Tender Code Needed

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While few readers of this Blog are likely to be involved in tendering for submarines (via “full competitive tender” or even “competitive evaluation”) the controversy in South Australia is not lost on the experiences of so many consultants to the built environment.

Increasingly project managers use a term “desktop review”, which certainly appeared during the BER (building education revolution) program in some States, often with severe time constraint on delivery of material for “review” and without clear guidelines. The “How, what, when and by Whom” of such reviews is often unclear and/or changeable.

So what is the correct practice for the construction industry?

The question is topical in the construction industry because despite the existence of many “codes of practice”, few government (particularly State and Local) or semi-government bodies follow good practice. It is a hot issue, particularly due to the inexperience and failing of many (underqualified) project managers who, with or without proprietor approval, seem to flaunt any discernible “code”.

A search of siaglobal brings AS-4120 Code of Tendering to light but the Australasian Procurement and Construction Council (APPC) offers only the recently released “Guide to Successful Project and Asset Delivery: Getting it right up front” which offers very little real guidance and no code of conduct for the participants. Web-searches identify many more evidence of problems.

The AIA Victorian Chapter 2015 Winter Journal was devoted to “Procurement”. It encapsulated most of the current arrangements adopted by the industry, including government, for engaging architects. It is well worth the read. It published:

  • A transcript of the ABC Science Show “Risky Business”, 2nd May 2015 ~ a panel discussion with the Federal Communications Minister Malcolm Turnbull, businesswoman Sam Mostyn, UNSW Vice Chancellor Dr Ian Jacobs, Cambridge professor from Australia, Herbert Heppert and moderated by Robyn Williams and edited by Lyndon Hayward, Principal and cofounder of NH Architecture..
  • Alan Findlater, Managing Director, Victorian Project Management and Board member DCWC Group described “Frameworks for Procuring Architectural Services” finishing with a lovely quote: “a golf ball that is 5 degrees off at the tee ends up a long way away from where it should be”.
  • Damian Abrahams, a specialist legal consultant, provided “A Legal Perspective ~ Risks and Rewards” and Steve Richardson, reflecting on “… over 35 years’ experience leading construction and delivery with Grollo family construction entities …” provided “A Builder’s Perspective.”
  • But in my opinion the best contribution came from the highly respected, Bryan Miller, LFRAIA under the title “Where is the Evidence?”. Bryan convincingly challenged the appropriateness and even veracity of non-traditional contract methods, concluding with very relevant references to “The Orgill Reports”, 2010 and 2011 on the BER; the “In Support of the Managing Architect: Lessons from the Orgill Report”, by Peter Skinner, 2011; and “Standard Forms of Contract in the Australian Construction Industry” by Professor John Sharkey and Matthew Bell, 2014.

Unfortunately not one addressed tendering procedures.

A paper by Justin Cotton, partner of Lovegrove Solicitors published on 30th January 2015 by sourceable reflects critically on the fiduciary independence of architects. Justin makes no reference to the Architect’s Act but the tenor of his article seems to concede that architects generally act professionally in administering the terms of any contract they are administering.

Capacity to administer contracts and to assess tenders or even administer a tender process requires qualified and experienced consultants acting in the best interests of all parties. Traditionally architects have undertaken these roles. In recent times they may have kicked an own goal by two major failures:

  • Surrendering the administration roles because they are less “intellectually” satisfying and time consuming with associated risks to profitability;
  • When administration roles are available, younger architects are denied the experience for various reasons.

The result is the self-full-filling prophesy that qualified, experienced architects are not available ~ so the role is delivered by others.

Whoever performs the contract administration role, the inability to clearly articulate a fair and prudent process for the submarine tenders demonstrates the urgent need for a valid code of practice that is adopted and enforced.

ACIF has reported the establishment of an international group which “… aims to create overarching international standards that will harmonise cost, classification and measurement definitions in order to enhance comparability, consistency, statistics, and benchmarking of capital projects.” What about an enforceable tender code within Australia?

What does the AIA or AIPM propose? There is an urgent need for leaders in the relevant professions to advocate and enforce proper tendering codes including advancing an education program for all practitioners. Simultaneously, when pressed to waiver or dilute application of appropriate codes, all must adopt the powerful two letter word: NO!

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