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.

Project governance : ethical decision making in project procurement in the Malaysian public sectors

Managing public sector projects in Malaysia is a unique challenge. This is because of the ethical issues involved during the project procurement process. These ethical issues need attention because they will have an impact on the quality, cost and time of the project itself. The ethical issues here include conflict of interest, bid shopping, collusive tendering, bid cutting, corruption and the payment game. In 2006, 17.3% of 417 Malaysian government contract projects were considered sick due to contractors' performances that failed to conduct the project according to the project plan. Some of the sick projects from these statistics are due to the ethical issues involved. These construction projects have low quality due to the selection of the contractors, done unethically due to personal relationships instead of professional qualifications. That is why it is important to govern the project procurement processes to ensure the accountability and transparency of the decision making process to ensure that these ethical issues can be avoided. Extensive research has been conducted on the ethical issues in the tendering process or the award phase of project management. There is a lack of studies looking at the role of clients, including the government client, in relation to unethical practice in project procurement in the public sector. It is important to understand that ethical issues not only involve the contractors and suppliers but also the clients. Even though there are codes of ethics in the public sectors, ethical issues still arise. Therefore, this research develops a project governance framework (PGEDM) for ethical decision making in the Malaysian public sectors. This framework combines the ethical decision making process together with the project governance principals in guiding the public sectors with ethical decision making in project procurement. A triangulation of questionnaire survey and Delphi study was employed in this research to collect required qualitative and quantitative data. A questionnaire survey was conducted among the public officials (the practitioners) who are currently working in the procurement area in the Malaysian public sectors, in identifying the ethical behaviours and factors influencing further ethical behaviour to occur. A Delphi study was also conducted with the assistance of a panel of experts consisting of practitioners that have expertise in the area of project governance and project procurement as well as academician, which further considered the relationship and the influence of the criteria and indicators of ethical decision making (EDM) and project governance (project criteria, organisational culture, contract award criteria, individual criteria, client's requirements, government procedures and professional ethics). Through the identification and integration of the factors and EDM criteria as well as the project governance criteria and EDM steps for ethical issues, a PGEDM framework was developed to promote, and drive consistent decision outcome in project procurement in the public sector. The framework contributes significantly to ethical decision making in the project procurement process. These findings not only give benefit to the people involved in project procurement but also to the public officials in guiding them to be more accountable in handling ethical issues in the future and to have a more transparent decision making process.

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.

Misleading conduct arising from public statements : establishing the knowledge base of the target audience

Despite the very substantial body of primary sources and secondary literature on Australia’s much-litigated statutory provisions proscribing misleading or deceptive conduct, the courts have provided little in the way of assistance about how to establish the knowledge base of the target audience at whom the public statement was directed. The purpose of this case note is to compare and contrast two recent decisions of the High Court of Australia that highlight the difficulties faced by applicants in attempting to establish a contravention of the relevant legislation where conduct is directed at a segment of the public or the public as a whole.

The limits to public service : rural communities, professional families, and work mobility

Australia faces an ongoing challenge recruiting professionals to staff essential human services in rural and remote communities. This paper identifies the private limits to the implicit service contract between professions and such client populations. These become evident in how private solutions to competing priorities within professional families inform their selective mobility and thus create the public problem for such communities. The paper reports on a survey of doctors, nurses, teachers and police with responsibility for school-aged children in Queensland that plumbed the strength of neoliberal values in their educational strategy and their commitment to the public good in career decisions. The quantitative analysis suggested that neoliberal values are not necessarily opposed to a commitment to the public good. However, the qualitative analysis of responses to hypothetical career opportunities in rural and remote communities drew out the multiple intertwined spatial and temporal limits to such public service, highlighting the priority given to educational strategy in these families’ deliberations. This private/public nexus poses a policy problem on multiple institutional fronts.

Choosing appropriate contract methods for design-build projects

For design-build (DB) projects, owners normally use lump sum and Guaranteed Maximum Price (GMP) as the major contract payment provisions. However, there was a lack of empirical studies to compare the project performance within different contract types and investigate how different project characteristics affect the owners’ selection of contract arrangement. Project information from Design-build Institute of America (DBIA) database was collected to reveal the statistical relationship between different project characteristics and contract types and to compare project performance between lump sum and GMP contract. The results show that lump sum is still the most frequently used contract method for DB projects, especially in the public sector. However, projects using GMP contract are more likely to have less schedule delay and cost overrun as compared to those with lump sum contract. The chi-square tests of cross tabulations reveal that project type, owner type, and procurement method affect the selection of contract types significantly. Civil infrastructure rather than industrial engineering project tends to use lump sum more frequently; and qualification-oriented contractor selection process resorts to GMP more often compared with cost-oriented process. The findings of this research contribute to the current body of knowledge concerning the effect of associated project characteristics on contract type selection. Overall, the results of this study provide empirical evidence from real DB projects that can be used by owners to select appropriate contract types and eventually improve future project performance.

Exploring internal communication's impact on psychological contract currencies

Internal communication is a central process by which employees exchange information, build relationships and share organisational values. Fundamental to this process is the psychological contract. However, there is limited understanding of how internal communication influences psychological contract. The study contributes to theory by demonstrating that the dimensions of internal communication independently influence internal stakeholders' psychological contract beliefs. For managers, the findings can be used as a framework to improve internal communication processes and strategies.

Quick abnormal-bid-detection method for construction contract auctions

Non-competitive bids have recently become a major concern in both Public and Private sector construction contract auctions. Consequently, several models have been developed to help identify bidders potentially involved in collusive practices. However, most of these models require complex calculations and extensive information that is difficult to obtain. The aim of this paper is to utilize recent developments for detecting abnormal bids in capped auctions (auctions with an upper bid limit set by the auctioner) and extend them to the more conventional uncapped auctions (where no such limits are set). To accomplish this, a new method is developed for estimating the values of bid distribution supports by using the solution to what has become known as the German tank problem. The model is then demonstrated and tested on a sample of real construction bid data and shown to detect cover bids with high accuracy. This work contributes to an improved understanding of abnormal bid behavior as an aid to detecting and monitoring potential collusive bid practices.

A Fair Contract for Managing Water Scarcity

In public utilities, under supply constraints, fairness considerations lead to a market failure. This paper characterizes a two-period principal-agent contract for demand management, that mitigates this market failure in urban water systems. The contract is designed as an extensive form mechanism using subgame perfect Nash equilibrium (SPNE) as the solution concept. The contract is fair; and is shown to be economically efficient if, in case of deviation by the agent, the gain to the agent and the loss to the principal are small. It is shown that the assumption can be avoided in an infinite horizon contract.

Complying with the NIH Public Access Policy - Copyright Considerations and Options

On January 11, 2008, the National Institutes of Health ('NIH') adopted a revised Public Access Policy for peer-reviewed journal articles reporting research supported in whole or in part by NIH funds. Under the revised policy, the grantee shall ensure that a copy of the author's final manuscript, including any revisions made during the peer review process, be electronically submitted to the National Library of Medicine's PubMed Central ('PMC') archive and that the person submitting the manuscript will designate a time not later than 12 months after publication at which NIH may make the full text of the manuscript publicly accessible in PMC. NIH adopted this policy to implement a new statutory requirement under which: The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine's PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law. This White Paper is written primarily for policymaking staff in universities and other institutional recipients of NIH support responsible for ensuring compliance with the Public Access Policy. The January 11, 2008, Public Access Policy imposes two new compliance mandates. First, the grantee must ensure proper manuscript submission. The version of the article to be submitted is the final version over which the author has control, which must include all revisions made after peer review. The statutory command directs that the manuscript be submitted to PMC 'upon acceptance for publication.' That is, the author's final manuscript should be submitted to PMC at the same time that it is sent to the publisher for final formatting and copy editing. Proper submission is a two-stage process. The electronic manuscript must first be submitted through a process that requires input of additional information concerning the article, the author(s), and the nature of NIH support for the research reported. NIH then formats the manuscript into a uniform, XML-based format used for PMC versions of articles. In the second stage of the submission process, NIH sends a notice to the Principal Investigator requesting that the PMC-formatted version be reviewed and approved. Only after such approval has grantee's manuscript submission obligation been satisfied. Second, the grantee also has a distinct obligation to grant NIH copyright permission to make the manuscript publicly accessible through PMC not later than 12 months after the date of publication. This obligation is connected to manuscript submission because the author, or the person submitting the manuscript on the author's behalf, must have the necessary rights under copyright at the time of submission to give NIH the copyright permission it requires. This White Paper explains and analyzes only the scope of the grantee's copyright-related obligations under the revised Public Access Policy and suggests six options for compliance with that aspect of the grantee's obligation. Time is of the essence for NIH grantees. As a practical matter, the grantee should have a compliance process in place no later than April 7, 2008. More specifically, the new Public Access Policy applies to any article accepted for publication on or after April 7, 2008 if the article arose under (1) an NIH Grant or Cooperative Agreement active in Fiscal Year 2008, (2) direct funding from an NIH Contract signed after April 7, 2008, (3) direct funding from the NIH Intramural Program, or (4) from an NIH employee. In addition, effective May 25, 2008, anyone submitting an application, proposal or progress report to the NIH must include the PMC reference number when citing articles arising from their NIH funded research. (This includes applications submitted to the NIH for the May 25, 2008 and subsequent due dates.) Conceptually, the compliance challenge that the Public Access Policy poses for grantees is easily described. The grantee must depend to some extent upon the author(s) to take the necessary actions to ensure that the grantee is in compliance with the Public Access Policy because the electronic manuscripts and the copyrights in those manuscripts are initially under the control of the author(s). As a result, any compliance option will require an explicit understanding between the author(s) and the grantee about how the manuscript and the copyright in the manuscript are managed. It is useful to conceptually keep separate the grantee's manuscript submission obligation from its copyright permission obligation because the compliance personnel concerned with manuscript management may differ from those responsible for overseeing the author's copyright management. With respect to copyright management, the grantee has the following six options: (1) rely on authors to manage copyright but also to request or to require that these authors take responsibility for amending publication agreements that call for transfer of too many rights to enable the author to grant NIH permission to make the manuscript publicly accessible ('the Public Access License'); (2) take a more active role in assisting authors in negotiating the scope of any copyright transfer to a publisher by (a) providing advice to authors concerning their negotiations or (b) by acting as the author's agent in such negotiations; (3) enter into a side agreement with NIH-funded authors that grants a non-exclusive copyright license to the grantee sufficient to grant NIH the Public Access License; (4) enter into a side agreement with NIH-funded authors that grants a non-exclusive copyright license to the grantee sufficient to grant NIH the Public Access License and also grants a license to the grantee to make certain uses of the article, including posting a copy in the grantee's publicly accessible digital archive or repository and authorizing the article to be used in connection with teaching by university faculty; (5) negotiate a more systematic and comprehensive agreement with the biomedical publishers to ensure either that the publisher has a binding obligation to submit the manuscript and to grant NIH permission to make the manuscript publicly accessible or that the author retains sufficient rights to do so; or (6) instruct NIH-funded authors to submit manuscripts only to journals with binding deposit agreements with NIH or to journals whose copyright agreements permit authors to retain sufficient rights to authorize NIH to make manuscripts publicly accessible.

Public-public partnerships (PUPs) in water

Water operators need to be efficient, accountable, honest public institutions providing a universal service. Many water services however lack the institutional strength, the human resources, the technical expertise and equipment, or the financial or managerial capacity to provide these services. They need support to develop these capacities. The vast majority of water operators in the world are in the public sector – 90% of all major cities are served by such bodies. This means that the largest pool of experience and expertise, and the great majority of examples of good practice and sound institutions, are to be found in existing public sector water operators. Because they are public sector, however, they do not have any natural commercial incentive to provide international support. Their incentive stems from solidarity, not profit. Since 1990, however, the policies of donors and development banks have focussed on the private companies and their incentives. The vast resources of the public sector have been overlooked, even blocked by pro-private policies. Out of sight of these global policy-makers, however, a growing number of public sector water companies have been engaged, in a great variety of ways, in helping others develop the capacity to be effective and accountable public services. These supportive arrangements are now called 'public-public partnerships' (PUPs). A public-public partnership (PUP) is simply a collaboration between two or more public authorities or organisations, based on solidarity, to improve the capacity and effectiveness of one partner in providing public water or sanitation services. They have been described as: “a peer relationship forged around common values and objectives, which exclude profit-seeking”.1 Neither partner expects a commercial profit, directly or indirectly. This makes PUPs very different from the public–private partnerships (PPPs) which have been promoted by the international financial institutions (IFIs) like the World Bank. The problems of PPPs have been examined in a number of reports. A great advantage of PUPs is that they avoid the risks of such partnerships: transaction costs, contract failure, renegotiation, the complexities of regulation, commercial opportunism, monopoly pricing, commercial secrecy, currency risk, and lack of public legitimacy.2 PUPs are not merely an abstract concept. The list in the annexe to this paper includes over 130 PUPs in around 70 countries. This means that far more countries have hosted PUPs than host PPPs in water – according to a report from PPIAF in December 2008, there are only 44 countries with private participation in water. These PUPs cover a period of over 20 years, and been used in all regions of the world. The earliest date to the 1980s, when the Yokohama Waterworks Bureau first started partnerships to help train staff in other Asian countries. Many of the PUP projects have been initiated in the last few years, a result of the growing recognition of PUPs as a tool for achieving improvements in public water management. This paper attempts to provide an overview of the typical objectives of PUPs; the different forms of PUPs and partners involved; a series of case studies of actual PUPs; and an examination of the recent WOPs initiative. It then offers recommendations for future development of PUPs.

Does atypical work help the jobless? Evidence from a CAEAS/CPS cohort analysis

Atypical employment, such as temporary, on-call and contract work, has been found disproportionately to attract the jobless. But there is no consensus in the literature as to the labour market consequences of such job choice by unemployed individuals. Using data from the Current Population Survey, we investigate the implications of the initial job-finding strategies pursued by the jobless for their short- and medium-term employment stability. At first sight, it appears that taking an offer of regular employment provides the greatest degree of employment continuity for the jobless. However, closer inspection indicates that the jobless who take up atypical employment are not only more likely to be employed 1 month and 1 year later than those who continue to search, but also to enjoy employment continuity that is not less favourable than that offered by regular, open-ended employment.

Job strain and adverse health behaviors: The Finnish public sector study

Objective: The objective of this study was to explore the association between job strain and the co-occurrence of adverse health behaviors, smoking; heavy drinking; obesity, and physical inactivity. Methods. The authors studied cross-sectional data of 34,058 female and 8154 male public sector employees. Results: Multinomial logistic regression models adjusted for sex, age, basic education, marital status, and type of job contract showed that high job strain and passive jobs were associated with 1.3 to 1.4 times higher odds of having >= 3 (vs 0) adverse health behaviors. Among men, low job control was associated with a 1.3 fold likelihood and amon women active jobs were associated with a 1.2 fold likelihood of having >= 3 (vs 0) adverse behaviors. High demands were associated with a higher likelihood of co-occurrence of one to two (vs 0) adverse behav irs among women. Conclusions. b strain conditions may be associated with the co-occurrence of adverse health behaviors that contribute to preventable chronic diseases. Clinical Significance. Adversejob conditions may increase the likelihood of co-occurring health risk behaviors. Reducing work stress by increasingl ob control and decreasing psychologic demands might help efforts to promote healthy 1 festyles.

Serving Multiple Masters: Exploring HRD in the Context of Third Sector Partnerships for Public Service Delivery

Organisations in the Non-Profit and Voluntary (NPV) sector increasingly face challenging and uncertain times with an increasing shift from public grant funding towards contract funding. As a result many of these changes employees in such organisations have often found themselves working more closely under contract with colleagues in public sector organisations in order to provide public services. Using a multiple case study methodology and in-depth interviewing of a range of stakeholders form two large Northern Irish based Non Profit Organisations in the social care sector, the purpose of this research was to
investigate HRD and people management issues and how a turbulent environment can affect how organisations approach HRD strategy and implementation.

The research identifies the importance placed upon NPOs adopting HRD strategies and addressing the development of unique and specialised skills in order to claw back power within the relationships they serve with statutory funding bodies. However this research also notes that the manner in which HRD and its associated issues are considered within NPOs can have an impact on the loyalty and commitment of the workforce which serves them. What is of concern is that the context for the delivery of public services under contract is putting increasing strain on NPOs and this has been felt markedly by their respective workforces, and unless strong values-led leadership and managerial practice is in
place in NPOs, the voluntary-centred ethos of those who work in the sector may be significantly damaged.

The Impact of the Recent Economic Recession on the NEC Contract in Northern Ireland: A Preliminary Study

In comparison to the rest of the United Kingdom (UK) the Northern Irish Construction Industry was disproportionately affected by the recent economic recession. During this period, use of the New Engineering Contract (NEC) has proliferated in the public sector, however no study has been undertaken to examine the impact of the recession on this contract in Northern Ireland. The aim of this paper is to explore NEC contract implementation in Northern Ireland and the impact of the recession on its operation. A qualitative methodology is adopted using a literature review and semi structured interviews with six construction professionals. A qualitative analysis identifies themes and issues arising exploring connections and links between them using thematic coding. The initial findings are that the introduction of the NEC contract in Northern Ireland makes demands of contractors and consultants in terms of additional resources and training. Some consultants show a clear lack of understanding of the contract and its provisions. Whilst there is general agreement that the contract does help to stimulate good project management, the interviewees find the contract time consuming and complicated to administer, describing it as “unforgiving for the architect and unforgiving to the contractor.” Due to the impact of the recession, both contractors and consultants are still reporting a drop in income from pre-recession levels. Project resourcing levels have dropped significantly since the onset of the recession. Adversarial and opportunistic behaviour has increased. Many consultants and contractors are struggling to adequately administer the NEC contract at current income levels. The introduction of the NEC contract and the economic recession have exerted opposing forces on the implementation of the contract, hindering its execution. As the pressures exerted by the economic recession abate and a greater understanding of the contract develops, these opposing forces will ease leading to a more consistent implementation of the contract.