Monday, September 14, 2009

IPD Essentials: Multi-Partner Agreements

At the 2007 AIA Convention, Jim Bedrick of Webcor Builders, and Tony Rinella, then of Anshen+Allen, delivered what I still consider to be a breakthrough conference session on “Innovative Project Delivery Models.” Together they presented an overview and comparison of the different delivery models being used successfully in other countries such as P3 (public-private partnerships), PFI (private finance initiative), performance contracting and project alliances.

This session was an acknowledgement of the problems and waste in the US construction industry being reported by NIST and a response to the combined voice of building owners who were no longer willing to accept and pay for the litigation, cost over-runs and time delays that result from traditional project delivery practices. Read more on this in our blog entry about how traditional project delivery models have failed, below.

Our extremely fragmented industry has, to my amazement, rallied with a surprisingly unified response with 22 leading industry organizations, (including heavyweights such as AGC, CURT, ASC, ABC, LCI, etc) all endorsing ConsensusDOCS 300 as a new form of IPD contract. Separately, the AIA has published two new forms of IPD agreement – the “IPD Transitional Agreements” and the “Single Purpose Entity (SPE) Agreement.”

From our meetings with Newforma customers, we are also observing a new trend to establish Master Agreements between companies who desire to work together on multiple future projects. The Master Agreement captures all of the terms and conditions, agreed to in advance by both parties, that define a ‘trusted partner’ relationship. The idea being that a short, supplemental agreement can quickly and easily be prepared as necessary to document any other project-specific requirements on a case-by-case basis. Also, based on these Master Agreements, improved IPD work processes can be defined and implemented well in advance of the initiation of a particular project.

What do all these new forms of contractual relationship have in common? Principles include shared risk, shared profit, no disputes, collective obligations, greatly increased collaboration, fast (sometimes unanimous) decision making and everyone being incentivized to attain the design goals of the project. Experience to date (as was shared at the recent IPD Conference) strongly suggests that these principles motivate high performance by project teams, result in a higher quality end-product and generate increased profit for every stakeholder.

Please note, however, that there may also be some potential perils in accepting certain of the contractual liabilities that are contained in these new forms of contract. You should consult your own insurer and legal advisor about how these new agreements intersect with professional liability insurance (regarding negligence) and legal precedent (such as the limited liability of contractors established by the 1918 Spearin Doctrine). An analysis of this intersection by Schinnerer & Company is available here.

Having shared that necessary professional caveat with you, let me now also share my personal view – that Pablo Picasso probably got it right when he said “Every act of creation is first an act of destruction.” Shocking as it may at first seem, I strongly suspect that it will only be after we let go of legacy concepts like professional indemnity from negligence (in the case of architects and engineers) and limited liability (in the case of contractors) that IPD contracts will fully evolve. Look for future innovation both from Schinnerer (who reportedly is working on a new IPD multi-party policy) and from other insurers (who may offer project insurance to compete).

The bottom line on this topic: accepting greater exposure to risk, and stepping up to be fully accountable for project success as part of a trusted IPD team, can lead to increased reward.

Stand by for our next blog entry in this ongoing discussion, “The 5 essentials of IPD.”

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