In the 1980s, neon was the thing to wear.
Did some people go all-in? Absolutely! Leggings, bodysuit, baggy t-shirt, wide belt—all neon. Ski slopes and gyms that transformed into dance floors on Saturday night were the perfect backdrop. Did you have to go all-in, all the time? Not at all. You wouldn’t wear neon to a wedding or a funeral, aside from the occasional accessory, and ideally not on a battlefield.
The art here lies in adopting a spectrum between sobriety, parsimonious and full use.
Collaborative project delivery mode is a welcome response to the disadvantages and imbalances associated with the first generations of traditional delivery contractual templates.
In the film Skyfall, Q tells James Bond, “Age is no guarantee of efficiency.”
Bond counters with, “And youth is no guarantee of innovation.”
Can people go all-in on collaborative delivery mode? Absolutely. Do they necessarily have to? Not at all. For some projects, risk management should be addressed on a more traditional approach.
Contractual solutions can vary in complexity according to the needs and requirements of a given project. The integration of certain values and principles associated with collaborative contracts is not only possible on other delivery methods (including traditional), but has already been or is now being incorporated into other types of contracts. Examples include greater emphasis on the quality of construction documents (including by involving the contractor acting as construction manager during the pre‑construction phase), better coordination of key resources in the pre-construction phase, tools such as BIM or SharePoint, shared workspaces for certain core activities, pre-procurement processes, dispute prevention and resolution, incentives such as sharing savings and losses against time and financial targets, more effective parameterization of general site conditions’ costs, and disincentives to overlitigation such as paying the opposing party’s legal fees on a pro rata basis.
Let’s not think of the different delivery modes as particles that can’t be brought together. Each of these is the result of a set of choices, over a spectrum, regarding fundamental project parameters such as coordination and risk sharing.
Based on the principle that a contract is what results from an agreement between the parties:
- Let’s prioritize parties’ intentions, at the risk of moving away from the comfort offered by their categorization in a pre-established template;
- Let’s also make sure, when faced with the combined result of all these choices:
- That they are coherent and compatible, particularly with regard to the ancillary effects imposed by the normative framework (responsibility of the prime contractor, ownership of licences, remuneration methods, etc.);
- That, if they can be categorized, they are integrated into the right template, subject to the adoption of additional conditions (for the volume and complexity of which sometimes betray the primary template choice);
- That, if they cannot be categorized, we simply implement a customized hybrid template. We can propose other solutions that reflect the common and respective interests of the parties involved. For example, integration of greater collaboration throughout the life of a project can be just as beneficial and can be done without undermining the proven nature and principles of the traditional contract type.
Taking a fresh look at contractual practices will prove beneficial from all points of view, including the best interests of the work and in the prevention and effective resolution of disputes.
Decompartmentalizing delivery methods, integrating tools inspired by alternative methods and using modern private and public contractual practices will lead to the emergence of hybrid project delivery modes and the next generation of traditional delivery contractual templates.
About the authors
The authors are members of Langlois Lawyers’ Construction and Infrastructure Practice Group.
They are involved in projects of all sizes and delivery modes, including traditional and collaborative modes.