delivering on clients’ needs: improving delivery of pipeline infrastructure … · 2015. 11....

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DELIVERING ON CLIENTS’ NEEDS: IMPROVING DELIVERY OF PIPELINE INFRASTRUCTURE USING STANDARD FORMS OF

CONTRACTS

Leon Richards

Project Manager

McConnell Dowell Constructors (Aust) Pty Ltd

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Abstract The Australian love affair with Alliances during the first decade of the new millennium is well over but we now need to adopt a contractual relationship between Contractor and Owner that delivers certainty and value for money in the delivery of pipeline infrastructure. Can a Pipeline Contractor and Owner both have their cake and eat it? There are standard forms of contract that can be selected that enable this seeming impossible goal to be achieved and Australia is about to embark on a path to have its own standard form of contract in the form of AS 11000 which will replace the previous AS 2124-1992 and AS 4000-1997 standard forms. This paper will discuss some of the successful principles that have been adopted in recent successfully delivered pipeline infrastructure projects where the Contractor and the Owner have both been able to enjoy their cake at the completion of the project. Success has been achieved through the adoption of several principles that already existed for some time within the NEC3 standard form contract method, some of which are now also being adopted within the newly proposed AS 11000. Principles including 1) early warning provision; 2) risk register and 3) Alternate Dispute Resolution, are just some examples when implemented correctly have resulted in successful outcomes where the contractor and owner have been able to enjoy the cake together when compared to the results achieved with bespoke hard contracting alternative delivery methods.

Introduction The fundamental challenge of having your cake (as a fixed time/fixed price contract that provides legal certainty of time, cost and quality outcomes) and eat it (a collaborative contracting relationship which provides the opportunity for proactive mitigation of project risk and better than “business as usual” outcomes)?1 Several (unsuccessful) attempts have been made in the past to develop standard balanced contract conditions, applicable to all types of major onshore pipeline projects. The failure of these attempts was largely due to the fact that national clients are bound to abide by the local contracting practices and global clients have, over the years, developed their own contract conditions which, they feel, can adapt to the varying context of their projects.2 Many of the commercial delivery methods undertaken in the pipeline construction industry continue to be by way of bespoke forms, suites of forms promulgated by particular organisations (whether peak bodies, procurers, contractors, or consultants) or, perhaps most commonly, hybrid contracts based upon standard forms but heavily amended to reflect the applicable delivery method or risk profile. The development of a standard form fixed time/fixed price collaborative contract has been missing from the standard form contract suite for some time. If it did exist, such a standard form

1 Marko Misko, “Can you have your cake and eat it?” Rethinking Adversarialism in the context of fixed time/fixed price contracting’ (Paper

presented at Annual Society of Construction Law of Australia Annual Conference, Brisbane, 7 August 2011). 2 IPLOCA, Onshore Pipelines The Road To Success (IPLOCA, 3

rd ed, 2011) vol 1, Section 3, 10.

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contract would combine the benefits of risk allocation in addition to providing legal certainty of time, cost and quality outcomes with the commercial flexibility and opportunities of relationship contracting. Successful collaborative contracting methods are typically characterised by a strong emphasis on the relationship, early contractor involvement (in planning, scoping, budget and program), robust risk management regime, removal of fixed time/fixed price tensions, strong project governance and alignment of commercial interest through some form of gainshare/painshare regime. Although there are well-documented benefits of using purpose-built collaborative contracting methods, there will always be a place for the traditional fixed time/fixed price contract delivery methods such as construct only or design and construct contracts in the pipeline industry. It is the delivery method that provides the greatest degree of legal certainty as to time, cost, quality and other project outcomes provided there is common understanding of the project objectives from all of the parties involved in the project.

Project Commercial Delivery Methods Selection of the project delivery method is an important factor that determines the ultimate success or failure of a project well before any construction commences. Usual practice for the selection of the delivery method is usually chosen by the Pipeline Owner in consultation with their legal representatives. In some cases the contractor is involved early enough to jointly develop the commercial method for the project delivery. Major factors for consideration when determining the commercial delivery method relate to: the management of risk; experience of the Owner in management of project delivery; maturity of the scope of the project including its design completion; and available delivery time. The main project commercial delivery methods we have seen on successful pipeline projects over the last decade have been a combination of Partnering; Alliances; Engineer, Procure and Construct (EPC); Construct only; and Early Contractor Involvement (ECI). All of these commercial delivery methods, when applied to the correct conditions, have proved to be very effective with the successful delivery of the majority of pipeline projects. Contracts for delivery projects should have regard to the project delivery structure (including risk allocation and remuneration structures) and the commercial imperatives and mechanisms to drive performance under the different types of structures.

Partnering The intentions of partnering were entirely genuine however, as a collaborative contracting method it suffered from a critical flaw. The cornerstone of partnering was the creation of a charter which committed the parties to act in good faith and rely on legal rights and obligations only as a last resort, as well as all manna of other aspirational concepts and ideas. The flaw was that it sought to impose this structure on a traditional form of contract such as AS 2124:1992, without seeking to critically review a dovetailed contractual risk allocation.3 Following mixed outcomes


presented at Annual Society of Construction Law of Australia Annual Conference, Brisbane, 7 August 2011).

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from applying the partnering method during the 1980’s through to the early 2000’s a new era of alliancing was adopted.

Alliances Alliances were very popular from the late 1990’s and lasted in popularity for approximately 10 to 15 years. The majority of the South East Queensland water grid and numerous desalination plants around Australia, including their supporting pipeline infrastructure, were delivered under Alliancing commercial delivery methods during the 2000’s. The Alliance commercial delivery method works well when the scope for the project is only in its embryotic phase and the available project delivery time is critical. The projects are delivered under extreme fast track schedule conditions where design, procurement and construction activities are all carried out at the same time as indicated in Diagram 1 below. The risks involved with this type of project delivery are extremely high when compared against more traditional delivery methods. Due to the extreme fast track delivery can result in a large amount of waste in the form of rework unless exceptional project management and governance systems are established to ensure project delivery is executed successfully.

Design Procurement

Construction

Commissioning

Diagram 1: Extreme Fast Track Project Delivery With the extreme fast track nature scenario, there can be a great amount of risk taken by the parties in this style of delivery model. If appropriately managed by all members of the alliance, this can result in the sharing of the associated reward however on the flip side, the sharing of the pain may be the consequence of not managing the risks appropriately. Alliancing contracts are wellsuited to the good faith concept as remuneration is based on a costplus performance structure with the parties agreeing to adhere to alliance objectives which benefit both parties. It is similarly applicable to longer term contracts, where pricing is subject to adjustment. Alliances may still have a place in the commercial delivery method toolbox however, it will likely be some time before we see its use again.

Engineer, Procure and Construct The EPC project delivery method has been used on many pipeline projects with mixed results. It can be very successful resulting in good outcomes however, if used inappropriately it can result in extreme failures. Failures result when risk is inappropriately transferred to the party that cannot manage that risk which is against the principles of what Abrahamson had defined many years ago.

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Max Abrahamson identified several principles that are adopted in the allocation of risk to those who can best manage those risks.4 However, when risks are allocated to the inappropriate partner of the contract to manage, the journey down the path of failure is an almost certain journey. Experience teaches that such a fair allocation of risk is essential to the conduct of a harmonious and co-operative project. When one party sees the allocation to be otherwise than fair, this tends to cause resentment and may lead to conflict as that party seeks, in one way or another, to redress the perceived imbalance. This is a consideration which is all too often overlooked by proprietors or their consultants when they prepare contracts which are then put out to tender. The basic difference to a traditional construct only is that the design risk is transferred to a Contractor who provides a ‘fitness for purpose’ warranty. Key advantages to the owner is that it provides a ‘one-stop shop’ for liability as most defects involve both design and construction elements, therefore, only needing to pursue one contractor. Key pitfalls with EPC are the requirement for owners to specify their needs carefully as the contractor can be entitled to build to the lowest standard which meets the brief and is fit for purpose. Interference by the owner (eg ordering changes to work, methods or working hours) can also result in increased costs and potentially become an expensive outcome for both parties.

Construct Only For many owners who have established and experienced project delivery teams this is their commercial delivery method that results in consistent successful outcomes. Although overall project delivery can take much longer, the risks are managed appropriately and the projects are executed in independent small discrete packages. This type of project delivery is suited for smaller pipeline projects and projects where the scope is managed by the owner.

Design Procurement

Construction

Commissioning

Diagram 2: Traditional Low Risk Project Delivery Sequence

Early Contractor Involvement The certainty and success of fixed time/fixed price delivery is primarily dependent on the owner providing those involved with all information necessary to produce tenders which fully price project risk. Where this is not possible at time of tender, but the owner still ultimately desires the benefits of fixed time/fixed price delivery, ECI should be considered.5 ECI usually involves splitting the construction contract into two distinct phases; 1) an initial planning phase with the contractor remunerated on a fixed fee or cost reimbursable basis; and (subject to successful completion of the planning phase) 2), a delivery phase that is based on fixed time / fixed price delivery.

4 Max Abrahamson, ‘Risk Management’ (1983) International Construction Law Review 248 [3].


presented at Annual Society of Construction Law of Australia Annual Conference, Brisbane, 7 August 2011).

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The initial planning phase gives the parties an opportunity to undertake risk reduction studies, define scope, refine design solutions, value engineer, and verify the cost plan and the program with the opportunity for identifying further reduction in time and cost before signing up to a fixed time/fixed price regime for the delivery phase. What makes ECI so successful is the benefit of risk allocation which provides legal certainty of time, cost and quality outcomes in addition to providing commercial flexibility and opportunities of relationship contracting. A successful ECI contract agreement needs to achieve several key objectives:

a tailored contractor selection process which maximises the likelihood of the parties

bringing a shared collaborative culture and approach to the project.

a meaningful collaborative method which encourages the parties to proactively mitigate

risks and issues as they arise during project delivery;

a detailed contractual risk allocation which is fully integrated with the collaborative

method; and

strong project governance structure;

There is yet a standard form of contract on this basis although the NEC3 standard form contract is close to covering all of these concepts and is producing successful results on projects where it is implemented. The new AS 11000 does not address these individual principles however, its development does progress in the right direction with the adoption of some of these principles that make ECI successful.

Standard Forms of Contract Standard form construction contracts have been around for a long time, the Code of Hammurabi which is a well-preserved Babylonian law code of ancient Mesapotamia, dating back to about 1754 BC consisted of 282 laws of which nearly half deal with matters of contract. An example stated as follows:

229 If a builder build a house for some one, and does not construct it properly, and the

house which he built fall in and kill its owner, then that builder shall be put to death.

233 If a builder build a house for some one, even though he has not yet completed it; if then the walls seem toppling, the builder must then make the walls solid from his own means.

The range of forms which we have available to us today has its origins in the forms promulgated by professional bodies in the late 19th and early 20th centuries in the United Kingdom and then Australia. The process of revision and amendment to a standard form is generated from consensus forged among various industry interest groups and reflected in a standard form, that becomes increasingly the subject of amendments, and then the interest groups sit down once again in an endeavor to document a revised common approach. A value of standard form contracts is that they have been prepared by lawyers and others who are familiar with the construction industry and with the problems which, all too often, arise in construction projects. These parties will often have conflicting interests so that the published

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standard form represents an accommodation of these conflicts in a way which is seen as fair to them. Construction contracts are, to a very large extent, concerned with the allocation of risk between the contracting parties. A very considerable advantage of the standard forms is that they are seen as achieving this allocation of risk in a way which is fair to the parties and, importantly, in a way that is seen by them to be fair. 6 This contracting method has the advantage that it enables non-lawyers, by adopting one or other of the current standard forms, to enter into complex legal arrangements without incurring legal drafting costs.7 The legal importance of the construction contract document saying what it is that the parties actually intend and, conversely, that the parties actually intend what the construction contract documents say is simple to state, yet very difficult to reconcile with the practical realities of the way many construction contracts are entered into. The most commonly used standard forms for commercial building work continue to be the Australian Standard forms, AS 2124-1992 and AS 4000-1997, along with their respective design and construction variants (AS 4300-1995 and AS 4902-2000). AS 4000 and AS 4902 were the flagship forms amongst several construction contracts launched progressively by Standards Australia between 1997 and 2003. The suite includes not only building contracts, but also forms for ancillary services such as equipment supply and installation and asset maintenance/facilities management. The recent draft version of AS 11000, is intended to provide a broadly balanced approach to risk allocation and replace AS 2124 and AS 4000. It has been prepared by a team comprising representatives from the Society of Construction Law, the Australian Procurement and Construction Council, Austroads, Australian Institute of Architects, Construction Industry Engineering Services Group and Civil Contractors Federation of Australia and is intended to provide general guidance for contracts for the construction, engineering, health, manufacturing and infrastructure sectors.

Successful Contract Agreement Principles Good Faith One significant proposed change in the draft AS 11000 is the introduction of an express obligation on the parties to act in good faith towards the other. The contract provides that the parties agree ‘to act reasonably in a spirit of mutual trust and cooperation, and generally in good faith towards the other’8. The draft AS 11000 document does not define good faith however, it is also a term where authoritative definition has proved elusive. If Standards Australia adopts the approach in introducing an express obligation to act in good faith, they should define what good faith means. As the Hon Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria, wrote, ‘whole forests have been felled to produce judicial and academic writing on the meaning of good faith in

6 David Byrne’s Foreward in Ian Baily and Matthew Bell, Understanding Australian Construction Contracts (Thomson Reuters, 2008).

7 Ibid.

8 Standards Australia, DR AS 11000:2015 General Conditions of Contract, (Standards Australia, 2015) 8.

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contract law’9. In Australia, the Australian Consumer Law already provides that parties should not engage in misleading and deceptive conduct. Although the content of an obligation to act in good faith has not been exhaustively defined, it has been held to mean the parties must cooperate to achieve contractual objectives, compliance with honest standards of conduct, and compliance with standards of conduct that are reasonable having regard to the interests of the parties; but the obligation does not require one party to subordinate its own legitimate interests to the other party’s. Some judges have taken the view that ‘good faith’ means the absence of bad faith. The parties to contracts will also need to consider the behavior that is appropriate for the particular transaction. ‘Good faith’ is a concept often used in contracts to impose a certain standard of behavior on the parties in performing their obligations. It is prevalent in long term contracts, contracts which include an agreement for the parties to agree on a certain matter in the future, which was a familiar concept written into the alliance agreements and other collaborative contracts. An overarching obligation to act in good faith will be more appropriate in commercial delivery models such as relationship contracting and alliancing and long term contracts, whereas imposing such an obligation in ‘hard dollar’ contracts may create different expectations and consequences and scope for disputes. However, in ‘hard dollar’ construction contracts, the parties generally go through a competitive bidding process with risk premiums intrinsically linked to the risk allocation under the contract. They are based on a commercial ‘adversarial’ approach to contracting and procurement. It is because of this adversarial approach, an express duty of good faith poses risks and consequences for the parties. In England, there is no general doctrine of good faith in English contract law and one of the UK’s most progressive judges, Lord Steyn, wrote, ‘I have no heroic suggestion for the introduction of a general duty of good faith in our contract law. It is not necessary.’10 By comparison, the NEC and GC21 contracts do not have general obligations of good faith, but parties under those contracts are required to do ‘as stated in the contract and in a spirit of mutual trust and cooperation’ (in the case of NEC) or ‘all [they] reasonably can’ to ‘cooperate’ and ‘avoid hindering the performance of the other party’ (in the case of GC21). These reflect, and are consistent with, terms implied in all commercial contracts. Singapore’s Court of Appeal has to date, refused to imply a duty of good faith in contracts. In AS 4000, under clause 20, it was only the superintendent that was required to fulfil their role and functions ‘reasonably and in good faith’ although this obligation has been dropped in the draft AS 11000. To highlight a further inconsistency in the existing standard forms, in comparison, AS 2124 does not contain a provision on good faith. Under clause 23 of the draft AS 11000, the superintendent is now only required to act ‘honestly’. In the case of AS 2124 (clause 23), a superintendent is required to act ‘honestly and fairly’.

9 Hon M Warren, ‘Good faith: Where are we at?’ (2010) 34 Melbourne University Law Review 344, 345. 10 ‘Contract Law: Fulfilling the Reansonable Expectations of Honest Men’ (1997) 133 Law Quarterly Review 433, 439.

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Early Warning Another significant proposed change in the draft AS 11000 is that the parties, as part of their obligations to act in good faith, are required to follow the ‘early warning procedures’ which are aimed at resolving issues as soon as practicable by notifying the other party when they become aware of an event or circumstance which may impact upon time, cost, scope or quality under the contract and may become an issue under the contract. Adopting an early warning procedure as part of the standard contract is a sensible step, and the NEC3 and GC21 form of contracts already provide for some form of early warning. The early warning concept allows those that might help avoid the event or mitigate any negative effects of the event to get together to work out how to do so. The early warning notification does not need any more information than the nature of the matter such as:

Increase the Price

Delay completion

Delay meeting a Key Date

Impair the performance of the works in use The NEC3 contracts commercially incentivize the supplier to give early warnings. If the supplier does not give early warning they risk having a later compensation event assessed as if they had given the early warning. In the case on cost based contracts, having disallowed those costs incurred as a result of not giving the early warning. Early warnings are designed to get the contractor and the client together to sort out issues. Despite the logic and common sense behind them, early warnings are still not appreciated by some clients. Some, incorrectly, see an early warning from a contractor as just a precursor to a compensation event. Although this is not the intent of the process, the contract administrators may have to be trained to appreciate and use early warnings. Programming Obligations Most construction programmes are prepared as a critical path programme using proprietary software applications. A programme as ‘an activity-based critical path programme in a time – linked bar (or Gantt) chart format’, rather than a ‘written statement’ as was referred to in AS 4000 (clause 32), or a ‘statement’ as referred to in AS 2124 (clause 33.2) and includes a requirement to revise the programme at agreed stages to account for actual progress. In the draft AS 11000, the parties have the option of agreeing to additional programming requirements that are set out in Annexure Part E. For a pipeline project such a requirement could also be the inclusion of the March Chart. A few examples of the options that are available include:

Part E identifies categories of activities that may be agreed to be incorporated into a

programme

Whether the programme is to be a resourced programme

Whether programme updates are to incorporate claims for extensions of time and directed

variations.

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Project Governance Alliancing has historically achieved strong project governance as the Alliance participants do not have the luxury of falling back on a contract which prescribes the parties’ rights and obligations, if they cannot agree on the response to a particular issue. The Alliance participants have to rely on their commercial alignment of interests through the gain share / pain share model and the quality of their operational management team and alliance board to drive the success of their project. Nevertheless, strong project governance could be highly beneficial in a traditional context, especially to the extent that the owner has contractually assumed a risk or the contractor is not able to practically manage a risk which it has assumed. Methods of effective governance include collaborative kick-off workshops, establishing bodies for monitoring project performance, and periodic reporting mechanisms. As a starting point, a two-tier governance structure is the common approach used in various forms of relationship contracting, comprising:

A leadership team (ALT) that is made up of senior management from both parties

An operational management team (OMT) that consists of the key functional operational

managers.

When successfully implemented with proactive participation by the two levels issue resolution can

be achieved progressively during the project execution.

Dispute Resolution

There will always be circumstances in which a proactive approach to a risk or issue will not be agreed or available. In this event, there will remain a need for the traditional determination of the contractual rights and obligations of the parties by the contract administrator or superintendent which could instigate a conflict that progresses towards a dispute. Rather than adopting standard dispute resolution methods in an indiscriminate way, the entire approach to this issue should be critically rethought in the context of a standard form collaborative contract.11 The dispute resolution procedures in clause 45 of the draft AS 11000 have been substantially expanded, when compared with AS 4000 and AS 2124. The new dispute clause provides for alternative options including conference, mediation, arbitration, expert determination, litigation, and an optional contract facilitation or dispute resolution board.

Problem Conflict Claim Dispute

Litigation

Arbitration

Construction Conflict-Dispute-Litigation Continuum

11

Marko Misko, “Can you have your cake and eat it?” Rethinking Adversarialism in the context of fixed time/fixed price contracting’ (Paper presented at Annual Society of Construction Law of Australia Annual Conference, Brisbane, 7 August 2011).

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Diagram 3: Conflict – Dispute – Litigation Continuum If the proactive governance approach has been adopted on a project there is in effect are several circuit breakers for the personnel directly involved in the project to resolve the issues as they arise and progress through the construction conflict continuum as highlighted in Diagram 1 above.

Risk Management A main principle behind the success of collaborative contracting methods are the processes implemented to resolve risk and issues as they arise during project execution to promote the commercial resolution of all risks and issues before they give rise to contractual claims and disputes. The NEC3 approach is to include the Risk Register as part of the Contract and progressively include any early warnings into the risk register as they are raised. After each early warning either the supplier or contract administrator may call a ‘risk reduction meeting’ to discuss the issue. The NEC3 Risk Register does not affect the risk allocation under the contract.

Experience shows that construction and operational risks are best allocated where they can most appropriately be managed and borne. A fair contract helps to significantly reduce the risks of conflicts, delays and disruptions when difficulties occur in the performance of a project by clearly identifying the agreed risk allocation and providing fair compensation for bearing them. When risk events do eventuate and become realized events they do lead to contractual disputes unless the contract addresses these issues. Contracts should therefore include terms which allow sufficient commercial flexibility to address these inevitable variances while still preserving the performance incentives inherent in the commercial terms for the baseline portion of the scope. This requires the recommended “spirit of trust and mutual co-operation between the parties” and the situation where lack of clear and concise scope and engineering definition leads one party to consider exploitation at the cost of the other should be avoided. The client may see under-priced lump sum bids as a benefit, whilst the contractor may see the opportunity for change and scope increase during the execution of the work. In actual fact the result is disputes, delays and additional costs seldom to any party’s benefit.12 Construction contracts are, to a large extent, risk charters. Construction is, after all, a risky business. Traditionally (and understandably), standard form fixed time/fixed price contracts are devoted to explaining how time, cost and other consequences of project risk are allocated between the parties. They tend to focus on a reactive response to the crystallisation of risk, by providing a mechanism for retrospectively adjusting the parties’ rights and obligations. A standard form fixed time/fixed price collaborative contract could rethink the traditional approach by adopting a “proactive risk and issue settlement model” (or PRISM). A considered approach to sharing risk (consistent with collaboration). This involves a mature

assessment of the risks which should entitle the contractor to relief, the conditions precedent to

any entitlement and what the relief should be (time, cost or time and cost).

12

IPLOCA, Onshore Pipelines The Road To Success (IPLOCA, 2011) 10.

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Conclusion Unfortunately the new AS 11000 standard form does not purport to deal in such absolutes of assurance. Rather, it is like all contract forms, a pre-set charter of risk allocation and project management, in this case drafted by a committee representing diverse interest groups. Just as every construction project is unique, in addition to the industry and its commercial forces that are changing on a daily basis (especially during the volatile economic times in which we find ourselves), so is the underlying deal. If the parties seek to make that agreement contractually enforceable, the contract documents need to reflect the deal or else run the risk of overtaking the reality of the parties’ agreement. Hence, it seems that bespoke contracts, or at the least, heavily amended standard forms will continue to be the norm. Success is achieved through encouraging the parties to take a proactive approach to the mitigation

of risks and potential issues as they arise with the use of the early warning system, with the

traditional contractual entitlement only coming into play to the extent that a risk or issue is not

otherwise proactively mitigated.

The use of positively providing strong and meaningful project governance also assists in achieving

positive outcomes. This approach although being more resource-intensive, requiring greater

management effort and attracting higher overheads is more likely to be warranted on large,

complex or risky projects and should be seen as complementing (rather than substituting) the

existing traditional standard forms.

The question of how successful a new standard form might be really comes down to whether the industry wishes to commit the significant investment in resources. In this case, time, expertise and goodwill, which is required to create a consensus form which can develop a critical mass of buy-in, whether as part of the Standards process or otherwise. Although there are well-documented benefits of using purpose-built collaborative contracting methods, there will always be a place for the traditional fixed time/fixed price contract delivery methods such as construct only or design and construct contracts in the pipeline industry. If the form of the contract is tailored to a collaborative approach and the right people are involved (for both project parties), the response to the question of “Can a Pipeline Contractor and Owner both have their cake and eat it?” has to be a resounding “yes”!

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Bibliography

Arent van Wassenaer, ‘In search of the Holy Grail: taking the Abrahamson Principles further’ (2006) 1(4) Construction Law International 11 ‘Contract Law: Fulfilling the Reansonable Expectations of Honest Men’ (1997) 133 Law Quarterly Review 433 Hon M Warren, ‘Good faith: Where are we at?’ (2010) 34 Melbourne University Law Review 344 Ian Baily and Matthew Bell, Understanding Australian Construction Contracts (Thomson Reuters, 2008) IPLOCA, Onshore Pipelines The Road To Success (IPLOCA, 2011) Marko Misko, “Can you have your cake and eat it?” Rethinking Adversarialism in the context of fixed time/fixed price contracting’ (Paper presented at Annual Society of Construction Law of Australia Annual Conference, Brisbane, 7 August 2011) Matthew Bell, ‘Standard form construction contracts in Australia : Are our reinvented wheels carrying us forward ?’ (2009) 25 Building and Construction Law Journal 79 Max Abrahamson, ‘Risk Management’ (1983) International Construction Law Review 241 Nael Bunni, ‘The Four Criteria of Risk Allocation in Construction Contracts’ (2009) International Construction Law Review 4 NEC, Guidance notes for the Engineering and Construction Contract (NEC, April 2013) Richard Morwood, Deborah Scott and Ian Pitcher, Alliancing a Participants Guide (Maunsell Aecom, 2008) Standards Australia, DR AS 11000:2015 General Conditions of Contract, (Standards Australia, 2015) Victor Lau, ‘New Standard Form General Conditions of Contract AS 11000-2015 To Supersede AS 4000 and AS 2124’ (2015) 160 (Jan/Feb) Australian Construction Law Newsletter 53

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