An examination of the independent certification processes of a construction contract

Construction contracts often provide that the decision of an independent certifier is final and binding. The effect of a contractual term like this has been debated in the courts over time. This paper considers the binding nature of certificates in the context of traditional construction contract arrangements and also considers the implications for more complex contracts like those entered into to facilitate public private partnerships. This article considers the response of the courts and the drafting implications and argues that a different focus would be advantageous.

BIM : enabling sustainability and asset management through knowledge management

Building Information Modeling (BIM) is the use of virtual building information models to develop building design solutions and design documentation and to analyse construction processes. Recent advances in IT have enabled advanced knowledge management, which in turn facilitates sustainability and improves asset management in the civil construction industry. There are several important qualifiers and some disadvantages of the current suite of technologies. This paper outlines the benefits, enablers, and barriers associated with BIM and makes suggestions about how these issues may be addressed. The paper highlights the advantages of BIM, particularly the increased utility and speed, enhanced fault finding in all construction phases, and enhanced collaborations and visualisation of data. The paper additionally identifies a range of issues concerning the implementation of BIM as follows: IP, liability, risks, and contracts and the authenticity of users. Implementing BIM requires investment in new technology, skills training, and development of new ways of collaboration and Trade Practices concerns. However, when these challenges are overcome, BIM as a new information technology promises a new level of collaborative engineering knowledge management, designed to facilitate sustainability and asset management issues in design, construction, asset management practices, and eventually decommissioning for the civil engineering industry.

Innovation in the road and bridge industry

This paper reviews innovation activity in a key service industry – road and bridge construction. Based on a large-scale Australian survey and descriptive statistics, the paper finds that there is little difference in innovation levels between different types of industry participants and that innovation is difficult to implement. The survey gathered responses from suppliers, consultants, contracts and clients and compared results across these four industry sectors. The absorptive capacity and relationship capacities of respondents were also investigated. One in five respondents had poor absorptive capacity. Suppliers were found to the most effective learners and were the best adopters of ideas from outside their organisations and consultants were the least effective. Australian construction organisations have relatively good relationship skills because relationship-based contracts are common compared to other countries. Indeed, the survey found that nearly 60% of respondents had experience with such contracts, with clients having more experience than the other three sectors. The results have implications for the measurement of innovation in project-based industries, and the relative roles of clients and suppliers in driving innovation in the construction industry. Further research will examine the extent to which particular governance mechanisms within relationship contracts lead to improved innovation and project performance.

GO423 - the second Game On / brIGDA Independant Game Symposium

GO423 was initiated in 2012 as part of a community effort to ensure the vitality of the Queensland Games Sector. In common with other industrialised nations, the game industry in Australia is a reasonably significant contributor to Gross National Product (GNP). Games are played in 92% of Australian homes and the average adult player has been playing them for at least twelve years with 26% playing for more than thirty years (Brand, 2011). Like the games and interactive entertainment industries in other countries, the Australian industry has its roots in the small team model of the 1980s. So, for example, Beam Software, which was established in Melbourne in 1980, was started by two people and Krome Studios was started in 1999 by three. Both these companies grew to employing over 100 people in their heydays (considered large by Antipodean standards), not by producing their own intellectual property (IP) but by content generation for off shore parent companies. Thus our bigger companies grew on a model of service provision and tended not to generate their own IP (Darchen, 2012). There are some no-table exceptions where IP has originated locally and been ac-quired by international companies but in the case of some of the works of which we are most proud, the Australian company took on the role of “Night Elf” – a convenience due to affordances of the time zone which allowed our companies to work while the parent companies slept in a different time zone. In the post GFC climate, the strong Australian dollar and the vulnerability of such service provision means that job security is virtually non-existent with employees invariably being on short-term contracts. These issues are exacerbated by the decline of middle-ground games (those which fall between the triple-A titles and the smaller games often produced for a casual audience). The response to this state of affairs has been the change in the Australian games industry to new recognition of its identity as a wider cultural sector and the rise (or return) of an increasing number of small independent game development companies. ’In-dies’ consist of small teams, often making games for mobile and casual platforms, that depend on producing at least one if not two games a year and who often explore more radical definitions of games as designed cultural objects. The need for innovation and creativity in the Australian context is seen as a vital aspect of the current changing scene where we see the emphasis on the large studio production model give way to an emerging cultural sector model where small independent teams are engaged in shorter design and production schedules driven by digital distribution. In terms of Quality of Life (QoL) this new digital distribution brings with it the danger of 'digital isolation' - a studio can work from home and deliver from home. Community events thus become increasingly important. The GO423 Symposium is a response to these perceived needs and the event is based on the understanding that our new small creative teams depend on the local community of practice in no small way. GO423 thus offers local industry participants the opportunity to talk to each other about their work, to talk to potential new members about their work and to show off their work in a small intimate situation, encouraging both feedback and support.

An examination of the liability of a construction contract certifier who gets it wrong

Construction contracts often provide that decisions under the contract will be made by a certifier. This paper reviews the liability issues when a certifier makes a mistake. We do that in light of recent pronouncements by the High Court of Australia and the New South Wales Court of Appeal on negligence. We look at this question in the context of traditional construction contract arrangements and also consider the implications for Public Private Partnerships and the typical contract arrangements entered into to facilitate these transactions.

Analysing governance categories used on project alliances in the construction industry

In Australia, collaborative contracts, and in particular, project alliances, have been increasingly used to govern infrastructure projects. These contracts use formal and informal governance mechanisms to manage the delivery of infrastructure projects. Formal mechanisms such as financial risk sharing are specified in the contract, while informal mechanisms such as integrated teams are not. Given that the literature contains a multiplicity of often untestable definitions, this paper reports on a review of the literature to operationalize the concepts of formal and informal governance. This work is the first phase of a study that will examine the optimal balance of formal and informal governance structures. Desk-top review of leading journals in the areas of construction management and business management, as well as recent government documents and industry guidelines, was undertaken to to conceptualise and operationalize formal and informal governance mechanisms. The study primarily draws on transaction-cost economics (e.g. Williamson 1979; Williamson 1991), relational contract theory (Feinman 2000; Macneil 2000) and social psychology theory (e.g. Gulati 1995). Content analysis of the literature was undertaken to identify key governance mechanisms. Content analysis is a commonly used methodology in the social sciences area. It provides rich data through the systematic and objective review of literature (Krippendorff 2004). NVivo 9, a qualitative data analysis software package, was used to assist in this process. A previous study by the authors identified that formal governance mechanisms can be classified into seven measurable categories: (1) negotiated cost, (2) competitive cost, (3) commercial framework, (4) risk and reward sharing, (5) qualitative performance, (6) collaborative multi-party agreement, and (7) early contractor involvement. Similarly, informal governance mechanisms can be classified into four measureable categories: (1) leadership structure, (2) integrated team, (3) team workshops, and (4) joint management system. This paper explores and further defines the key operational characteristics of each mechanism category, highlighting its impact on value for money in alliance project delivery. The paper’s contribution is that it provides the basis for future research to compare the impact of a range of individual mechanisms within each category, as a means of improving the performance of construction projects.

Learning routines used by firms during construction of infrastructure projects using the alliance procurement method

Collaborative contracting has emerged over the past 15 years as an innovative project delivery framework that is particularly suited to infrastructure projects. Australia leads the world in the development of project and program alliance approaches to collaborative delivery. These approaches are considered to promise superior project results. However, very little is known about the learning routines that are most widely used in support of collaborative projects in general and alliance projects in particular. The literature on absorptive capacity and dynamic capabilities indicates that such learning enhances project performance. The learning routines employed at corporate level during the operation of collaborative infrastructure projects in Australia were examined through a large survey conducted in 2013. This paper presents a descriptive summary of the preliminary findings. The survey captured the experiences of 320 practitioners of collaborative construction projects, including public and private sector clients, contractors, consultants and suppliers (three per cent of projects were located in New Zealand, but for brevity’s sake the sample is referred to as Australian). The majority of projects identified used alliances (78.6%); whilst 9% used Early Contractor Involvement (ECI) contracts and 2.7% used Early Tender Involvement contracts, which are ‘slimmer’ types of collaborative contract. The remaining 9.7% of respondents used traditional contracts that employed some collaborative elements. The majority of projects were delivered for public sector clients (86.3%), and/or clients experienced with asset procurement (89.6%). All of the projects delivered infrastructure assets; one third in the road sector, one third in the water sector, one fifth in the rail sector, and the rest spread across energy, building and mining. Learning routines were explored within three interconnected phases: knowledge exploration, transformation and exploitation. The results show that explorative and exploitative learning routines were applied to a similar extent. Transformative routines were applied to a relatively low extent. It was also found that the most highly applied routine is ‘regularly applying new knowledge to collaborative projects’; and the least popular routine was ‘staff incentives to encourage information sharing about collaborative projects’. Future research planned by the authors will examine the impact of these routines on project performance.

Health Care and the Law [Fifth Edition]

"Fully updated to reflect the rapid pace of change in the health law areas. Explains the legal process as it relates to the health care professional."--Libraries Australia. Table of Contents Part I. Introductory concepts -- 1. What is law -- 2. The legal structure -- 3. The legal process -- Part II. Patient relationships -- 4. Consent to health care by a competent adult -- 5. Consent to health care by a legally incompetent person -- 6. Negligence -- 7. Patient information and privacy -- 8. Patients' property -- 9. Contract -- Part III. Employment -- 10. Contracts to provide health care services -- 011. Accidents and injuries related to health care --12. Registration and practice --13. Drugs --14. Criminal law and health care --15. State involvement in birth and death: registration and coronial inquiries --16. State involvement in threats to health or welfare --17. Human tissue transplants and reproductive technology --18. Expanding recognition of human rights --19. Decision making, law and ethics: a discussion.

Structured contract strategies for capital and operations expenditure projects in the oil and gas industry

This project was a step forward in developing a 'descriptive theory' of contracting in the oil and gas industry that reflects the operating environment in which the project manager operates. This study investigates the existing processes and methods used in establishing contracts which are very often prescriptive, and not always appropriate or optimal for a given situation. This study contributes to contracting effectiveness or optimal contracting in the oil and gas industry.

Molecular sliding filament model for muscular contraction based on multiscale investigation

A multiscale approach that bridges the biophysics of the actin molecules at nanoscale and the biomechanics of actin filament at microscale level is developed and used to evaluate the mechanical performances of actin filament bundles. In order to investigate the contractile properties of skeletal muscle which is induced by the protein motor of myosin, a molecular model is proposed in the prediction of the dynamic behaviors of skeletal muscle based on classic sliding filament model. Randomly distributed myosin motors are applied on a 2.2 μm long sarcomere, whose principal components include actin and myosin filaments. It can be found that, the more myosin motors on the sarcomere, the faster the sarcomere contracts. The result demonstrates that the sarcomere shortening speed cannot increase infinitely by the modulation of myosin, thus providing insight into the self-protective properties of skeletal muscles. This molecular filament sliding model provides a theoretical way to evaluate the properties of skeletal muscles, and contributes to the understandings of the molecular mechanisms in the physiological phenomenon of muscular contraction.

Examining the effects of early cost drivers on contingencies

The accuracy of early cost estimates is critical to the success of construction projects. The selected tender price (clients' building cost) is usually seen in previous research as a holistic dependent variable when examining early stage estimates. Unlike other components of construction cost, the amount of contingencies is decided by clients/consultants with consideration of early project information. Cost drivers of contingencies estimates are associated with uncertainty and complexity, and include project size, schedule, ground condition, construction site access, market condition and so on. A path analysis of 133 UK school building contracts was conducted to identify impacts of nine major cost drivers on the determination of contingencies by different clients/cost estimators. This research finds that gross floor area (GFA), schedule and requirement of air conditioning have statistically significant impacts on the contingency determination. The mediating role of schedule between gross floor area and contingencies (GFA→Schedule→Contingencies) was confirmed with the Soble test. The total effects of the three variables on contingencies estimates were obtained with the consideration of this indirect effect. The squared multiple correlation (SMC) of contingencies (=0.624) indicates the identified three variables can explain 62.4% variance of contingencies, and it is comparatively satisfactory considering the heterogeneity among different estimators, unknown estimating techniques and different projects

Exploring subscription renewal intention of operational cloud enterprise systems-a socio-technical approach

Despite the fact that customer retention is crucial for providers of cloud enterprise systems, only little attention has been directed towards investigating the antecedents of subscription renewal in an organizational context. This is even more surprising, as cloud services are usually offered as subscription-based pricing models with the (theoretical) possibility of immediate service cancellation, strongly opposing classical long-term IT-Outsourcing contracts or license-based payment plans of on premise enterprise systems. To close this research gap an empirical study was undertaken. Firstly, a conceptual model was drawn from theories of social psychology, organizational system continuance and IS success. The model was subsequently tested using survey responses of senior management within companies which adopted cloud enterprise systems. Gathered data was then analysed using PLS. The results indicate that subscription renewal intention is influenced by both – social-related and technology-specific factors – which are able to explain 50.4% of the variance in the dependent variable. Beneath the cloud enterprise systems specific contributions, the work advances knowledge in the area of organizational system continuance, as well as IS success.

Corner and finger formation in Hele-Shaw flow with kinetic undercooling regularisation

We examine the effect of a kinetic undercooling condition on the evolution of a free boundary in Hele--Shaw flow, in both bubble and channel geometries. We present analytical and numerical evidence that the bubble boundary is unstable and may develop one or more corners in finite time, for both expansion and contraction cases. This loss of regularity is interesting because it occurs regardless of whether the less viscous fluid is displacing the more viscous fluid, or vice versa. We show that small contracting bubbles are described to leading order by a well-studied geometric flow rule. Exact solutions to this asymptotic problem continue past the corner formation until the bubble contracts to a point as a slit in the limit. Lastly, we consider the evolving boundary with kinetic undercooling in a Saffman--Taylor channel geometry. The boundary may either form corners in finite time, or evolve to a single long finger travelling at constant speed, depending on the strength of kinetic undercooling. We demonstrate these two different behaviours numerically. For the travelling finger, we present results of a numerical solution method similar to that used to demonstrate the selection of discrete fingers by surface tension. With kinetic undercooling, a continuum of corner-free travelling fingers exists for any finger width above a critical value, which goes to zero as the kinetic undercooling vanishes. We have not been able to compute the discrete family of analytic solutions, predicted by previous asymptotic analysis, because the numerical scheme cannot distinguish between solutions characterised by analytic fingers and those which are corner-free but non-analytic.

Strategic entry deterrence : does it constitute a misuse of market power?

A challenge for regulators and the courts has been establishing the boundary between behaviour is exclusionary and should be condemned under s 46 of the then Trade Practices Act 1974 (Cth) (TPA), now s 46 of the Competition and Consumer Act 2010 (Cth) (CCA), and behaviour that is not exclusionary and might even be pro-competitive. This boundary can be especially difficult to draw in the case of entry deterring strategies. Section 46(1) prohibits corporations with a substantial degree of market power from taking advantage of that market power for one of the statutorily proscribed purposes which include preventing the entry of a person into that or any other market. Section 45(2) separately prohibits corporations from making and giving effect to contracts arrangements and understandings that have the purpose, effect or likely effect of substantially lessening competition in a market. The latest case in which the ACCC has failed to satisfy the s 46 criteria is the decision of Greenwood J in ACCC v Cement Australia Pty Ltd [2013] FCA 909 (Cement Australia case). Final orders were published in a separate judgment, in ACCC v Cement Australia Pty Ltd [2014] FCA 148 (28 February 2014). The case concerned an entry deterring strategy, namely the pre-emptive buying of input factors in an upstream market to protect an incumbent with substantial market power in a downstream market and to prevent new entry in the downstream market. Greenwood J found that while Cement Australia Pty Ltd, formerly known as Queensland Cement Ltd (QCL), had substantial market power, its conduct in entering into the pre-emptive contracts was not a contravention of s 46, because Cement Australia had not “taken advantage” of its market power. However, since Cement Australia’s purpose in entering into the pre-emptive contracts was anti-competitive, they were held to contravene s 45(2) of the TPA. The purpose of this Note is to consider only the reasons for judgment in the Cement Australia case in relation to the “taking advantage” element. The judgment was handed down on 10 September 2013. The final hearing date was 15 July 2011, so it was long-awaited. At 714 pages, it is carefully drafted.

Invisible ties : implicit contracting and its implications for the agency relationship in corporate governance research

Research that applies agency theory to boards of directors suffers from being quite narrow as it does not recognize the true legal relationships between directors, managers and shareholders. Instead, the board of directors is best conceptualized as the principal, management as agents and stockholders’ relationships as a mix of legal and implicit contracts. We propose a recast agency relationship and develop a contingency approach that proposes (1) how a corporation’s goals vary with a board’s implicit contracting and (2) a reconceptualization of the agency problem facing boards.