Architectural practice has witnessed series of absurdity in Nigeria over the last 20 years. The architect however, is not practicing in vacuum. There are many actors in the industry, like the clients, contractors, specialist consultants etc whose input affects the success of the practice of the architect. This is no time to place blame, but rather to mention the distortions for other theses to identify the cause and the remedy. It is important to point out these to ourselves just to remind us as leaders of the industry of our responsibility to at least mention. Edmund Burke⁶ was quoted as saying “the only thing necessary for the triumph of evil is for good men to do nothing”. If the least architects can do is to mention, let us do something.
Perhaps one of the earliest shock a practitioner in architecture faces is that of compliance with the requirements of the Code of Conduct provision under professional obligations that a member “shall act impartially, firmly but fairly between client and contractor.” The client always feels that ‘he who pays the piper, dictates the tune”. In private practice, the architect is seen as ‘compromising’ his position or even integrity any moment he judges in favor of the contractor; in the public sector, the desk officer is expected to shun the rights of his colleagues in practice and the contractor simply because they are all assumed ‘contractors’. The notion in commodity trading that ‘the client is always right’ is blindly applied. This is surely not unconnected with the lack of understanding of role of the architect.
In Nigeria, anyone can register a construction business. One glaring and disturbing misconception of the Nigerian contracto-class is the unfortunate belief that in every contract, there is a profit. This belief unfortunately cuts across all levels of our indigenous contractors. Contractors accept or quote ridiculous price not minding the specifications and quantities, thinking that there is either a profit, or a way of manipulating the contract to profitability. It is like any one you offer a contract, will just be looking for the dotted lines to sign without even scanning through the contract documents. Many get away with un-contractual revisions, or simply abandon the job with impunity as if there is no penalty for breach. Once the project is abandoned, the employer has no option but to explore the provisions of clause 25 of the contract conditions to terminate the contract. Clause 25, sub-clause 4.5 provides the penalty for breach as thus:
“The contractor shall allow or pay to the employer in the manner hereinafter appearing the amount of any loss and/or damage caused to the employer by the determination.”
How many of us here ever witness or heard of this provision enforced in Nigeria, especially in government contracts? The contractor just walks away un-challenged. Even with the introduction of BMPIU the situation did not change.
Contractors therefore hustle to pick the contract at any price, collect advance payments, and try to get away with substandard works or pursue undue cost changes. If all fails, abandon the job. The next tender they may still get. The erroneous notion that after prequalifying, ‘lowest bidder gets the job’ imbibed by the BMPIU made the situation worst. Bidding contractors make impressive theoretical submissions for prequalification: good list of technical staff; but how are you sure they did not just rent a copy of their CVs? Impressive list of plants and equipments; how are you sure they really own them, submitted proof of ownership notwithstanding? Good paper evidence of financial record and backing, despite which he cannot move without being given advance payment.…..and so many other theoretically inclined documentations that will pre-qualify the bidder. Ones the bidder makes the prequalification list, his only task is to make sure he bids lowest. So many ridiculously low bidders got away with the BMPIU approval, and if the records of such projects will be closely monitored, they may end up being completed much higher than imagined, or abandoned.
Other provisions of contract conditions that suffer neglect are the Liquidated and Ascertained Damages; Fluctuation Clause and Period of Honoring Certificate. One rarely hears of a contractor being charged for delayed completion.
Fluctuation Clause, is a clause properly tied to procedures: first the clause must be part of the conditions; secondly, there must be a schedule of basic prices; thirdly, the material being claimed must have been listed in the schedule of basic prices; fourthly, the contractor must have notified the architect of the changes in price prior to purchasing; fifthly, the contractor must submit the invoice of the purchased item.. and many more. Very rarely contractors notify of changes of prices, they go ahead and purchase and submit the invoices. Moreover, invoices are very easy to produce in the name of any imaginary company. This makes the screening of fluctuation documentation very difficult and a times messy.
Contractors are rarely paid within the stipulated period of honoring certificates, and under most provisions their remedy is to terminate the contract, this is a decision they hardly want to take. Only on very rare occasions the contract conditions provide for interest on delayed payments, which even if provided, are hardly enforced.
Institutionalizing Mobilization Advance has become the order of the day in construction industry with the lame justification that it is meant to cushion the effect of fluctuation, even though it is paid for even non-fluctuating contracts. This presupposes that in Nigeria, prices of building materials are always rising, not even responding to the basic economic rule of supply and demand. Three weeks ago , price of cement rose to 1800 naira per 50kg bag, but newspaper report this week reported a drop to 1650 naira in response to supply and demand.
Why must a contractor whose financial standing is one of the reasons for his being pre-qualified be paid mobilization advance under the guise of “cushioning fluctuation”? How can the provisions of Clause 25 be enforced? How do the contractors wriggle out of the low prices quoted and who are the culprits? How can a data bank be raised to monitor black-listed contractors?
In the light of the Nigerian situation, shall these and many other clauses of the standard contract conditions be revisited?