International Construction Law Review
FORMS, USE AND PERFORMANCE OF COLLABORATIVE CONTRACTING MODELS IN AUSTRALIA AND THE US – PAST, PRESENT AND FUTURE
Sean Kelly
Special Counsel, Clayton Utz (email: skelly@claytonutz.com)
Yazmin Judd
Lawyer, Clayton Utz (email: yjudd@claytonutz.com)
1. INTRODUCTION
In recent times the quest for improved productivity in the construction and infrastructure industries has been recognised as a key motivator for the use of collaborative contracting models.1 However, the main watershed moments for industry came in the late 1980s and 1990s, with the initiation of formal “Partnering” by the US Army Corp of Engineers, and the publication of No Dispute, a report by the Construction Industry Development Authority in Australia.
Since that time the use of collaborative contracting models has increased in terms of the volume of projects, project values and the diversity and adaptability of models. It has indeed become a “broad church” of collaborative delivery models.2
This paper explores the history of collaborative contracting via a review of earlier studies of industry usage in both Australia and the US. The authors identify key drivers and motivations for the divergence in collaborative models that have been adopted in each jurisdiction.
The examples of collaborative contracting models that are discussed in this paper are:
- • Early Contractor Involvement (ECI);
- • Managing Contractor/EPCM (which the authors refer to throughout this paper as “Managing Contractor”);
- • Partnering;
1 Hayford, O, Collaborative Contracting (PwC Report, 2018) page 1, referring to McKinsey Global Institute, Reinventing construction: A route to higher productivity (February 2017).
2 Gerber, P and Misko, M, “How Does Collaborative Procurement Operate in Australia?” in Mosey, D (ed), Collaborative Construction Procurement and Improved Value (Wiley, 2019) 391, 393.
Pt 4] Forms, Use and Performance of Collaborative
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