This week, two of the BIFM’s signature interest groups – WiFM and Procurement – came together to host an event aimed at tackling the tricky topic of maintenance contracts and, in particular, the various practical and legal pitfalls that can arise from them.
Refreshingly, the discussion was not dominated by talk of Carillion (as was anticipated). In fact, the service provider’s name was not uttered once. Rather, the session delved deeper into the practical aspects of successful maintenance contracts. This was covered by Chris Jeffers, Chair of the BIFM’s Procurement SIG and Head of FM Consultancy RLB. Jeffers’s take on maintenance contracts was a holistic one: back to basics, it is ultimately the thoughtful communication between the two parties, service provider and client organisation, that will keep a contract sweet. In this vein, regular face-to-face meetings are vital to avoid the misinterpretation of tone that’s common via email, as well as sensible KPIs that follow the SMART principle, and deftly managing client expectations from the get-go to avoid confusion or disappointment down the line.
On the other side of the panel, solicitors Sarah Shafiq and Philly Lutter-Paz, from Reynolds Porter Chamberlain, presented a legal perspective on contract disputes. Lutter-Paz said: “I fear that we may sound all doom and gloom, but our background is in disputes, so that’s to be expected.”
Both emphasised that the ongoing success of a maintenance contract starts from the very beginning, and savvy contractors will be mindful of the potential bumpy road of disputes arising. For instance, differing interpretations of a contract’s meaning is a common cause for dispute. As an example, a contract for a hospital dictates that ‘the plant room must be cleaned regularly.’ What ‘regularly’ means – e.g. once a day, or three times a day – must be laid out in black and white to dispel any opportunity for ambiguity. When the contract goes to tender and is awarded to a new service provider, this process must be repeated. Another piece of advice, unsurprisingly, was that companies can protect themselves from risk by keeping stringent records of everything (be it on or offline) with a backlog for a bare minimum of seven years. This could be maintenance records, cost or email correspondence, all stored in a central source so that in the occasion of a dispute, all the information is there and ready to hand.
To quote Lord Collins in court, as Philly did in the session: “In complex documents of the kind in issue there are bound to be ambiguities, infelicities and inconsistencies”. The overarching theme of the session was that communication and sensible forward planning are key to nailing the procurement process, and maintaining a positive relationship thereafter.