Government building and civil engineering construction contracts

Abstract

The government has responsibilities to many sections of society in the exercise of its contractual powers. But the law relating to building and civil engineering contracts does not clearly recognize many of these responsibilities; nor are they adequately recognized in the administration of these contracts. The paper is founded on the premise that government, because it represents the interests of the public, and so cannot in the normal sense claim interests of its own, differs fundamentally from a private sector employer. The government has responsibility not only towards existing taxpayers to ensure value for money but also to such other interests as taxpayers of the future, the users of public facilities, environmental groups, suppliers of materials, contractors and workers. The interests of these groups will not always coincide. In contrast, a private sector employer is concerned with his own interests. He is largely untroubled by responsibilities to the general public, still less by the difficulties which arise where various public interests conflict. Legal and administrative attitudes towards government construction contracts have tended not to exhibit any clear distinction between the government and private sector employers. There is therefore a risk that interests for which private sector employers need have little concern, but which government is entrusted to protect, may be neglected. The paper examines the law and administration of government construction contracts from the early planning and organisational stages through to the review and appraisal of projects once completed. Similarities and distinctions between government and the private sector are noted with a view to identifying areas in which either the law or administration of government contracts does not adequately recognize the wider responsibilities of government. In the end, the government is answerable to the public for its actions. Attention is therefore paid to government practices which can assist political accountability, and, in the final part of the paper, to the ability of Parliament to hold the government to account with respect to construction contract planning and administration. The paper attempts only to provide an overall view of government construction contracts. Within this framework, at appropriate junctions, general reform proposals are made, with some reference to comparative materials from other jurisdictions. It is hoped that the paper will expose areas in which the acceptance of private sector attitudes is inadequate for government contracts. Future developments which would be cognizant of these findings are indicated.