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Alliance Contracting—Evolving Alternative Project Delivery (2015)

Chapter: Chapter Five - Alliance Contracting Legal Issues

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Suggested Citation:"Chapter Five - Alliance Contracting Legal Issues ." National Academies of Sciences, Engineering, and Medicine. 2015. Alliance Contracting—Evolving Alternative Project Delivery. Washington, DC: The National Academies Press. doi: 10.17226/22202.
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Suggested Citation:"Chapter Five - Alliance Contracting Legal Issues ." National Academies of Sciences, Engineering, and Medicine. 2015. Alliance Contracting—Evolving Alternative Project Delivery. Washington, DC: The National Academies Press. doi: 10.17226/22202.
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Suggested Citation:"Chapter Five - Alliance Contracting Legal Issues ." National Academies of Sciences, Engineering, and Medicine. 2015. Alliance Contracting—Evolving Alternative Project Delivery. Washington, DC: The National Academies Press. doi: 10.17226/22202.
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Suggested Citation:"Chapter Five - Alliance Contracting Legal Issues ." National Academies of Sciences, Engineering, and Medicine. 2015. Alliance Contracting—Evolving Alternative Project Delivery. Washington, DC: The National Academies Press. doi: 10.17226/22202.
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Suggested Citation:"Chapter Five - Alliance Contracting Legal Issues ." National Academies of Sciences, Engineering, and Medicine. 2015. Alliance Contracting—Evolving Alternative Project Delivery. Washington, DC: The National Academies Press. doi: 10.17226/22202.
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Suggested Citation:"Chapter Five - Alliance Contracting Legal Issues ." National Academies of Sciences, Engineering, and Medicine. 2015. Alliance Contracting—Evolving Alternative Project Delivery. Washington, DC: The National Academies Press. doi: 10.17226/22202.
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55 chapter five ALLIANCE CONTRACTING LEGAL ISSUES INTRODUCTION There are a number of legal issues that are unique to pub- lic sector alliance contracts, and they fall into two catego- ries. The first category arises from the notion that the duties, relationships, and risk-reward allocations among the signa- tories to the contract are much different than those associ- ated with other contracting approaches. Consequently, the terms and conditions of an alliance agreement stand in sharp contrast with those found in the typical design and construc- tion contracts used on DBB, DB, and CMGC projects. The second category of unique legal issues arises from the limi- tations public agencies have in entering into new contract- ing approaches, particularly when they involve risk sharing arrangements such as those contemplated by alliance con- tracts. This means that an agency, before even considering the use of alliance contracting, would have to first confirm its legislative and regulatory authority to procure an alliance contractor, and then determine the extent to which it could truly share risks. This chapter will provide an overview of each of these categories of legal issues. UNIQUE CONTRACT TERMS AND CONDITIONS Because no public sector alliance contract has yet been per- formed in the United States, it is beyond the scope of this syn- thesis to discuss in detail the contract provisions of a typical alliance contract. However, because the principles of alliance contracting are so intertwined with the alliance agreement itself, it is appropriate to briefly identify key terms and conditions that a federal, state, or local U.S. public agency might have to con- sider if it were to use an alliance contracting approach. Before reviewing specific terms and conditions it is impor- tant to consider how different the general tone and style of an alliance agreement is compared with traditional contracts. The key is that these agreements are written to reflect the partnering and collaborative principles discussed in chapter one. For example, the parties are often referred to in the first party rather than the third person—that is, “we will” rather than “the parties will.” They also establish broad, behavioral commitments, as illustrated by the following example: 1.1 We will work together in an innovative, cooperative, and open book manner so as to produce outstanding results in delivering the Alliance Works (in accordance with the Scope and Design Brief set out in Schedule 2). 1.2 We acknowledge that a key purpose of our alliance is to avoid disputation and we commit to notify each other of perceived or real differences of opinion or conflicts of interest immediately [as] they arise and to strive to promptly resolve those differences or conflicts (VDTF 2006). In addition, many of the general principles and features of an alliance contracting arrangement become key components of the alliance agreement. Consider the following topics dis- cussed in Table 2: • Governance and Management. The agreement will ordi- narily establish a collective leadership model, whereby decisions will be made jointly and unanimously, and information will be shared fully and transparently. Many of the procedural and administrative requirements nor- mally included in a typical design and construction con- tract are either not included at all or are expressed in terms of joint processes and procedures (VDTF 2006). • Principles of Conduct. The agreement will discuss how decisions will be made in the best interest of the project and describe the project’s objectives. • Compensation Model. The compensation model will reflect a comprehensive framework for sharing risks and rewards, as evident by the case studies set forth in chapter two. • No-Fault and No-Blame Culture. Because the prin- ciples of the alliance are project-focused and preclude liability between/among the parties, the agreement will reflect this philosophy and describe the limited circum- stances where liability may arise. Stated simply, the collaborative nature of a typical alliance agreement will make it unfamiliar to many of those working in the U.S. public sector construction community. The sec- tions that follow, which address some of the most unique sub- stantive aspects of an alliance agreement, will also highlight concepts that will be unfamiliar to those working in a typical public sector agency. Governance and Decision Making Even though an alliance agreement is not a joint venture (JV) agreement, it has some features that look similar to those one would ordinarily find in a JV agreement—particularly in the area of governance and decision making.

56 • Promptly notify the other party of any dispute or poten- tial dispute when it arises and, if the issue cannot be resolved at the management level, elevating the dispute to the leadership team. • Have the leadership team take whatever action is nec- essary to reach a unanimous resolution of the dispute, which might include the retention of a neutral third party (e.g., mediator). The agreement may also specifically state that if an alli- ance member is professionally negligent in performing its duties and remedial work is required, that the members will work together to carry out the remedial work, and that the costs will be considered an alliance cost, subject to the gainshare/painshare provisions of the agreement. This means that the owner will have no remedy under the agreement against the other alliance members for losses suffered as a result of these members doing something wrong. Even though the concept of no blame and no disputes is a major part of the alliance framework, there are exceptions routinely put into the agreement. The two most common are: (1) the insolvency of one of the alliance members; and (2) will- ful default by one of the parties. The term “willful default” can mean different things to different people and this is frequently addressed in the agreement. Some examples of willful default that are contained in alliance agreements found in the literature include: • Deliberate or reckless conduct that the member knew or should have known would cause problems for another member; • Failure to honor an indemnity; • Failure to make a payment that is due under the agreement; • Material failure to effect required insurance; • Intentional failure to honor open book audit obligations; • Intentional breach of obligations to third parties relative to intellectual property; and • Fraudulent conduct (VDTF 2006). Indemnity As suggested by the above-referenced definition of willful default, an alliance agreement will typically have indemnity provisions. Unlike many contracts found under DBB, DB, CMGC, and P3 relationships the indemnity clauses focus on third-party claims—not claims arising between the alliance members. Typical third-party indemnities might address intel- lectual property rights, tax liabilities, and personal injury and property damage. Needless to say, the major challenge with drafting this clause is that it has to be in harmony with the no blame alliance culture. This is particularly true with personal injury and property damage claims that might arise from work performed on the project site and the issue of whether a simple “accident” results in one of the parties bearing responsibility outside of the gainshare/painshare structure. As with JVs, alliance members often create both a senior leadership team and a project management team to run the project. The senior leadership team’s primary responsibility is to operate at a high level and ensure that the alliance mem- bers and the project management team think of the collective interests of the project and not act in their own self-interest. Consistent with this, the alliance agreement will typically establish a list of responsibilities for the leadership team, including requiring that the team: (1) act as champions for the principles and objectives of the alliance; (2) set policy; (3) give philosophical and strategic direction for the alliance; (4) pro- vide high-level leadership; (5) monitor the performance of the alliance; and (6) resolve differences that might arise between the parties. Importantly, it will also generally require that all decisions be made unanimously, subject to certain “owner- reserved” powers identified in the agreement that enable the owner to act unilaterally under certain circumstances—often associated with a legislative requirement. Unlike the leadership team, there is often more flexibility afforded to how decisions are made at the project manage- ment level. The project management team will typically be led by an alliance manager, who is authorized by the leader- ship team and the agreement to make decisions and give directions. Because of the pragmatic issues involved in this process, this individual need not gain unanimity in making decisions, although clearly it is important that he or she be making reasonable efforts to arrive at a consensus. The power of the manager, and the standards by which he or she will con- sult with other members of the management team, will be set forth in the alliance agreement. This governance and decision-making process stands in contrast to a typical design or construction contract (includ- ing those found under DB, CMGC, and P3 relationships). Under these contracts there are clear hierarchies and chains of command, establishing not only who is to report to whom, but also which party has the authority to require another party to perform, even if it disagrees with the decision. No Blame and No Disputes Because collaboration and a “project first” mentality are inher- ent in an alliance contracting philosophy, the alliance agree- ment specifically reinforces and elaborates upon the concept that the parties will adopt a “no blame” and “no disputes” approach to their relationship. As observed in chapter one, these concepts are the ones that are the farthest away from current North American project procurement culture. In articulating these concepts, the typical alliance agree- ment will include a number of provisions including the com- mitment to: • Work cooperatively to identify and resolve issues to the mutual satisfaction of the parties so as to avoid all forms of dispute.

57 (Miller et al. 2009). Given that the IPD contracts have not been used on any public sector projects, and that the litera- ture is rich with scholarly articles on IPD contracts and their relationships (O’Connor 2009), it is beyond the scope of this synthesis to delve into the details of these contracts. Contracts That Use Alliancing Principles As discussed earlier in this synthesis, other project deliv- ery systems, notably DB and CMGC, are structured to take advantage of the principles of collaboration in alliance con- tracting. Consequently, some DB, CMGC, and P3 contracts will have provisions that, among other things: (1) reference the intent of the parties to partner with each and act in the best interests of the project; (2) establish executive board meetings between the parties to proactively address the rela- tionship of the parties and obtain early notice of problems; and (3) contain informal dispute resolution processes that strive to resolve any problems early and without resort to litigation or arbitration. Likewise, delivery systems other than alliance contracting can have broad and creative ways to balance the risk-reward profile of those working for the owner. Depending on how the owner procures the design-builder and CMGC contrac- tor, this risk-reward discussion can start in negotiating the contract and having an open-book process of assessing the “price” of risk that will be included in the underlying con- tract. Similarly, public owners have been willing to use con- tract incentives—such as shared savings and performance bonuses—to further their project goals. Notwithstanding how collaborative these DB, CMGC, or P3 contracts are, or how creatively and equitably risks- rewards are balanced, they do not represent the type of “pure” international alliancing contracts discussed in this synthesis—similar to the IPD contracts that were discussed earlier. The principle reasons for this are: • Alliancing contracts are often entered into among three or more parties, as opposed to the two-party contracts found in DB, CMGC, and P3 relationships. • Alliancing contracts use joint decision making, whereas other delivery systems place the owner in the ultimate decision-making role and have defined hierarchies of structure as to who reports to whom. • Alliancing contracts do not limit the amount of money that an owner will pay for the project, given the com- pensation structure and gainshare/painshare formula, whereas DB, CMGC, and P3 contracts, unless they are performed on a pure cost-reimbursable basis, have guaranteed maximum price and fixed-price contracting approaches. • The no blame and no disputes process in alliancing con- tracts is not used under contracts from other delivery systems. Compensation and Payment The key commercial provisions of the alliance agreement are tied to the compensation structure and gainshare and pain- share formula. Because this is discussed in detail elsewhere in the synthesis it will not be elaborated upon in this chapter. Suffice it to say that, given the no blame and no disputes provisions, these provisions are the subject of considerable attention by the parties negotiating the agreement. Other Notable Provisions The alliance agreement will have a number of provisions that are familiar to construction participants under other delivery systems, such as (1) termination rights, (2) division of respon- sibility charts, (3) insurance requirements, and (4) a delinea- tion of how intellectual property will be handled. INTEGRATED PROJECT DELIVERY CONTRACTS There are two standard form industry contracts that promote the use of IPD on U.S. projects: (1) ConsensusDOCS 300, Standard Form of Tri-Party Agreement for Collaborative Project Delivery; and (2) AIA Document C191, Standard Form Multi-Party Agreement for Integrated Project Deliv- ery. These documents assume that the owner, architect, and contractor will be signatories to the contract, and AIA’s docu- ment allows for other parties to be signatories as well. Based on the literature search undertaken as part of this synthesis, as well as the collective experience of the authors, the IPD (and hence the aforementioned contracts) has only been used to date on private sector projects, principally in the health care arena. Each of these contracts has provisions addressing: (1) joint decision making, (2) shared risk, (3) budget development and management, (4) gainshare and painshare, and (5) dispute resolution processes. Despite the topical similarities to provi- sions in the international alliancing agreements discussed in this synthesis, IPD standard form contracts differ substantially from alliance contracts—particularly in terms of the level of risk that is assumed by the owner. The risk sharing process in both the AIA and ConsensusDOCS forms more closely resembles the guaranteed maximum price contracts used in DB and CMGC than those contracts used in a pure alliancing relationship. This is in large part because they require the non-owner team members to ultimately provide a price cer- tain to the owner, and there are financial consequences to the team members that go beyond a typical gainshare/painshare formula. They also have provisions calling for arbitration of disputes, which is contrary to the pure alliancing agreement approach of no disputes. In addition to these industry contracts, the literature dis- cusses other forms of IPD contracts in use on healthcare proj- ects, including Sutter Health’s Integrated Form of Agreement

58 case of alliance or leadership team deadlock or frustration” (Gallagher 2008). However, there are many examples of U.S. construction cases where courts found that liability clauses that tried to limit a party’s liability for negligence were not enforceable and against public policy. Likewise, there are cases where indemnity agreements that purported to absolve a party’s liability when it did something wrong were found to be unenforceable. Contractual waivers of claims have not fared any better under U.S. law, as courts are reluctant to let a party give away its rights without knowing how badly damaged it might be. Add to this that most states (as well as the federal government) have statutes that grant the ability of contractors to sue or arbitrate against agencies, and agen- cies to have recourse against their contractors if something goes wrong. All of this makes it difficult to imagine that a U.S. public agency could implement the no blame and no dispute feature of alliance contracting without having statu- tory authority that expressly says how all of this would work. Insurance There is a significant insurance challenge in using alliance contracting, regardless of whether the process is expressed in terms of the no blame and no disputes concept or the IPD approach, where waivers of claims are used. The key chal- lenge is that liability insurance is fault-based, with liability based on the insured having done something wrong. This does not pose a problem in dealing with claims by third par- ties, such as those arising from bodily injury and property damage. As in a traditional project, these third-party claims should be coverable under commercial general liability poli- cies or professional liability policies if the claim arises out of deficient design or other professional services. The challenge arises in addressing claims by the alliance partner who believes that it has a professional liability claim against another partner—as might be the case of a contrac- tor or owner being impacted by the designer’s negligence. Professional liability insurance are “claims-made” policies that are triggered by someone other than the insured (i.e., the designer) making a claim against the insured for a loss arising out its negligent act, error, or omission. In the case of an alli- ance agreement, where each party’s claims against the other parties are limited to insolvency or willful default, and there is a no dispute process in the agreement, there is no right to sue the designer for its negligence. Consider the situation where the alliancing parties use contingency funds, lost profits, or painshare expenses to cover the costs of correcting design errors. This is, in effect, self-insuring the negligence of the designer. If the contractors were working under another delivery system, they could sue the designer and expect that its professional liability policy would respond. However, in alliance contracting they would be precluded from suing the designer to trigger the coverage, or face a waiver of claims argument if the contract did not have a no disputes clause in the contract. CHALLENGES TO USING ALLIANCE CONTRACTING ON U.S. PUBLIC SECTOR CONSTRUCTION PROJECTS There are many factors that public owners consider in deter- mining the project delivery approach for a given project, including their statutory authority, procurement and contract- ing limitations, and overall project goals. Critical thought is particularly necessary if the agency is contemplating allianc- ing contracting, where the relationships between the parties, the gainshare/painshare structure, and the no disputes pro- cess involve concepts far different from other public sector delivery alternatives. Although there are public projects that have used col- laboration techniques and creative risk sharing, the literature search did not uncover any U.S. public sector construction projects that used alliance contracting. Consequently, there are no case studies that elaborate upon why the public owner made the decision to use alliancing and how they addressed their procurement and contracting challenges. Notwithstanding this, there are several important issues that could influence the likelihood that U.S. public agencies will use alliancing and these are discussed here. Enforceability of “No Disputes” and “No Blame” Contract Provisions The typical alliancing agreement puts teeth in the principle of collaboration through a combination of no blame and no dis- putes contract language and compensation principles aside from “painshare” contributions, where the owner will ulti- mately pay its alliance members for their costs in performing the work. A fundamental legal issue is whether the concept of no blame and no disputes is enforceable under U.S. law, regardless of whether the owner is public or private. This issue raises a number of unanswered questions, such as the following. • Can either party to a contract, particularly a public owner, agree at the time of contract—before any issues and conflicts have arisen—to give up its constitutional right to seek redress in the courts? • Can a party that is clearly negligent stand behind this clause and be paid for fixing its own work? • Would U.S. courts find this against public policy? • What happens if there are latent defects in the work dis- covered years later? • Will a contractual waiver of the parties’ rights to claim be more enforceable than a no disputes provision, and can a public agency do this? The literature search did not reveal any examples where parties to an alliance contract actually had a dispute and tried to test these issues. One comprehensive legal study of the Australian alliancing experience, found “no documented

59 there be a determination and findings that (1) this contract type is likely to be less costly than any other type; or (2) it is imprac- tical to obtain supplies or services of a kind or quality required without the use of this contract type. Most construction proj- ects will not meet these requirements and they are infrequently used. However, the coupling of the Antideficiency Act and this constraint may hinder an agency from going down the path of considering an alliance arrangement. Joint Management and Unanimous Decision Making Another cornerstone of alliance contracting—joint manage- ment and unanimous decision making—is challenged in the public sector. Agencies generally have contracting officers, and there are major questions as to whether they can operate in an environment where decisions are made unanimously by those who would ordinarily be independent contracting parties with the government. Mitigating/Overcoming the Challenges Although the above-referenced challenges suggest that pure alliancing contracting is not practical for the U.S. public sector construction market, there are several strategies that an agency can use to mitigate or overcome these challenges. The most effective way is for a state to promulgate specific enabling legislation that addresses all of the nuances associated with alliance contracting. This has been done for DB and CMGC, and most recently with P3. In the early 1990s, each of these delivery systems posed virtually insurmountable procurement and contracting obstacles for both federal and state agencies. However, as legislators eventually recognized that these deliv- ery systems provided some major benefits over the status quo, they passed legislation and regulations were implemented to facilitate their use. There is no reason to believe that the same would not take place with the use of alliancing if and/ or when someone in leadership at the federal or state level decides that this is a delivery system that needs to be placed into an agency’s “tool-belt.” To overcome the concept that this approach is far different than the fixed price and blame mod- els prevalent in most public sector construction programs, an interested agency might advocate for creating a pilot program to test out the use of alliancing on a specific set of projects and then evaluate the outcomes in an analytical manner. While special legislation is the most effective solution, state DOTs may be able to use some form of alliancing under either Special Experimental Project No. 14 Alternative Con- tracting (SEP-14) or Special Experimental Project No. 15 (SEP-15) to Explore Alternate and Innovative Approaches to General Project Development Process. There is no indication that this has been attempted as of the date of this Synthe- sis. However, it is reasonable to believe that the fundamen- tal purpose of both SEP-14 and SEP-15 would be served by allowing an agency to use alliancing for a particular project. Although the insurance industry has attempted to respond to this, one of the problems is that, to date, there are limited opportunities for alliance-type contracts. The literature did not specifically describe how professional liability insurance is handled in Australia and New Zealand, but did indicate that some of the larger carriers are offering rectification cov- erage for IPD projects in the United States. “This coverage provides funds to rectify a mistake caused by professional negligence during the design and construction phases, but this coverage is available only for the largest projects under project-specific IPD policies” (Harness 2014). Rectification insurance covers losses caused by the negligence of all par- ties named as insureds in the policy, which could be all or most members of an alliance team. The literature makes it clear that assessing the insurance ramifications on alliancing agreements is complicated and that there are changes taking place in the industry to respond to the markets (VDTF 2006). However, from a U.S. public owner’s perspective, the implementation complications and uncer- tainties, coupled with the potential loss of coverage against a designer’s professional liability policy, could negatively affect the agency’s interest in using an alliancing arrangement. Antideficiency Act and the Impact of Cost-reimbursable Contracts The federal Antideficiency Act prohibits federal agencies from obligating or expending federal funds in advance or in excess of an appropriation, apportionment, or certain admin- istrative subdivisions of those funds (31 U.S.C. §§ 1341, 1517(a)). Stated differently, the Antideficiency Act prohibits the federal government from entering into a contract that is not “fully funded,” because doing so would obligate the gov- ernment in the absence of an appropriation adequate to the needs of the contract. States and other government agencies have similar requirements. There have been questions about the impact of the fed- eral Antideficiency Act in terms of indemnification—that is, would the federal government be violating the Anti deficiency Act if it indemnified a contractor for damages, costs, or fees, or any other loss or liability? In 2013, the Federal Acqui- sition Regulatory Council published a new interim rule that precluded the government from entering into open-ended, unrestricted indemnification clauses because they violated the Antideficiency Act (Covington and Burling 2013). Although there are some exceptions to this, the interim rule and its accompanying legislative record makes it clear that there are consequences to having unbounded financial obligations in any contract that the federal government enters. The application of the Antideficiency Act and its similar state-specific laws to an alliancing contract is unclear, but potentially challenging. Governments do sometimes agree to cost reimbursement relationships, although they are highly constrained. One of the most significant constraints is that

60 CONCLUSIONS The results of this chapter revealed the following four conclusions: 1. Alliancing agreements contain provisions that are unusual to typical public sector construction contract- ing in that they advocate: – Joint management and unanimous decision making, – No blame and no disputes, and – Payment to the alliance team members on a cost- reimbursable basis, with gainshare/painshare rela- tionships that limit the potential exposure of the members to the project’s owner. 2. There are some significant challenges that U.S. transpor- tation agencies will face in using alliance contracting, including the authority to contract on a cost-reimbursable basis with limited recourse against the design and con- struction teams. 3. The no dispute aspects of alliance contracting create insurance and legal challenges, particularly in relation to whether parties can negotiate away their rights to seek legal recourse if they have been wronged. 4. An agency will have to deal with the issue of the rele- vant Antideficiency Act legislation. Various mitigating strategies seem possible; however, interested agencies are advised to obtain opinions from their chief legal official as to whether what is being proposed complies with applicable law. Strategy for Harmonizing Alliancing with the Antideficiency Act Regardless of whether special legislation is passed or SEP-14/ SEP-15 is used, an agency will have to deal with the issue of the relevant Antideficiency Act legislation. One possible strat- egy for mitigating this challenge is for the sponsoring agency to appropriate funding for the project that is based on a budget that has appropriate contingencies. If done so, it is then reason- able to conclude that Antideficiency Act considerations have been met because of the following: 1. Alliancing contracts require all parties to manage to the budget; 2. The contract can be executed in phases (for, among other reasons, to allow the owner to make informed decisions on how to proceed vis-à-vis the budget); and 3. The contract will have a termination for convenience clause. As for using an open-ended indemnity arrangement, it may be that the agency and its alliancing parties will simply have to leave this provision out of the contract, as it poses Antideficiency Act obstacles. Finally, one must keep in mind that it is also not absolutely essential to making the allianc- ing arrangement work exactly as it does overseas. Given the complexities of the U.S. legal issues, interested agencies are advised to obtain opinions from their chief legal official as to whether what is being proposed complies with applicable law.

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TRB’s National Cooperative Highway Research Program (NCHRP) Synthesis 466: Alliance Contracting—Evolving Alternative Project Delivery synthesizes current practices related to the use of alliance contracts around the world, and explores the procurement procedures that have been used to successfully implement alliance contracting on typical transportation projects.

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