by Clive Thurston
Special to Ontario Construction News
When I first came to the Ontario General Contractors Association (OGCA), there was far too much confrontation going on in the industry. It was not unusual to see contractors qualifying their bids on a regular basis and owners finding that when the prices came in, they were well above budget. There were of course the usual problems of documentation quality, change orders, and lack of information and co-operation.
When you read this article, (from 2003) other than changing some names, I think you will all recognize that we still have problems. I wrote recently about the efforts to find a more collaborative method of procuring design and construction services. Much has been written over the past years on various methods everything from partnering and, as I discussed in my last column Integrated Project Delivery (IPD) or its cousin, the Alliance system.
Yet still we continue to have unrelenting problems. Discussions over the past few months during the COVID-19 pandemic about prices and schedules have shown that several owners refuse to work collaboratively with the industry to deal with its challenges. Many trades and contractors are still awaiting compensation for extra costs caused by the crisis.
The government continues to sit on a report completed months ago, outlining changes that need to be made to the system and to the new Construction Act to make it more efficient and fairer for everyone.
Why is it that at a time, when leadership is so desperately needed, our leaders can keep finding excuses for not doing the right thing? One need not look further than a recent story in Ontario Construction News regarding the homebuilding sector, with Richard Lyall of the Residential Construction Council of Ontario (RESCON), lamenting the confrontation between a union organization and builders affecting homeowners everywhere. Where are the leaders?
I recently completed a book called the Collaborative Construction Process by Gianluca Pascale. In many ways, I found it reflects what I have written below, but it has some other great recommendations about how to work together and look at new ways to deliver our projects.
I will be touching on some of these ideas and subsequent columns. Mr. Pascale has plainly stated which should be obvious to all of us – that we all need to work together in a collaborative manner for our industry to thrive and survive.
I hope you enjoy the article and I look forward to any feedback. Change must come. AsNews) Craig Lesurf, one of the leaders of the OGCA often was quoted as saying: “Leaders need to Lead” and that is particularly true during the challenges we face today.
Collaboration not confrontation
Over the last decade, our industry has moved away from the concept that the owner, architect and contractor were the three main pillars necessary to a successful project. We have moved towards a confrontational and adversarial method of tendering, bidding and building projects.
With each attempt to impose tighter contractual restrictions upon the industry, the problems have escalated. The current state of the insurance industry has not helped, impacting the cost of projects on both the contractors and the owners.
The competitiveness of the industry has been severely impacted and the ability of contractors to obtain a fair reward for their work.
We need to step back and ask; what has all this altering of the bidding and tendering process achieved? Are owners really benefiting from pages and pages of supplementary conditions or from insisting on the right to be unreasonable or to act arbitrarily?
To be fair, we in the contracting industry are not without fault. Owners have legitimate complaints that we have not responded to and it is time we did.
Any solution requires both parties to meet and resolve their differences. The OGCA, its members, and many non-members, have been taking stronger stands in the face of unfair contracts and conditions by some owners, while in other cases, we have met with owners to reason out our differences and come to a satisfactory agreement for both sides.
Consultation can and does succeed in avoiding problems on projects. Despite a number of successes and the continued joint industry efforts of the OGCA, OAA and CEO, there are still a small number of owners and lawyers who are determined to create the “bulletproof” contract.
This policy benefits no one and leads only to confrontation, which delays projects and wastes everyone’s time as the parties either negotiate, re-tender the project or cancel it.
The OGCA, along with the OAA and CEO, are working together to address these issues and others. We are currently working with both Public Works Canada and the Ontario Realty Corporation to improve methods and policies to ensure that the owner gets the best service for the right price, and the owners are working to improve their methods of dealing with our industry. A major part of these discussions is an alternative dispute resolution system to avoid costly delays and arguments, and to resolve issues quickly and effectively, right at the site level.
The industry is responding to the issues owners have been complaining about but if we are to be successful, then the mistrust must end and consultation must become the way we resolve our problems.
The three pillars must re-establish the ability to work and communicate together. There is a role for the lawyers but that role should be one of guidance on what is a fair contract to both sides, not one that only represents one side of the equation.
The OGCA will continue its pro-active representation of contractors and will continue to aggressively oppose unfair contracts, not because we believe that owners are not entitled to make amendments to documents, but because we believe that many of these changes are not in the best interest of the owner or the contractor and will lead to disputes on the project.
We will continue to offer to meet with and consult with any owner who has problems and we will work with any owner to address these issues fairly and in the best interest of all stakeholders. With the partnership and cooperation of our industry partners, we can provide a wealth of experience and professionalism that will succeed in resolving the issues we all face in today’s construction industry.
It is time to get back to what is really important to us all – the successful construction of the project. Through consultation and working together, we can make this industry better for everyone.
Clive Thurston is the former OGCA president. He can be reached at (416) 399-2250 or email clive@thurstoncs.com.