How a new contract is enabling safer, greener construction

Professor David Mosey saw the negative impact on the UK construction industry of ‘dog eat dog’ competition before most people. Drawing on four decades’ experience in the sector, his work – developing new legal instruments to encourage collaboration - has enjoyed support from government and won plaudits from an industry seeking to turn over a new, safer, greener leaf.

What does it take to change the culture of an industry?

In 2019, the UK construction sector recorded £119 billion of new work, but the industry – which provides jobs for over 2 million people - has remained notoriously dysfunctional, with major projects subject to delay; and overspends and disputes commonplace.

In the aftermath of the Grenfell Tower Disaster, the need for a more joined-up approach was clear. In Building a Safer Future, Dame Judith Hackitt described the sector as “excessively fragmented”, and experiencing a “system failure” resulting from factors including a “lack of clarity on roles and responsibilities.”

She commented: “Improving the procurement process will play a large part in setting the tone for any construction project. This is where the drive for quality and good outcomes, rather than lowest cost, must start.”

Fortunately for all of us, Professor David Mosey was already developing solutions to just this problem.

Over 200 firefighters are required to control the blaze at Grenfell Tower, West London, 14 June, 2017. Photo credit: Paul Davey/Future Publishing via Getty Images

Prior to joining King’s Centre of Construction Law and Dispute Resolution, Mosey spent 33 years as a specialist construction lawyer, including over 20 years as Head of Projects and Construction at solicitors Trowers and Hamlins LLP. He has been looking at ways to promote collaboration, and encourage a longer-term approach, since the mid-nineties.

For Mosey, many of the industry’s problems could be overcome by a new type of strategic contract. This contract would enable multiple clients to collaborate across multiple projects; to integrate the various two-party contracts that exist in these projects under one ‘umbrella’; and to encourage early interactions with consultants, contractors and sub-contractors. It would do so by clearly setting out, for all sides, the ‘rules of the game’: the need to engage at an early stage; how the various parties would share information; the areas to explore, which would include value, innovations, efficiency, and risk.

In 2014, Professor Mosey began developing the Framework Alliance Contract (FAC-1). Under a FAC-1, the process of collaboration runs in parallel to the award of work. The entire supply chain is invited to contribute, bringing a diverse range of specialist knowledge to bear.

Professor Mosey: "Engaging with this wider group is not only about due diligence, it is a way of getting them to share and improve designs. If I was a cladding specialist trying to prove that my product was desirable on a residential property rather than dangerous, I would want to share a lot of early information with my clients and contractors. I wouldn’t just be saying, ‘I obey the new regulations.’ I would be saying, ‘This is how I work. This is how I will collaborate with you. This is the extended warranty I could offer. This is the support I could provide on-site,’ and our dialogue would improve building safety.

"This is important because architects and engineers don't know every source of supply at the point when they're designing. If they can’t connect their designs to the specialist manufacturers, the processes of innovation and risk management can collapse.”

In the lead up to its publication, in 2016, the FAC-1 was evaluated in consultation with 120 organisations in 14 jurisdictions. Its use in practice has been found to improve understanding of individual members’ responsibilities and their commitment to collaborative working; to enable cost savings and more sustainable designs; to reduce defects and carbon footprint; to extend warranties; to increase opportunities for small and medium-sized enterprises; to create new employment and training initiatives; and to reduce potential disputes. The approach can be adapted to fit all construction projects.

By providing a templated approach, Mosey’s solution has also delivered greater consistency and cost savings, eliminating the need for bespoke contracts.

The goal is to encourage long-term relationships with value for not just the parties involved, but also for society.

FAC-1 quickly found favour across the industry, and has been endorsed by Crown Commercial Service, the Construction Industry Council and Constructing Excellence. Designed for use in any common law or civil law jurisdiction, it has also been adopted in Germany, Italy, Kazakhstan, Brazil and Spain. To date, it had been used to procure an estimated £90bn worth of works in social housing, schools, highways and public buildings.

Within the UK, evidence of FAC-1’s role in encouraging positive collaboration includes an agreement between contractors on the Government’s prisons programme to pursue offsite manufacture, resulting in a safer, lower carbon approach; new training and employment initiatives, including the Surrey-Kier alliance’s S-Skills Programme, which created almost 100 apprenticeships; and an initiative by the London Borough of Southwark to create a community of micro-SME architects, to support its home building programme by sharing designs based on their specialist insights regarding local communities.

Since its launch, Professor Mosey has been in high demand. He was part of the team that drafted the Government’s Construction Playbook, published in December 2020. He also delivered Constructing the Gold Standard, an independent analysis of the components required to deliver a gold standard procurement framework, which was published by the Cabinet Office in December 2021 with approval of all his recommendations.

Mosey co-authored Guidance on Collaborative Procurement for Design and Construction to support Building Safety, which looks at procurement processes in relation to tall buildings and was published by the Government in January 2022. Commenting at the time, he said: “To prevent another Grenfell Tower disaster depends on a major overhaul of construction procurement practices. We must break out of the adversarial culture which currently allows a ‘race to the bottom’ through which lowest prices undermine safety and quality.”

While Mosey’s research focus on systems and processes, its impact stems from his deep understanding not only of the law, but the construction sector and its culture. His ability to identify solutions is matched by his appreciation of the need to bring people on the journey, and address concerns along the way. His approach is not only enabling a safer, greener construction industry – in time, it should also deliver a more profitable one.