Early contractor involvement in building procurement : by David Mosey

By David Mosey

Early contractor involvement : an outline -- Conditional contracts and early venture techniques -- difficulties and disputes below building section development contracts -- Early contractor involvement in layout, pricing and danger administration -- purchaser management, conversation platforms and binding programmes -- Contractual and non-contractual preconstruction techniques -- Preconstruction commitments less than framework agreements -- undertaking administration and undertaking partnering -- stumbling blocks to early contractor appointments -- govt and perspectives and event -- Conclusions : the golden age of rock 'n' roll?

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It is suggested that they are not and that in part this is due to building contracts only being entered into late in the project processes at (or around) the time of commencement of work on site. J. Smith observed that ‘Even though contracts serve multiple useful functions, their content and development is sometimes given insufficient attention’124. In some cases the position is made worse by the use of complex wording. Duncan- Wallace referred to certain building contract provisions as creating ‘a private world of mystery where only the professionally qualified may tread’125.

In the activities required to prepare for a typical building project53, some matters will need to be settled by further negotiation, but this should not undermine the effectiveness of the preconstruction phase agreement if the parties can be relied upon to apply a ‘standard of reasonableness’ or if the relevant matters are of ‘subsidiary importance’ such that they do not negate or overturn the intention of the contracting parties to be committed to the other terms that they have agreed54. This is an important qualification as it recognises the human element in project planning and the need for complex interactions between team members to arrive at increasingly complete information55.

81 MacNeil (1974), 777. See MacNeil (1974), 780. 83 See MacNeil (1974), 780. 82 30 Conditional Contracts and Early Project Processes These techniques for overcoming the potential delay and uncertainty of negotiations require clear agreed processes to be set out in advance. A conditional two-stage agreement can more readily accommodate the required provisions as they can be described as processes to satisfy conditions rather than techniques to create a second contract. By contrast, a freestanding preconstruction phase agreement may leave the parties more at risk of protracted or unsuccessful negotiations because such negotiations are not part of an integrated set of contractual project processes, but are instead the means to finalise a construction phase building contract.

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