Report was published; a report that focussed on team relationships, construction contracts and other construction documentation. It looked, in detail at the traditional separation between design and construction and criticised the industry for having entrenched positions.
Thirty years after that, in 1994 (over 20 years ago), the Latham Report was published, and that report identified industry inefficiencies, and condemned industry practices existing at that time as ‘adversarial’, ‘ineffective’, and ‘fragmented’; and it urged reform and advocated partnering and collaboration by construction companies (a view that was reinforced in the Egan Report which was published three years after that).
Now we are in 2016, and although there has definitely been a culture change since 1934, it is clear that the ideals of collaboration promoted from 80 years ago have still not yet been fully achieved.
Collaboration in terms of construction projects may be considered as being organisations working together to proactively and jointly manage project risks in order to achieve the common goal of effective project execution. However, whilst that aim may seem to be most laudable, the problem that is faced is that what may be an ‘effective project execution’ for one party may not be the same as it is for another party.
Clearly, in the real world, true collaboration will only really be achieved if each party’s definition of an ‘effective project execution’ are aligned into one common goal which each party sees as being beneficial to it and to each other. This ideally would be to provide a project to the required standard, on time, and at or under budget. Without such a clear common goal, ‘real’ collaboration and integration between parties from different specialist areas will be extremely difficult to achieve.
Some argue (as was argued in the Egan Report) that if a common goal is found, and the parties recognise their mutual interdependence, then formal contract documents should gradually become obsolete. However, many other people are of the view that parties work collaboratively more effectively when a formal contract is in place because the contract provides a more formal framework for the parties to work within.
In the past 20 years, the choice of collaborative contracts has improved and now includes the JCT Constructing Excellence Contract, JCT Partnering Charters; the NEC 3 suite of contracts; the ACE PPC 2000; and the CIOB Complex Construction Contract 2013, amongst others.
Often, collaborative contracts are assumed to be synonymous with a vague concept of ‘Good Faith’. Whilst it is true that general ‘Good Faith’ provisions are a common feature in collaborative contracts, the legal effect of such provisions is debatable. English law does not currently recognise a universal implied duty on contracting parties to perform their obligations in good faith. Although in Yam Seng Pte Ltd v International Trade Corp Ltd  EWHC 111 (QB), Mr Justice Leggatt criticized the English court’s traditional hostility towards an implied duty of good faith in English contract law, in a slightly later Court of Appeal case (Mid-Essex Hospital Services v Compass Group  EWCA Civ 200), Beatson LJ said, "care must be taken not to construe a general and potentially open-ended obligation such as an obligation to ‘cooperate’ or ‘to act in good faith’ as covering the same ground as other, more specific, provisions, lest it cut across those more specific provisions and any limitations in them". This therefore suggests that, in respect of English Law in particular, the courts are leaning towards a rather restricted interpretation and application of such implied provisions.
Of course, there may be new legal precedence flowing from more tightly drafted ‘Good Faith’ clauses in some of the modern collaborative contracts (the JCT Constructing Excellence Contract, for example), which is intended to provide that any failure to observe the ‘overriding principle’ (i.e. working together in ‘Good Faith’ and in spirit of mutual trust and respect) should be taken into account in the determination of any dispute arising from the contract. Pressure to change may also come as European Law, where an implied duty to act in ‘Good Faith’ is recognised, continues to enter into English Law through the implementation of European Directives. However, neither of these situations have had an impact upon this matter at the present time.
Therefore, at the moment, and despite the ideals of collaboration stated above, the legal position in England is generally against an implied term of Good Faith in commercial contracts.
Good Faith and collaboration largely go ‘hand-in-hand’, and because of the legal landscape as set out above, it may well be that collaboration will only be applied universally when parties are, in effect, compelled to collaborate (which seems to be an incongruous use of disparate words), and through this compulsion the parties see the benefits to each of them arising from the collaboration.
On this basis, the most obvious process that may compel parties to collaborate, and which is gaining ground in the UK construction industry, is BIM (Building Information Modelling) which, because of its very nature, obliges parties to jointly and openly contribute and add to a universal project computer model and therefore requires and, in effect, ‘forces’ the parties to collaborate with one another.
Therefore, in a strange way, and notwithstanding the other proclaimed of BIM, one of its greatest accomplishment may actually be seen to be the vehicle that finally brings a truly collaborative approach to the construction process in the UK, something that people have been seeking for many years.
Alternatively, of course, that may simply be yet another ‘Utopian’ pipe dream in respect of collaboration, and we may all simply continue ‘reaching for the skies’ as Alfred Bossom was doing over eighty years ago?