This edition first published 2019
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Library of Congress Cataloging‐in‐Publication Data
Names: Mosey, David, 1954- author.
Title: Collaborative construction procurement and improved value / David Mosey.
Description: Hoboken, NJ : Wiley-Blackwell, 2019. | Includes bibliographical
references and index. |
Identifiers: LCCN 2019000081 (print) | LCCN 2019004042 (ebook) | ISBN
9781119151920 (Adobe PDF) | ISBN 9781119151937 (ePub) | ISBN 9781119151913
(hardback)
Subjects: LCSH: Buildings–Specifications–Great Britain. | Construction
contracts–Great Britain. | Building materials–Purchasing--Great
Britain–Case studies. | Building information modeling–Great
Britain–Case studies. | Government purchasing–Great Britain. | Public
contracts–Great Britain.
Classification: LCC TH425 (ebook) | LCC TH425 .M64 2019 (print) | DDC
354.6/42530941–dc23
LC record available at https://lccn.loc.gov/2019000081
Cover Design: Wiley
Cover Image: © Association of Consultant Architects Ltd.
‘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.’
‘Improvement of risk management in international construction projects is vital, and Professor Mosey’s challenging book shows how this can be achieved through team integration and early contractor involvement. The focus has to widen from the typical client/main contractor preoccupation, and this penetrative study shows how supply chain collaboration is vital.
Beginning from the lasting initiatives inspired by Sir Michael Latham in 1994, Professor Mosey explores how team selection and contractual commitments can help build a collaborative culture. We see how collaborative procurement is connected to contracts, and also to BIM and other digital technology. Empirical evidence is grounded in case studies and King's College London research led by Professor Mosey, which is enhanced by leading co‐authors' analyses from other major economies. Collaborative construction procurement demonstrably can reduce disputes, and this book enables a global readership to see which forms of contract can achieve better construction project performance.'
‘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.
This book 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.'
‘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!’
‘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.'
‘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.'
‘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.’
‘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.’
‘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.’
‘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.’
‘This book provides comprehensive evidence that lays waste to the myth that collaboration does not need contractual provisions, commitment and accountability.’
‘The only moving parts in procurement are the client, the supply chain and a contract defining the relationships between them, yet surprising complexities soon emerge in aligning their different agendas, incentives and required outcomes. This is when poor information often creates the shadows, fears and misunderstandings that are the enemies of aligned goals and collaboration.
This book has drawn on the author's vast experience of creating contracts which acknowledge these challenges, and which seek to use existing data and management techniques to create clear, open processes that work effectively. Any client or supplier should read and understand the techniques described in this book, as they remove waste and friction and can be applied to all client‐supplier relationships in ways that provide significant benefits.’
‘This book presents a wide‐ranging discussion on what underpins successful partnering in the construction industry, supported by evidence of achievements in both UK and global case studies. While recognising that the form of contract alone will not deliver project success, David Mosey demonstrates how contract arrangements can help facilitate more collaborative attitudes and behaviours.
The chapters explore the benefits of collaborative arrangements in construction contracts, potential shortfalls in the execution of those arrangements and solutions to manage risks. David outlines not just the contractual mechanisms but also the wider people and process considerations required for real benefits to be delivered. Many angles are explored and it is possible to pick up this book and start on the questions that resonate most with the reader.’
‘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 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.’
Let's dig tunnels.
Let's build bridges.
Let's get close like clouds of midges.
What was under Mr. Brunel's hat?
His love letters
And his sandwiches.
Let us cross that big divide.
Let us go and coincide
And with space between deducted
Let us mind what's been constructed.
You provide the motion and I'll start the debate
You provide the provender and I'll supply the napkin
and the plate.
Let's combine this life of mine with your own slender
fate.
Let me elaborate.
Let's be thick as thieves can be.
Let's thicken up the ice and then entice the world to
skate.
You be narrow. I'll be straight.
You be weight and I'll be volume.
Let's make a pair of zeros
make a bigger figure of eight.
Let's collaborate.
With kind permission of John Hegley, an inspiring collaborator ‘Let us Play’, taken from ‘Peace Love and Potatoes’, Profile Books 2012
Firstly, I offer heartfelt thanks to my co‐authors Howard W. Ashcraft, Dr Wolfgang Breyer, Professor Paula Gerber, Professor Stefan Leupertz, Marko Misko, Mariana Miraglia, Matatias Parente, Dr Alexandre Aroeira Salles, Adriana Spassova and Professor Sara Valaguzza. Their contributions to this book are fascinating and their work in the field of collaborative procurement is an inspiration to anyone exploring what can be done to integrate theory and practice across different jurisdictions.
In addition, I offer my gratitude and respect to friends and colleagues at King's College London, Trowers & Hamlins and the Association of Consultant Architects, and to all the practitioners, academics, project teams and research groups who have helped me understand how collaborative construction procurement can deliver improved economic and social value. I am also very grateful to Jo Howard for her thoughtful proofreading of this book and to Dr Paul Sayer and all at Wiley for their patient support.
I owe a particular debt to my father Victor Alfred Mosey and to four other remarkable men for their wisdom and guidance whenever I embarked on new endeavours, namely Anthony Gosselin Trower, H.E. Yousuf Ahmed Al‐Shirawi, Sir Michael Latham and Professor David D. Caron.
This book is dedicated to my wife Cécile.
February 2019
David Mosey
King's College London
Professor David Mosey PhD is Director of the King's College London Centre of Construction Law and Dispute Resolution and is former Head of Projects and Construction at Trowers & Hamlins solicitors where he worked for over 30 years as a specialist construction lawyer. He has advised on a wide variety of construction and engineering projects in the UK and internationally, with a particular focus on collaborative construction procurement.
David has been described in the Chambers Guide to the Legal Profession as a ‘partnering guru’ who ‘gives something to the industry’. He is principal author of the PPC2000 suite of partnering contract forms, and led the research and drafting of the FAC‐1 Framework Alliance Contract and the TAC‐1 Term Alliance Contract.
David was a lead mentor for the UK Government Trial Projects programme, testing the savings and other benefits achieved through the combination of early contractor involvement, collaborative working and Building Information Modelling. He won the UK Constructing Excellence Achievers Award in 2009, and in October 2015 was awarded the Association of Consultant Architects medal for services to the architectural profession. For three years David was a Senior Visiting Fellow at Melbourne Law School, and he is currently a Fellow of the Cambridge University Engineering Masters Programme. He is also a member of the Comitato Scientifico of the Milan Centre of Construction Law & Management.
Howard W. Ashcraft has led in the development and use of Integrated Project Delivery and Building Information Modelling in the United States, Canada and abroad. Over the past decade, his team has structured over 130 pure IPD projects and worked on many highly integrated projects. He co‐authored the AIACC's Integrated Project Delivery: A Working Definition, the AIA's IPD Guide, Integrating Project Delivery (Wiley 2017) and Integrated Project Delivery: An Action Guide for Leaders (Pankow Foundation 2018), and he has chaired subcommittees for the National Building Information Modelling Standard (NBIMS).
A partner in the San Francisco law firm of Hanson Bridgett, Howard is an elected Fellow of the American College of Construction Lawyers, an Honorary Fellow of the Canadian College of Construction Lawyers, a Fellow of the American Bar Foundation and an Honorary Member of AIA California Council. In addition to his professional practice, he serves as an Adjunct Professor of Civil and Environmental Engineering at Stanford University.
Dr Wolfgang Breyer is a specialist construction lawyer advising contractors, engineers and employers on major projects such as wind parks, hydropower stations, road and rail, offshore energy and power plants in the Middle East, Asia, Africa and Europe. His areas of expertise include international and German construction contracts, construction risk management advice, and international construction arbitration, litigation, adjudication and alternative dispute resolution.
In May 2015, Dr Breyer led the creation of the International Construction Law Association, bringing together families of law from around the globe in order to inform and debate comparatively on construction law issues. He is a well‐known speaker and writer on construction law, and is also creator and Practice Director of the Masters' Programme in International Construction: Law and Practice at the University of Stuttgart.
Professor Paula Gerber has been a lawyer for over 25 years. She spent five years working as a construction lawyer in London and five years in Los Angeles, before returning to Australia where she became a partner in a leading Melbourne law firm. Paula moved from private practice to academia and is now a Professor at the Monash University Law School. She is an internationally recognised expert in construction law, in particular in the areas of dispute avoidance processes (DAPs) and dispute resolution processes, particularly ADR.
Professor Gerber is the lead author of Best Practice in Construction Disputes: Avoidance, Management and Resolution (LexisNexis 2013), which was a finalist in the prestigious Centenary Book Award. She is also the author of numerous journal articles and book chapters.
Professor Stefan Leupertz is a former Judge of the German Supreme Court and is known as one of the leading legal authorities on construction law in Germany. During his tenure as a judge, he was assigned to the Seventh Civil Division, responsible for hearing construction, contract and architectural law disputes. In 2012 Professor Leupertz resigned as a judge and commenced his own practice Leupertz Baukonfliktmanagement with the focus purely on construction law – in particular, dispute avoidance and dispute resolution – acting as an arbitrator, adjudicator and legal expert. Professor Leupertz is highly respected in academia as co‐editor of the German construction law journal, Baurecht, and as editor/author of numerous publications on German construction law. He sits on boards that include the Arbitral Tribunal Estate Law Germany, the German Baugerichtstag e.V, the Anglo‐German Construction Law Platform and the International Construction Law Association.
Mariana Miraglia is a partner of Aroeira Salles Advogados and acts for domestic and overseas clients in relation to major infrastructure projects in Brazil. Her areas of expertise include the legal management of construction contracts, procurement, civil investigations, public project auditing, compliance and regulatory law. Mariana's international experience includes advice in respect of cross‐border contracts executed in Brazil, preparing for complex arbitration proceedings in New York and advising on an infrastructure project in Africa.
Marko Misko has been involved in the delivery of major Australian infrastructure projects for almost 30 years, across a wide variety of sectors that include transport, defence, health, education, foreign aid, housing, energy and natural resources, and commercial property development.
Marko is committed to driving greater collaboration within the construction industry through procurement methods, project delivery models, risk allocation and standard form contracts. To that end, Marko has worked with all Australian forms of collaborative contracting including managing contractor, project alliancing, delivery partner model, early contractor involvement and most recently integrated project delivery (IPD). Marko has spent the past five years assisting the Australian Department of Defence in finalising its third generation suite of IPD standard form delivery models, designed to facilitate maximum collaboration among all key project contractors/stakeholders and to make optimal use of Building Information Modelling.
Matatias Parente is a lawyer at Aroeira Salles Advogados, advising clients on all aspects of the delivery of construction and engineering projects, from procurement and the drafting and negotiation of contracts, to contract administration and the avoidance and resolution of disputes. He has advised clients operating across a range of sectors including shipbuilding, oil and gas, energy and mining, also assisting them on regulatory compliance matters.
Dr Alexandre Aroeira Salles is founding partner of the Brazilian law firm Aroeira Salles Advogados and advises on large‐scale infrastructure and energy projects. His areas of expertise include construction disputes, procurement, public‐private partnerships and concession arrangements, and the legal management of construction and energy contracts. Alexandre is a founding member of the Brazil Infrastructure Institute and a director of the Brazilian Construction Law Institute. He also holds a doctorate from PUC University in São Paulo and is widely published, in particular in the area of construction law.
Alexandre's expertise is recognised internationally. He is on the board of the International Construction Law Association and regularly speaks at high‐profile international conferences, including in London, Paris, Beijing, Dubai and São Paulo. Alexandre is independently ranked as a leading lawyer in international legal directories.
Adriana Spassova is a civil engineer with more than 30 years' professional experience as a designer, construction manager and consultant. She has an MSc in Construction Law & Dispute Resolution from Kings' College London and is Vice President of the European Society of Construction Law, Chair of the Bulgarian Society of Construction Law and the only FIDIC Accredited Dispute Adjudicator & Trainer in Bulgaria.
As a partner at EQE Control, Adriana has managed consulting services for the biggest project in Bulgaria, namely the 600 MW TPP AES Galabovo (€1.5 billion), as well as for the 156 MW St. Nikola Wind Park Kavarna, the 176‐m Europe Tower Sofia, the Varna Business Park and 6 World Bank projects. In the last three years, she has been a Planning and Contracts Key Expert in the preparation of railway projects with a €1 billion budget.
Adriana has more than 20 years' experience in preparation of FIDIC tender documentation and in acting as an engineer in nuclear safety, waste management and infrastructure. She is also a claims consultant and an expert in arbitration and DAB. She has delivered FIDIC accredited training in Bulgaria, Russia, Ukraine, Kazakhstan, Uzbekistan and Belarus.
Professor Sara Valaguzza is Professor at the University of Milan, where she teaches public‐private partnerships, public contracts and environmental law. Her interests focus on strategic regulation, alliancing, construction law, sustainable development, procuring for value and legal BIM. Sara practises as an attorney for Italian and international clients. Her firm is a reputed legal ‘boutique’ in Italy, assisting public authorities and private companies in many significant construction and urban regeneration projects, such as the Blue and Lilac Line subway construction in Milan and the post‐Expo development.
Sara leads an interdisciplinary research group promoting collaborative contracts in public and private fields. Since 2016 she has been Deputy Director of the Milan Centre of Construction Law & Management, and Head of the European Association of Public‐Private Partnerships. With more than 40 publications in different languages, her latest book Procuring for Value – Governare per contratto creare valore attraverso i contratti pubblici promotes reform of the construction industry by the use of collaborative contracting and BIM to create added value in strategic public procurement.