Assessment of critical constructability activities among Malaysian building contractors

After the primary researches on constructability issue which were implemented in United States, United Kingdom and Australia, more explorations were applied on that in order to assess this unique scientific fact in East Asian country of Malaysia. Based on the latest researches done on constructability concept in Malaysia, the most Critical Constructability Activities (CCAs) are defined according to amount of contractors’ participation in each activity and amount of gap between actual and potential effects of each of them on achieving the overall objectives of the construction projects with more cost and time savings and better quality which is the whole aim of a beneficial constructability activity. The present research aims to assess the current findings on CCAs in order to identify the types of contractors and projects which these CCAs are getting performed in and also the types of contracts is used in these CCAs. Finally it was found that there are some significant differences in amount of contractors’ involvement in CCAs among various considered independent variables. This study uses the former researches to help Malaysian construction stakeholders to find out the barriers of constructability implementation in building projects via giving more details on application of CCAs among different IVs.

Unfair terms in residential land contracts : will the Australian consumer law improve a buyer’s bargaining position?

The prohibition on unfair contract terms in standard form consumer contracts has the potential to significantly impact on the terms of contracts for the sale of land. The definition of ‘consumer contract’ includes contracts for the sale or grant of an interest in land to an individual wholly or predominantly for personal or domestic use. Therefore, a contract for the purchase of a residence for personal occupation by the buyer, as opposed to a purchase for investment purposes, will be a consumer contract potentially attracting the application of the unfair terms provisions. Significant consumer protection mechanisms already exist in most state jurisdictions requiring disclosure of relevant matters to the buyer and providing remedies for the provision of misleading conduct. Minimal evidence of unfair terms in land contract was presented to the Productivity Commission Inquiry into the Australian Consumer Policy Framework raising the question as to whether there is an identified problem of unfair terms in real estate contracts and if so, whether the same economic and ethical rationales justify regulatory intervention. This article examines what effect if any the introduction of the unfair contract provisions will have on the enforcement of residential land contracts and the viability of previously accepted conditions if challenged as being “unfair terms”. The article concludes that despite the existence of several potentially unfair terms in some land contracts, the intervention of the rules of equity to overcome perceived hardship or unfairness to buyers from strict enforcement of terms means the unfair terms provisions are only likely to operate on terms untouched by those principles. In the authors’ view the scope for operation of the unfair terms provisions will be limited to terms untouched by the principles of equity and consumer protection legislation making it unlikely that there will be any significant realignment of the contractual obligations and rights of buyers and sellers of land.

Reforming the procurement of construction and financing of Australian infrastructure : advancing capacity, competition and investment

Funded by an Australian Research Council (ARC) Linkage grant over four years (2009–13), the Major Infrastructure Procurement project sought to find more effective and efficient ways of procuring and delivering the nation’s social and economic infrastructure by investigating constraints relating to construction capacity, competition, and finance in new public sector major infrastructure.1 The research team comprised researchers in construction economics and finance from Queensland University of Technology (QUT), Griffith University (GU), The University of Hong Kong (UHK), and The University of Newcastle (UoN). Project partners included state government departments and agencies responsible for infrastructure procurement and delivery from all Australian mainland states, and private sector companies and peak bodies in the infrastructure sector (see “Introduction” for complete list). There are a number of major outcomes from this research project. The first of these is a scientifically developed decisionmaking model for procurement of infrastructure that deploys a novel and state-of-the-art integration of dominant microeconomic theory (including theories developed by two Nobel Prize winners). The model has been established through empirical testing and substantial experiential evidence as a valid and reliable guide to configuring procurement of new major and mega infrastructure projects in pursuance of superior Valuefor- Money (VfM). The model specifically addresses issues of project size, bundling of contracts, and exchange relationships. In so doing, the model determines the suitability of adopting a Public-Private Partnership (PPP) mode.

The stewardship performance of forms of privatised water infrastructure

In this research Agency Theory and Stewardship Theory are used to analyse the relative performance of different forms of privitisation of water infrastructure and in doing so enriches understanding of previously underdeveloped aspects of both theories. The prior Agency Theory literature had established assumptions about the behaviour of principals and agents in contracts and these were found not to be correct in the context of contracts between modern government and private organisations. Agency theory was extended to include steward-like behaviour of an agent and Stewardship Theory was developed by the identification of factors within the contractual relationship which promote the sense of responsibility to the principal. The alliance, joint venture and Build Own Operate Transfer (BOOT) forms of privatisation were found to achieve stewardship of the infrastructure.

Government grants - an abrogation or management of risks?

New public management (NPFM), with its hands-on, private sector-style performance measurement, output control, parsimonious use of resources, disaggreation of public sector units and greater competition in the public sector, has significantly affected charitable and nonprofit organisations delivering community services (Hood, 1991; Dunleavy, 1994; George & Wilding, 2002). The literature indicates that nonprofit organisations under NPM believe they are doing more for less: while administration is increasing, core costs are not being met; their dependence on government funding comes at the expense of other funding strategies; and there are concerns about proportionality and power asymmetries in the relationship (Kerr & Savelsberg, 2001; Powell & Dalton, 2011; Smith, 2002, p. 175; Morris, 1999, 2000a). Government agencies are under increased pressure to do more with less, demonstrate value for money, measure social outcomes, not merely outputs and minimise political risk (Grant, 2008; McGreogor-Lowndes, 2008). Government-community service organisation relationships are often viewed as 'uneasy alliances' characterised by the pressures that come with the parties' differing roles and expectations and the pressures that come with the parties' differing roles and expectations and the pressurs of funding and security (Productivity Commission, 2010, p. 308; McGregor-Lowndes, 2008, p. 45; Morris, 200a). Significant community services are now delivered to citizens through such relationships, often to the most disadvantaged in the community, and it is important for this to be achieved with equity, efficiently and effectively. On one level, the welfare state was seen as a 'risk management system' for the poor, with the state mitigating the risks of sickness, job loss and old age (Giddens, 1999) with the subsequent neoliberalist outlook shifting this risk back to households (Hacker, 2006). At the core of this risk shift are written contracts. Vincent-Jones (1999,2006) has mapped how NPM is characterised by the use of written contracts for all manner of relations; e.g., relgulation of dealings between government agencies, between individual citizens and the state, and the creation of quais-markets of service providers and infrastructure partners. We take this lens of contracts to examine where risk falls in relation to the outsourcing of community services. First we examine the concept of risk. We consider how risk might be managed and apportioned between governments and community serivce organisations (CSOs) in grant agreements, which are quasiy-market transactions at best. This is informed by insights from the law and economics literature. Then, standard grant agreements covering several years in two jurisdictions - Australia and the United Kingdom - are analysed, to establish the risk allocation between government and CSOs. This is placed in the context of the reform agenda in both jurisdictions. In Australia this context is th enonprofit reforms built around the creation of a national charities regulator, and red tape reduction. In the United Kingdom, the backdrop is the THird Way agenda with its compacts, succeed by Big Society in a climate of austerity. These 'case studies' inform a discussion about who is best placed to bear and manage the risks of community service provision on behalf of government. We conclude by identifying the lessons to be learned from our analysis and possible pathways for further scholarship.

Performance-based contracting for roads – Experiences of Australia and Indonesia

Many countries over the last decade, have used performance-based contracting (PBC) to manage and maintain roads. The implementation of PBC provides additional benefits for the government/public such as cost savings and improved conditions of contracted road assets. In Australia, PBC is already being implemented on all categories of roads: national, state, urban and rural. Australian PBC arrangement is designed to turn over control and responsibility for roadway system maintenance, rehabilitation, and capital improvement projects to private contractors. Contractors’ responsibilities include determination of treatment types, the design, programming and the undertaking of works needed to maintain road networks at predetermined performance levels. Indonesia initiated two PBC pilot projects in 2011, the Pantura Section Demak-Trengguli (7.68 kilometers) in Central Java Province and Section Ciasem-Pamanukan (18.5 kilometers) in West Java Province. Both sections are categorized as national roads. The contract duration for both of these projects is four years. To facilitate a possible way forward, it is proposed to conduct a study to understand Australia's experiences of advancing from pilot projects to nation-wide programs using PBC. The study focuses on the scope of contracts, bidding processes, risk allocation, and key drivers, using relevant PBC case studies from Australia. Recommendations for future PBC deployment nation-wide should be based on more research associated with risk allocation. This will include investigation of standard conditions of contract. Implications of the contract clauses for the risk management strategy to be adopted by contractors. Based on the nature of risks, some are best managed by the project owner. It is very important that all parties involved to be open to the new rules of contract and to convince themselves about the potential increased benefits of the use of PBC. The most recent states of challenging issues were explored and described.

Best Practice Guide : Generic Overview

The construction industry is a key national economic component. It tends to be at the forefront of cyclic changes in the Australian economy. It has a significant impact, both directly and indirectly, on the efficiency and productivity of other industries. Moreover it affects everyone to a greater or lesser extent; through its products whether they are manifested in the physical infrastructure that supports the operation of the economy or through the built environment that directly impacts on the quality of life experienced by individuals. In financial terms the industry makes one of the largest contributions to the Australian economy, accounting for 4.7 per cent of GDP 1 which was worth over $30B in 20012. The construction industry is comprised of a myriad of small firms, across several important sectors including, o Residential building, o Commercial building, o Building services, o Engineering, o Infrastructure o Facilities Management o Property Development Each sector is typified by firms that have distinctive characteristics such as the number of employees, size and value of contracts, number of jobs, and so forth. It tends to be the case that firms operating in commercial building are larger than those involved in residential construction. The largest contractors are found in engineering and infrastructure, as well as in the commercial building sub-sectors. However all sectors are characterised by their reliance upon sub-contractors to carry out on-site operations. Professionals from the various design consultant groups operate across all of these sectors. This description masks one of the most significant underlying causes of inefficiency in the construction industry, namely its fragmentation. The Construction Industry chapter of the 2004 Australian Year Book3, published by the Australian Bureau of Statistics unmasks the industry’s fragmented structure, typified by the large number of operating businesses within it, the vast majority of which are small companies employing less than 5 people. It identifies over 190,000 firms, of which over 90 percent employ less than 5 people. At the other end of the spectrum, firms employing 20 or more people account for fractionally more than one percent of businesses in the industry.

Risk-assessment practices in the private rental sector : implications for low-income renters (Final Report)

This report focuses on risk-assessment practices in the private rental market, with particular consideration of their impact on low-income renters. It is based on the fieldwork undertaken in the second stage of the research process that followed completion of the Positioning Paper. The key research question this study addressed was: What are the various factors included in ‘risk-assessments’ by real estate agents in allocating ‘affordable’ tenancies? How are these risks quantified and managed? What are the key outcomes of their decision-making? The study builds on previous research demonstrating that a relatively large proportion of low-cost private rental accommodation is occupied by moderate- to high-income households (Wulff and Yates 2001; Seelig 2001; Yates et al. 2004). This is occurring in an environment where the private rental sector is now the de facto main provider of rental housing for lower-income households across Australia (Seelig et al. 2005) and where a number of factors are implicated in patterns of ‘income–rent mismatching’. These include ongoing shifts in public housing assistance; issues concerning eligibility for rent assistance; ‘supply’ factors, such as loss of low-cost rental stock through upgrading and/or transfer to owner-occupied housing; patterns of supply and demand driven largely by middle- to high-income owner-investors and renters; and patterns of housing need among low-income households for whom affordable housing is not appropriate. In formulating a way of approaching the analysis of ‘risk-assessment’ in rental housing management, this study has applied three sociological perspectives on risk: Beck’s (1992) formulation of risk society as entailing processes of ‘individualisation’; a socio-cultural perspective which emphasises the situated nature of perceptions of risk; and a perspective which has drawn attention to different modes of institutional governance of subjects, as ‘carriers of specific indicators of risk’. The private rental market was viewed as a social institution, and the research strategy was informed by ‘institutional ethnography’ as a method of enquiry. The study was based on interviews with property managers, real estate industry representatives, tenant advocates and community housing providers. The primary focus of inquiry was on ‘the moment of allocation’. Six local areas across metropolitan and regional Queensland, New South Wales, and South Australia were selected as case study localities. In terms of the main findings, it is evident that access to private rental housing is not just a matter of ‘supply and demand’. It is also about assessment of risk among applicants. Risk – perceived or actual – is thus a critical factor in deciding who gets housed, and how. Risk and its assessment matter in the context of housing provision and in the development of policy responses. The outcomes from this study also highlight a number of salient points: 1.There are two principal forms of risk associated with property management: financial risk and risk of litigation. 2. Certain tenant characteristics and/or circumstances – ability to pay and ability to care for the rented property – are the main factors focused on in assessing risk among applicants for rental housing. Signals of either ‘(in)ability to pay’ and/or ‘(in)ability to care for the property’ are almost always interpreted as markers of high levels of risk. 3. The processing of tenancy applications entails a complex and variable mix of formal and informal strategies of risk-assessment and allocation where sorting (out), ranking, discriminating and handing over characterise the process. 4. In the eyes of property managers, ‘suitable’ tenants can be conceptualised as those who are resourceful, reputable, competent, strategic and presentable. 5. Property managers clearly articulated concern about risks entailed in a number of characteristics or situations. Being on a low income was the principal and overarching factor which agents considered. Others included: - unemployment - ‘big’ families; sole parent families - domestic violence - marital breakdown - shift from home ownership to private rental - Aboriginality and specific ethnicities - physical incapacity - aspects of ‘presentation’. The financial vulnerability of applicants in these groups can be invoked, alongside expressed concerns about compromised capacities to manage income and/or ‘care for’ the property, as legitimate grounds for rejection or a lower ranking. 6. At the level of face-to-face interaction between the property manager and applicants, more intuitive assessments of risk based upon past experience or ‘gut feelings’ come into play. These judgements are interwoven with more systematic procedures of tenant selection. The findings suggest that considerable ‘risk’ is associated with low-income status, either directly or insofar as it is associated with other forms of perceived risk, and that such risks are likely to impede access to the professionally managed private rental market. Detailed analysis suggests that opportunities for access to housing by low-income householders also arise where, for example: - the ‘local experience’ of an agency and/or property manager works in favour of particular applicants - applicants can demonstrate available social support and financial guarantors - an applicant’s preference or need for longer-term rental is seen to provide a level of financial security for the landlord - applicants are prepared to agree to specific, more stringent conditions for inspection of properties and review of contracts - the particular circumstances and motivations of landlords lead them to consider a wider range of applicants - In particular circumstances, property managers are prepared to give special consideration to applicants who appear worthy, albeit ‘risky’. The strategic actions of demonstrating and documenting on the part of vulnerable (low-income) tenant applicants can improve their chances of being perceived as resourceful, capable and ‘savvy’. Such actions are significant because they help to persuade property managers not only that the applicant may have sufficient resources (personal and material) but that they accept that the onus is on themselves to show they are reputable, and that they have valued ‘competencies’ and understand ‘how the system works’. The parameters of the market do shape the processes of risk-assessment and, ultimately, the strategic relation of power between property manager and the tenant applicant. Low vacancy rates and limited supply of lower-cost rental stock, in all areas, mean that there are many more tenant applicants than available properties, creating a highly competitive environment for applicants. The fundamental problem of supply is an aspect of the market that severely limits the chances of access to appropriate and affordable housing for low-income rental housing applicants. There is recognition of the impact of this problem of supply. The study indicates three main directions for future focus in policy and program development: providing appropriate supports to tenants to access and sustain private rental housing, addressing issues of discrimination and privacy arising in the processes of selecting suitable tenants, and addressing problems of supply.

Questions and Answers : Contract Law [4th ed.]

LexisNexis Questions & Answers - Contract Law provides an understanding of contract law and gives a clear and systematic approach to analysing and answering problem and exam questions. Each chapter commences with a summary of the relevant cases and identification of the key issues. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid and practical hints and tips on how to achieve higher marks.

Questions and Answers : Contract Law [5th ed.]

LexisNexis Questions & Answers - Contract Law provides an understanding of contract law and gives a clear and systematic approach to analysing and answering problem and exam questions. Each chapter commences with a summary of the relevant cases and identification of the key issues. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid and practical hints and tips on how to achieve higher marks.

Respecting contractual intentions : balancing consumer expectations with the sanctity of contract in the context of standard form insurance contracts

It is the purpose of this article to examine the means curently available to judges to achieve a workable balance between providing appropriate consumer protection to signatories of standard form contractors while still retaining adequate respect for the sanctity of contract, and, based on this analysis, to determine whether a significantly greater scope of contract (re)construction is likely to become the norm in most common law jurisdictions in the coming decades.