‘Legal handcuffs’ shackling work on public projects, warns senior engineer

An overly legalistic and adversarial approach by the public sector has made delivery of public projects in a timely and cost-efficient manner impossible, said Tim Murnane of Punch Consulting, a firm which specialises in big engineering projects and whose clients include government departments, state agencies and local authorities.

“Ultimately this adversarial approach puts me as a consultant engineer in a position where I’m in one room designing and I have Arthur Cox and William Fry in the next room and, if I put a foot wrong, I get clobbered,” said Murnane, who is also President of the Association of Consulting Engineers of Ireland (ACEI).

The long-awaited infrastructure taskforce report is expected to be published in the coming weeks and the Government has insisted it will contain measures to greatly reduce the time it takes to deliver important water, energy, housing, health and transport projects.

But, said Murnane, if the new measures do not manage to reduce the adversarial nature of the bespoke contracts which many state agencies now insist on having, it will fail.

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“What the client wants us to do is to design and add value and reduce cost and shorten programmes by doing really good design and investing in design. But we’re spending that time negotiating legal contracts, which is bananas,” said Murnane.

Lawyers, he said, had a job to do and they do it very well: “They will do what they are instructed to do. If they are asked to draw up contracts that transfer the risk to the consultants that’s what they will do. It is up to the Government and the civil servants to understand that this isn’t appropriate.”

Public sector contracts by a number of state agencies involved with the delivery of badly needed social and affordable housing were particularly onerous in this regard, he said.

“They have a really adversarial approach to all this. They use a particular form of contract that is about dumping all of the risk onto the consultants, whether it is appropriate or not. This is public money that we, as a sector, don’t believe is best spent trying to dump risk onto us.”

If Ireland wants to build the infrastructure that it requires in a timely fashion, it needs a much more collaborative approach between the industry and the public sector, he said.

But, he said, in Ireland, when it comes to building crucial public infrastructure “there are layers upon layers of bureaucracy, way too many rules, people are tied up in knots”.

“There is a lack of trust, contractual arrangements that are kind of adversarial, and not enough collaboration. When you throw all that into the pot, it kind of gets us to where we are.

“Why are we reinventing the wheel each time on such a simple thing as how an engineer is procured on a job? Don’t waste our time doing that crap. Allow us to put our time into designing. That’s how we generate value on projects.”

Irish engineering and construction firms are some of the best in the world and with money available for infrastructure, huge improvements are possible. But, said Murnane, the problems that are stopping this stem from a hugely cautious approach that was adopted following the Celtic Tiger period.

“In fairness to the civil servants, they’re scared to death that if they make a mistake they’ll be hung out to dry. So they’re trying to dot the i’s and cost the t’s,” he said.

“But when you deviate away from a collaborative approach into a more adversarial type of approach I think you start to run into trouble.”

Procurement contracts that are much “more optimal and which would enable a very efficient procurement and delivery process from the engineering perspective” are available to the sector.

But, he said the company has to negotiate one-off contracts on a huge number of jobs and “this completely diverts our time away from the engineering bit, the bit that the client actually wants us to do.“