Conflict Avoidance Process in Scotland (CAP)

March 12, 2021

Len Bunton of Bunton Consulting tells SNIPEF how Conflict Avoidance Process in Scotland, or CAP for short, is something your business should get involved in.

WHY?

For the simple reason that CAP is an early intervention process that comes into play when problems on a construction project arise and you can’t find a solution. An example might be that there is an issue, and the employer is arguing with the contractor that something the contractor has to do is “design development” and the contractor is not entitled to a variation, and that might involve you as a subcontractor. So, you need to get that resolved and you can refer the matter to a CAP.

So how does it work?

First the employer and the contractor need to have agreed to have the CAP in the main contract and you would want that provision in your subcontract. If an issue arises then the parties can either have a CAP named in the contract, or they can get a list of experienced professionals from the RICS. It could be an architect/QS or services engineer. Both sides identify the issue and call in the CAP for a discussion, and the CAP in due course issues a non-binding recommendation on resolving the issue. Anecdotally, most recommendations have been accepted and the parties get agreement, and the matter is resolved, and you can move on. This stops all the bickering you get on projects these days.

So, what do you need to do?

First you need to go to the website of the RICS Conflict Avoidance Pledge and sign that. The RICS will then send you some further information on the process. If you need further guidance, then contact me through your member organisations. If you are about to sign a contract, then suggest to the other party that you would like to have this process in play. Or if you have a problem on a current contract, then do the same.

Now I hear you asking “how much will this cost?

First, nothing to get a CAP appointed, and it only costs money if the CAP does any work, probably on an hourly or a daily basis. Most issues get resolved quickly in a day or so, but you can get an idea of costs before you get the CAP involved. Ideally the costs are shared between the parties. Please bear in mind that if you go to Adjudication, that will be costly, and even if you get a good Decision then you still might not get paid, so this is a very good option. Really good progress is being made in Scotland on CAP. So far 40 organisations/individuals have signed the Pledge, including SELECT and SNIPEF. A Working Group is being set up to drive the process forward. The great thing to me is that this is a cultural change in the Industry resulting in far greater collaboration.

Fiona Hodgson, CEO of SNIPEF says: “As we are all too aware, conflict is a major disruptor in a large number of contracts and goes right down the supply chain involving companies in expensive, long and often damaging litigation, with many smaller companies simply not having the time, money or resource to engage in the process. There are deep concerns in the industry that the impact of the COVID-19 crisis will exacerbate the problem and the Conflict Avoidance Process offers a new approach to dealing with conflict. By embedding conflict avoidance mechanisms into projects early on, conflicts can be managed through collaboration and early intervention before they become disputes providing a cost effective and timely alternative to companies”.

Please sign the Pledge here!

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