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Procurement Perspectives: Contractors and owners should work together as one team

Stephen Bauld
Procurement Perspectives: Contractors and owners should work together as one team

I attended the CEO breakfast on Nov. 29 hosted by ConstructConnect — Canada during The Buildings Show in Toronto to listen to Phil Verster, CEO and president of Metrolinx, who was the guest speaker.

I was very impressed when he said, “What we need to get right though is, as an owner…this idea of standing on the sidelines with our arms folded for the contractor to either succeed or fail is not going to bring us success.”

He also spent a great deal of time talking about strategies and procurement methods that, as an organization, they need to follow. I found it quite refreshing that the CEO of such a large organization would spend so much time speaking about procurement issues.

As we all know, the issues that are related to procurement will often make or break a project. I would add to what Verster said at the breakfast by saying how critical it is to have the proper designated project representatives working as one team as well.

The contractor and the owner also need to identify the key individuals within their respective organizations who are critical to the performance of the project.

They need to each commit to use commercially reasonable efforts to ensure that these individuals remain involved in the project for its duration.

Where a party considers it necessary to replace such an individual, there will be a process of consultation and replacement.

For particularly complex or long-term projects, it may be considered advisable to create a co-ordinating committee involving an appropriate representative from both organizations, to co-ordinate and integrate those aspects of their operation that relate to or that will be affected by the project.

One of the goals of such a committee is to assist the parties by promoting co-operative and effective communications with respect to matters related to the work, such as design, construction and commissioning issues, any issues arising from reports or documents, any quality assurance and safety issues, and any community and media relations issues.

The partnering process also involves a commitment by the parties to resolve by amicable negotiations any and all disputes arising between them on a without prejudice basis; and to have all disputes resolved at the lowest level of management before engaging the dispute resolution process provided for in the agreement.

If low level discussions fail to address the matter satisfactorily, then the matter is referred to the designated representatives of the party.

If no resolution is possible at that level, then the matter will be referred to more senior officers of each party.

At each level, the relevant officers of each party are required to deal with the matter promptly and diligently, and to make reasonable bona fide efforts to resolve the dispute. Generally, all such discussions and negotiations, and all documents exchanged, between the party representatives in relation to the dispute are stated to be provided on a without prejudice basis to facilitate the resolution of the dispute.

A relatively recent spin-off of partnering is known as “partnering plus.” It weds the existing institutional framework of partnering with mediation. Drawing on the contractual commitments of the partnering concept, it drafts into the dispute resolution process the common features of mediation.

An outside expert facilitates the dispute resolution process by guiding project participants away from the dispute towards a solution that meets their shared objectives.

If necessary, the expert can provide a fair and confidential evaluation of their respective adversarial positions.

After the breakfast event, I had the opportunity to speak with Verster about the present procurement system at Metrolinx. He did acknowledge that he is always open to any advice as to how to improve the tender system. He mentioned that “we need to listen better” to what the industry had to say. His vast work experience around the world will be a great asset to Metrolinx moving forward.

Stephen Bauld is a government procurement expert and can be reached at swbauld@purchasingci.com.

Some of his columns may contain excerpts from The Municipal Procurement Handbook published by Butterworths.

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