A conceptual model of partnering legal issues

Abstract

It is pertinent to conduct a research on the legal issues of partnering in the construction industry. This is due to the lack of research in the area, as most of current research only covers issues within the application and development of partnering and the identification of critical success factors. This research attempts to identify legal issues pertaining to partnering implementation in the construction industry, and to highlight the relationship-based procurement success factor in the Malaysian construction project. Additionally, the research also identifies the salient elements which could arise in the context of each respective legal issue. In essence, the research has managed to identify six legal issues which are misrepresentation, fiduciary relationship, good faith, doctrine of estoppels, confidentiality and interpretation of contractual terms. In addition, this research highlights necessary success factors which consist of commitment, communication, trust, workshop and facilitator, competence, financial capability, experienced partners, and early implementation of partnering to accommodate and support partnering implementation within the Malaysian construction industry. The salient elements of each respective legal issue were identified through law cases analysis and supported by the analysis of standard form of partnering contract and previous agreement on partnering projects in Malaysia. Basically, there are three components from the findings namely identified legal issues, relationship-based procurement success factors, and salient elements of each identified legal issues. These findings were used as the basis to develop a conceptual model of partnering legal issues in construction industry which will able to assist the construction players who intend to implement partnering in their future project. It will help the partners to be aware and understand how legal issues arise in partnering projects. Finally, an ‘expert opinion’ validation process was carried out through an online survey to validate the practicality of the conceptual model. Majority of the experts agree with practicality of the conceptual model introduced in this research.