Subproject I, ‘Cooperation’ (‘DPS’ for short) deals with setting up a legal definition of cooperation and delves into the possibilities of implementation of elements of collaboration in the procurement and contracting phase. DPS is one of three (sub)projects within the research framework “a coherent and future-proof system of procurement and legal frameworks for construction”. The overarching research framework In 2021, the Dutch Institute for Construction Law (IBR), in collaboration with the VU University of Amsterdam (VU), launched a research project on the future of Dutch construction contract law. The DPS subproject is a part of this broader research framework that seeks to contribute to a coherent and future-proof system of procurement and legal frameworks for construction. In August 2021, a theme issue of the Dutch Construction Law Review (Tijdschrift voor Bouwrecht – TBR) was published with the title “Revisiting Construction Contract Law”. The opening article discusses recent developments in construction and procurement law. This article shows a need for different and new (legal) solutions that fit the current issues the sector faces and to improve the construction process in general. There is a need for solution concerning both the procurement and contractual phase, other than the currently available solutions, as well as a need for standardization and validation of these solutions. In recent years, many publications and initiatives have already found and rationalized solutions to specific issues, but a general and thorough analysis is lacking as are the tools to make these solutions widely applicable. Within this research framework, several themes have been formulated to categorize the aforementioned solutions. Three subprojects have been defined within which these themes will be further developed: These subprojects cannot be studied as isolated projects. In some cases, the subprojects are even prerequisites for success for each other. These subprojects are therefore carried out in conjunction with each other. Purpose of DPS DPS investigates the embedding of collaborative instruments in the procurement procedure and contractual terms and conditions, which instruments can be both legally binding and non-binding in nature. In doing so, DPS aims to demystify and define concepts that are not clearly defined in the legal world yet, such as “cooperation”, “transparency”, “trust”, “respect” etc. so that these concepts can be applied in a guiding, verifiable and unambiguous manner by the parties involved. Approach DPS Collaboration … a means to a higher end Moderators Not about completeness, but impact Proven facts over beliefs and experiences Fhasing of DPS Phase 1. The Start article as a solid baseline The start article aims to: Research questions Organization DPS Core Team Expert Team 1st Ring Want to know more on contribute? Interesting links Articles Conference
Subproject I: The Legal Structuring of Collaboration in the Tendering and Contract Execution phase
The objective of DPS is to provide the construction industry with practical and applicable tools to support and stimulate collaborative behavior between the involved parties during the construction process.
Legal embedding of collaborative behavior
DPS is investigating how instruments that support and encourage collaborative behavior during the construction process can be effectively embedded in procurement and legal frameworks. Recognizing that an effective and successful collaboration process is (also and perhaps primarily) influenced by non-legal aspects – including attitude and behavior, leadership, organization and governance – DPS engages insights from the relevant disciplines. In doing so, DPS maintains a focus on the relevant legal aspects, combined with the relevant non-legal aspects.
Every collaboration in the construction industry is started in order to achieve a goal. Properly defining an effective and successful collaboration is the starting point for DPS. It would be obvious to define a successful collaboration as a process aimed at achieving both the project goals and the (individual) goals of the involved collaboration partners. The definition could be sharper and more nuanced, however. In addition to the “classic instrumental goals” of time, money and quality, other aspects could be considered. Aspects such as better risk management, greater efficiency, increasing agility, lowering failure costs, preventing disputes, increasing job satisfaction, developing the individual participants or organizations, supporting innovation etc.
The underlying hypothesis of DPS is that procurement law and contractual tools are prerequisites for a fruitful collaboration process, but that successful collaboration is largely determined by other issues. These issues are called moderators. These include:
Because “collaboration is found in everything” and “everything is about collaboration”, there is a risk that the scope of DPS could become unmanageably large. To achieve results, DPS therefore limits itself to a limited number of subtopics or tools. These are subtopics and tools that have the greatest impact on the collaboration process. Researching and selecting the relevant topics and tools is part of the overarching research.
A lot of research regarding (the legal embedding of) collaboration in construction has been published, sometimes lacking sound substantiation or validation. DPS aims to take, as much as possible, a fact-based approach that goes beyond the “positions and beliefs” of experts and parties, deduction from a single experience or from just general principles.
DPS is divided into two phases:
Based on a literature review, the start article researches and inventories the legal embedding of instruments that aim to stimulate and support collaborative behavior during the construction process.
The types of research questions addressed in the starting article are the following:
The research is led by a “Core Team”, consisting of three members, which is supported by a small Expert Team that includes a number of experts from parties directly involved in the construction process. After the research has started, a broader ‘First Ring’ will be formed to increase substantive embedding and interaction with both practice and science.
The Core Team is responsible for the direction, process direction, communication and (final) editing of DPS products. The Core Team is formed by:
The Expert Team is a compact team of 8 people that advises the Core Team on the direction, process and content of DPS. In addition, the Expert Team contributes to studies and articles by reflecting on proposed products or by participating in a partial study itself. The Expert Team consists of authoritative experts ranging from clients in the construction sector to contractors, consultants and scientists. The Expert Team consists of the following members, all participating in a personal capacity:
The 1st Ring includes authoritative experts ranging from clients in the construction sector to contractors, consulting firms and scientists. Members of the 1st Ring can either actively contribute to DPS or choose to limit their involvement to active following. In addition, members may be periodically invited to advise, reflect or contribute from their specific expertise or experience. The 1st Ring will be set up in due course.
If you want to know more about DPS, if you have any questions or suggestions or if you would like to contribute to the research, report to Stijn Wouda (caewouda@ibr.nl) or Malcolm Aalstein (mcaalstein@ibr.nl).
