Recently, I am become interested integrated project delivery (“IPD”) as a project delivery method for construction. For those of you familiar with IPD, the concept truly involves a mind shift. A true IPD project is a radical departure from the traditional project delivery methods we all are familiar with. The reasons that IPD is a dramatic departure are many. However, what I view as the most dramatic, especially as a construction attorney, is the concept that the parties agree to waive most traditional construction claims against each other.
Yes, that means the owner, architect, and contractor (and perhaps key subcontractors) agree not to bring litigation for delay claims, inefficiency claims, change order claims, or any claims for consequential damages. You might ask how the parties would resolve disputes that are sure to arise on a complex construction projects? Through collaboration and mediation.
Sound impossible. Well consider that the entire concept of IPD is predicated on a collaborative approach to delivering the project with a stated goal of preventing traditional construction claims from occurring. Moreover, imagine if the parties approached this collaborative environment knowing that they would not sue each other. Furthermore, imagine if you knew that the only way claims could be resolved would be through mutual agreement rather than litigation. If this one simple not to sue concept were put in place on a project you are currently working on would it benefit the project or make matters worse?
A “litigation free” zone creates an environment were the parties are not defensive and are free to provide ideas on how to solve a problem without fear that it may be used against them in future litigation. The parties are not “creating a record” the moment a dispute arises. While this may be a radical concept for the construction industry, our military has been using a similar concept for years. Military combat teams from all branches routinely use a concept known as “red teaming.” Basically, after a mission the participants review the mission and discuss how they could have made it go better. The discussion occurs without regard to rank. In fact, rank patches are sometimes left at the door. Moreover, no one is permitted to defend criticism of one’s actions by another member of the squad. Therefore, you create an environment where even a low ranking soldier can give critical input on the mission without fear of retribution by someone with higher rank. What results is a dynamic environment which create future successful missions. After the meeting is over patches go back on and rank formalities resume.
IPD is not something that is going to happen in the far off future. IPD is here now. In fact, whenever Congress gets around to passing a long term highway bill IPD – or at least IPD concepts – will be part of that bill.
Does this mean that construction litigators are now dinosaurs and should begin brushing up on other practice areas? No, of course there will still be disputes that require legal advice on an IPD project. It is just that the method of resolving those disputes is likely to change.
Wally Zimolong
Wally represents contractors (and subcontractors) and developers. His clients build and develop residential, commercial, and industrial properties nationwide. Wally enjoys working with the owners of the businesses he represents because they tend to be entrepreneurs and all around interesting people.
