Negotiating Responsibility for Project Change in Collaborative Working Environments
AbstractDisputes from project cost escalation and delays have exercised the attention of construction management researchers for a long time. Several developments suggest research towards development of conceptual and practical tools for negotiating away informal differences before they escalate into formal disputes requiring litigation or arbitration. Of these developments, the most pressing drive for negotiation is the increased use of procurement strategies requiring the stakeholders to work in collaboration. This article reviews the literature on negotiation of variations and claims. The findings of this review are that: (i) there is very little literature on the negotiation of variations and claims which resonates with general negotiation theories; and (ii) there is a need for research on negotiations models and tools which will reflect the volume of information scattered across different documents prepared for purposes other than negotiation and the multiplicity of relevant issues and stakeholders.
CitationAustralasian Dispute Resolution Journal, 16(4): 271-279
JournalAustralasian Dispute Resolution Journal
DescriptionThis research was supported by a grant from the Hong Kong University Grants Commission and was conducted in collaboration with the City University of Hong Kong.
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Insolvency and resolution of construction contract disputes by adjudication in the UK construction industryNdekugri, Issaka E.; Russell, Victoria (Taylor & Francis, 2005)The Housing Grants, Construction and Regeneration Act 1996 provides that a party to a construction contract has a right, at any time, to refer any dispute under the contract for adjudication. This resolution method requires a neutral third party, the adjudicator, to determine the dispute within 28 days after receipt of the referral regardless of the complexity of the issues in dispute. The decision is to be implemented even if it is palpably wrong in fact or law. A key assumption of this legislation is that any mistakes made by an adjudicator can be corrected by reference of the same to litigation or arbitration. It is a major concern that restoration of the parties to their correct positions may become impossible where, after implementation of an adjudicator's mistaken decision, the beneficiary of the decision becomes insolvent. This article is a critical review of all the cases in which the courts have dealt with the effect of insolvency on the right to adjudicate and the enforceability of adjudicators' decisions. Two main conclusions are derived from the review. First, the court may decline to enforce an adjudicator's payment decision where there is strong evidence that, on account of formal insolvency, the payee would be unable to make repayment if final resolution of the dispute necessitates it. Second, the only exception so far to the general right to refer to adjudication arises where the other party is in administration. (Taylor & Francis)
AN INVESTIGATION INTO THE IMPLEMENTATION OF THE CONSTRUCTION (DESIGN AND MANAGEMENT) REGULATIONS IN THE CONSTRUCTION INDUSTRYMzyece, Dingayo (2015-01)The European Union (EU), in 1992, issued the Temporary or Mobile Construction Sites (TMCS) Directive, which requires EU members to introduce specific law to improve health and safety (H&S) performance outcomes by placing specific duties on key stakeholders. This Directive led to the introduction of the first Construction (Design and Management) (CDM) Regulations in the UK construction industry on 31 March 1995 and since their introduction, the overall performance of construction H&S has improved gradually. However, despite this positive outlook, there are still significant concerns surrounding the implementation of the CDM Regulations, a subject on which empirical research has been very scanty. It is against such a background that this study investigates the practical implementation of the CDM Regulations and extends current knowledge and understanding, and develops a framework for appropriate remedial action by industry. The research method involved a thorough critical review of literature, semi-structured interviews, and two postal questionnaire surveys, using as research informants, practitioners with experience of the Designer, CDM Coordinator (CDM-C), and Principal Contractor (PC) roles under the CDM Regulations. Primary data were collected and analysed from in-depth interviews with six organisations purposively selected based on their construction design expertise and 122 questionnaires returned in total. The finding regarding lack of collaborative working amongst duty holders is a significant outcome of this study; a requirement expressed explicitly within the CDM Regulations, yet questionable in terms of its implementation. Further, the study reveals a number of statistically significant correlations between the extent of discharge of duties and their perceived degree of importance. However, the strength of the majority of these correlations is weak. In particular, the evidence indicates that 50% of the duties of the CDM-C are misaligned in terms of extent of discharge and perceived degree of importance, whereas 25% of the PC duties are also misaligned. This signals a lack of understanding regarding the importance of duties, towards achieving improved H&S management. Surprisingly, a comparison between extent of discharge of duties and their perceived degree of difficulty reveals that all the duties of the PC are statistically significant, meaning that the perceived degree of difficulty does not impede their extent of discharge. While 90% of the CDM-C duties are also statistically significant, again the same interpretation applies. Further, a consensus reached by Designers supports the view that CDM-Cs provide insufficient input throughout the planning and construction phase, raising doubt as to whether the duty holder is fit for purpose. Overall, the results confirm that interdependent working of duty holders is still a challenge, demonstrated by the Designer duty to ensure appointment of the CDM-C (Regulation 18(1)), the CDM-C duty to ensure Designers comply with their duties (Regulation 20(2)(c)), and the PC duty to liaise with the CDM-C and Designer (Regulation 22(1)(b)). Three recurring themes emerge from the results, that is: (i) collaboration, (ii) accountability and compliance, and (iii) facilitation, which in turn inform the remedial action framework comprising 13 remedial actions and 8 change drivers. Validation of the remedial action framework by 15 study participants reveals that, at least 10 remedial actions and 7 change drivers are considered likely to improve CDM implementation. The top three remedial actions are: (i) ensuring adequate arrangements for coordination of H&S measures; (ii) including provisions within the regulations specifying the stages for the appointment of duty holders; and (iii) amending the ACoP to provide guidance on determining what resources are adequate for a particular project. Whereas, the top three change drivers are: (i) management leadership; (ii) the proactive participation of duty holders; and (iii) training to equip duty holders with sufficient knowledge on provision of timely and adequate preconstruction information. Based on these outcomes, conclusions, recommendations, and further areas of research are drawn.
Improving construction management practice in the Gibraltar construction industryDaniel, Emmanuel I.; Garcia, Daniel; Marasini, Ramesh; Kolo, Shaba; Oshodi, Olalekan; Pasquire, Christine; Hamzeh, Farook (Annual Conference of the International. Group for Lean Construction (IGLC), 2019-07-03)Research has shown that 57% of activities in a construction project is non-value adding (waste) which contributes to the poor performance of the sector. While other countries of the world such the USA, UK, Brazil, Nigeria and Israel among others are seeking to understand this challenge and deploy innovative ways and modern techniques to improve it, limited studies have explored factors that contribute to non-value adding activities (NVA) in the Gibraltar construction industry. The current study aims to identify the factors that contribute to NVA on construction sites in Gibraltar and to present an outlook on how this could be minimised using Last Planner System(LPS). A combination of quantative and qualitative research approaches were used. Thirtyone questionnaire responses were analysed and seven semi-structured interviews were conducted. The investigation reveals that the development of unrealistic schedules, lack of adequate training, delayed approval process and work interruption due to the community are the key factors that contribute to NVA. The study found that the suggestions offered by construction professional for minimising NVA align with some LPS principles. The study concludes that some of the current practices, could serve as justification for the introduction of LPS in the construction sector of Gibraltar.