Debts “incurred” by receivers, administrators and liquidators : the case for a harmonised construction of ss 419, 443A and 556(1)(a) of the Corporations Act

This article analyses the inconsistent approaches taken by courts when interpreting provisions of the Corporations Act which address debts or expenses “incurred” by receivers, administrators and liquidators. The article contends for a consistent construction of these provisions which will enable the legislation to operate (as was intended) for the benefit of persons who supply goods, services or labour to companies in external administration. The article explains how and why debts can be “incurred” by insolvency practitioners continuing on pre-existing contracts. Specifically, the article contends for a construction of ss 419 and 443A of the Corporations Act which renders receivers and administrators personally liable for certain entitlements of employees (eg, wages and superannuation contributions) which become due and payable by reason of the decision of a receiver or administrator to continue a pre-existing contract rather than terminate it.

The construction contract bidder homogeneity assumption : an empirical test

This paper describes an empirical study to test the proposition that all construction contract bidders are homogeneous ie. they can be treated as behaving collectively in an identical (statistical) manner. Examination of previous analyses of bidding data reveals a flaw in the method of standardising bids across different size contracts and a new procedure is proposed which involves the estimation of a contract datum. Three independent sets of bidding data were then subjected to this procedure and estimates of the necessary distributional parameters obtained. These were then tested against the bidder homogeneity assumption resulting in the conclusion that the assumption may be appropriate for a three parameter log-normal shape, but not for scale and location.

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.

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 learning capability of construction organisations engaged in collaborative contracting - Literature Review [industry report]

Background Value for money (VfM) on collaborative construction projects is dependent on the learning capabilities of the organisations and people involved. Within the context of infrastructure delivery, there is little research about the impact of organisational learning capability on project value. The literature contains a multiplicity of often un-testable definitions about organisational learning abilities. This paper defines learning capability as a dynamic capability that participant organisations purposely develop to add value to collaborative projects. The paper reports on a literature review that proposes a framework that conceptualises learning capability to explore the topic. This work is the first phase of a large-scale national survey funded by the Alliancing Association of Australasia and the Australian Research Council. Methodology Desk-top review of leading journals in the areas of strategic management, strategic alliances and construction management, as well as recent government documents and industry guidelines, was undertaken to synthesise, conceptualise and operationalise the concept of learning capability. The study primarily draws on the theoretical perspectives of the resource-based view of the firm (e.g. Barney 1991; Wernerfelt 1984), absorptive capacity (e.g. Cohen and Levinthal 1990; Zahra and George 2002); and dynamic capabilities (e.g. Helfat et al. 2007; Teece et al. 1997; Winter 2003). Content analysis of the literature was undertaken to identify key learning routines. 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. Findings and Future Research The review process resulted in a framework for the conceptualisation of learning capability that shows three phases of learning: (1) exploratory learning, (2) transformative learning and (3) exploitative learning. These phases combine both internal and external learning routines to influence project performance outcomes and thus VfM delivered under collaborative contracts. Sitting within these phases are eight categories of learning capability comprising knowledge articulation, identification, acquisition, dissemination, codification, internationalisation, transformation and application. The learning routines sitting within each category will be disaggregated in future research as the basis for measureable items in a large-scale survey study. The survey will examine the extent to which various learning routines influence project outcomes, as well as the relationships between them. This will involve identifying the routines that exist within organisations in the construction industry, their resourcing and rate of renewal, together with the extent of use and perceived value within the organisation. The target population is currently estimated to be around 1,000 professionals with experience in relational contracting in Australia. This future research will build on the learning capability framework to provide data that will assist construction organisations seeking to maximise VfM on construction projects.

Comparing the effect of inadequate documentation to the cost management and tendering processes in managing contractor and fixed lump sum contracts in Australia

Purpose of this paper This research aims to examine the effects of inadequate documentation to the cost management & tendering processes in Managing Contractor Contracts using Fixed Lump Sum as a benchmark. Design/methodology/approach A questionnaire survey was conducted with industry practitioners to solicit their views on documentation quality issues associated with the construction industry. This is followed by a series of semi-structured interviews with a purpose of validating survey findings. Findings and value The results showed that documentation quality remains a significant issue, contributing to the industries inefficiency and poor reputation. The level of satisfaction for individual attributes of documentation quality varies. Attributes that do appear to be affected by the choice of procurement method include coordination, build ability, efficiency, completeness and delivery time. Similarly the use and effectiveness of risk mitigation techniques appears to vary between the methods, based on a number of factors such as documentation completeness, early involvement, fast tracking etc. Originality/value of paper This research fills the gap of existing body of knowledge in terms of limited studies on the choice of a project procurement system has an influence on the documentation quality and the level of impact. Conclusions Ultimately research concludes that the entire project team including the client and designers should carefully consider the individual projects requirements and compare those to the trade-offs associated with documentation quality and the procurement method. While documentation quality is definitely an issue to be improved upon, by identifying the projects performance requirements a procurement method can be chosen to maximise the likelihood that those requirements will be met. This allows the aspects of documentation quality considered most important to the individual project to be managed appropriately.

NEC Contracting: Evaluation of the Inclusion of Dispute Review Boards in lieu of Adjudication in the Construction Industry in the United Kinddom

The construction industry is renowned for spending vast sums in the resolution of disputes, but never in the prevention. The purpose of this paper is to analyse the New Engineering Contract (NEC) to determine whether or not adjudication has become misaligned with the contract’s objective of promoting effective management. In doing so, the paper examines dispute review boards in order to ascertain if they could be a viable alternative to adjudication. A sequential mixed methodology is adopted including a detailed literature review, eight semi-structured interviews, culminating in the circulation and analysis of a questionnaire, to record the significance of the factors identified. The research concludes that the majority of individuals agree that dispute review boards would be more aligned with the NEC. The familiarity of members, the potential to curb rogue behaviour of parties and the proactive nature of the board are flagged as positive features, however the cost aspect requires further investigation. The reservations made in the study about adjudication, such as the priority given to speed over accuracy and also the adversarial nature of the process, suggest that a preventative step prior to proceeding to adjudication would coincide more with the three core themes of the NEC Contract and therefore, be a positive addition.

Crime organisé et construction : un duo indissociable?

La collusion est une pratique anticoncurrentielle qui a pour but la coopération de personnes morales afin d’atteindre un but commun tel que le profit. Cette méthode se retrouve dans le milieu de la construction notamment par la rotation de contrat, par la fixation de prix ou le débalancement de bordereaux. Bien que la collusion dans la construction soit souvent associée au crime organisé, cette étude propose l’hypothèse d’un contrôle du marché par le crime organisant et non le crime organisé. Ainsi, l’industrie de la construction serait influencée par une organisation en mouvance et en développement constant pouvant s’organiser tout en organisant d’autres noyaux. En analysant le marché de l’industrie de la construction, cette étude a pu relever qu’il était possible à l’aide d’outils quantitatifs tels que l’analyse de classification d’identifier des irrégularités au sein du marché, au fil des années. Des entrevues passées auprès d’acteurs du domaine de la construction sont venues confirmer l’hypothèse d’un contrôle du marché par le crime organisant et non le crime organisé. L’analyse qualitative se penchait ainsi sur les motivations des acteurs à entreprendre des pratiques anticoncurrentielles et sur la compréhension de l’émergence de la collusion dans la construction. La discussion identifie les opportunités criminelles, de même que les problématiques survenant dans le milieu de la construction et pouvant influencer l’émergence de la collusion. Ces problématiques concernent les contributions aux partis politiques, le truquage des devis et bordereaux par les firmes de consultants, l’impunité des autorités, l’historicité des entrepreneurs, l’idéologie de marché et les problématiques liées au cautionnement. Enfin, des solutions adaptées à la réalité de l’industrie de la construction en tenant compte des facteurs de risque ont été identifiées.

A critical study of major construction projects in kerala vis-a-vis effectiveness in project implementation

Chapter 1 presents a brief note on the state at which the construction industry stands at present, bringing into focus the significance of the critical study. Relevance of the study, area of investigation and objectives of the study are outlined in this chapter. The 2nd chapter presents a review of the literature on the relevant areas. In the third chapter an analysis on time and cost overrun in construction highlighting the major factors responsible for it has been done. A couple of case studies to estimate loss to the nation on account of delay in construction have been presented in the chapter. The need for an appropriate estimate and a competent contractor has been emphasised for improving effectiveness in the project implementation. Certain useful equations and thoughts have been formulated on this area in this chapter that can be followed in State PWD and other Govt. organisations. Case studies on project implementation of major projects undertaken by Government sponsored/supported organizations in Kerala have been dealt with in Chapter 4. A detailed description of the project of Kerala Legislature Complex with a critical analysis has been given in this chapter. A detailed account of the investigations carried out on the construction of International Stadium, a sports project of Greater Cochin Development Authority is included here. The project details of Cochin International Airport at Nedumbassery, its promoters and contractors are also discussed in Chapter 4. Various aspects of implementation which led the above projects successful have been discussed in chapter 5. The data collected were analysed through discussion and perceptions to arrive at certain conclusions. The emergence of front-loaded contract and its impact on economics of the project execution are dealt with in this chapter. Analysis of delays in respect of the various project narrated in chapter 3 has been done here. The root causes of the project time and overrun and its remedial measures are also enlisted in this chapter. Study of cost and time overrun of any construction project IS a part of construction management. Under the present environment of heavy investment on construction activities in India, the consequences of mismanagement many a time lead to excessive expenditure which are not be avoidable. Cost consciousness, therefore has to be keener than ever before. Optimization in investment can be achieved by improved dynamism in construction management. The successful completion of coristruction projects within the specified programme, optimizing three major attributes of the process - quality, schedule and costs - has become the most valuable and challenging task for the engineer - managers to perform. So, the various aspects of construction management such as cost control, schedule control, quality assurance, management techniques etc. have also been discussed in this fifth chapter. Chapter 6 summarises the conclusions drawn from the above criticalr1 of rhajor construction projects in Kerala.

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.

Learning across business sectors: Knowledge sharing between aerospace and construction

This report addresses the extent that managerial practices can be shared between the aerospace and construction sectors. Current recipes for learning from other industries tend to be oversimplistic and often fail to recognise the embedded and contextual nature of managerial knowledge. Knowledge sharing between business sectors is best understood as an essential source of innovation. The process of comparison challenges assumptions and better equips managers to cope with future change. Comparisons between the aerospace and construction sectors are especially useful because they are so different. The two sectors differ hugely in terms of their institutional context, structure and technological intensity. The aerospace sector has experienced extensive consolidation and is dominated by a small number of global companies. Aerospace companies operate within complex networks of global interdependency such that collaborative working is a commercial imperative. In contrast, the construction sector remains highly fragmented and is characterised by a continued reliance on small firms. The vast majority of construction firms compete within localised markets that are too often characterised by opportunistic behaviour. Comparing construction to aerospace highlights the unique characteristics of both sectors and helps explain how managerial practices are mediated by context. Detailed comparisons between the two sectors are made in a range of areas and guidance is provided for the implementation of knowledge sharing strategies within and across organisations. The commonly accepted notion of ‘best practice’ is exposed as a myth. Indeed, universal models of best practice can be detrimental to performance by deflecting from the need to adapt continuously to changing circumstances. Competitiveness in the construction sector too often rests on efficiency in managing contracts, with a particular emphasis on the allocation of risk. Innovation in construction tends to be problem-driven and is rarely shared from project to project. In aerospace, the dominant model of competitiveness means that firms have little choice other than to invest in continuous innovation, despite difficult trading conditions. Research and development (R&D) expenditure in aerospace continues to rise as a percentage of turnovers. A sustained capacity for innovation within the aerospace sector depends crucially upon stability and continuity of work. In the construction sector, the emergence of the ‘hollowed-out’ firm has undermined the industry’s capacity for innovation. Integrated procurement contexts such as prime contracting in construction potentially provide a more supportive climate for an innovation-based model of competitiveness. However, investment in new ways of working depends upon a shift in thinking not only amongst construction contractors, but also amongst the industry’s major clients.

Understanding construction consortia: Theory, practice and opinions

Firms form consortia in order to win contracts. Once a project has been awarded to a consortium each member then concentrates on his or her own contract with the client. Therefore, consortia are marketing devices, which present the impression of teamworking, but the production process is just as fragmented as under conventional procurement methods. In this way, the consortium forms a barrier between the client and the actual construction production process. Firms form consortia, not as a simple development of normal ways of working, but because the circumstances for specific projects make it a necessary vehicle. These circumstances include projects that are too large or too complex to undertake alone or projects that require on-going services which cannot be provided by the individual firms inhouse. It is not a preferred way of working, because participants carry extra risk in the form of liability for the actions of their partners in the consortium. The behaviour of members of consortia is determined by their relative power, based on several factors, including financial commitment and ease of replacement. The level of supply chain visibility to the public sector client and to the industry is reduced by the existence of a consortium because the consortium forms an additional obstacle between the client and the firms undertaking the actual construction work. Supply chain visibility matters to the client who otherwise loses control over the process of construction or service provision, while remaining accountable for cost overruns. To overcome this separation there is a convincing argument in favour of adopting the approach put forward in the Project Partnering Contract 2000 (PPC2000) Agreement. Members of consortia do not necessarily go on to work in the same consortia again because members need to respond flexibly to opportunities as and when they arise. Decision-making processes within consortia tend to be on an ad hoc basis. Construction risk is taken by the contractor and the construction supply chain but the reputational risk is carried by all the firms associated with a consortium. There is a wide variation in the manner that consortia are formed, determined by the individual circumstances of each project; its requirements, size and complexity, and the attitude of individual project leaders. However, there are a number of close working relationships based on generic models of consortia-like arrangements for the purpose of building production, such as the Housing Corporation Guidance Notes and the PPC2000.

The engineer under FDIC's conditions of contract for construction

FIDIC has over the years produced standard forms of contracts for the international procurement of projects. A source of continuing criticism of its Red Book concerns the duality in the traditional role of the engineer as the employer's agent and as an independent third party holding the balance fairly between the employer and the contractor. In response to this and other criticisms FIDIC produced a replacement for it in 1999. The role of the engineer under the new Red Book is critically examined in the light of relevant case law, expert commentaries and feedback from two multidisciplinary workshops with international participation. The examination identified three major changes: (1) a duty to act impartially has been replaced by a duty to make fair determination of certain matters; (2) it is open to parties to allow greater control of the engineer by the employer by stating in the appropriate part of the contract powers the engineer must not exercise without the employer's approval; (3) there is provision for a Dispute Adjudication Board (DAB) to which disputes may be referred. Although the duality has not been eliminated completely, the contract is structured flexibly enough to support those who wish to contract on the basis of the engineer acting solely as the agent of the employer.

Managing multiple markets: big firms and PFI contracts

The Private Finance Initiative (PFI) is frequently portrayed as a vehicle for change for the UK construction sector. Significant change in the working practices of construction companies is predicted as new business models based on whole-life value creation emerge. This paper shifts the focus of discussion from projected ideals and possible developments to the current situation. More specifically, it focuses on the challenges that large firms participating in both PFI and traditional markets face. The analysis focuses on the relations between business units and on day-to-day challenges to greater long-term commitment, through life-service provision and increased integration between construction and service provision. The paper offers insights into the effects of PFI on construction practice and their implications for theorizing on organizational and strategic change. It suggests abandoning a simplistic model of the centralized, homogenous firm and instead capturing the dynamics of decentralized, large firms working in multiple markets on a variety of projects. This would assist in the provision of more realistic and fruitful models of how to realize the PFI vision.