Conflict is defined as a state of opposition or a clash of opposing principles. In terms of project construction it could be the opposition of incompatible requirements between Promoter, Architect or Contractor or be the result of contradiction. It could simply be the contention associated with expressing opinion.
In practical terms a conflict can result when a contract or Contractor does not deliver the project in the manner expected by the Client or Promoter. The reasons for this can be numerous; expectations being wrongly or inconsistently specified being at one end of the spectrum and inadequate performance by the Contractor or supply chain being at the other. Another source of conflict could be that the returns offered by the Promoter are incompatible with the Contractors expectations.
Potentially there are innumerable causes of conflict and some of these are outlined below.
Type of Contract
When working under contract each party has responsibilities and their nature and scale differ with each contract type. This can involve significant issues; responsibility for the ground investigation, for the final design, for contracting with the supply chain and so on. For example, a Promoter will retain responsibility for the project design under one type of contract and will pass that responsibility to the Contractor under another.
In following the latter option the Promoter will have had a perception of the aesthetic qualities of the finished project and will have described these in the project brief. However, when developing the design the Contractor will take into account, amongst other things, build-ability, resource options (particularly materials, products and prefabrication) and the likely influences on production efficiency. This may not fully deliver that which the Promoter had in mind. As the Contractor’s tender will have been accepted on the basis of such proposals then the differing opinions may lead to conflict under the contract. Of course, if an Architect is separately instructed and contracted to undertake the design then there is an added opportunity for misunderstanding, differing aspirations and possible conflict.
A design is described by drawings and specification and a Contractor’s tender is an undertaking to deliver the works within the boundaries they establish. But a Contractor aims to work in an efficient and cost effective manner and will have commercial considerations when choosing materials, products or work processes. So whilst staying within the bounds of the specification a Contractor may deliver a product of a different look and quality than the Promoter perceived. This may be acceptable. If not so then the order to remove or vary the price will likely become a matter of conflict. It is easy to see how similar situations could arise with workmanship, incompatible products and the works and services of nominated suppliers and sub-contractors.
Duties and Responsibilities
All members of the project team have duties and responsibilities and these have been explained in the constructionsite unit Responsibilities and Working Relationships. In addition, all members have legal obligations under contract; see Standard Forms of Contract (Section 1 of this unit). Breaching the terms of the contract or not accepting the responsibilities assigned or failing in one’s duty will lead to conflict. Examples of failure could be a Promoter failing to give possession of the site at the time it is required or a Contractor failing to work in a manner that would meet the constraints of the contract period. The many areas of possible conflict can be identified by identifying the principal duties and responsibilities of each party under the relevant conditions of contract.
Using the Table entitled, ‘Project Outcomes by Contract’ (see Section 2 Contracts by Project Type, sub-section Influence on Project Outcome) it is possible to see that the certainty or predictability of cost, quality and time can vary because a different party has responsibility for their delivery. For example, the cost to the Promoter under a ‘lump sum’ contract is reasonably certain at the outset because generally the design was completed before tenders were invited and the Contractor has responsibility for checking measurements before submitting a price. So the tender sum is generally the price to be paid by the Promoter. Of course, if the Promoter changes the specification whilst the works are in progress then additional costs may be incurred but with a ‘lump sum’ their value will be difficult to predict, another possible source of conflict.
So the choice of contract type is not just determined by the intended works but also by the priorities of the Promoter. For example, the Promoter of a new supermarket will generally require a speedy construction so that the store can begin trading with the minimum of delay. Therefore the Promoter will place a greater emphasis on time of completion and hand over. Clearly, Promoters of other projects will have different priorities and conflict can easily arise by misunderstanding their principal desire for the project.
It is easy to see that conflict will arise from dissatisfaction, misunderstanding and poor performance but this could easily be the result of poor or inadequate communications. There are strict requirements on contractual communications and they have a distinct bearing on the quality of instructions and ultimately the final product. So ineffective communications can mislead, fail to give proper guidance or necessary clarification even fail to avoid catastrophe. But also, effective communications are essential for productive contractual relationships and for ensuring the whole team heads towards the same project outcomes with a similar desire and motivation.
If effective communications promote proper project delivery then ineffective communications can easily be associated with conflict. Consider the problems that ambiguity and document inconsistency promote and the possible implications of non-clarification. Consider also the likely failures from not following contract communication procedure or failing to keep all people necessarily informed. How will honesty, mutual trust and good working relationships be achieved if communications do not take place and how will conflict be avoided in such circumstances?
Contingent and unforeseen risks in the construction industry, particularly civil engineering, are generally far higher than in other industries. Therefore effective management of risk is crucial and this involves pre-tender assessments, contingency plans, appropriate responses to the unforeseen and strict adherence to contract procedure.
Accepting contract responsibilities without understanding or accounting for the foreseeable risks leads to shortcomings in preparations and contingency planning. If such risks come to light then the need to allocate blame, mitigate the effects and deal with the costs brings added pressures and almost certain conflict.
Whether justified or not such matters will always be viewed with conflicting interests. The principal causes of contractual claims are associated with instructions and unforeseen circumstances and whilst there may be established facts and qualifying criteria, inevitably opinions will differ. Instructions that vary the works or clarify the specification will be readily understandable but paying for their effects may be somewhat contentious. Discovering physical conditions or artificial obstructions will raise questions as to whether they could have been reasonably foreseen by an experienced contractor. The opinions that emanate may be conflicting.
Opportunities for Conflict Avoidance Strategies
In developing strategies for avoiding conflict it is necessary to start with the potential failures, investigate the root cause and determine how they can be countered. So the strategies will most likely involve preparation, timely actions, communications, responsiveness, collaboration, negotiation, review, continuous improvement. The list is extensive.
Ensuring the site and the proposed works have been appropriately investigated to assess the constraints, risks and build-ability as well as determining supply chain capacity and any fitness for purpose issues.
Ensuring the completeness of estimates/tenders and efficient working practices in addition to achievable targets and cost control would all aim towards delivering cost certainty.
Delivering any project on time requires preparedness in terms of process planning, programming, resourcing and production but also effective leadership of properly skilled and informed managers and workers.
Mutually consistent specification, drawings and instructions remove the problems of ambiguity and misinformation and ensure that works processes are properly planned and deliverable. Equally, all personnel need skills, direction and control and the works and products they produce are subject to appropriate testing, acceptance and rectification.
Early Contractor Involvement and collaboration are the essentials for a partnership approach to construction. This requires tactful and co-operative attitudes, shared information, advice and assistance all aimed at delivering a project that best fits the real project priorities. Partnership, on the other hand should not remove or reduce the requirements of the contract or its associated documents but help to enhance the delivery of a cost effective and timely quality project.
Working under contract always carries the possibility of conflicts and disputes but it is the manner of their resolution that will determine whether a contract will be completed successfully or not. Most contracts include clauses on mediation, arbitration or adjudication but current industry guidance includes references to Alternative Dispute Resolution (ADR) (see websites below). Whatever process is appropriate, the value of experience, impassioned debate, fairness and justification should not be overlooked.
What do the customers think about the delivered project or services? If they are not consulted then continuous improvement cannot take place, dissatisfaction will ensue and inevitable conflict regarding the allocation of blame. It was customer concerns (the Government and tax payers in this case) that led the industry to commission Sir Michael Latham and Sir John Egan to seek improvements in the whole process of project delivery. Their recommendations started with being sure about what the customer really wants and ran right through to customer feedback and continuous improvement.
Contract procedures defined or implied by contract or its associated documents are designed to ensure all relevant parties are properly instructed or informed at the right time and can take actions appropriate to the intention of the procedure. All procedures can be identified from the duties set out in the relevant standard forms of contract as discussed in the previous section of this unit.