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Collaborative Construction Procurement and Improved Value

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Collaborative Construction Procurement and Improved Value

David Mosey

ISBN: 978-1-119-15193-7 April 2019 Wiley-Blackwell 568 Pages

Description

The guide that explores how procurement and contracts can create an integrated team while improving value, economy, quality and client satisfaction

Collaborative Construction Procurement and Improved Value provides an important guide for project managers, lawyers, designers, constructors and operators, showing step by step how proven collaborative models and processes can move from the margins to the mainstream. It covers all stages of the project lifecycle and offers new ways to embed learning from one project to the next.

Collaborative Construction Procurement and Improved Value explores how strategic thinking, intelligent team selection, contract integration and the use of digital technology can enhance the value of construction projects and programmes of work. With 50 UK case studies, plus chapters from specialists in 6 other jurisdictions, it describes in detail the legal and procedural route maps for successful collaborative teams. 

Collaborative Construction Procurement and Improved Value:

  • Examines the ways to create an effective contract that will spell success throughout the procurement process
  • Contains helpful case studies from real-world projects and programmes
  • Explores the benefits of the collaborative construction process and how to overcome common obstacles
  • Bridges the gaps between contract law, collaborative working and project management
  • Includes the first analysis of the NEC4 Alliance Contract, the FAC-1 Framework Alliance Contract and the TAC-1 Term Alliance Contract

Reviews xiii

Preface xix

Acknowledgements xxi

About the Authors xxiii

1 What Is Collaborative Construction Procurement? 1

1.1 Overview 1

1.2 What Is Collaborative Construction Procurement? 2

1.3 Why Is Collaborative Procurement Important? 4

1.4 What Research Has Examined Collaborative Construction Procurement? 6

1.5 What Case Studies Support Collaborative Procurement? 7

1.6 How Is Collaborative Procurement Connected to Digital Technology? 9

1.7 How Is Collaborative Procurement Connected to Contracts? 10

1.8 Who Was Sir Michael Latham? 12

1.9 How Can Collaborative Procurement Reflect ISO 44001? 13

1.10 What Should Collaborative Procurement Provide? 15

2 What Are the Foundations for Collaborative Construction Procurement? 19

2.1 Overview 19

2.2 What Is Different About Collaborative Construction Procurement? 20

2.3 How Are Construction Contracts Formed? 23

2.4 What Is Different About a Collaborative Construction Contract? 25

2.5 What Is an Alliance? 26

2.6 How Does BIM Affect Collaborative Procurement? 29

2.7 What Is Early Contractor Involvement? 30

2.8 What Are Two Stage Open Book, Cost Led Procurement and Integrated Project Insurance? 31

2.9 What Is Supply Chain Collaboration? 34

2.10 What Are the Supply Chain Collaboration Activities? 37

3 How Does a Project Alliance Operate? 39

3.1 Overview 39

3.2 What Is a Collaborative Project Team? 40

3.3 How Can a Collaborative Team Form a Project Alliance? 41

3.4 How Does a Project Alliance Operate? 42

3.5 How Can a Project Alliance Use Early Contractor Involvement? 45

3.6 How Can a Project Alliance Use Supply Chain Collaboration? 47

3.7 How Can a Project Alliance Measure and Reward Performance? 49

3.8 How Can a Project Alliance Improve Value and Outcomes? 51

3.9 How Can a Project Alliance Deal with Problems? 52

3.10 Project Alliance Case Studies 54

4 How Does a Framework Alliance Operate? 59

4.1 Overview 59

4.2 What Is a Framework? 60

4.3 How Does a Framework Contract Operate? 61

4.4 What Is a Framework Alliance? 63

4.5 How Does a Framework Alliance Award Work? 65

4.6 How Can a Framework Alliance Use Supply Chain Collaboration? 66

4.7 How Can a Framework Alliance Measure and Reward Performance? 68

4.8 How Can a Framework Alliance Improve Value? 69

4.9 How Can a Framework Alliance Deal with Problems? 71

4.10 Framework Alliance Case Studies 73

5 How Does a Term Alliance Operate? 79

5.1 Overview 79

5.2 How Does a Term Contract Operate? 80

5.3 What Are the Term Contract Forms? 81

5.4 What Is a Term Alliance? 83

5.5 How Does a Term Alliance Award Work? 85

5.6 How Can a Term Alliance Use Supply Chain Collaboration? 86

5.7 How Can a Term Alliance Improve Asset Management? 87

5.8 How Can a Term Alliance Improve Value? 88

5.9 How Can a Term Alliance Deal with Problems? 90

5.10 Term Alliance Case Studies 92

6 How Are Collaborative Team Members Selected? 97

6.1 Overview 97

6.2 What Are the Problems with Single Stage Selection? 98

6.3 How Can Early Contractor Selection Enable Collaborative Procurement? 100

6.4 How Can Early Contractor Selection Create More Accurate Prices? 102

6.5 How Are Collaborative Team Members Selected? 104

6.6 How Do Framework Selection Procedures Operate? 107

6.7 How Can Evaluation Criteria Balance Cost and Quality? 109

6.8 Can Early Contractor Selection Comply with Public Procurement? 111

6.9 Can Collaborative Working Occur During Selection? 113

6.10 Collaborative Selection Case Studies 115

7 Does Collaborative Procurement Need a Contract? 119

7.1 Overview 119

7.2 What Is the Impact of a Non-binding Agreement? 120

7.3 What Is the Impact of a Letter of Intent? 123

7.4 What Is the Impact of Implied Good Faith? 124

7.5 What Is the Impact of Express Good Faith? 128

7.6 What Is a Virtual Organisation? 130

7.7 What Is the Impact of a No Blame Clause? 132

7.8 What Is the Impact of a Collaborative Contract? 135

7.9 What Is the Impact of a Multi-Party Contract? 136

7.10 Collaborative Construction Management Case Studies 139

8 What Types of Contract Support Collaborative Procurement? 143

8.1 Overview 143

8.2 What Is a Relational Contract? 144

8.3 What Is a Conditional Contract? 146

8.4 What Is Enterprise Planning? 148

8.5 What Is an Enterprise Contract? 149

8.6 What Are the Enterprise Features of a Project Alliance Contract? 152

8.7 What Are the Enterprise Features of a Framework Alliance Contract? 153

8.8 How Can Collaborative Procurement Support a Joint Venture or Client Consortium? 154

8.9 How Can Collaborative Procurement Support a Public Private Partnership? 157

8.10 Collaborative Joint Venture and Consortium Case Studies 159

9 What Standard Form Contracts Support Collaborative Procurement? 165

9.1 Overview 165

9.2 What Is the Role of Standard Form Contracts? 166

9.3 How Can Standard Form Contracts Support Collaborative Procurement? 167

9.4 How Does FIDIC 2017 Support Collaborative Procurement? 169

9.5 How Does ICC 2014 Support Collaborative Procurement? 170

9.6 How Does JCT 2016 Support Collaborative Procurement? 172

9.7 How Does NEC4 Support Collaborative Procurement? 174

9.8 How Does PPC2000 Support Collaborative Procurement? 177

9.9 Which Standard Form Contracts Support a Project Alliance? 179

9.10 How Are Collaborative Project Contracts Used in Practice? 185

10 How Does the FAC-1 Framework Alliance Contract Operate? 187

10.1 Overview 187

10.2 What Are the Key Features of FAC-1? 188

10.3 How Does FAC-1 Award Work? 191

10.4 How Does FAC-1 Support Supply Chain Collaboration? 193

10.5 How Does FAC-1 Measure and Reward Performance? 194

10.6 How Does FAC-1 Support Collaborative Risk Management? 195

10.7 How Can FAC-1 Reflect Differing Requirements? 197

10.8 How Does FAC-1 Reflect UK Government and Industry Recommendations? 199

10.9 How Is FAC-1 Being Used in Practice? 201

10.10 FAC-1 Framework Alliance Case Studies 203

11 How Does the TAC-1 Term Alliance Contract Operate? 211

11.1 Overview 211

11.2 How Was TAC-1 Developed? 212

11.3 What Are the Key Features of TAC-1? 213

11.4 How Does TAC-1 Award Work? 215

11.5 How Does TAC-1 Support Supply Chain Collaboration? 217

11.6 How Does TAC-1 Measure and Reward Performance? 219

11.7 How Does TAC-1 Support Collaborative Risk Management? 220

11.8 How Can TAC-1 Reflect Differing Requirements? 221

11.9 How Does TAC-1 Differ from TPC2005? 222

11.10 How Are TPC2005 and TAC-1 Used in Practice? 223

12 How Is a Collaborative Culture Created? 227

12.1 Overview 227

12.2 What Is the Role of People in a Collaborative Culture? 228

12.3 Who Leads a Collaborative Culture? 230

12.4 Who Manages a Collaborative Culture? 232

12.5 How Can a Collaborative Culture Include all Stakeholders? 235

12.6 How Can a Collaborative Culture Improve Communication? 237

12.7 What Is the Role of a Core Group or Alliance Board? 239

12.8 What Is the Value of Training and Workshops? 242

12.9 What Is the Role of an Independent Adviser? 244

12.10 Collaborative Culture Case Studies 246

13 How Can BIM Support Collaborative Procurement? 251

13.1 Overview 251

13.2 What Is the Impact of Digital Technology? 252

13.3 What Is the Impact of BIM? 254

13.4 How Can BIM Enable Collaborative Procurement? 255

13.5 How Can BIM Support Early Contractor Involvement? 257

13.6 How Can BIM Support Whole Life Asset Management? 258

13.7 How Do Collaborative Teams Use BIM in Practice? 260

13.8 What Is the Impact of Smart Contracts? 261

13.9 What Are the Limits of Smart Contracts? 262

13.10 BIM Research Results 263

14 How Does BIM Support Collaborative Contracts? 267

14.1 Overview 267

14.2 How Does BIM Affect a Duty of Care? 268

14.3 How Does BIM Affect Agreed Deadlines and Interfaces? 270

14.4 How Does BIM Affect Intellectual Property Rights? 271

14.5 How Does BIM Affect Reliance on Data? 273

14.6 Who Manages BIM Data? 275

14.7 How Is BIM Treated in Construction Contracts? 276

14.8 How Does BIM Affect Alliances? 278

14.9 How Can BIM Deal with Problems? 281

14.10 BIM Alliance Case Studies 281

15 How Can Collaborative Procurement Improve Economic and Social Value? 285

15.1 Overview 285

15.2 How Can Collaborative Procurement Benefit All Team Members? 286

15.3 How Can Collaborative Procurement Create Cost Certainty and Cost Savings? 287

15.4 How Can Collaborative Procurement Improve Quality? 290

15.5 How Can Collaborative Procurement Improve Supply Chain Relationships? 292

15.6 How Can Collaborative Procurement Create Local and Regional Opportunities? 294

15.7 How Can Collaborative Procurement Support Employment and Training? 295

15.8 How Can Collaborative Procurement Support Improved Safety? 296

15.9 How Can Collaborative Procurement Support Environmental Benefits? 298

15.10 Benefits of Two Stage Open Book and Supply Chain Collaboration 301

16 How Is Collaborative Procurement Costed and Incentivised? 303

16.1 Overview 303

16.2 What Is the Impact of Open Book Costing? 305

16.3 How Can Collaborative Procurement Achieve a Fixed Price? 306

16.4 How Do Target Costs and Cost Reimbursement Operate? 308

16.5 How Can Early Contractor Involvement Control Costs? 310

16.6 How Is a Framework Alliance Costed? 313

16.7 How Is a Term Alliance Costed? 315

16.8 How Do Shared Pain/Gain Incentives Operate? 317

16.9 What Other Incentives Support Collaborative Procurement? 320

16.10 Collaborative Costing Case Studies 322

17 How Does Collaborative Procurement Manage Time and Change? 325

17.1 Overview 325

17.2 Why Is Collaborative Time Management Important? 326

17.3 Is a Programme the Same as a Timetable? 328

17.4 How Are Programmes and Timetables Treated in Construction Contracts? 331

17.5 What Timetables Support a Collaborative Team? 334

17.6 What Timetables Integrate Collaborative Design? 336

17.7 What Timetables Support a Framework Alliance or Term Alliance? 338

17.8 How Can an Integrated Timetable Improve Value? 339

17.9 How Can a Collaborative Team Manage Change? 341

17.10 Collaborative Time Management Case Studies 343

18 How Can Collaborative Procurement Improve Risk Management? 347

18.1 Overview 347

18.2 How Are Risks Priced? 348

18.3 How Can Risks Be Managed Jointly? 350

18.4 How Do Construction Contracts Treat Risk Management? 352

18.5 How Can Collaborative Procurement Improve Risk Management? 355

18.6 How Can a Collaborative Team Manage Ground Risk? 357

18.7 How Can Risk Be Managed Through No Blame Clauses? 361

18.8 How Can Risk Be Managed Through New Insurance? 362

18.9 What Is the Role of Project Bank Accounts? 364

18.10 Collaborative Risk Management Case Studies 366

19 How Can Collaborative Procurement Reduce Disputes? 371

19.1 Overview 371

19.2 Are Construction Disputes a Bad Thing? 372

19.3 What Are the Causes of Construction Disputes? 373

19.4 How Can Early Contractor Involvement Reduce Disputes? 374

19.5 How Can a Collaborative Team Avoid Disputes? 376

19.6 How Can Early Warning Avoid Disputes? 378

19.7 How Can a Core Group or Alliance Board Resolve a Dispute? 380

19.8 How Can an Independent Adviser Resolve a Dispute? 382

19.9 Are There Other Collaborative Ways to Resolve a Dispute? 384

19.10 Collaborative Dispute Resolution Case Studies 386

20 How Does Collaborative Procurement Operate in Australia? 391
Professor Paula Gerber and Marko Misko

20.1 What Is the Approach to Alliances in Australia? 391

20.2 What Is the Approach to BIM in Australia? 394

20.3 What Is the Approach to Construction Contracts in Australia? 396

20.4 What Is the Potential for a Framework Alliance in Australia? 398

20.5 What Are the Legal Issues Affecting an Alliance in Australia? 399

21 How Does Collaborative Procurement Operate in Brazil? 403
Dr Alexandre Aroeira Salles, Mariana Miraglia and Matatias Parente

21.1 What Is the Approach to Alliances in Brazil? 403

21.2 What Is the Approach to BIM in Brazil? 405

21.3 What Is the Approach to Construction Contracts in Brazil? 407

21.4 What Is the Potential for a Framework Alliance in Brazil? 410

21.5 What Are the Legal Issues Affecting an Alliance in Brazil? 412

22 How Does Collaborative Procurement Operate in Bulgaria? 415
Adriana Spassova

22.1 What Is the Approach to Alliances in Bulgaria? 415

22.2 What Is the Approach to BIM in Bulgaria? 418

22.3 What Is the Approach to Construction Contracts in Bulgaria? 421

22.4 What Is the Potential for a Framework Alliance in Bulgaria? 425

22.5 What Are the Legal Issues Affecting an Alliance in Bulgaria? 427

23 How Does Collaborative Procurement Operate in Germany? 433
Dr Wolfgang Breyer and Professor Stefan Leupertz

23.1 What Is the Approach to Construction Contracts in Germany? 433

23.2 What Is the Approach to Alliances in Germany? 437

23.3 What Is the Potential for a Framework Alliance in Germany? 439

23.4 What Is the Approach to BIM in Germany? 439

23.5 What Are the Legal Issues Affecting an Alliance in Germany? 440

24 How Does Collaborative Procurement Operate in Italy? 445
Professor Sara Valaguzza

24.1 What Is the Approach to Alliances in Italy? 445

24.2 What Is the Approach to BIM in Italy? 450

24.3 What Is the Approach to Construction Contracts in Italy? 453

24.4 What Is the Potential for a Framework Alliance in Italy? 454

24.5 What Are the Legal Issues Affecting an Alliance in Italy? 456

25 How Does Collaborative Procurement Operate in the USA? 461
Howard W. Ashcraft

25.1 What Is the Approach to Alliances in the USA? 461

25.2 What Is the Approach to BIM in the USA? 464

25.3 What Is the Approach to Construction Contracts in the USA? 466

25.4 What Is the Potential for a Framework Alliance in the USA? 467

25.5 What Are the Legal Issues Affecting an Alliance in the USA? 468

Appendix A Research Timelines 473

A.1 How Has Improved Value Been Delivered Using Early Contractor Involvement, Collaborative Working and BIM? 473

A.2 What Is the Relationship Between Procurement, Contracts and BIM? 473

A.3 What Are the Benefits of a Standard Form Framework Alliance Contract? 474

Appendix B Trial Projects Process 477

Appendix C Case Studies 481

Appendix D BIM Research Projects and Interviewees 487

Appendix E FAC-1 Consultation Group Members 489

Appendix F Amendments to FAC-1 and TAC-1 Consultation Drafts 493

Appendix G Completing FAC-1 501

Bibliography 509

Index 531

1.       Sir Rupert Jackson PC, retired Lord Justice of Appeal:

‘A successful procurement exercise or construction project is one in which all participants work together collaboratively to achieve a common end.  That is not easy to achieve because the participants each have their own commercial interests and reputations to protect. I have long believed that the mere inclusion of platitudes that "the parties will work together in good faith" adds little to the implied term of co-operation, and a series of recent cases have shown that such wording seldom avails the parties when a dispute erupts.
 
The present book goes far beyond platitudes.  It explores new ways of working and new contractual structures which can actually bring about collaborative working.  It demonstrates how the use of BIM can facilitate the ready sharing of information between members of the team.  It explains how the team members can benefit from the creation and development of a project alliance.  The research and case studies set out in this book will offer practical guidance to all who are working in the construction sector.’
 
 
2.       Matthew Bell, Senior Lecturer and Co-Director of Studies for Construction Law, Melbourne Law School:

 ‘For many in the construction industry, collaborative procurement is the holy grail. This new text by Professor David Mosey and leading practitioners from around the world provides a uniquely-valuable road map in pursuit of that goal. It not only explains the benefits of collaborative ways of working, it also helps industry professionals and their lawyers navigate the potential pitfalls by compiling a critical assessment of experience to date.
 
The text harnesses lessons learned and the value of technological innovations such as BIM. In this way, it provides both a ‘how to’ and ‘why to’ manual for realising the potential of collaborative construction procurement as we enter the third decade of the 21st century. ‘
 
 
3.       Mark Farmer, CEO Cast Consultancy and author of ‘Modernise or Die’:

‘There is a crucial need to adopt an integrated procurement model in order to deliver projects more efficiently, for example through increasing ‘pre-manufactured value’ by moving processes from the final site into controlled manufacturing environments. I commend this book whose international co-authors have collated an excellent global reference point, demonstrating how organising projects differently can create better outcomes for all parties.
 
The recommended procurement and contract systems are shown to achieve better aligned interests by harnessing learning and relationships from project to project and by using value-based selection and remuneration techniques. Unless you can deliver specific value-adding expertise through integrated working behaviours, the construction world will become an increasingly difficult place to make money and survive. Reading this publication is a vital part of future-proofing yourself!’
 
 
4.       Ann Bentley, Construction Leadership Council Board Member and Rider Levett Bucknall Global Board Member:

 ‘As any harassed parent knows, telling restive children to “play-nicely” is no guarantee that they will. Collaboration is much the same, and a broad expression of collaborative intent is no guarantee of collaborative behaviour: it requires knowledge, structure and commitment.

With this comprehensive and far-reaching analysis, taking us from the birth of collaborative contracts to their relevance and use around the world, David Mosey and his King’s College team go a very long way to filling important knowledge gaps. Collaborative Construction Procurement and Improved Value should be recommended reading for anyone considering undertaking a construction project, and compulsory reading for their advisers. I commend David and his team for this work and the contributions that it will make to improving the way construction is procured and delivered.’
 
 
5.       Professor John Uff CBE QC:

‘This seminal work brings together the fruits of studies and writings spanning many years and encompassing many projects throughout the world under a variety of legal systems.  The need for collaboration in the construction process has been a constant theme in the search for procedures and systems which can harness the expertise and energies of parties with divergent commercial interests while avoiding disputes. 
 
Procurement is the point at which collaboration begins, with the choice of project alliancing for a single enterprise or a framework or other longer-term arrangement bringing wider opportunities for collaboration.  These extended relationships are supported by the authors’ work in developing the FAC-1 and TAC-1 models for which impressive case studies are described.  The key to success is seen as the development of personal relationships, enhanced by digital technology including BIM, shared knowledge and appropriate motivation.’
 
 
6.       Shelagh Grant, Chief Executive, Housing Forum:

 ‘David Mosey’s extensive knowledge of the construction industry, and his well thought through solutions to delivering the best possible outcomes, come over strongly in this work.  Many examples are given of the collaborative links and early interactions that help achieve good quality and good value in difficult and complex situations.

The elements of successful collaboration are clearly laid out with particular emphasis on the selection of and relationships between team members. The application of digital technology is shown to work in particular alliance with this approach.’
 
7.       Nick Barrett, Editor, Construction Law:

Anyone viewing a typical construction project sees the impressive collaboration that brings designs, people, machinery and materials together in the one place, but they may not see the dangerous divisions that still exist in construction’s procurement and contractual underpinnings.This book’s authors show how a new focus on collaborative procurement can treat many of the industry’s ills. Evidence has been gathered internationally, not just from the UK, that collaborative approaches can make a major difference to outcomes. 
 
The need for a new industry strategy has never been greater, particularly after the Grenfell Tower disaster and the Carillion collapse. Collaborative procurement approaches that can be easily adopted are detailed in these pages, with a diversity of case studies that should convince even the sceptical.’ 
 
8.       Jason Russell,Executive Director, Highways, Transport & Environment, Surrey County Council:

‘As a Local Government Director, I am being challenged as never before to reduce costs whilst improving outcomes for our communities.
 
This timely book demonstrates that bringing together the wider supply chain at the right time, with clear outcomes and underpinned by effective processes, can deliver significant benefits. It provides a practical guide, built on the experience of many projects that have delivered proven results over a number of years, and it is essential reading for anyone interested in getting better value from their construction projects.’
 
9.       Kevin Murray, Deputy Director - Construction & Property, Government Property Agency:

‘This book provides comprehensive evidence that lays waste to the myth that collaboration does not need contractual provisions, commitment and accountability.’
 
 
10.    Dr David HancockConstruction DirectorInfrastructure and Projects AuthorityCabinet Office:

‘Since the success of Terminal 5 Heathrow, I have been a great supporter of collaborative approaches and ECI for complex construction projects. This book recognises that collaboration may not be a universal panacea, and it sets out the arguments and opportunities that need to be debated prior to making procurement decisions. Where those opportunities outweigh the risks, it provides the foundations both contractually and behaviourally to ensure the best chance of success, with real examples from industry. 
 
This is a book that will benefit both the novice and the expert, providing a high-level overview and a dive into details for the practitioner to implement, without bias to a single contract type and with guidance on Alliance Contract forms for those who wish to realise their benefits.’
 
 
11.    Don Ward, Chief Executive, Constructing Excellence:

‘Many people have worked to implement the recommendations of Latham and Egan for construction reform, but few can match David Mosey’s first-hand experience and expertise in delivering the approaches which he promotes in this book with characteristic clarity and skill. He has probably worked on more collaborative projects than anyone else in the UK construction industry in the last two decades. He can literally point to billions of pounds worth of projects which he directly influenced and helped on a journey to implement better collaboration, using contracts and procurement routes as a key enabling tools.
 
Consequently, David has had more success and gained extensive first-hand knowledge of what works and what doesn’t, and the plentiful case studies throughout this book illustrate this so very well. I have been honoured to work alongside him, including in the trial projects programme on which he draws heavily, and I hope this book will provide many more people with access to his thinking, approaches and practical advice. I hope you find David’s experience and expertise as valuable as I have done, and that he convinces you to implement collaborative procurement just as energetically.’