Construction contracts: law and management (3rd edition)

This book is aimed primarily at students for whom the study of building or civil engineering contracts forms part of a construction-based course. We have had in mind the syllabus requirements for first degrees in Building, Civil Engineering, Architecture, Quantity Surveying and Building Surveying, as well as those of postgraduate courses in Construction Management and Project Management. We have also assumed that such students will already have been introduced to the general principles of English law, especially those relating to contract and tort. As a result, while aspects of those subjects that are of particular relevance to construction are dealt with here, the reader must look elsewhere for the general legal background. In producing this third edition, we have again been greatly assisted by the many helpful comments made by reviewers and users of its predecessor. Nonetheless, our basic aim is identical to that which underpinned the first edition: to provide an explanation of the fundamental principles of construction contract law, rather than a clause-by-clause analysis of any particular standard-form contract. As a result, while we draw most frequently upon JCT 98 for our illustrations of particular points, this merely reflects the pre-eminent position occupied by that particular form of contract in the UK construction industry. We conclude by repeating our previous warning as to the dangers inherent in a little learning. Neither this book, nor the courses for which it is intended, seek to produce construction lawyers. The objective is rather to enable those who are not lawyers to resolve simple construction disputes before they become litigious, and to recognize when matters require professional legal advice. It should be the aim of every construction student to understand the legal framework sufficiently that they can instruct and brief specialist lawyers, and this book is designed to help them towards that understanding.

The impact of market and supply configurations on the costs of tendering in the construction industry

The cost of tendering in the construction industry is widely suspected to be excessive, but there is little robust empirical evidence to demonstrate this. It also seems that innovative working practices may reduce the costs of undertaking construction projects and the consequent improvement in relationships should increase overall value for money. The aim of this proposed research project is to develop mechanisms for measuring the true costs of tendering based upon extensive in-house data collection undertaken in a range of different construction firms. The output from this research will enable all participants in the construction process to make better decisions about how to select members of the team and identify the price and scope of their obligations.

Roles in construction projects: analysis and terminology

Standard form contracts are typically developed through a negotiated consensus, unless they are proffered by one specific interest group. Previously published plans of work and other descriptions of the processes in construction projects tend to focus on operational issues, or they tend to be prepared from the point of view of one or other of the dominant interest groups. Legal practice in the UK permits those who draft contracts to define their terms as they choose. There are no definitive rulings from the courts that give an indication as to the detailed responsibilities of project participants. The science of terminology offers useful guidance for discovering and describing terms and their meanings in their practical context, but has never been used for defining terms for responsibilities of participants in the construction project management process. Organizational analysis enables the management task to be deconstructed into its elemental parts in order that effective organizational structures can be developed. Organizational mapping offers a useful technique for reducing text-based descriptions of project management roles and responsibilities to a comparable basis. Research was carried out by means of a desk study, detailed analysis of nine plans of work and focus groups representing all aspects of the construction industry. No published plan of work offers definitive guidance. There is an enormous amount of variety in the way that terms are used for identifying responsibilities of project participants. A catalogue of concepts and terms (a “Terminology”) has been compiled and indexed to enable those who draft contracts to choose the most appropriate titles for project participants. The purpose of this terminology is to enable the selection and justification of appropriate terms in order to help define roles. The terminology brings an unprecedented clarity to the description of roles and responsibilities in construction projects and, as such, will be helpful for anyone seeking to assemble a team and specify roles for project participants.

Developing a system for assessing the costs associated with different procurement routes in the construction industry

In developing techniques for monitoring the costs associated with different procurement routes, the central task is disentangling the various project costs incurred by organizations taking part in construction projects. While all firms are familiar with the need to analyse their own costs, it is unusual to apply the same kind of analysis to projects. The purpose of this research is to examine the claims that new ways of working such as strategic alliancing and partnering bring positive business benefits. This requires that costs associated with marketing, estimating, pricing, negotiation of terms, monitoring of performance and enforcement of contract are collected for a cross-section of projects under differing arrangements, and from those in the supply chain from clients to consultants, contractors, sub-contractors and suppliers. Collaboration with industrial partners forms the basis for developing a research instrument, based on time sheets, which will be relevant for all those taking part in the work. The signs are that costs associated with tendering are highly variable, 1-15%, depending upon what precisely is taken into account. The research to date reveals that there are mechanisms for measuring the costs of transactions and these will generate useful data for subsequent analysis.

What are the costs of procurement and who bears them?

The costs of procurement are transaction costs which are separate from the direct costs of a project. In this paper discussion is concentrated on costs of tendering. Types of cost, including money costs and opportunity costs, short-term and long-term costs, private and social costs are defined and examined in relation to various types of product and methods of procurement. The costs of the contractor and of the client are considered and tentative conclusions drawn as to who bears these costs in the short-run and in the long run. They may fall on the parties to the process for the particular project, on other contractors and clients or on society as a whole.

The impact of contract duration on the cost of cash retention

Cash retention is a common means of protecting an employer from a contractor's insolvency as well as ensuring that contractors finish the work that they start. Similarly, contractors withhold part of payments due to their sub-contractors. Larger contracts tend to be subjected to smaller rates of retention. By calculating the cost of retention as an amount per year of a contract, it is shown that retention is far more expensive for firms whose work consists of short contracts. The extra cost is multiplied when the final payment is delayed, as it often is for those whose work takes place at the beginning of a project. This may explain why it is that main contractors are a lot less interested than sub-contractors in alternatives to cash retention, such as retention bonds

Competitiveness in construction: a critical review of research

Since its popularization in the 1980s, competitiveness has received close attention from practitioners and researchers across a wide range of industries. In the construction sector, many works on competitiveness have also been published. So far, however, there seems to be no comprehensive review to summarize and critique existing research on competitiveness in construction. This research, therefore, reviews the extant literature from four aspects: concept of competitiveness, competitiveness research at the construction industry level, competitiveness research at the firm level, and competitiveness research at the project level. The review presents the state-of-the-art development of competitiveness research in construction, identifies the research gaps, and proposes new directions for further studies. Further research is recommended to validate previous studies in construction practices, identify the mechanisms that encourage mutual enhancement of competitiveness at different levels, and how to achieve its sustainability by embracing new management and/or economics techniques.

Communities of practice in construction case study organisations: questions and insights

Purpose – At the heart of knowledge management (KM) are the people – an organisation's important knowledge asset. Although this is widely acknowledged, businesses seldom understand this axiom in terms of the communities through which individuals develop and share the capacity to create and use knowledge. It is the collective learning that takes place within the social systems, i.e. communities of practice (CoP) that are of particular significance to an organisation from a KM perspective. This paper aims to review, critique, and raise some pertinent questions on the role of CoPs; and with the help of case studies shed light on the “goings-on” in construction practices. Design/methodology/approach – After critically reviewing the literature on CoPs and querying some underlying assertions, this research investigates how these issues are addressed in practice. A case study approach is adopted. Three organisations operating in the construction sector are interviewed for the purpose of this paper. Findings – Case study findings highlight the potential challenges and benefits of CoPs to a construction organisation, the role they play in generating and delivering value to the organisation and their contribution towards the collective organisational intelligence. From the findings, it is clear that the question is not whether communities exist within organisations, but how they deliver value to the organisation. From an organisational perspective, the key challenge is to provide an environment that is conducive to developing and nurturing such communities as opposed to merely creating them. Practical implications – Challenges and benefits demonstrated through the case studies should be taken in context. The findings are not intended to be prescriptive in nature, but are intentionally descriptive to provide contextual data that allow readers to draw their own inferences in the context of their organisations. They should be applied taking into account an organisation's unique characteristics and differentiators, the dynamics of the environment in which it operates and the culture it harbours within. Originality/value – Investigating the role of CoPs in the context of case study construction organisations forms the prime focus of this paper.

Emerging hybrid practices in construction design work: role of mixed media

Information technologies are used across all stages of the construction process, and are crucial in the delivery of large projects. Drawing on detailed research on a construction megaproject, we take a practice-based approach to examining the practical and theoretical tensions between existing ways of working and the introduction of new coordination tools in this paper. We analyze the new hybrid practices that emerge, using insights from actor-network theory to articulate the delegation of actions to material and digital objects within ecologies of practice. The three vignettes that we discuss highlight this delegation of actions, the “plugging” and “patching” of ecologies occurring across media and the continual iterations of working practices between different types of media. By shifting the focus from tools to these wider ecologies of practice, the approach has important managerial mplications for the stabilization of new technologies and practices and for managing technological change on large construction projects. We conclude with a discussion of new directions for research, oriented to further elaborating on the importance of the material in understanding change.

Risk pricing practices in finance, insurance and construction

A review of current risk pricing practices in the financial, insurance and construction sectors is conducted through a comprehensive literature review. The purpose was to inform a study on risk and price in the tendering processes of contractors: specifically, how contractors take account of risk when they are calculating their bids for construction work. The reference to mainstream literature was in view of construction management research as a field of application rather than a fundamental academic discipline. Analytical models are used for risk pricing in the financial sector. Certain mathematical laws and principles of insurance are used to price risk in the insurance sector. construction contractors and practitioners are described to traditionally price allowances for project risk using mechanisms such as intuition and experience. Project risk analysis models have proliferated in recent years. However, they are rarely used because of problems practitioners face when confronted with them. A discussion of practices across the three sectors shows that the construction industry does not approach risk according to the sophisticated mechanisms of the two other sectors. This is not a poor situation in itself. However, knowledge transfer from finance and insurance can help construction practitioners. But also, formal risk models for contractors should be informed by the commercial exigencies and unique characteristics of the construction sector.

Do national cultural differences affect the nature and characteristics of HRM practices? Evidence from Australian and Hong Kong construction firms on remuneration and job autonomy

Human resource management (HRM) plays a pivotal role in attracting and retaining talents. However, there is growing recognition in international HRM literature that the adoption of the widely accepted US/Harvard-inspired HRM model ignores the influences of cultural contexts on HRM practices in different countries. This notion has not been empirically investigated in the construction industry. Based on survey responses from 604 construction professionals from Australia and Hong Kong, this study examines whether: (i) national cultural differences influence individuals’ preference for types of remuneration and job autonomy, (ii) actual organizational HRM practices reflect such preferences and (iii) gaps between individuals’ preferences and actual organizational HRM practices affect job satisfaction. Results showed significant difference in HRM preferences between Australian and Hong Kong respondents and these are reflected in the distinct types of HRM practices adopted by construction firms in the two countries. Findings further indicated that the gap between individuals’ preferences and actual organizational HRM practices is associated with job satisfaction. The results support existing mainstream research and highlight the deficiency of the acultural treatment of HRM that is still apparent in construction management literature. An uncritical literature in the area not only hinders theory development but also potentially undermines the ability of construction firms to attract, recruit, and retain scarce talents.