APPLYING SUPPLY CHAIN COLLABORATION IN THE PUBLIC … SECTOR OF THE CONSTRUCTION INDUSTRY ... ALL LINKS IN THE CHAIN WITH AS GOAL TO OPTIMIZE THE LONG-TERM PERFORMANCE OF ... Applying

J.C. VAN TELLINGEN

2016

APPLYING SUPPLY CHAINCOLLABORATION IN THE PUBLIC SECTOR OF THE

CONSTRUCTION INDUSTRY

A study to propose solution approaches toenable the application of Supply Chain Collaboration

within the boundaries of the legal frameworkof the Dutch construction industry

AUTHORName: Joyce Carmen van Tellingen

Studentnumber: 1395653Adress: Eerste Weteringdwarsstraat 14-2

1017 TN AmsterdamPhone: 0031611510835

Email: [email protected]

UNIVERSITYDelft University of Technology

Faculty of Civil Engineering and Geo ScienceMaster Degree Construction Management and Engineering

Stevinweg 12628 CN Delft

COMMITTEEChairman: Prof. Mr. Dr. M.A.B. Chao-Duivis

First reader: Dr. Ir. M. PrinsSecond reader: Dr. Ir. M.G.C. Bosch-Rekveldt

Supervisor Royal HaskoningDHV: Dr. Ir. J.R. Deketh

PUBLISHEDAmsterdam 2016

I

In loving memory of oom Ton

‘NO MAN IS AN ISLAND, ENTIRE ON ITSELF,

EVERY MAN IS A PIECE OF THE CONTINENT, A PART OF THE MAIN’

- John Donne

Applying

Supply Chain Collaboration

II

in the public sector

of the construction industry

III

PREFACE This thesis is the result of my graduation research as part of the master degree Construction Management and

Engineering at the Delft University of Technology. By succeeding this last undertaking I have officially become

an engineer and, maybe even more important, it symbols the end of my life as a student and the beginning of my

professional career. Who would have ever thought?

My graduation research started with conversations at my parent’s house about Supply Chain Collaboration and

the possibilities of this method. This awakened my interest on the subject. Thankfully, I wasn’t the only one

interested in Supply Chain Collaboration as Royal HaskoningDHV offered me a graduation internship to further

research the possibilities of Supply Chain Collaboration.

I could not have completed this graduation thesis without the valuable input of my graduation committee. That

is why I would like to start by thanking them. Monika, thank you for your extensive knowledge of the law,

guiding me through the labyrinth of rules and regulations, and for providing the right literature.

Matthijs, thank you for questioning my ideas, for always challenging me, for warning me when I got too

enthusiastic about subjects that weren’t related my research, and for our endless conversations, some on an

abstraction level I still don’t understand. Marian, without you this thesis would have been a novel. Thank you for

converting this research into a scientific thesis. Jan Reinout, thank you for giving me the opportunity to graduate

at Royal HaskoningDHV, for giving me the freedom to determine my own approach, and for our discussions

about numerous topics that always provided new ideas. Thank you all for your positive support, critical eye and

constructive feedback. This has brought my thesis to a higher level.

Secondly, I want to thank all interviewees that were willing to share their experiences and knowledge with me.

The different views about Supply Chain Collaboration enabled me to create my own vision about the method.

Besides that, I enjoyed all interviews and was surprised by the interest that was shown for this research.

As quoted on the inner side of this thesis, ‘no man is an island, entire on itself’. Nevertheless, graduating can feel

like being on an island and that is why I would like to thank everyone who listened to my endless stories about

Supply Chain Collaboration, graduating, the Aanbestedingswet and so on. Thanks for listening to all my

thoughts and for giving advice if needed.

Last but not least, I want to thank Rob for our endless conversations in ‘Het Bonte Paard’ about Supply Chain

Collaboration and the direction of this research, and for the motivational speeches that I sometimes needed. I

want to thank my mum for her infinite trust in me and her unlimited patience that I have tested multiple times.

And finally, my ‘little’ sister Gwen. Even though we are going in different directions, we will always have each

other’s back.

Thank you for always believing in me.

Joyce Carmen van Tellingen

Amsterdam, 2016

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IV



V

SUMMARY SUPPLY CHAIN COLLABORATION. A method proclaimed by supporters to be the solution to improve the

relationship between clients and contractors active in the construction industry and as a result reduces time and

cost overruns and improves the quality of projects. Supply Chain Collaboration has found its way to the Dutch

construction industry but thus far, it has only been applied in the private sector of the constructing industry and

mainly by housing corporations. Why hasn’t Supply Chain Collaboration been applied by public clients? An

explanation can be that private and public clients operate within the boundaries of different legal framework. The

legal framework in which the public client has to operate creates barriers that hinder the application of Supply

Chain Collaboration.

RESEARCH QUESTION

This research proposes solution approaches that enable the application of Supply Chain Collaboration for public

clients within the boundaries of the legal framework. The following research question is the central question of

this research:

‘HOW CAN PUBLIC CLIENTS APPLY SUPPLY CHAIN COLLABORATION WITHIN THE

BOUNDARIES OF THE EXISTING LAWS THAT ARE IN FORCE IN THE DUTCH CONSTRUCTION

INDUSTRY?’

To be able to answer this question a literature survey is conducted on the following topics: Supply Chain

Collaboration and the legal framework of the public sector. The conclusions derived from both topics are

compared to determine the barriers that hinder the application of Supply Chain Collaboration for public clients.

Next, two solution approaches are proposed that are developed to overcome these barriers. These approaches are

confronted with virtual projects in order to determine the applicability of the solution approaches in practice and

lastly, the answer to the research question is given.

SUPPLY CHAIN COLLABORATION

There isn’t a uniform definition that describes Supply Chain Collaboration but the comparison of different

definitions applied by scientific researchers complemented by findings withdrawn from this research has resulted

in the following definition of Supply Chain Collaboration that is applied in this thesis:

‘SUPPLY CHAIN COLLABORATION IS THE SYSTEMATIC AND STRATEGIC COORDINATION OF

ALL LINKS IN THE CHAIN WITH AS GOAL TO OPTIMIZE THE LONG-TERM PERFORMANCE OF

THE ENTIRE CHAIN BY APPLYING, IDEALLY, ALL EIGHT PILLARS.’

Supply Chain Collaboration is composed of the following eight pillars:

PILLAR A - Entering into strategic long-term collaboration with construction partners.

PILLAR B - Early involvement of partners in construction process

PILLAR C - Integral information sharing

PILLAR D - Collectively monitoring of performances

PILLAR E - Continuous improvement

PILLAR F - The use of a joint incentive system

PILLAR G - High level of repetition

PILLAR H - Standardization of production and process

There is no consensus about whether or not strategic partnership must be part of Supply Chain Collaboration to

acknowledge the method. Ideally all eight pillars including strategic partnership are applied (Chao-Duivis &

Wamelink, 2013; Noordhuis, 2015) but Supply Chain Collaboration can also be recognized without this pillar (van

der Veen, 2003).

That is why two variants of Supply Chain Collaboration are acknowledged in this research: the first variant in

which all pillars, including strategic partnership, are present and a second variant in which strategic partnership

is absent. See figure 1 for a simplified image of Supply Chain Collaboration.

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VI

FIGURE 1: GRAPHIC DISPLAY OF SUPPLY CHAIN COLLABORATION, OWN ILL.

LEGAL FRAMEWORK

The construction industry can be divided in two different sectors, the public sector and the private sector. The

public sector of the Dutch construction industry has to operate within the boundaries of a legal framework. The

legal framework includes all laws, rules and regulations that are in force in the Dutch construction industry. In

this research the emphasize will be on the Aanbestedingswet 2012. The legal framework has become stricter over

the last decades and it is concluded that this is due to the discovery of the collusion in the construction industry

and the introduction of the Mededingingswet. The discovery of the collusion has had a huge impact on trust and

future interactions between public sector clients and contractors. Besides that, the Mededingingswet fosters

competition and monitors competitive relationships in the Dutch business sector by prohibiting collaboration and

strategic partnerships that hinder competition on the Dutch market.

Furthermore it can be concluded that contracting authorities have to award every contract according legislation.

When the value of a contract meets the European threshold as published in the European Directives it has to

procure the contract according the legislation of the Aanbestedingswet 2012. When the value of the contract

doesn’t meet the European threshold the contract, if it concerns a project, has to be procured according the

Aanbestedingsregelement Werken 2012. Both include legislation about the procurement procedure, exclusion

grounds, and selection and awarding criteria. Contracting authorities need to adhere these legislations otherwise

the procurement isn’t valid.

The Aanbestedingswet 2012 that is in force in the public sector prohibits public clients to enter into strategic

partnerships. This complicates the application of Supply Chain Collaboration by public clients, as strategic

partnership is the first pillar of the method. The Aanbestedingswet 2012 is not in force in the private sector, hence

the more possibility for private clients to apply Supply Chain Collaboration.

SUPPLY CHAIN COLLABORATIO

N

Strategic partnership

Early involvement of partners

Intergral information

sharing

Collectively monitoring

Continuous improvement

Joint incentive system

High level of repetition

Standardization

A B C D E F G H

Second

variant

First

variant



VII

BARRIERS

Supply Chain Collaboration has two variants. The first ideal variant in which all eight pillars of Supply Chain

Collaboration are included and a second variant in which all pillars except strategic partnership are part of

Supply Chain Collaboration. Contracting authorities have to operate within the boundaries of the legal

framework in which the Aanbestedingswet 2012 obligates contracting authorities to procure every contract

according legislation. The presence of the Aanbestedingswet prohibits or complicates the application of four

pillars of Supply Chain Collaboration. Firstly, the Aanbestedingswet prohibits strategic partnership (pillar A).

Secondly, early contractor involvement (pillar B) is difficult to apply because the Aanbestedingswet prohibits that

public clients interact with contractors before a contract is awarded. Thirdly, the obligation to procure every

contract according the Aanbestedingswet complicates a high level of repetition (pillar G) and standardization

(pillar H) because a contracting authority cannot favor a contractor with whom it already collaborated. This

hinders the continuation of experience and thus repetition and standardization. In other words, the

Aanbestedingswet hinders the application of both variants of Supply Chain Collaboration.

Two barriers can be derived from the conclusions of Supply Chain Collaboration in combination with the legal

framework:

The Aanbestedingswet 2012 prohibits the first pillar, strategic partnership, of Supply Chain Collaboration

in the public sector and as a consequence hinders the application of the first variant of Supply Chain

Collaboration that includes all eight pillars.

The Aanbestedingswet 2012 complicates the application of the second variant of Supply Chain

Collaboration and in particular the pillars early contractor involvement, repetition and standardization.

The Mededingingswet can be seen as a general barrier for the application of Supply Chain Collaboration and thus

these two above described barriers must been seen with respect to the Mededingingswet.

SOLUTION APPROACHES

Two solution approaches are proposed that enable the application of Supply Chain Collaboration in the public

sector within the boundaries of the legal framework. The starting point of the design of the solution approaches

has been the two variants of Supply Chain Collaboration. The first variant of Supply Chain Collaboration and in

particular strategic partnership can only be achieved under a framework agreement. This is the starting point of

Solution Approach I.

Best Value Procurement improves collaboration and alignment in the chain and is therefore chosen to enable the

application of the second variant of Supply Chain Collaboration. This is the starting point of Solution Approach

II.

Both solution approaches have the same structure. It is concluded that the Aanbestedingswet 2012 includes

legislation when it comes to procurement procedures, and selection and awarding criteria. These components are

the basis of the Solution Approaches. This structure is chosen to be certain that the law is followed and as a result

to increase the success rate of the application of the solution approaches. Also included in the solution

approaches are clauses that must be incorporated in the contract to optimize the application of Supply Chain

Collaboration.

Solution Approach I

The first solution approach enables the application of the first variant of Supply Chain Collaboration. Solution

Approach I prescribes to award the framework agreement according the restricted procedure. Two selection

criteria are included in the solution approach on which the tenderer is ranked. The first selection criterion

includes a short description of the way upon which and the extent to which the tenderer gives content and form

to Supply Chain Collaboration with regard to the contracting authority. The second selection criterion includes a

short description of the way upon which and the extent to which the tenderer gives content and form to the eight

pillars of Supply Chain Collaboration.

The contracting authority intends to award the framework agreement to the three tenderers with the highest

ranking.

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VIII

The contracts that are awarded under the framework agreement are awarded based on the following awarding

criteria: price, quality, sustainable partnership, and customer orientation.

The public client must include the following clauses in the contract regardless of the type of contract to optimize

the application of Supply Chain Collaboration: the BIM Norm, Past Performance, and a Joint incentive System.

Solution approach II

The second solution approach enables the application of the second variant of Supply Chain Collaboration.

Solution Approach II is based on the BVP procedure. This solution approach prescribes to award the contract

according the restricted procedure. Two selection criteria are included in the solution approach on which the

tenderer is ranked. The first selection criterion includes a short description of the way upon which and the extent

to which the tenderer gives content and form to Supply Chain Collaboration with regard to the contracting

authority. The second selection criterion includes a short description of the way upon which and the extent to

which the tenderer give content and form to seven pillars of Supply Chain Collaboration. That is to say, all pillars

except pillar A, strategic partnership.

The contracting authority intends to invite all tenderers to submit their tender that are ascertained to be qualified

based on the selection criteria.

The contract is awarded based on the following awarding criteria; quality and price. The first awarding criterion,

quality, must by all means include the following written documents: a planning including the Weekly Report,

Risk Assessment plan and a Value Added plan (RAVA). This awarding criterion also includes interviews with

key actors and these interviews must provide insight on how the key actors intend to collaborate with the client

as well as with other actors that will participate in the execution phase.

The contracting authority awards the contract to the tenderer that submits the tender with the highest ranking.


the application of Supply Chain Collaboration: a Joint incentive system, measurability of results (Weekly Report),

and Severance.

The two above described Solution Approaches enable the application of Supply Chain Collaboration in the public

sector within the boundaries of the legal framework.

PROJECTS

The applicability of the two solution approaches in practice is determined by testing them by means of applying

the solution approaches in combination with two virtual projects. These virtual but typical construction projects

have been chosen based on their difference in order to get as much variety as possible within two projects.

Different types of projects can be distinguished in the construction industry and both projects focus on a different

type of project. The first project, project ‘Islands’ focuses on design and construct while the second project, project

‘Bridges’ focuses on maintenance. Each project has two versions. This way all different parameters of a project,

like duration and budget, can be tested with the solution approaches.

PROJECT ‘ISLANDS’1 - This project includes the design and construction of four artificial nature islands in a

Dutch lake. The project is initiated to reestablish nature by creating islands, natural shores and spawning grounds

for endangered species.

Version A - Project ‘Islands A’ is divided into four phases. In each phase one island is designed and constructed.

The contract that will be awarded is for phase 1 and the contracting authority has included in the procurement

documents that it intends to expand the contract with phase 2 when the first phase is delivered according the set

requirements. The same goes for phase 3 and 4. The value of the initial contract is €30 million. The duration of

each phase is estimated at 3 years and the client will be in charge of the operation after execution.

Version B – In project ‘Islands B’ the contracting authority will award the entire project at once. The value of the

contract will be € 100 million. The duration of the entire project is estimated at eight years of execution and 20

years of operation and maintenance. The contractor will be in charge of the design, execution, operation and

maintenance.

1 This project is based on the following tender: Eerste fase Marker Wadden (TenderNed, 2015c)



IX

PROJECT ‘BRIDGES’2 - This project includes the maintenance of 6 bridges. Part of the maintenance is replacement

of the roadways and repairing of the joists.

Version A – In project ‘Bridges A’, the contracting authority will award the contract with the value of €180.000 at

once. The duration of the contract is 1 year. After the contract is expired a new contract for the maintenance of

bridges will be awarded.

Version B – In project ‘Bridges B’, the contracting authority will award every bridge separately with a contract

value of €30.000. There is no estimated duration. After the finishing of each bridge a new contract will be

awarded.

RESULTS

This matrix (table 1) shows if the solution approaches are applicable in practice in combination with the two

versions of the two virtual projects. The results are displayed as applicable (+) or not applicable (-).

TABLE 1: CONFRONTATION OF SOLUTION APPROACHES WITH VIRTUAL PROJECTS

SOLUTION APPROACH I

As shown in the matrix Solution Approach I is applicable in practice. Even though Solution Approach I is not

applicable in combination with project ‘Islands’, project ‘Bridges’ does enable the application of Solution

Approach I and is thus applicable in practice.

It can be concluded that Solution Approach I is best applicable in combination with maintenance projects and this

combination enables the application of the first variant of Supply Chain Collaboration. Most qualified for the

application of Solution Approach I are projects that have a high level of repetition like project ‘Bridges A’.

SOLUTION APPROACH I

As shown in the matrix Solution Approach II is applicable in practice. Even though Solution Approach II is not

applicable in combination with project ‘Bridges’, Project ‘Islands’ does enable the application of Solution

Approach II and is thus applicable in practice.

It can be concluded that Solution Approach II is best applicable in combination with design and construct projects

and this combination enables the application of the second variant of Supply Chain Collaboration. Most qualified

for the application of Solution Approach II are project that only include the design and construct phase and

where the entire contract is awarded at once.

All in all, it can be concluded that both solution approaches are indeed applicable in practice based on the

outcome of the confrontation with two virtual projects.

2 This project is based on the following tender: Onderhoud 6 bruggen – Gemeente Lelystad (TenderNed, 2015a)

SOLUTION

APPROACH I

PROJECT ‘ISLANDS’

- -

-

++ +

A

B

+

++

- -

A

B

SOLUTION

APPROACH II

PROJECT ‘BRIDGES’

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X

ANSWER TO RESEARCH QUESTION

Due to the legal framework in which the public client has to operate it cannot apply Supply Chain Collaboration

as easily as private clients can.

But, public clients can apply Supply Chain Collaboration within the boundaries of the legal framework by

applying the proposed solution approaches. These solution approaches are developed to overcome the barriers

created by the legal framework to enable the application of Supply Chain Collaboration. Both solution

approaches have been tested by means of confronting them with virtual projects in order to determine their

applicability in practice. The results show that both solution approaches are indeed applicable in practice and

thus enable the possibility for public clients to apply both variants of Supply Chain Collaboration within the

boundaries of the legal framework of the construction industry by means of applying one of the solution

approaches.

All in all, it can be concluded that it is not impossible for public clients to apply Supply Chain Collaboration as

long as it applies one of the solution approaches that are proposed in this research.



XI

CONTENT

Preface III

Summary V

Content XI

List of abbreviations XII

List of figures XIV

List of tables XIV

PART I: INTRODUCTION

CHAPTER1: INTRODUCTION 16

1.1 The Dutch construction industry 17

1.2 Justification Supply Chain Collaboration 18

1.3 Problem definition 19

1.4 Research objective 20

1.5 Research question 21

1.6 Scope 21

1.7 Outcome 22

CHAPTER 2: METHODOLOGY 23

2.1 Framework 23

2.2 Sub-questions 24

2.3 Sources 24

2.4 Research outline 25

PART II: LITERATURE SURVEY

CHAPTER 3: SUPPLY CHAIN COLLABORATION 28

3.1 Definition 29

3.2 Pillars 31

3.3 Practices 32

3.4 Two variants 33

3.5 Conclusion 35

CHAPTER 4: LEGAL FRAMEWORK 37

4.1 Collusion in the construction industry 37

4.2 Procurement 38

4.3 Contracts 39

4.4 Competition law 41

4.5 Conclusion 42

CHAPTER 5: BARRIERS 43

5.1 Comparison 43

5.2 Barriers 43

PART III: SOLUTION APPROAHCES

CHAPTER 6: DEVELOPING 46

6.1 Drafting 46

6.2 Solution Approach I 49

6.3 Solution Approach II 54

CHAPTER 7: TESTING 59

7.1 Introduction 59

7.2 Solution Approach I 60

7.3 Solution Approach II 63

7.4 Results 67

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XII

PART IV: CONCLUSION

CHAPTER 8: MANAGERIAL IMPLICATIONS 71

CHAPTER 9: CONCLUSION 73

9.1 Discussion 73

9.2 Answer to questions 74

9.3 Recommendations 78

PART V: APPENDICES 80

PART V: BIBLIOGRAPHY 128



XIII

ABBREVIATIONS

ACM Autoriteit Consument en Markt

AW Aanbestedingswet

ARW Aanbestedingsregelement Werken

AEC Architectural, Engineering and Construction industry

BIM Building Information Model

BVP Best Value Procurement

DBFMO Design Build Finance Maintenance Operate

D&B Design & Build

D&C Design & Construct

E&C Engineering & Construct

ECI Early Contractor Involvement

FS Functional Specification

MEAT Most Economically Advantageous Tender

Mw Mededingingswet

KPI Key Performance Indicators

KWS Ketensamenwerking

PM Performance Measurements

PPP Public-Private Partnership

SCC Supply Chain Collaboration

RAVA Risk Assessment and Value Added plan

RD Route Decision

RVB Rijksvastgoedbedrijf

RWS Rijkswaterstaat

UAV (-GC) Uniform Administrative Conditions (for Integrated Contracts)

WR Weekly Report

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XIV

FIGURES FIGURE 1: Graphic display of Supply chain Collaboration, own ill. VIII

FIGURE 2: Aim of Part I, own ill. 16

FIGURE 3: Purchasing procces, own illustration based on van Weele (2002) 21

FIGURE 4: Research framework, own ill. 23

FIGURE 5: Research outline, own ill. 26

FIGURE 6: Aim of Part II, own ill. 28

FIGURE 7: The eight pillars of Supply Chain Collaboration, own ill. 32

FIGURE 8: Supply Chain Collaboration including the pillars and practices, own ill. 35

FIGURE 9: Aim of Part III, own ill. 46

FIGURE 10: The iterative process of developing the solution approaches, own ill. 47

FIGURE 11: Graphic display of Solution Approach I, own ill. 49

FIGURE 12: Graphic display of Solution approach II, own ill. 54

FIGURE 13: Aim of Part IV, own ill. 70

FIGURE 14: Simplified display of Supply Chain Collaboration, own ill. 75

FIGURE 15: Supply Chain Collaboration in the buidling sector, own ill. 82

FIGURE 16: The prisoner’s dilemma, own ill. based on James (2002) 88

FIGURE 17: Graphic display of BIM including all different roles, own ill. 91

FIGURE 18: BIM in relation with Supply Chain Collaboration, own ill. 91

FIGURE 19: The four phases of BestValue Procurement, Kashiwagi (2009) 94

FIGURE 20: The traditional model, Chao-Duivis et al (2015) 97

FIGURE 21: Integrated models, Chao-Duivis et al (2015) 97

FIGURE 22: The design team model, Chao-Duivis et al (2015) 98

FIGURE 23: The alliance model, Chao-Duivis et al (2015) 98

TABLES TABLE 1: Confrontation of solution approaches with virtual projects XI

TABLE 2: Matrix of definitions of Supply Chain Collaboration 30

TABLE 3: Parameters project ‘Islands A’ 60

TABLE 4: Parameters project ‘Islands B’ 61

TABLE 5: Parameters project ‘Bridges A’ 62

TABLE 6: Parameters project ‘Bridges B’ 62

TABLE 7: Parameters project ‘Islands A’ 63

TABLE 8: Parameters project ‘Islands B’ 64

TABLE 9: Parameters project ‘Bridges A’ 65

TABLE 10: Parameters project ‘Bridges B’ 66

TABLE 11: Confrontation of solution approaches with virtual projects 67

TABLE 12: Outcome interview algemeen 117

TABLE 13: Outcome interview Solution Approach I 120

TABLE 14: Outcome interview Solution Approach II 122

PART IRESEARCH

CHAPTER 1INTRODUCTION

CHAPTER 2METHODOLOGY

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16

I

Why hasn’t Supply Chain Collaboration been adopted by public clients? Are there barriers for public clients that

hinder the application of Supply Chain Collaboration? And if so, can these barriers be overcome? This thesis

strives to answer these questions and presents the results of the research that was performed at Royal

HaskoningDHV.

This thesis is composed of four parts and starts with Part 1, Research. This part consists of two chapters. The first

chapter, Introduction, starts with describing the current situation of the Dutch construction industry in a broad

perspective, followed by the justification of the use of the term Supply Chain Collaboration. Next, the problem

definition is introduced by taking a closer look at the method Supply Chain Collaboration and the differences

between the private and public sector in the Dutch construction industry. The problem definition is supported by

the scope, objective and main research question. The aim of this chapter is to create the context of this research.

The second chapter, Methodology, describes the research methodology including the research framework, which

will be the backbone of this research, supported by sub-questions. Next, the structure of this research will be

introduced in the research outline.

Part I strives (figure 2) to clarify the incentive and motive for this undertaking and to explain the followed path of

the research by describing the context of the research and introducing the research framework.

FIGURE 2: AIM OF PART I, OWN ILL.

Introduction

Research Outline

Methodology

Problem definition, scope,

objective, research question

Research framework,

sub questions

Context



17

CHAPTER 1

INTRODUCTION

This chapter presents the context of the research. The context is composed of different subjects. This chapter will

start with explaining the perspective of the current situation and the features of the construction industry in the

Netherlands including the introduction of Supply Chain Collaboration, which is the method that will be

researched (1.1). This is followed by the justification of the term Supply Chain Collaboration (1.2). Secondly, the

definition of the research problem will be presented (1.3) from which the research objective is derived (1.4). The

information that is required to accomplish the research objective is formulated in a research question (1.5). The

scope will introduce the demarcations in which the research is conducted (1.6) and the chapter will end with the

intended outcome of the research in which the contribution of this research is explained (1.7).

1.1

THE DUTCH CONSTRUCTION INDUSTRY

The construction industry differs from other industries in many ways. The one-of-a-kind nature of projects, site

productions and temporary organization distinguishes the construction industry from any other industry

(Koskela, 2003). The construction industry can be described as a traditional, fragmented, project-oriented industry

dominated by small companies (Dainty, Briscoe, & Millett, 2001; Love, Irani, & Edwards, 2004). These

characteristics of the construction industry have resulted in cost and time overruns, and projects lacking quality.

These cost overruns do not only lead to delays and further cost overruns and benefit shortfalls (Flyvbjerg, 2007, p.

582) but also destabilize policy, planning, implementation and operations of projects, and the disturbing fact is

that this problem has not decreased over the last 70 years (Flyvbjerg, Skamris Holm, & Buhl, 2003, p. 71).

The occurrence of failure costs during projects is also large in the Dutch construction industry and a growing

awareness is starting to dawn that old methods have to be discarded and that new, more innovative and effective

ways have to be adopted to restore trust and bilateral relationships between clients and contractors (van de Rijt,

Hompes, & Santema, 2010). In the construction industry, however, relationships are mostly characterized by

market-based, short-term interactions between independent businesses (Rahman & Kumaraswamy, 2002).

According to Dubois and Gadde (2002) the construction industry would be better off if it would change its

behavior in accordance with the norms of other industries but the complexity of this industry forms a barrier.

A method that has been opted to transform the traditional relationships within the Dutch construction industry is

Supply Chain Collaboration (SCC) (Noordhuis, 2015; Vrijhoef, 2011). This method finds its origin in the

automotive industry (Sugimori, Kusunoki, Cho, & Uchikawa, 1977) and has been adopted by other industries like

consumer goods, which resulted in significant improvements (Briscoe & Dainty, 2005). Supply Chain

Collaboration has been recognized as an effective measure to address various traditional problems such as

fragmented processes, adversarial relationships and poor performance (Saad, Jones, & James, 2002) and is an

emerging method in the construction industry (Love et al., 2004, p. 53).

But construction projects are amongst the most complex projects according to Winch (1987) and Gigado (1996)

emphasizes that there is a continuous increase in the complexity of these projects. Attempts to adopt techniques

and methods from other industries have failed (Dubois & Gadde, 2002, p. 621) and even though clients seem to be

willing to adopt new methods they tend to fall back to the traditional approach including competitive

relationships. This situation needs to change and this research aims to make a contribution to this process.

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1.2

JUSTIFICATION SUPPLY CHAIN COLLABORATION

Supply Chain Management, Supply Chain Collaboration, Supply Chain Integration. Are these terms

interchangeable or do they differ? This paragraph will investigate all three terms based on the state of the art

literature, previous research, and findings and will introduce the term that will be applied in this thesis.

The term Supply Chain Management is the most frequently used term of the three. This is shown in the literature

research Vrijhoef (2011) conducted in order to formulate the definitions of the three terms. He used, respectively,

6 references for Supply Chain Integration, 5 for Supply Chain Collaboration, and 25 for the term Supply Chain

Management. Vrijhoef uses the term Supply Chain Integration. For his research he focused on the emergence of

integrated and repetitive strategies in a fragmented and project-driven industry by comparing the building sector

with other sectors like automotive and aviation.

In his dissertation, Vrijhoef explains the differences of the three different terms as follows (Vrijhoef, 2011, p. 292);

Supply Chain Management focuses on inventory planning and logistics management towards more comprehensive

outsourcing strategies, for instance including economic issues and risk with suppliers while Supply Chain

Collaboration is an establishment of collaborative systems and arrangements among firms in the supply chain.

Supply Chain Integration is the arrangement in supply chains referring to higher levels of integration, notably

integration of shared information and integrated management of supply chain activities and operations including

product development, materials manufacture and product assembly.

In his dissertation, Noordhuis (2015) uses the term Supply Chain Collaboration but in his literature research to

define the term he concludes that Mentzer’s (2001) definition scores the highest in his matrix (Noordhuis, 2015, p.

76). The term Mentzer uses is Supply Chain Management. This shows that both terms can and are used

interchangeably.

Min et al (2005) state that collaboration has been referred to as the driving force behind effective Supply Chain

Management and may be the ultimate core capability. Vrijhoef (2011, p. 73) concludes that as a consequence of

the approach taken to the integration of certain business activities, the focal firm must enter into collaboration

with other firms in the supply chain. Both statements show that collaboration is (an extensive) part of Supply

Chain Management and Supply Chain Integration.

Previous explanations show that, despite the fact that all three terms have a different meaning, they are in greater

or lesser extend correlated.

The term that will be used in this thesis will be Supply Chain Collaboration (SCC). This term has been chosen

based on the above-described meanings of the three different terms. The term Supply Chain Integration has been

rejected because the main focus is on product development and materials manufacture. Supply Chain

Management has been rejected because the focal point is logistic management, and it creates the impression of a

vertical approach.

The term Supply Chain Collaboration has been chosen because, beside the fact that it is the literal translation from

the Dutch term1, it expresses the horizontal approach of the method. Secondly, collaboration is the main objective

in both Supply Chain Management and Supply Chain Integration and can relate to both process (management)

and product (integration)2.

1 The Dutch word for supply chain collaboration is ketensamenwerking. 2 Author’s note: In scientific articles both Supply Chain Management and Supply Chain Collaboration are used

interchangeably. Therefore, both terms will be used as key words for research.



19

1.3

PROBLEM DEFINITION

For the last decades, there has been a need for businesses to look outside their organization for opportunities to

collaborate with partners to ensure that the supply chain is efficient and responsive to dynamic market needs

(Cao & Zhang, 2011) and organizations have recognized that better relationships lead to better performance (Min

et al., 2005).

Collaboration is defined as two or more companies sharing the responsibility of exchanging common planning,

management, execution, and performance measurement information (Anthony, 2000).

A method to optimize the collaboration between partners is Supply Chain Collaboration. Supply Chain

Collaboration finds its origin in the manufacturing industry. The first signs of SCC were perceptible in the Just-In-

Time delivery system as part of the Toyota Production System (Sugimori et al., 1977). This system was invented

to coordinate the supplies and to manage the suppliers. In the Japanese automotive industry SCC was part of the

production system, but these days, SCC has evolved into an autonomous managerial concept (Vrijhoef &

Koskela, 2000).

Due to the results achieved in the automotive industry, SCC has found its way to other industries, like aviation,

consumer goods, and electronics. These industries were early adaptors because their logistics and productions

processes are, like the automotive industry, characterized by repetition and standardization. In contrast, the

construction industry is known for its project-driven, fragmented, and traditional character, which makes it more

difficult to apply SCC.

Supply Chain Collaboration has been strongly advocated by consultants and academics (Min et al., 2005).

Anthony (2000) states that Supply Chain Collaboration is continuing to emerge as a fundamental change toward

new methods of conducting business. Closely united partnerships with emphasis on greater supply chain

visibility and proactive response to changing market conditions are going to be the requirements rather than the

goals placed on businesses according to Anthony and Olsson (2000) concludes that SCC is a great opportunity to

reduce time and costs. USP Marketing Consultancy (2008) researched the reasons of the large failure costs of

projects in the Netherlands. The top three reasons mentioned by clients, contractors, and architects and engineers

are ‘lack of communication and information transfer’, inadequate attention for feasibility during design phase’, and ‘the

delivery of quality to end user as not being the highest priority’. These reasons underline the current state of win-lose

relationships with clients instead of collaborating for the benefit of mutual gain (van de Rijt et al., 2010). Saad et

al. (2002) concluded in their paper that there is a significant awareness of the importance of SCC and its main

benefits in the construction industry. They conclude that it is seen as a multi-factor innovation, which can help

the construction industry overcome its fragmentation and adversarial culture, improve its relationships and

better integrate its processes (Saad et al., 2002, p. 182).

Supply Chain Collaboration has found its way into the Dutch construction industry but thus far it has only been

applied in the private sector of the construction industry and in particular by housing corporations (see appendix

A). Based on the positive results in other industries and the promotion by academics and consultants one can ask

why this method has not fully been embraced by the Dutch construction industry. An explanation can be that the

organizations that operate in the Dutch construction industry can be distinguished by private sector

organizations and public sector organizations. According to Allison (1980) these organizations differ in three

ways. Firstly, the environment differs. The private sector operates on the market and acts with a view to gain

profit while the public sector carries out legal tasks regarding the will of the government. Secondly, the private

and public sector both interact differently with their environment. A business (private organization) is called to

account by limited stakeholders while the public sector is called to account by numerous stakeholders (taxpayers)

and thirdly, there are differences in the organizational characteristics. Examples are the legal status of the

personnel and the influence of the government on public organizations.

Applying


20

Is there a particular reason why Supply Chain Collaboration has not been adopted by the public sector of the

construction industry? Besides that it is being critiqued that public and private organizations differ to such an

extent that practices applied in the private sector should not be transferred to the public sector (Boyne, 2002), the

Dutch construction industry, including public sector clients, was part of major collusion scandal that reached its

zenith in the nineties of past century. This collusion has left its mark and has had a major impact on the trust and

relationships between public clients and the construction industry (Doree, 2004). Besides this collusion, the new

Mededingingswet went in force in 1998. This law monitors and stimulates competition and prohibits cartels.

Furthermore, public clients have to follow the guidelines of the Aanbestedingswet 2012 when they want to

procure a contract. All of the above complicate the application of Supply Chain Collaboration in the public sector

of the Dutch construction industry leading to the following problem statement;

‘LAWS THAT ARE IN FORCE IN THE DUTCH CONSTRUCTION INDUSTRY HINDER THE

APPLICATION OF SUPPLY CHAIN COLLABORATION IN THE PUBLIC SECTOR’

1.4

RESEARCH OBJECTIVE

Given the need for a change in the construction industry as explained in the perspective (1.1), the objective of this

research focuses on the application of Supply Chain Collaboration in the public sector of the construction

industry within the boundaries of the existing legal framework. Thus far, research about Supply Chain

Collaboration has mainly focused on the application of this method in the private sector (Chao-Duivis &

Wamelink, 2013; Noordhuis, 2015; Vrijhoef, 2011). This research contributes to the knowledge about Supply

Chain Collaboration with regard to the public sector.

Why hasn’t Supply Chain Collaboration been adopted by public sector clients? What are the boundaries of the

laws that are into force in the public sector? How do they hinder the application of Supply Chain Collaboration

and to what extent? And finally, can these barriers be overcome? This resulted in the following research objective:

TO PROPOSE SOLUTION APPROACHES THAT ENABLE THE APPLICATION OF SUPPLY CHAIN

COLLABORATION FOR PUBLIC SECTOR CLIENTS WITHIN THE BOUNDARIES OF THE EXISTING

LEGAL FRAMEWORK OF THE DUTCH CONSTRUCTION INDUSTRY.

In order to reach the proposed objective, the research objective is twofold. The first objective is to identify the

barriers of the legal framework of the construction industry that hinder the application of Supply Chain

Collaboration in the public sector, and the second objective is to propose possible solution approaches that enable

the application within these boundaries if this is possible.



21

1.5

RESEARCH QUESTION

In order to gather the information that is required to reach the research objective a main research question has

been formulated. This main question will be supported by sub-questions. The answers of these sub-questions will

yield information that is useful and necessary to answer the main research question and as a result reach the

research objective (Verschuren & Doorewaard, 2010, p. 20). The sub-questions will be introduced in the next

chapter. The main research question is formulated as follows:


BOUNDARIES OF THE LEGAL FRAMEWORK THAT IS IN FORCE IN THE DUTCH

CONSTRUCTION INDUSTRY?’

1.6

SCOPE

Supply Chain Collaboration has been applied in different industries and has been emerging in the private sector

of the construction industry. However, this research delimits the scope and zooms in on the possibilities of the

application of Supply Chain Collaboration by public clients in the Dutch construction industry. This is defined by

the following demarcations.

PROJECT PHASE The application of Supply Chain Collabortion starts with the initiative of the client but

can only be optimized in collaboration with all involved partners. The level of collaboration is based on the type

of procurement procedure and the type of contract being awarded. Therefore, the focus of this research will be on

the procurement phase of the purchasing process (figure 3).

FIGURE 3: PURCHASING PROCCES, OWN ILLUSTRATION BASED ON VAN WEELE (2002)

GEOGRAPHIC This research is executed in the Netherlands, using Dutch cases and experiences as

input. The Dutch law, complemented by the European Directives, forms the legal framework. Therefore,

European and global use of Supply Chain Collaboration is outside the scope of this research. However, provided

insights on the application of SCC outside of The Netherlands may be useful for exploration.

FOCUS As concluded in paragraph 1.2, Justification of the term Supply Chain Collaboration, Supply Chain

Collaboration can relate to both process (management) and product (integration). The focus of this research

regarding Supply Chain Collaboration in the construction industry will be on the process. In other words, the

focus is on the relationship between the public client and the contractor and in particular the collaboration.

Inventory Specifying Selecting Contracting Executing Operating

PROCUREMENT PHASE

Purchasing process

Applying


22

PERSPECTIVE - The perspective of this research will be the public client’s point of view. This perspective is

chosen because the possibilities that the public client has with regard to applying Supply Chain Collaboration

differs from that of the private client.

PROCEDURE - The definition, pillars and practices of SCC as defined on pages 29-33 form the foundation of this

thesis together with the legal framework of the Dutch construction industry. The barriers encountered to apply

SCC in the public sector function as the input for the problem definition and the solution approaches are

designed with respect to the legal framework.

EXPLANATION OF TERMS USED IN THIS THESIS

Construction industry- By construction industry the Dutch construction industry is meant including all

civil, infrastructure, water and building projects.

Legal framework- The legal framework includes all laws, rules and regulations that are in force in the

Dutch construction industry.

Public sector- By public sector the public sector of the Dutch construction industry is meant. This includes

all organizations, boards, and municipalities etc. that are contracting authorities. An extensive

elaboration is given in 4.2 and Appendix D

Private sector – By private sector the private sector of the Dutch construction industry is meant. This

includes all businesses and organization that function as a non-contracting authority. An example is a

housing corporation.

The Dutch names of the Dutch laws and codes will be used in this thesis because this research focuses on

the Dutch construction industry including the Dutch laws, codes and regulations.

1.7

OUTCOME

The academic relevance of this research is reflected in the contribution of knowledge about the application of

Supply Chain Collaboration in the public sector of the construction industry within the boundaries of the legal

framework. Theoretical and empirical research will be presented as well as solution approaches that aim to

enable the application of Supply Chain Collaboration in the public sector. These solution approaches are an

addition to current knowledge of Supply Chain Collaboration. Therefore, the aimed outcome of this research is:

PROPOSED SOLUTION APPROACHES THAT ENABLE THE APPLICATON OF SUPPLY CHAIN

COLLABORATION FOR PUBLIC CLIENTS IN THE CONSTRUCTION INDUSTRY WITHIN THE

BOUNDARIES OF THE LEGAL FRAMEWORK.



23

CHAPTER 2

METHODOLOGY

Part I of this research elaborates on the undertaken research and its line of reasoning. The step-by-step approach

of Verschuren and Doorewaard (2010) on how to design a research project has been the guideline for the design

of the research and the underlying methodology. Chapter 1 delimited the research by describing the context in

which the research is conducted and this chapter deals with the methodology of the research. First, the research

framework will be presented (2.1). A research framework represents the internal logic of a research project

(Verschuren & Doorewaard, 2010, p. 65). Secondly, the sub-questions that together provide the information

necessary to answer the main research question will be introduced (2.2) after which the methods to collect this

information will be explained (2.3). Last, the research outline of this thesis will be described (2.4).

2.1

FRAMEWORK

The research framework is based on the step-by-step approach of Verschuren and Doorewaard (2010). This

framework gives guidance and direction during the research. The research framework (figure 4) is formulated as

follows: An extensive literature survey on the subjects Supply Chain Collaboration and the legal framework (A) will

result in the barriers that hinder the application of Supply Chain Collaboration in the public sector within the

boundaries of the legal framework (B). Solution approaches will be drafted (C) based on knowledge derived from

the literature survey that aim to overcome these barriers and enable the application of Supply Chain

Collaboration in the public sector. These draft solution approaches will be presented to professionals that work

for public clients during interviews in order to determine the feasibility of these approaches. This will result in

two solution approaches that will be tested with virtual construction projects to determine the applicability of the

solution approaches in practice (D). This will result in the conclusion on how public clients can apply Supply

Chain Collaboration (E).

FIGURE 4: RESEARCH FRAMEWORK, OWN ILL.

B C D E

PART II

A

Lit. survey Interviews

PART III PART IV

Projects

Legal

framework

Barriers

Conclusion

Solution

Approach II

Draft Solution

Approach II

Solution

Approach I

Supply Chain

Collaboration

Draft Solution

Approach I

Applying


24

2.2

SUB-QUESTIONS

The main research question is introduced in chapter 1. As no research question can be answered at once, the main

question is broken down into 3 sub-questions. The first two sub-questions will be answered in part II and the

answer of the third sub-question is given in part III. The answers of these three questions will be the input for the

answer of the main research question that will be answered in part IV.

The three sub-questions are:

PART II

II 1 Which (parts of the) laws that are in force in the public sector hinder the application of Supply Chain

Collaboration?

II 2 What pillars of Supply Chain Collaboration cannot be applied in the public sector?

PART III

III3 Which solution approaches enable the application of Supply Chain Collaboration in the public sector within the

boundaries of the existing legal framework?

2.3

SOURCES

There are many options available within the field of data sources. Two types of information are important in

scientific research: data and knowlegde (Verschuren & Doorewaard, 2010, p. 207). For data the emphasis is on

the characteristics of research objects while knowledge is found in the form of ready-made insights and theories

that have been developed previously by others.

When different methods of data collecting are applied during a research the data-triangulation method is used.

(Baarda, de Goede, & Teunissen, 2009, p. 187). The data can be collected from different angles of incidence as well

as different sources. This method improves the quality of the research (Baarda et al., 2009, p. 188). In this research

data is collected from literature survey and interviews with professionals working for different private clients as

well as from interviews with professionals working for different public clients. This way not only the angles of

incidence alternate but also the sources that are used. This data-triangulation method is used for different

reasons. It is used to get an overall view of Supply Chain Collaboration by being able to compare insights gained

form literature survey with the experience and knowledge from practitioners of Supply Chain Collaboration.

Secondly, the insights gained about the legal framework of the construction industry can be compared to the

experiences of public clients with this framework to be able to determine what combinations within this

framework work in practice. And lastly, all this data gathered from literature survey and interviews is used to be

able to design solution approaches and to test with virtual projects. The methods of collecting information differ

per part.

PART I - During the preliminary research one method is used. Literature in the form of books, articles,

dissertations and papers were investigated to set out the scope and framework of the research.



25

PART II - In this part two methods will be used to gather data and knowledge. Firstly, literature will be used to

gather theoretical insights on Supply Chain Collaboration and the legal framework of the construction industry.

Different types of literature will be used in the form of books, codes, stature books, scientific papers, articles, and

dissertations. Secondly, explorative conversations with professionals active in the private sector of the

construction industry that have experience with SCC will be held to gain information and create a clear

understanding of the method and the application possibilities, and to hear about the experiences, drawbacks and

possible pitfalls when Supply Chain Collaboration is applied.

PART III - In part III three methods will be used to gather data and knowledge. First, the conclusion withdrawn

from the previous parts will be used as input to design the solution approaches. Secondly, professionals working

for public clients will be interviewed to get feedback on the draft solution approaches and to test the feasibility of

the approaches. The information gained by these two methods will be used to test the solution approaches with

projects to determine if the solution approaches are applicable in practice.

PART IV – In the last part of the research no new information will be gathered. It is assumed that all the

information collected in the previous parts will be sufficient enough to be able to answer the main research

question.

2.4

RESEARCH OUTLINE

This research is a journey that ends with proposed solution approaches that enable the application of Supply

Chain Collaboration for public clients. This research is divided in four different parts. Part I, Research, consist of

two chapters. The first chapter presents the context followed by chapter 2 in which the research framework is

designed. Part I is the backbone of the research and steers the research in the right direction.

Part II, Literature survey, consist of three chapters. The first two chapters both focus on a different subject. Chapter

3 elaborates on Supply Chain Collaboration whilst chapter 4 elaborates on the legal framework that is in force in

the construction industry. The gained insights from both chapters will be compared in chapter 5 in order to

determine the barriers of the legal framework that hinder the application of Supply Chain Collaboration followed

by ascertaining which pillars of Supply Chain Collaboration are hindered. The conclusions withdrawn in this

chapter will be used as input for Part III.

Part III, Solution Approaches, consists of two chapters. Chapter 6 explains the development of the solution

approaches that aim to enable the application of Supply Chain Collaboration for public clients. These draft

solution approaches will be presented to professionals that work for different public clients in order to determine

the feasibility of the solution approaches. This will result in two solution approaches. In chapter 7 the solution

approaches will be tested with virtual construction projects to determine if the solution approaches are applicable

in practice.

The journey will end with Part IV, Conclusion, which consist of two chapters. Chapter 8 will give managerial

implications, which include the recommendations for public clients on how it can apply Supply Chain

Collaboration followed by the last chapter, 9, of this thesis where answers will be giving to the sub-questions and

finally the main research question will be answered. This outline (figure 5) is displayed in the simplified

framework on next page:

Applying


26

FIGURE 5: RESEARCH OUTLINE, OWN ILL.

PART II LITERATURE SURVEY PART III

SOLUTION APPROACHES

PART IV

CONCLUSION

CHAPTER 3

CHAPTER 4

CHAPTER 5

CHAPTER 6

CHAPTER 6

CHAPTER 7

CHAPTER 7

Conclusion

PART I

RESEARCH

Methodology

Context

CHAPTER 1

CHAPTER 2

CHAPTER 8

CHAPTER 9

Solution

Approach II

Draft Solution

Approach II

Solution

Approach I

Legal

framework

Supply Chain

Collaboration

Barriers

Managerial

implication

Draft Solution

Approach I

PART IILITERATURE SURVEY

CHAPTER 3SUPPLY CHAIN

COLLABORATION

CHAPTER 4LEGAL FRAMEWORK

CHAPTER 5BARRIERS

Applying


28

II

Applying a method that has proven to be successful in other industries seems logical. So why hasn’t Supply

Chain Collaboration been applied in the public sector of the Dutch construction industry? Are the practices of

Supply Chain Collaboration not applicable in public sector? What are the barriers of the public sector of the

construction industry that hinder the application of Supply Chain Collaboration?

Part II, literature survey, researches two topics, Supply Chain Collaboration and the legal framework of the

construction industry. This chapter consists of three chapters. Chapter 3, Supply Chain Collaboration, aims to set

out the rational of Supply Chain Collaboration. The chapter starts with the definition of the method, followed by

the pillars of Supply Chain Collaboration and supported by the practices. Next the two variants of Supply Chain

Collaboration are presented and the chapter ends with conclusions about Supply Chain Collaboration.

Chapter 4, Legal framework, elaborates on the laws that are in force in the construction industry starting with a

description of the collusion that emerged in the construction industry. Secondly, procurement is explained on the

basis of the Aanbestedingswet 2012 supported by the European Directives and followed by the presentation of

different contracts. Next the competition law is described and the chapter ends with conclusion about the legal

framework of the construction industry.

The conclusions of the third and fourth chapter will be compared in chapter 5, Barriers. A barrier is defined in

this thesis as an obstacle or difficulty that needs to be overcome in order to apply Supply Chain Collaboration in

the public sector of the construction industry.

The aim of Part II (figure 6) is to determine the barriers of the legal framework that is in force in the public sector

that hinder the application of Supply Chain Collaboration.

FIGURE 6: AIM OF PART III, OWN ILL.


Legal framework

Literature survey Conclusion

Conclusion

Barriers

Literature survey



29

CHAPTER 3


Supply Chain Collaboration has the potential to offer significantly improved performances but it has proven to be

difficult to apply. The main reason for this is the lack of understanding what Supply Chain Collaboration actually

implies (Barrat, 2004; Holweg, Disney, Holstrom, & Smaros, 2005). That is why this chapter will explain the

rational of Supply Chain Collaboration by firstly, presenting the definition of Supply Chain Collaboration that

will be applied in this thesis (3.1), followed by the eight pillars that together form the method (3.2). These pillars

are defined by practices, which will be introduced in (3.3). Supply Chain Collaboration has two variants and

these will be presented in (3.4). This chapter ends with conclusions about Supply Chain Collaboration (3.5).

3.1

DEFINITION

There is no general accepted definition of Supply Chain Collaboration (Meng, Sun, & Jones, 2013). All scientific

researchers use their own definition based on literature research. During explorative conversations it became

clear that professional practitioners do not apply a certain definition (appendix A2). They assume that the

meaning of SCC is common knowlegde and a definition isn’t a necessity. To define the definition of SCC that will

be used in this thesis, the definitions of scientific researchers are compared to identify the similarities and

differences. The definitions formulated by the scientific researchers are as follows

Noordhuis (2015): ‘Supply Chain Collaboration is defined as the systematic and strategic coordination of traditional

business functions within companies and between the companies of a chain, with the goal to improve the long-term

performance of both the individual organizations and the chain1.’

Chao-Duivis and Wamelink (2013): ‘Supply Chain Collaboration is the (ideally project independent) collaboration

between partners, involved in the building process, with as goal to optimize the performance of the entire chain.’2

Van der Veen (2003), also applied by Vrijhoef (2011): ‘Supply Chain Collaboration is managing all activities in the

chain, focused on the coordination of the different links with as goal to optimize the entire chain as if it were a unity, instead

of each link searching for its own optimum3.’

van Wilgenburg (2014): ‘Supply Chain Collaboration is working project independent, customizable, on the most optimized

products/services, where all partners anticipate based on transparency and equivalence with one common objective4.’

1 Noordhuis (2015): Ketensamenwerking is het systematisch, strategisch coördineren van traditionele

bedrijfsfuncties binnen bedrijven en tussen bedrijven binnen de keten, met als doel om de lange termijn prestatie

van zowel de individuele organisaties alsook de keten als geheel te verbeteren. 2 Chao-Duivis and Wamelink (2013): Ketensamenwerking is de (idealiter project overstijgende) samenwerking

tussen partners, betrokken bij het bouwproces met als doel de prestatie van de gehele keten te optimaliseren. 3 van der Veen (2003): Ketensamenwerking is het managen van alle activiteiten in de keten, gericht op de

coördinatie van verschillende schakels in die keten, met als doel de gehele keten te optimaliseren als ware het een

eenheid, in plaats van dat iedere schakel zijn eigen optimum zoekt. 4 van Wilgenburg (2014) Ketensamenwerking is project overstijgend, klantgericht werken aan de meest optimale

levering van producten/diensten waarbij alle partners participeren op basis van transparantie en

gelijkwaardigheid met een gezamenlijke doelstelling.

Applying


30

These definitions are compared to each other with the help of a matrix (table 2). All characteristics of each

definition are placed in the vertical column of the matrix and the horizontal column shows if the characteristic

appears in the definition. The horizontal total score shows how many characteristics are applied in a definition

and the vertical total shows how many times a characteristic appears in the different definitions. This is done to

be able to formulate a definition that will be applied in this thesis.

TABLE 2: MATRIX OF DEFINITIONS OF SUPPLY CHAIN COLLABORATION, OWN ILL.

From the matrix it can be concluded that the characteristics ‘between companies in the chain’, ‘project independent/

long-term’ and ‘optimize performance of the entire chain’ occur in (almost) all definitions (see framework in the

matrix). Therefor, these characteristics must be included in the definition of Supply Chain Collaboration.

SYSTEMATIC AND

STRATEGIC

COORDINATION

Calculus-

based trust

WITHIN

COMPANIES BETWEEN

COMPANIES

PROJECT

INDEPENDENT/

LONG-TERM

OPTIMIZE

PERFORMANCE OF

ENTIRE CHAIN

MANAGING ALL

ACTIVITIES IN THE

CHAIN

TRANSPERANCY

AND EQUIVALENCE

TOTAL

NO

OR

DH

UIS

CH

AO

-

DU

IVIS

V

AN

DE

R

VE

EN

V

AN

WIL

GE

N

BU

RG

TO

TA

L

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

2

1

4

3

4

1

1

5

3

4

4



31

The definition of Supply Chain Collaboration derived from the comparison is as follows:



THE ENTIRE CHAIN.’

In this definition a supply chain is defined as a network of materials, information, and services processing links

with the characteristics of supply, transformation and demand (Chen & Paulraj, 2004, p. 119) and collaboration is

defined as two or more businesses sharing the responsibility of exchanging common planning, management,

execution, and performance measurement information (Anthony, 2000, p. 41).

3.2

PILLARS

Supply Chain Collaboration exists of different pillars. Three scientific researchers investigated the conditions of

the pillars of SCC. Noordhuis (2015) did this in his dissertation “De waarde van Ketensamenwerking”, Chao-Duivis

set out conditions in the book she wrote about the legal aspects of Supply Chain Collaboration (Chao-Duivis &

Wamelink, 2013) and Vrijhoef stated a list of conditions in his dissertation “Supply Chain Integration in the building

industry” (Vrijhoef, 2011).

To determine the pillars of Supply Chain Collaboration, all three of them compared leading scholars in the field

of Supply Chain Collaboration. Both Noordhuis and Chao-Duivis included the findings of Vrijhoef in their

comparison. To avoid duplication, Vrijhoef’s findings are excluded from further research in this thesis.

Comparing the matrixes of Noordhuis and Chao-Duivis it can be concluded that they both included the same

leading scholars (Kadefors, Dainty, Love, Benett, and Vrijhoef). But the research of Noordhuis is more extensive

and that is why it is decided that the results of Noordhuis will be used as the pillars of Supply Chain

Collaboration in this research.

The pillars Noordhuis has set out for SCC are (Noordhuis, 2015, p. 487): ‘entering into a strategic long-term

collaboration with construction partners’, ‘early involvement of partners in the construction process’, ‘integral sharing of

information’, ‘collectively monitoring of performances’, ‘continuous improvement, and ‘the use of a joint incentive system’.

This is a comprehensive set but nevertheless, based on the conducted literature survey two extra pillars are added

to the set. The first extra pillar is ‘standardization of production and processes’. This pillar is present in the findings of

Chao-Duivis. Chao-Duivis states that the chain can only function when processes are standardized (Chao-Duivis

& Wamelink, 2013, p. 27). By standardization one should strive to maximize integration and continuous

involvement of all relevant links. Even though Noordhuis didn’t include standardization in his set of pillars, in

his dissertation he states that a low standardization level results in failure costs (Noordhuis, 2015, p. 17).

The second extra pillar is ‘High level of repetition’. Vrijhoef (2011) describes repetitiveness as the level of repeated

application of products, processes and organizational arrangements. He states that the development of concepts

and methods that increase the level of repetitiveness are a key factor for SCC in the building sector but

repetitiveness between projects in the building sector has appeared to be an issue due to the unique activities that

characterize a project.

Applying


32

The two extra pillars are added to the set of Noordhuis because these pillars are part of the sets of Chao-Duivis

and Vrijhoef who are both leading scientific researchers in the field of Supply Chain Collaboration and Secondly,

the two extra pillars are both characteristics of the industries in which Supply Chain Collaboration has already

been successfully applied like the automotive and consumer goods industries. This results in eight pillars that

together form Supply Chain Collaboration (figure 7).

FIGURE 7: THE EIGHT PILLARS OF SUPPLY CHAIN COLLABORATION, OWN ILL.

3.3

PRACTICES

Each of the pillars described in the previous paragraph is operationalized by practices. All pillars set out by

Noordhuis consist of five practices that together form the main activity. The two added pillars consist of practices

that are found by literature survey.

PILLAR A: STRATEGIC PARTNERSHIP

In order to perform pillar A the collaborating businesses have to form a strategic partnership and the chain

partners have specified common objectives on time, money, and quality (B1) 5. SCC is included in the (individual)

strategy of all involved businesses and the objectives of the chain are in line with the individual business

objectives of the chain partners. As last, top management commitment is necessary for collaboration to succeed.

In the event that problems occur in the collaboration, those involved should get the space to collectively search

for satisfying solutions, keeping each other’s interests in mind.

PILLAR B: EARLY CONTRACTOR INVOLVEMENT

Pillar B is achieved if all parties that have an essential impact on time, money and/or quality of the project are

part of the chain and it is necessary that all building partners are involved as early as possible to optimize the

project (B2). Also, all building partners need to have the same opportunities to suggest improvements and

partners will collectively judge the suggested solutions and will, in consultation with the client, make decisions.

Attention is given to increasing the team spirit between the different chain partners within the chain (B4).

5 The letter and number between the brackets refer to the appendix where extra information about the particular

subject can be found.


Strategic partnershipEarly involvement of

partnersIntergral

information sharingCollectively monitoring




Standardization

Noordhuis Extra



33

PILLAR C: INTEGRAL INFORMATION SHARING

To perform pillar C, chain partners share information, which enables them to collectively follow the integral

process. The shared information must be reliable, available at the right time and relevant to all involved chain

partners. The information is shared by modern ICT solutions like BIM (B5).

PILLAR D: COLLECTIVELY MONITORING

Pillar D is applied by translating the strategic objectives with regard to the collaboration in accompanying

presentation indicators (KPI’s) and the most important operational objectives with regard to the collaboration are

translated to accompanying process indicators. The realization of the strategic objectives and the operational

objectives can be read in the collective monitoring system. All chain partners will use the reports from the

monitoring system during the evaluation.

PILLAR E: CONTINUOUS IMPROVEMENT

To perform pillar E, the chain partners will systematically search for opportunities of improvements in products

and processes (B3). These found opportunities of improvement will be practiced and the partners will study the

results (effects) of the practiced improvements and compare the results of the improvements with the objectives.

They will apply new adjustments when the desired results are not achieved.

PILLAR F: JOINT INCENTIVE SYSTEM

Pillar F is performed when all chain support the use of an incentive system and they all support the organization

of the incentive system concerning the distribution of profit, costs and risks. The focal point of the collective

incentive system is the realization of the strategic objectives with regard to collaboration. The incentive system

stimulates partners to help each other with the realization of the common objectives and will be used during

every new project that the chain partners perform and will lead to accepted ‘rewards’ and ‘punishments’.

PILLAR G: HIGH LEVEL OF REPETITION

In order to perform pillar G, concepts and methods need to be developed/discovered to increase the level of

repetition of the process and product and the client initiates and promotes repetition concerning the process,

product and organization of the chain.

PILLAR H: STANDARDIZATION

The last pillar, H, is performed when, in the chain, concepts like ‘waarde denken’ and ‘ Lean management’ are

being used. Chain partners strive to create integration and continuous involvement of all chain partners is

necessary. Lastly, Multidisciplinary teams will be used during all phases of the project in order for the necessary

knowledge to be continuously available.

3.4

TWO VARIANTS

The first pillar of Supply Chain Collaboration is strategic partnership. The term strategic partnership has different

meanings in different contexts. In this thesis strategic partnership is defined as a mutual dependence between

two (or more) partners that share decision-making. It is a long-term collaboration that exceeds the length of a

contract (project). In other words, a strategic partnership is project-independent.

Looking at the definitions presented in 3.1 and the conclusions of the explorative conversations it can be

concluded that there is no consensus about whether or not strategic partnership must be part of Supply Chain

Collaboration to acknowledge the method. Ideally all eight pillars including strategic partnership are applied

(Chao-Duivis & Wamelink, 2013; Noordhuis, 2015) but Supply Chain Collaboration can also be recognized

without this pillar (van der Veen, 2003).

Applying


34

That is why two variants of Supply Chain Collaboration are acknowledged in this research: the first ideal variant

in which all pillars, including strategic partnership, are present and a second variant in which strategic

partnership is absent. The absence of strategic partnership complicates the application of Early involvement of

partners (pillar B), High level of repetition (pillar G), and Standardization (pillar H) because these pillars are all

interrelated with strategic partnership.

3.5

CONCLUSION

The limited existence of Supply Chain Collaboration in the construction industry causes ambiguity about the

method and its rational. It can be concluded from the literature survey that thus far there isn’t consensus about

the definition, pillars and practices of Supply Chain Collaboration.

This literature survey and the explorative conversations provide insights about the different point of views that

are present about Supply Chain Collaboration in the construction industry. These views derived from literature

and practice are all compared and combined to define Supply Chain Collaboration for this thesis.

The definition of Supply Chain Collaboration that is derived from the comparison of the different definitions of

the scientific researchers is as follows:



THE ENTIRE CHAIN.’

Supply Chain Collaboration is composed of eight different pillars that all consist of practices. There are two

different variants of Supply Chain Collaboration. The ideal variant in which all pillars including strategic

partnership are present and the second variant in which all pillars except strategic partnership are present.

This conclusion combined with the above-presented definition resulted in the following definition that will be

applied in this thesis:




A graphic representation of Supply Chain Collaboration including the pillars, practices and variants is displayed

on the next page (Figure 8).

FIGURE 8: SUPPLY CHAIN COLLABORATION INCLUDING THE PILLARS AND PRACTICES, OWN ILL.



Long-term collaboration

SCC included in strategy all involved partners

Common objectives of time, money and quality

Objectives of chain are in line with individual objectives

Top management commitment


Parties that have impact on time, money and/or quality are

part of

the chain

Partners will be involved as early as possible

All building partners will have the same opportunity to suggest

improvements

Partners will collectively judge proposed solutions

Attention is given to increase the team spirit

Intergral information sharing

Partners share information

Shared information is reliable

Shared information is relevant

Shared information is available at the right time

Sharing information is supported by modern ICT

solutions like BIM


Strategic objectives presentation are translated in KPI’s

The strategic objectives can be read in the collective monitoring

system

Most important operational objectives are translated to

process indicators.

The operational objectives can be read in the collective

monitoring system

Chain partners will use the reports from the monitoring system during the evaluation


partners will search for opportunities of improvements

in products and processes

Found opportunities of improvement will be practiced

Partners study the results (effects) of the practiced

improvements

Partners compare the results of the improvements with the

objectives

Partners will apply new adjustments when the desired

results are not achieved


Focal point of the collective incentive system is the

realization of the strategic objectives

Partners support the use of an incentive system

Partners support incentive system concerning the

distribution of profit, costs and risks

Stimulates partners to help each other by the realization of the

common objectives

Will be used during every new project that the chain partners

perform


Concepts and methods are being developed/discovered to increase the level of repetition

The client initiates and promotes repetition

Standardization

Concepts like ‘waarde denken’ and ‘ Lean management’ are

being used

Multidisciplinary teams will be used during all phases of the

project

FIRST

VARIANT

SECOND

VARIANT

METHOD

PILLARS

PRACTICES



37

CHAPTER 4

LEGAL FRAMEWORK

The Dutch construction industry has to operate within the boundaries of a legal framework. As explained in

paragraph 1.3 of Part I the Dutch construction industry can be divided into two sectors, the private sector and the

public sector. The legal framework in which these two sectors have to operate differs. Because the scope of this

research focuses on the public sector of the Dutch construction industry this chapter will elaborate on the legal

framework of the public sector1.

Firstly, the collusion that was discovered in the construction industry will be explained to draw a clear view of

the current situation in this industry (4.1). Secondly, the procurement law will be explained based on the

Aanbestedingswet including procurement procedures and criteria (4.2). This paragraph is followed by an

elaboration of the different contracts that can be awarded (4.3). Next, the Competition Law will be explained (4.4)

and this chapter ends with conclusions about the legal framework that is in force in the construction industry

(4.5).

4.1

COLLUSION IN THE CONSTRUCTION INDUSTRY

In 2002, the procurement of construction work in the public sector became a major issue in the Netherlands.

Never before had so much money and effort been put into uncovering the (mal) practices of public sector

procurement ("Parlement & Politiek," 2015). Whistleblowing by a former CEO of a construction company resulted

in extensive investigations by the Cabinet, the Department of Justice and the Dutch Competition Authority

(ACM)2. The outcome of the investigations was collusive behavior, bid rigging and corrupt practices by almost

1300 contractors, sub-contractors, civil servants from Rijkswaterstaat, and municipal officials. For years, the price

of the construction of tunnels, roads, and bridges has been overpaid between 10 and 50% (Doree, 2004). This

collusion has started in 1990 and has been going on for almost a decade.

The discovery of the collusion gave rise to a parliamentary inquiry. The central theme of this inquiry was the

spread and effect of cartel structures. The parliamentary inquiry committee concluded that the focus should be on

competition. Competitive pressure is seen as a good thing in economics since it reduces monopoly power and

forces firms to organize production more efficiently (Konings, van Cayseele, & Warzynski, 2001). The committee

sees competition in the classical way: competition is good, so more competition is better (Kalbfleisch, van

Sinderen, van den Ende, van Oers, & van Bergeijk, 2008). It puts its trust in the cleansing capacity of competition

and promotes a one-dimensional price-oriented competition (Doree, 2004). It is questioned if this strategy,

creating a competitive environment, overlooks the opportunities to improve performances. A competitive

strategy will lead to contractors putting in additional claims to minimize losses. This will create an adversarial

relationship between the (public) client and contractor and distrust.

All in all, the Dutch collusion seems to be exceptional in its scale, durability and in the way it was

institutionalized. The collusive behavior of the Dutch construction industry has been a black episode and it is

concluded that this had had an enormous impact on trust and future interactions between public sector clients

and contractors.

1 In this part public clients will be referred to as contracting authority. This is the term used in the European

Directive 2014/24/EU. 2 In Dutch: Autoriteit Consument & Markt (ACM)

Applying


38

4.2

PROCUREMENT

Not every client is subject to procurement regulations. In the Netherlands a distinction is made between non-

contracting authorities and contracting authorities. Non-contracting authorities are private clients like housing

corporations and are at liberty to enter into a contract with anyone and to choose a contractual partner however

they like (Chao-Duivis et al., 2015). Even though non-contracting authorities are not obliged to award their

contracts by means of a tendering procedure, sometimes they do so voluntarily in order to get the best offer.

Contracting authorities in the meaning of the Public Contracts Procurement Rules Decree are: the State, a

provincial authority, a municipal authority, a water board, a body governed by public law or an association of

these government bodies or bodies governed by public law (Chao-Duivis & Wamelink, 2013, p. 135). Contracting

authorities are obliged to follow a procurement procedure according regulations of the Aanbestedingswet 2012.

This Act entered in force in 2013 and replaced the Public Contracts Procurement Rules Decree and the Public

Contracts Procurement Rules (Special Sector) (Chao-Duivis et al., 2015, p. 137). This new national law gives an

interpretation to the European Directives of procurement3. The Aanbestedingswet 2012 is further detailed in the

Public Procurement Decree and the Proportionality Guide. Underlying the procurement law are regulations and

the general principles of public procurement law like non-discrimination, transparency and proportionality.

The procurement rules allow for various ways of accessing the market. Contracting authorities can procure

projects national or European. This depends on the value of the contract. European tender procedures formally

only apply when a public contract meets certain thresholds. These thresholds are revised annually and the

current limits are as follows (Directive 2014/24/EU Art. 4):

Public Work contracts: € 5.186.000

Public Service and Supply contracts: € 207.000

When a contract meets the European threshold the Aanbestedingswet 2012 (Aw2012) enters in force. This act

mandates the procedures a contracting authority has to follow when it intends to award a contract. There are two

standard procedures that can be followed (Aw2012 Art 2.25), the open procedure or the restricted procedure. When

the contracting authority is of the opinion that the open or restricted procedure is not applicable based on the

complexity of the project, it can apply the competitive dialogue as procedure (Aw2012 Art 2.28).

And lastly, a contracting authority can apply the negotiated procedure without prior publication (Aw2012 Art 2.32)

when no tenders or no suitable tenders or no requests to participate or no suitable requests to participate have

been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of

the contract are not substantially altered and that a report is sent to the Commission where it so requests

(Directive 2014/24/EU Art. 32).

When a contract doesn’t meet the European threshold, the Aanbestedingsregelement Werken 2012 (ARW2012)

enters in force. The ARW2012 mandates the procedures a contracting authority has to follow when tendering a

contract that doesn’t meet the European threshold. There are four different types of procurement procedures that

can be applied: the national open procedure, the national restricted procedure, the private invitation to tender and the

multiple invitations to tenders. ). (See appendix C1 for an elaboration on the different procurement procedures).

Besides the procurement procedures, the Aanbestedingswet 2012 also includes legislation about the criteria to be

set for the selection.

A contracting authority can apply different types of criteria and requirements for a qualitative selection. Three

types of criteria can be distinguished; exclusion grounds, selection criteria and awarding criteria. The first two

focus on the tenderer whilst the latter one focuses on the tender itself. Firstly the contracting authority will

determine if the tenderer can participate in the procurement procedure based on exclusion grounds. Based on

3 As reference the European Directives 2014/24/EU is being used which will come into force in the Netherlands in

April 2016.



39

these grounds, tenderers can be excluded from further participation for one of the following reasons;

participation in a criminal organization, corruption, fraud, terrorist offences, money laundering and/or child

labor (Directive 2014/24/EU Art. 57, Aw2012 Art2.86).

Secondly, selection criteria will determine if the tenderer is qualified. These criteria may relate to (Directive

2014/24/EU Art. 58 lid 1); suitability to pursue the professional activity, economic and financial standing, and

technical and professional ability. Selection criteria are minimum requirements, which the tenderer has to meet.

Depending on the type of procurement procedure, the qualified tenderers will be invited to submit their tender if

the selection criteria are met (open procedure) or there will be a second round of selection in which the qualified

tenderers will be ranked based on other selection criteria (restricted procedure). The tenderers with the highest

ranking will be invited to submit their tender. The tender will be ranked based on awarding criteria. The

contracting authority has to judge the submitted tenders on the score of the Most Economically Advantageous

Tender (MEAT) (Mw2012 Art 2.114 lid 1) but by way of derogation from article 2.114 lid 1, the contracting

authority can award the contract on lowest bid (Mw2012 Art. 2.114 lid 2). (See appendix C3 for an elaboration on

the different criteria).

A buying process that is currently tested and applied by public clients is Best Value Procurement (BVP). This

process is developed to select the most suitable tenderers, to spur the tenderer on to highest performance and to

reduce the clients management and control tasks (Kashiwagi, 2009). The aim of this process is to select the best

quality for the lowest bid (Rijkswaterstaat, 2013) and it assumes that the contractor is the expert while the client is

the non-expert. This process consists of four phases, the pre-qualification phase, the awarding phase, the

clarification phase, and the execution phase. (See appendix C2 for an elaboration on BVP).

4.3

CONTRACTS

The definition of a contract reads as follows in the Burgelijk Wetboek (B.W. Art. 6:123): An agreement in the

meaning of this Title is a multilateral juridical act whereby one or more parties enter into an obligation towards one or more

other parties. The agreement comes in force by means of offer and acceptance. (B.W. Art. 6:217). Contracting

includes contract models as well as contracts. These two are interrelated. The contract model that is being applied

depends on the type of contract that is awarded.

The Dutch construction law distinguishes various contract models (Chao-Duivis et al., 2015, p. 25). These models

differ mainly on the degree of influence of the client and the resulting liability. Four types of contract models can

be distinguished; the traditional model, the integrated model, the design team, and the alliance model (See

appendix C4 for an elaboration on the different contracts models).

The type of contract model depends on the contract that is being awarded. For the contract it can be decided to

draw up a unique contract for every particular project or to work with standard contracts. The latter is used more

and more often. A contract determines the legal commitment of the contractual agreements between all involved

partners. There are standard contracts from traditional contracts to comprehensive integrated contracts.

Underlying these contracts are standard conditions known as the Uniform Administrative Conditions for the

Execution of Works and Technical Installation Works (UAV)4.

A concise explanation of the different contracts will be given. An extensive explanation can be found in appendix

C5.

4 In Dutch: Uniforme Administratieve Voorwaarden (UAV)

Applying


40

The UAV terms and conditions are a combination of buying and supplying conditions. There are two types of

UAVs; UAV 2012 and UAV-GC 2005. The UAV 2012 is applicable when only the execution of a project is

procured and the client or a third party does all other activities. The conditions of UAV-GC 2005 are applied

when the client awards an integrated contract or applies an integrated model. Both UAVs are not automatically in

force. They need to be in forced explicitly in an agreement.

There are two types of frameworks, namely framework agreements and framework contracts. A framework

agreement is an agreement between one or more contracting authorities and one or more tenderers, the purpose

of which is to establish the terms governing contracts to be awarded during a given period, in particular with

regard to price and, where appropriate, the quantity envisaged (Directive 2014/24/EU Art. 33). The framework

contract has a lot of similarities with the framework agreement but there are two important differences between a

framework agreement and a framework contract. Firstly, a framework contract doesn’t have a maximum

duration unlike the framework agreement that has an expiration of four years (Aw2012 Art. 2.140 lid 3), and

secondly, the contracting authority is obliged to purchase within a framework agreement and this is not the case

with a framework contract.

The following contract can be awarded; the Building contract, the New Rules, Integrated contracts, and

Performance contracts.

The most traditional contract is the Building Contract. This is a contract between a client and a contractor for the

execution of a design. The New Rules 2011 are the general terms and conditions that govern a contract between a

client and consultant for the draw up of a design.

The term Integrated contract refers to the fact that the design and execution of a project are the responsibility of one

single party in relation to the client (Chao-Duivis et al., 2015, p. 99). There are different types of integrated

contracts that can be awarded. There are two types of integrated construct contracts, the Design & Construct

(D&C) contract and the Engineering & Construct (E&C) contract. A difference is that the functional requirements

of an E&C contract are usually on a lower abstraction level than with D&C contracts.

Other integrated contracts are the so-called Design, Build, Finance, Maintain, and Operate (DBFMO) contracts.

Depending on the phases included in the contract these contracts differ from a Design & Build (D&B) contract

where the contractor is only responsible for the design and build to a DBMO contract where the contractor is

responsible for the design to as far as the maintenance phase.

Performance contracts are mostly applied at management and maintenance projects. With this type of contract it

is up to the contractor to keep the maintenance at a certain level. A performance contract forms the basis for

professional contract- and supply management whereby the performance goals are specified for the supplier.



41

4.4

COMPETITION LAW

Until 1998 the Wet Economische Mededinging was in force in The Netherlands. This law allowed cartels, unless

explicitly prohibited. Not only conflicted this law with much stricter prohibition systems in other leading

countries and the European union, the inadequate competition in The Netherlands harmed the dynamics of the

Dutch economy (Doree, 2004). This changed when on the first of January 1998 The Mededingingswet entered in

force. Economical developments like the globalization of economic relations, the fast technological developments,

and the continuing European and global reduction of trade barriers had and has resulted in international

competition penetrating deeper into national economy ("Parlement & Politiek," 2015). These developments

required a change in the market organization. The Dutch government was aware that dynamic and fast

responding markets were essential for an intertwined market economy like the Dutch economy and was therefore

aware of the necessity to ensure well-functioning goods and services markets, which were harmonized within the

European competition law. Control and self-protection against competition by cartels or partnerships that

functioned as cartels were considered as harmful for the performance of a country (Kalbfleisch et al., 2008). This

resulted in the emergence of the Dutch Competition Authority (ACM). This is an executive organization of the

ministry of economic affairs and was responsible for the execution of the Mededingingswet (Mw). The task of the

ACM is to foster competition and to monitor competitive relationships in the Dutch business sector. The

enforcement of the Mededingingswet by the ACM includes the following (Kalbfleisch et al., 2008):

- This law prohibits all competition restrictions by businesses, unless there is an exemption. Business are

not allowed to make agreements with each other on prices of their products or services, or dividing the

market.

- This law prohibits abuse of economic dominance like reckoning extreme prices, not delivering to certain

customers, or reckoning low prices to prevent competitors to enter the market. Owning economic

dominance is not prohibited.

- Mergers and joint ventures between and acquisitions of companies above certain scale may only take

place after report to and consent of the ACM.

The Mededingingswet entered in force around the same time the collusion in the Dutch construction industry

was discovered. Collaboration between businesses in the construction sector has become a sensitive subject since

the introduction of the Mededingingswet and the discovery of the collusion. Not only dominance on the market

is prohibited, the Mededingingswet also restricts other forms of anticompetitive regulations. This contradicts the

rational of Supply Chain Collaboration and raises the question if it is possible to apply Supply Chain

Collaboration while the Mededingingswet is in force. That is why Chao-Duivis and Wamelink (2013) dedicated a

chapter in their book to Supply Chain Collaboration and the Mededingingswet.

Chao-Duivis and Wamelink (2013) conclude that strategic partnership, or in other words a collaboration that is

project independent can be confronted with Article 6 of the Mededingingswet. This article prohibits collaboration

that hinders competition on the Dutch market (Mw Art. 6 lid 1). They state that the circumstances of each

strategic partnership will decide whether or not the collaboration is adverse to the Mededingingswet (Chao-

Duivis & Wamelink, 2013)(See appendix C6).

Applying


42

4.5

CONCLUSION

The public sector of the Dutch construction industry has to operate within the boundaries of a legal framework

that has become stricter over the last decades. It can be concluded from the literature survey that this is due to the

discovery of the collusion in the construction industry and the introduction of the Mededingingswet. The

discovery of the collusion has had a huge impact on trust and future interactions between public sector clients

and contractors. Besides that, the Mededingingswet fosters competition and monitors competitive relationships

in the Dutch business sector by prohibiting collaboration and strategic partnerships that hinder competition on

the Dutch market.

Furthermore it can be concluded that contracting authorities have to award every contract according legislation.

When the value of a contract meets the European threshold as published in the European Directives it has to

procure the contract according the legislation of the Aanbestedingswet 2012. When the value of the contract

doesn’t meet the European threshold the contract has to be procured according the Aanbestedingsregelement

Werken 2012. Both include legislation about the procurement procedure, exclusion grounds, and selection and

awarding criteria. Contracting authorities need to adhere these legislations.

And last, it can be concluded that the contract that is being awarded influences the relation between the

contracting authority and the contractor and the underlying liability.



43

CHAPTER 5

BARRIERS

The two previous chapters of Part II consisted of literature survey about Supply Chain Collaboration and the

legal framework of the public sector. Both chapters ended with conclusions about the subjects. These conclusions

are compared in this chapter to determine the barriers that hinder the application of Supply Chain Collaboration

in the public sector and to what extent. First the conclusions will be compared (5.1) from which the barriers will

be derived (5.2).

5.1

COMPARISON

Supply Chain Collaboration has two variants. The first ideal variant in which all eight pillars of Supply Chain

Collaboration are included and a second variant in which all pillars except strategic partnership are part of

Supply Chain Collaboration. Contracting authorities have to operate within the boundaries of the legal

framework in which the Aanbestedingswet 2012 obligates contracting authorities to procure every contract

according legislation. The presence of the Aanbestedingswet prohibits or complicates the application of four

pillars of Supply Chain Collaboration. Firstly, the Aanbestedingswet prohibits strategic partnership (pillar A).

Secondly, early contractor involvement (pillar B) is difficult to apply because the Aanbestedingswet prohibits that

public clients interact with contractors before a contract is awarded. Thirdly, the obligation to procure every

contract according the Aanbestedingswet complicates a high level of repetition (pillar G) and standardization

(pillar H) because a contracting authority cannot favor a contractor with whom it already collaborated. This

hinders the continuation of experience and thus repetition and standardization. In other words, the

Aanbestedingswet hinders the application of both variants of Supply Chain Collaboration.

Collaboration between all involved partners and strategic partnership in particular is an important aspect of

Supply Chain Collaboration but the discovery of the collusion in the construction industry and the introduction

of the Mededingingswet 2012 at the end of the last century complicate this. Not only dominance on the market is

prohibited, the Mededingingswet also restricts other forms of anticompetitive regulations. Besides that, trust

between the contracting authority and contractor needs to be regained due to the collusion.

5.2

BARRIERS

Two barriers can be derived from the conclusions of the previous chapters and the comparison of the conclusions

in paragraph 5.1. In appendix E is for each pillar separately explained if it can be applied.








Applying


44

PART IIISOLUTION APPROACHES

CHAPTER 6DEVELOPING

CHAPTER 7TESTING

Applying


46

III

Can public clients apply Supply Chain Collaboration or are the barriers derived from part II insurmountable? Are

there solution approaches that enable the application of Supply Chain Collaboration within the boundaries of the

legal framework?

Part III, Solution Approaches, proposes two approaches that aim to overcome the barriers that are derived from

Part II. This part consists of two chapters. Chapter 6, Developing, presents two solution approaches that are

designed to enable the application of the two variants of Supply Chain Collaboration within the boundaries of the

legal framework of the construction industry. Firstly, the development of the draft solution approaches will be

explained after which both solution approaches are presented. This includes an extensive elaboration of the

components that are part of the solution approaches followed by an explanation of how the pillars of Supply

Chain Collaboration are incorporated in the solution and ends with a concise description of the two approaches.

Chapter 7, testing, determines if the solution approaches are applicable in practice by testing them by means of

applying the solution approaches in combination with two virtual projects. Firstly, the two virtual projects that

will be used as test projects will be introduced after which the two solution approaches will be tested. The chapter

ends with the results of the test and the conclusion if the solution approaches are indeed applicable in practice.

The aim of Part III (figure 9) is to present solution approaches that enable public clients to apply Supply

Chain Collaboration within the boundaries of the legal framework it has to operate in.

FIGURE 9: AIM OF PART III, OWN ILL.

Draft Solution Approach I

Results

Interviews

Solution Approach I

Projects

Draft Solution Approach I

Results

Interviews

Solution Approach I

Projects



47

CHAPTER 6

DEVELOPING

. FIGURE 10: THE ITERATIVE

PROCESS OF DEVELOPING

THE SOLUTION

APPROACHES, OWN ILL.

6.1

DRAFTING

The conclusion that is drawn in the third chapter is twofold. It is concluded that SCC has two variants. Ideally all

eight pillars of SCC can be applied but the method is also acknowledged without the first pillar, strategic

partnership. This conclusion has been the starting point for the development of possible solution approaches and

has led to two solution approaches. The first Solution Approach focuses on the first variant of SCC and is

designed to enable the application of SCC including all eight pillars while the second Solution Approach focuses

on the second variant and is designed to enable the application of SCC without the first pillar.

The development of Solution Approach I started with determining how strategic partnership can be created

within the boundaries of the legal framework. With the Aanbestedingswet in mind it is concluded that strategic

partnership can only be achieved under a framework agreement wherein multiple contracts can be awarded.

Within this framework agreement it is possible to create a project independent collaboration between a client and

contractors. Therefore, Solution Approach I has a framework agreement as starting point.

Solution Approach II has more design freedom because strategic partnership is excluded. From the literature

survey it was derived that Best Value Procurement improves the collaboration and alignment in the chain. These

results are in line with SCC and on that account this procedure will be the starting point of Solution Approach II.

The solution approaches are composed of the following components: the procurement procedure, selection

criteria, awarding criteria, and clauses. These components are derived from the literate survey about the legal

framework and are part of the solution approaches because the law prescribes regulations when it comes to these

components. By including them in the approaches it is certain that the approaches are in line with the law. This

has resulted in two draft solution approaches and an extensive description of these drafts can be found in

appendix F2.

Literature survey

Draft Solution Appraoch

Practice

Solution Approach

Rome wasn’t built in one day, and neither were the Solution Approaches.

Designing the solution approaches was an iterative process (figure 10) that

will be explained in this chapter. Thus far the gained knowledge about

Supply Chain Collaboration and the legal framework of the public sector has

been derived from literature survey. This knowledge and therefrom

withdrawn conclusions are the starting point for the design of the solution

approaches. The aim of these solution approaches is that they are applicable

in practice. Therefore, the solution approaches are converted from theory to

practice. To determine if the solution approaches are feasible in practice and if

the solution approaches will be applied by public clients for whom it is

developed the draft solution approaches were presented to professionals

working for public clients. Their input consisting of knowledge about and

experience with the subjects that are part of the solution approaches resulted

in redesigning or adjusting the solution approaches. After explaining the

development of the draft solution approaches (6.1), Solution Approach I (6.2)

and Solution Approach II are introduced (6.3)

Applying


48

It is assumed that the approaches propose a solution that enables the application of Supply Chain Collaboration

but both approaches are designed based on knowledge gained from literature survey and it isn’t guaranteed that

they are indeed applicable in practice. To determine the feasibility in practice and if the public clients for whom

the solution approaches are developed will apply them interviews were held. Professionals that work for three

public clients were presented the draft version of the solution approaches (see appendix F1 for list of

interviewees). The goal of the interviews was to conclude if they found the approaches applicable and if they

would use them in practice. To be able to ask targeted questions (see appendix F3 for the interview protocol) the

professionals received a briefing at forehand to inform them about the research and both solution approaches

including all the components (see appendix F2 for briefing). The interviews consisted of three parts. In the first

part questions were ask about Supply Chain Collaboration in general in order to determine the point of view of

the public clients in relation with Supply Chain Collaboration while the second and third part both focused on

one of the solution approaches. In these two parts the interviewees were asked about their opinion of the draft

solution approaches and the applicability. Their opinion and experience with the different components of the

approaches was used as input to readjust and redesign the two solution approaches.

The interviews were held with legal experts active at one of the three largest Dutch contracting authorities;

Rijkswaterstaat, ProRail and Rijksvastgoedbedrijf (information about these public clients can be found in

appendix D).

The conclusion about the two solution approaches withdrawn from the interviews can be found in appendix F4

but in general, the design of Solution Approach I was rejected by almost all interviewees. This conclusion resulted

in redesigning the entire Solution Approach. Firstly, it could be concluded from the interviews that in practice

there isn’t a distinction between a framework agreement and a framework contract even though certain literature

does acknowledge the difference of the two frameworks (see appendix C4). All interviewees confirmed that they

do not acknowledge the difference of the two types of frameworks and even though they use the terms

interchangeably, they always mean framework agreement including the rules and restrictions that are part of the

agreement. Hence the decision to chose a framework agreement for Solution Approach I. Secondly, in the draft

version of Solution Approach I it was proposed to award a performance contract under the framework agreement

with three contractors. From the interviews it was concluded that a performance contract would never be

awarded under a framework agreement with three contractors (Lander, 2015) in practice and that in general it is

impossible to prescribe a contract within a framework agreement without knowing the scope of the projects. This

resulted in eliminating the performance contract from Solution Approach I.

This resulted in reconsidering the Solution Approach and conclusively, redesigning it. The final version of

Solution Approach I will be presented and elaborated in paragraph 6.2. The reactions about Solution Approach II

were more positive which resulted in minor adjustments to sharpen and optimize the Solution Approach. The

final version of Solution Approach II will be introduced and elaborated in paragraph 6.3.

These solution approaches are developed within the scope of this research but is must be stated that this not

exclude that other approaches also enable the application of Supply Chain Collaboration within the boundaries of

the legal framework of the construction industry.



49

6.2

SOLUTION APPROACH I

As stated in 6.1, Solution Approach I is designed with the focus on the first variant of Supply Chain

Collaboration. The aim of this approach is to enable the application of all pillars of Supply Chain Collaboration

within the boundaries of the legal framework. Firstly, the line of reasoning of the design of Solution Approach I

will be explained based the components that are introduced in 6.1, underpinned by argumentation and articles

from the Aanbestedingswet 2012 and the European Directives. Secondly, it is set out in which way the pillars of

Supply Chain Collaboration are applied with Solution Approach I and lastly, a concise description of Solution

Approach I is presented in which all the components are described.

FIGURE 11: GRAPHIC DISPLAY OF SOLUTION

APPROACH I, OWN ILL.

As long as it is in line with the Gids Proportionaliteit, selection criteria can incorporate Supply Chain

Collaboration. Solution Approach I prescribes two selection criteria that focus on SCC as addition to the selection

criteria the contracting authorities standardly apply.

Due to the limited existence of Supply Chain Collaboration, it cannot be assumed that all tenderers have

experience with Supply Chain Collaboration. Therefor, the selection criteria cannot only prescribe that the

tenderers must have demonstrable experience with SCC because this can guide the selection towards one

tenderer and this is prohibited by the Aanbestedingswet. Thus, the tenderer is allowed to describe its vision of

Supply Chain Collaboration and how it would act out Supply Chain Collaboration within the contract. The

second selection criterion focuses on the pillars of Supply Chain Collaboration and how the tenderer will give

content and form to each of the pillars. All tenderers that meet the selection criteria are invited to participate and

submit their tender.

As concluded in chapter 3, there isn’t one uniform definition of Supply Chain Collaboration. That is why the

contracting authority makes clear what its definition of Supply Chain Collaboration is. This definition will be the

standard for the selection criteria and provided to all parties that intend to submit a tender. This way all parties

have the same chances when they are participating and this is in line with the transparency principle.

When the tenderer doesn’t meet the required criteria the tenderer will be excluded from further participation.

The contracting authority intends to award a framework agreement. The minimum number of tenderers in a

framework agreement with more than one tenderer is three (Aw 2012 Art 2.143 lid 1). The participating tenderers

are ranked based on the selection criteria after which the contracting authority awards the framework agreement

to the three tenderers with the highest ranking.

3 tenderers

Framework agreement

1 tenderer

Contract

DESIGN

The first component that needs to be decided upon is the

procurement procedure. The procedure that has been

chosen for Solution Approach I is the restricted

procedure. The choice for this procedure is twofold.

Firstly, the restricted procedure can be applied when the

contract has to be procured national as well as European.

This is based on the value of the contract that will be

awarded. Secondly, choosing the restricted procedure

enables the contracting authority to award the contract in

two phases. In the first phase the contracting authority

can select qualified tenderers based on set selection

criteria. The contracting authority is allowed to set out

selection criteria according their own requirements as

long as they are objective, proportionate, and not geared

towards one tenderer (Chao-Duivis, Koning, & Ubink,

2015).

Applying


50

The framework agreement was chosen because the aim of Solution Approach I is to enable the application of

Supply Chain Collaboration including strategic partnership. Under a framework agreement multiple contracts can

be awarded and this enables strategic partnership.

There has been chosen for an agreement with three parties, beside the fact that this is the imposed minimum, to

foster competition as this is in line with the principles of the Mededingingswet and the ACM.

Furthermore, a contracting authority is not allowed to use a framework contract to hinder, limit or falsify

competition (Mw2012 lid 6) or make improper use of the framework agreement (Aw2012 Art 2.141). Choosing for

a framework agreement with three parties guarantees that the framework agreement is not otherwise used than

intended. Within the framework agreement the contracting authority can ask for advice and input from the

tenderers during roundtables about for instance innovations, projects and processes. When all three tenderers are

invited none of the tenderers is favored. From the interviews it is concluded that public clients do this in practice

on a regular basis to keep track of the innovations and interests of the market.

As the first phase of the Solution Approach focuses on the tenderer, the second phase of this Solution Approach

focuses on the tender. When a project falls under the framework agreement a mini competition is held between

the three tenderers in order to award the contract to the tenderer that submits the most qualified tender.

Contracts awarded under a framework agreement are always entered into following a bid without a full

tendering procedure (Chao-Duivis et al., 2015, p. 141). In other words, the contract doesn’t need to be awarded

according the European tender procedure and/or MEAT criteria. The awarding criteria that will be used are

recorded in the framework agreement at forehand and cannot be changed or adjusted when a contract is awarded

under the framework agreement (Aw2012 Art 2.140 lid 2).

In Solution Approach I, the tenders are judged on the following criteria: price, quality, sustainable partnership,

and customer orientation. Even though this phase focuses on the tender, the criteria can still focus on

collaboration1. The tenderer must provide insights on his processes regarding sustainable partnership, design,

execution, and operation and the degree in which continuous improvement is part of these processes so the

contracting authority gains confidence that the tenderer takes the responsibility for the execution of the

proceedings. Secondly, the tenderer must provide insight on his processes regarding services and hospitality and

the degree in which continuous improvement is part of these processes so the contracting authority gains

confidence that the tenderer aligns its proceedings with the needs of the end-user.

Despite the fact that it cannot be documented in Solution Approach I which contract should be awarded it can be

documented which clauses should be incorporated in the contract to optimize the application of SCC. Solution

Approach I prescribes three clauses that must be included in the contract; the BIM norm supported by the Model

BIM protocol 2.0, Past Performance and a joint incentive system. Initially it was opted to incorporate BIM in the

selection criteria but based the outcome of the interviews, it was concluded that prescribing BIM as a selection

criteria and in particular experience with BIM excludes tenderers from the competition and this is in conflict with

the principles of the Mededingingswet. That is why it was decided to include the BIM Norm in the contract

supported by the Model BIM Protocol 2.0, which the clients, contractor, and all sub contractors must sign. With

this protocol it is confirmed that all involved parties are willingly to work with BIM and this way the client is

assured that BIM will by applied during the project. Nevertheless, agreements need to be made about who

manages the model, ownership of products, and entry of data. For these kind of agreements [the author] refers to

the legal guideline written by Chao-Duivis (2015) that includes recommendations about implementing BIM based

on the Model BIM protocol 2.0 in relation with The New Rules.

The second clause that must be documented in the contract is Past Performance. By incorporating Past

Performance in the contract the performance of the contractor is monitored and this encourages improvement of

project and process. The score is taken into account when another project falls within the scope of the framework

agreement. With past performance not only the contractor’s performance is measured, also clients are judged

with as goal to reduce failure costs and to preclude miscommunication.

1 The Rijksvastgoedbedrijf awarded the contract for the project ‘De Knoop’ based on awarding criteria that focused on

sustainable partnership and hosting (Voorham & Simons, 2015).



51

The last clause that must be documented in the contract is a joint incentive system. Before the contract is signed

all parties must agree upon an incentive system in which the distribution code of risks, profits and costs as well as

a bonus/malus arrangement is secured. Solution Approach I doesn’t prescribe a distribution code because this is

too project and partner dependent.

This extensive elaboration resulted in Solution Approach I that is presented on page 52.

PILLARS

The starting point of the design of Solution Approach I is the application of all eight pillars. Solution Approach I

aims to enable this with a framework agreement. This agreement enables the first pillar of Supply Chain

Collaboration within the boundaries of the Aanbestedingswet 2012. Because multiple contracts can be awarded

under a framework agreement this can be acknowledged as strategic partnership because the collaboration

between the client and contractors is project independent. Through roundtables with all three contractors that are

part of the framework agreement the second pillar, early involvement of partners, can be applied. During the

roundtables the client can ask the contractors advice about projects, processes and innovations, which can

fucntion as input for future contracts. Pillar C and D, Integral information sharing and Collectively monitoring are

achieved by incorporating the BIM Norm in the contract. If all parties sign the Model BIM protocol 2.0 an

environment is created in which information can be shared. Nevertheless, agreements need to be made about the

entry of data, ownership of product, and who manages the model. The BIM model can also accommodate the

KPI’s and process indicators that are part of pillar D. Pillar E, continuous improvement, is applied by incorporating

Past Performance in the contract. The presence of Past Performance encourages the contractor to improve its

process and project in order to obtain a higher score and thereby increase its chances to get the next contract

awarded. The joint incentive system, Pillar F, is included in the contract as a clause. Because multiple contracts

can be awarded under the framework agreement pillar G, High level of repetition, is applied in Solution Approach I

as is pillar H, Standardization because multiple contracts can be awarded to the same contractor under the

framework agreement. This motivates the contractor to standardize its process and product to reduce time and

costs.

This elaboration of the different pillars of Supply Chain Collaboration confirms that Solution Approach I enables

the application of the first variant of Supply Chain Collaboration within the legal framework.

Applying


52

SOLUTION APPRAOCH I2

Procurement procedure - The framework agreement is awarded according the restricted procedure.

Selection criteria part 1 – The contracting authority strives for Supply Chain Collaboration with as goal continuous

improvement of its operational management and services, and to establish efficient pricing. The tenderer must

have demonstrable knowledge and experience of Supply Chain Collaboration with his clients and subcontractors

or suppliers. The company of the tenderer must, as an organization, be developing Supply Chain Collaboration.

The tenderer must show in what way they contribute to the above-mentioned goal regarding Supply Chain

Collaboration. Preferably demonstrable experience with Supply Chain Collaboration with clients with

comparable management and activities as contracting authority; supply chain orientated.

The key competence, which forms the basis of these selection criteria, must be demonstrated by means of:

1. A short description – maximum of five (5) A4 – of the way upon which and the extent to which the

tenderer gives content and form to Supply Chain Collaboration with the contracting authority.


tenderer gives content and form to the eight pillars of Supply Chain Collaboration

The under 1 intended description must by all means provide insight into:

The knowledge and experience of the tenderer of Supply Chain Collaboration with its clients in general;

The knowledge and experience of the tenderer of Supply Chain Collaboration with its sub-contractors or

suppliers in general;

The development the tenderer has experienced and is experiencing in the field of Supply Chain

Collaboration; and

The ways in which the tenderer will contribute to Supply Chain Collaboration and more specific to the

goal and wish of the contracting authority to continuously improve the quality of its operational

management and services, and to establish efficient pricing.

The under 2 intended description must by all means provide insight into the following pillars:

A. Strategic long-term partnership

B. Early involvement of partners

C. Integral information sharing

D. Collectively monitoring

E. Continuous improvement

F. Joint incentive system

G. High level of repetition

H. Standardization

Selection criteria part 2 – Weight selection criteria 1: 20%

Weight selection criteria 2: 8 x 10%

The contracting authority awards the framework agreement to the three tenderers with the highest ranking.

2 For the Dutch version of Solution Approach I see appendix G1



53

Awarding criteria - The contracting authority intends to award the contract under the framework agreement based

on the following criteria;

1. Price 30%

2. Quality 30%

3. Sustainable partnership 20%

4. Customer orientation 20%

The under 3 intended awarding criteria must by all means provide insight into the degree to which the tenderer

provides insights on his processes regarding sustainable partnership, design, execution and operation and the

degree in which continuous improvement is part of these processes so the contracting authority gains confidence

that the tenderer takes the responsibility for the execution of the proceedings.

The under 4 intended awarding criteria must by all means provide insight into the degree to which the tenderer

provides insights on his processes regarding services and hospitality and the degree in which continuous

improvement is part of these processes so the contracting authority gains confidence that the tenderer aligns its

proceedings with the needs of the end-user.

The contracting authority intends to award the contracts that fall under the framework agreement to the tenderer

who submits the tender with the highest ranking.

Clauses – The following aspects must be incorporated in the contract regardless of the type of contract;

The BIM norm

Past Performance


Applying


54

6.3

SOLUTION APPROACH II

As stated in 6.1, Solution Approach II is designed with the focus on the second variant of Supply Chain

Collaboration, the variant without strategic partnership. The aim of this approach is to enable the application of

the pillars of Supply Chain Collaboration with the exclusion of strategic partnership within the boundaries of the

legal framework. Firstly, the line of reasoning of the design of Solution Approach II will be explained based on

the four phases of BVP and the components that are introduced in 6.1, underpinned by argumentation and

articles from the Aanbestedingswet 2012 and the European Directives. Secondly, it is set out in which way the

pillars of Supply Chain Collaboration are applied with Solution Approach II and lastly, a concise description of

Solution Approach II is presented in which all the components are described.

FIGURE 12: GRAPHIC DISPLAY SOLUTION

APPROACH II, OWN ILL.

One of the core principles of BVP is that the more conditions are to be placed, the less room is left for the

tenderers to make a difference based on quality. That is why only selection criteria with relation to Supply Chain

Collaboration are prescribed in Solution Approach II.

As concluded in chapter 3, there isn’t one uniform definition of Supply Chain Collaboration. That is why the

contracting authority makes clear what its definition of Supply Chain Collaboration is. This definition will be the

standard for the selection criteria and provided to all parties that intend to submit a tender. This way all parties

have the same chances when they are participating and this is in line with the transparency principle.

Due to the limited existence of Supply Chain Collaboration, it cannot be assumed that all tenderers have

experience with Supply Chain Collaboration. Therefore, the selection criteria cannot only prescribe that the

tenderers must have demonstrable experience with Supply Chain Collaboration because this can guide the

selection towards one tenderer and this is prohibited as said. Thus, the tenderer is allowed to describe its vision of

Supply Chain Collaboration and how Supply Chain Collaboration would be act out within the contract. The

second selection criterion focuses on the different pillars of SCC and how the tenderers will give content and form

to each of the pillars. All tenderers that meet the selection criteria are invited to participate and submit their

tender.

DESIGN

Solution Approach II (figure 12) is based on the four

phases of BVP as explained in 4.2 and appendix C2. The

components that are introduced in 6.1 will be included in

the four phases. The first phase of BVP is the pre-

qualification phase and in this phase the tenders are

selected. The first component that needs to be decided

upon is the procurement procedure. Applying the open

procedure enables the application of the purest form of

BVP but it is extremely time consuming if all parties

assess for themselves that they are suitable for the job

(van de Rijt & Santema, 2012, p. 155). Hence, the

restricted procedure has been the favorite mechanism for

applying BVP because it provides a filter in which only

the most qualified parties are invited to submit their

tender. The tenderers are selected based on set selection

criteria. The contracting authority is allowed to set out

selection criteria according their own requirements as

long as they are objective, proportionate, and not geared

towards one tenderer (Chao-Duivis et al., 2015).

Contractingauthority

Project

Chain

BVP



55

The second phase of BVP is the Awarding phase. In this phase the contract will be awarded to the tenderer with

the tender with the best value. The contracting authority is obliged to award the contract based on MEAT criteria

(Aw2012 Art. 2.114 lid 1) but is free to fill in these criteria as it wishes (Aw2012 Art 2.115 lid 2) as long as the

criteria are noticed in the procurement announcement (Aw2012 Art 2.115 lid 1), including their weight (Aw2012

Art 2.115 lid 3), and as long as the criteria are objective, univocal and in line with the project. BVP applies the

following MEAT criteria; quality and price (Aw2012 Art 2.115 lid 2.a, b). The quality will be judged on the

following written plans: planning (including the weekly report), Risk Assessment plan and Value Added plan

(RAVA). Besides these written plans key actors who will execute the project will be interviewed. These four

aspects together are 75% of the awarding criteria. The other 25% is the price. The interviews are the most

important part of the awarding phase. In Solution Approach II the focus of the interviews is on collaboration.

This focus is twofold. Firstly, the interviewee is asked about how he intends to collaborate with his chain, in other

words the partners he intends to work with during the project, and about his experience with this chain thus far.

Secondly, the interviewee is asked about how he intends to collaborate with the contracting authority. This focus

is chosen to get a clear view on the chain the contracting authority may enter and the way of collaborating in and

with this chain. Based on the outcome of these interviews and the dominant data obtained from the written plans

the contracting authority awards the contract to the tenderer with the highest ranking.

After the contract is awarded the client and contractor enter the third phase of BVP, the clarification phase. In

this phase of BVP the client and contractor clarify the plans and align their expectations. The agreements that are

made in this phase will be included in the contract as clauses. Solution Approach II prescribes the following

subjects that need to be agreed upon.

The first subject is the joint incentive system, which is one of the pillars of Supply Chain Collaboration. All parties

must agree upon an incentive system in which the distribution code of risks, profits and costs as well as a

bonus/malus arrangement is secured. Solution Approach II doesn’t prescribe a distribution code because this is

too project- and partner dependent.

The second subject that needs to be agreed upon is the way in which the contractor makes the results measurable

during the execution phase. This will result in the structure of the Weekly Report. The Weekly Report enables the

client and contractor to clarify the progress of the project (milestones), shows time and cost delays, gives the

client a clear view on the progress of the project, risks are documented and a list of performance indicators are

recorded. Two of the pillars of Supply Chain Collaboration are collectively monitoring and information sharing. One

of the tools that are recommended to be able to apply these pillars is BIM. But as the Weekly Report is an

important part of BVP and both pillars are also achieved with the use of this report, BIM is not included in

Solution Approach II.

In the Civil Code it is included that the client is at all times authorized to end the contract with the contractor,

either entirely or partly (CC 7:764 lid 1). But when the client makes use of this right the client is obliged to pay the

remaining total sum of the project excluding the savings that stem from the severance (CC 7:764 lid 2). In Solution

Approach II, a severance clause is incorporated that authorizes all involved partners to end the collaboration if

the performance doesn’t meet the standard or when the collaboration isn’t satisfying. The performance indicators

that are included in the Weekly Report measure this and these results serve as ground for the parties to end the

collaboration. Including a severance clause in the contract creates an incentive for both the client as the contractor

to invest in the collaboration and to keep improving.

These clarifications and agreements are incorporated in the contract as clauses, as are the tender documents

(RAVA and Weekly Report), and the most important statements that are made during the interviews. BVP can be

applied in combination with all contracts (Pianoo, 2015) but in practice BVP is mostly applied in combination

with Design & Construct contracts or Engineering services (Rijkswaterstaat, 2015).

In the fourth phase of BVP, the execution phase, all agreements and plans must be put into practice during the

execution of the project.

This extensive elaboration resulted in Solution Approach II that is presented on page 57.

Applying


56

PILLARS

The starting point of the design of Solution Approach II is the application of the second variant of Supply Chain

Collaboration. An important part of BVP are the interviews with the key actors who will execute the project. This

enables the application of Pillar B, Early involvement of partners, because the key actors are questioned about their

knowledge and expertise before the contract is awarded. Pillar C and D, Integral information sharing and

Collectively monitoring are achieved by the use of the Weekly Report. The Weekly Report enables the client and

contractor to clarify the progress of the project (milestones) and share dominant data. The Weekly Report also

enables the application of Pillar E, Continuous improvement, in combination with the severance clause. The

performance indicators that are included in the Weekly Report are an incentive to improve the performance to

prevent the other involved parties to sever the collaboration, which is made possible by the presence of the

severance clause. The Joint incentive system, Pillar F, has been part of the agreements in the clarification phase.

The second last pillar of Supply Chain Collaboration, G, High level of repetition, must be found in the type of

project instead of in the relationship between the client and contractor and the BVP process due to the exclusion

of strategic partnership. The absence of strategic partnership complicates the application of pillar G because

project independent collaboration (repetition) cannot be achieved. The last pillar of Supply Chain Collaboration,

H, Standardization, can be achieved in two ways. The process, like the Weekly Report, is standardized at

forehand by the contractor and approved by the client but the level of standardization of the project depends on

the type of project.

This elaboration of the different pillars of Supply Chain Collaboration confirms that Solution Approach II enables

the application of all of the pillars of Supply Chain Collaboration as intended except High level of repetition (Pillar

G). But because this pillar can be applied depending on the type of project (this will be shown in the upcoming

chapter) it can be concluded that Solution Approach II enables the application of Supply Chain Collaboration as

intended.



57

SOLUTION APPROACH II3

Procurement procedure - The contract is awarded according the restricted procedure.

Selection criteria – The contracting authority strives for Supply Chain Collaboration with as goal continuous

improvement of its operational management and services, and to establish efficient pricing. The tenderer must

have demonstrable knowledge and experience of Supply Chain Collaboration with his clients and subcontractors

or suppliers. The company of the tenderer must, as an organization, be developing Supply Chain Collaboration.

The tenderer must show in what way it contributes to the above-mentioned goal regarding Supply Chain

Collaboration. Preferably demonstrable experience with Supply Chain Collaboration with clients with

comparable management and activities as contracting authority; supply chain orientated.

The key competence, which forms the basis of these selection criteria, must be demonstrated by means of:


tenderer gives content and form to Supply Chain Collaboration with the contracting authority.


tenderer gives content and form to the eight pillars of Supply Chain Collaboration

The under 1 intended description must by all means provide insight into:

The knowledge and experience of the tenderer of Supply Chain Collaboration with its clients in general;

The knowledge and experience of the tenderer of Supply Chain Collaboration with its sub-contractors or

suppliers in general;

The development the tenderer has experienced and is experiencing in the field of Supply Chain

Collaboration; and

The ways in which the tenderer will contribute to Supply Chain Collaboration and more specific to the

goal and wish of the contracting authority to continuously improve the quality of its operational

management and services, and to establish efficient pricing.

The under 2 intended description must by all means provide insight into the following pillars:

B. Early involvement of partners

C. Integral information sharing

D. Collectively monitoring

E. Continuous improvement

F. Joint incentive system

G. High level of repetition

H. Standardization



Awarding criteria - The contracting authority intends to award the contract based on the following criteria;

1. Quality 75%

2. Price 25%

3 For the Dutch version of Solution Approach II see appendix G2

Applying


58

The under 1 intended awarding criteria must by all means include the following written documents:

Planning (including the Weekly Report) – maximum of two (2) A4;

Risk assessment plan – maximum of two (2) A4 – including the following subjects; risk description,

explanation why this is a risk, measures to be taken and Dominant proof of usefulness measure, and;

Value added plan – maximum of two (2) A4 – including the following subjects: the chance, the

contribution to the project goal and why, and impact on time schedule and price.

The under 1 intended awarding criteria includes interviews with key actors who will execute the project. These

interviews must provide insights on how the key actors intend to collaborate with the contracting authority as

well as with other actors that will participate during the execution phase.

The contracting authority intends to award the contract to the tenderer who submits the tender with the highest

ranking.

Clauses – The following clauses must be incorporated in the contract regardless of the type of contract;


Measurability of results (Weekly Report)

Severance



59

CHAPTER 7

TESTING

The solution approaches will be tested twice on their applicability in practice. In the previous chapter the draft

solution approaches have been presented to professionals, which resulted in adjusting and redesigning the

approaches. Chapter 6 ended with presenting the solution approaches and this chapter will continue with these

two approaches. This chapter will determine the applicability of the two solution approaches in practice by

testing them by means of applying the solution approaches in combination with two virtual projects. First the

projects will be introduced (7.1) after which Solution Approach I (7.2) and Solution Approach II (7.3) are tested.

This chapter ends with the conclusion if the solution approaches are applicable in practice and if so what kind of

project(s) enables this application (7.4).

7.1

INTRODUCTION

Two projects will be used as test projects. These virtual but typical construction projects have been chosen based

on their difference in order to get as much variety as possible within two projects. Different types of projects can

be distinguished in the construction industry and both projects focus on a different type of project. The first

project, project ‘Islands’ focuses on design and construct while the second project, project ‘Bridges’ focuses on

maintenance. Each project has two versions. This way all different parameters of a project, like duration and

budget, can be tested with the solution approaches.

While framing the projects the Aanbestedingswet 2012 must be taken into consideration and in particular two

articles. These two articles almost contradict each other and a balance between the two must be found. Article 1.5

prescribes that a contracting authority is not allowed to unnecessary combine (cluster) projects. This is to prevent

that SME’s are excluded (Aw2012 Art. 1.5 lid 1.a) from participating. But on the other hand, article 2.14 prohibits

dividing a project into smaller projects with the intention of withdrawing from the European tender procedures

(Aw2012 Art. 2.14 lid 1). All four projects are in line with these two articles and will be introduced below4.

PROJECT ‘ISLANDS’5 - This project includes the design and construction of four artificial nature islands in a

Dutch lake. The project is initiated to reestablish nature by creating islands, natural shores and spawning grounds

for endangered species.

Version A - Project ‘Islands A’ is divided into four phases. In each phase one island is designed and constructed.

The contract that will be awarded is for phase 1 and the contracting authority has included in the procurement

documents that it intends to expand the contract with phase 2 when the first phase is delivered according the set

requirements. The same goes for phase 3 and 4. The value of the initial contract is €30 million. The duration of

each phase is estimated at 3 years and the client will be in charge of the operation after execution.

4 Both project are based on actual projects found on TenderNed but the figures are assumptions. 5 This project is based on the following tender: Eerste fase Marker Wadden (TenderNed, 2015c)

Applying


60

Version B – In project ‘Islands B’ the contracting authority will award the entire project at once. The value of the

contract will be € 100 million. The duration of the entire project is estimated at eight years of execution and 20

years of operation and maintenance. The contractor will be in charge of the design, execution, operation and

maintenance.

PROJECT ‘BRIDGES’6 - This project includes the maintenance of 6 bridges. Part of the maintenance is replacement

of the roadways and repairing of the joists.

Version A – In project ‘Bridges A’, the contracting authority will award the contract with the value of €180.000 at

once. The duration of the contract is 1 year. After the contract is expired a new contract for the maintenance of

bridges will be awarded.

Version B – In project ‘Bridges B’, the contracting authority will award every bridge separately with a contract

value of €30.000. There is no estimated duration. After the finishing of each bridge a new contract will be

awarded.

7.2

SOLUTION APPROACH I

In this paragraph it will be determined if Solution Approach I is applicable in practice. This is be done by

confronting the solution approach with the two projects that are introduced in 7.1. Firstly, Solution Approach I

will be confronted with the two versions of Project ‘Islands’ which results in a conclusion. Secondly, Solution

Approach I will be confronted with the two versions of Project ‘Bridges’ which also results in a conclusion. The

textboxes with parameters clarify the projects and their differences.

TABLE 3: PARAMETERS

PROJECT ‘ISLANDS A’

6 This project is based on the following tender: Onderhoud 6 bruggen – Gemeente Lelystad (TenderNed, 2015a)

PARAMETERS - Designing and constructing four

islands

- 4 phases

- Value of initial contract is 30

million euros

- Intention to expand contract

- Duration per phase is 3 years

- Clients is in charge of operation

and maintenance phase


At first sight it is debatable if Solution Approach I is applicable with project

‘Islands A’. On the one side, the duration of the initial contract falls within

the maximum length of the framework agreement but on the other side the

expansion of the contract can exceed this maximum. To be certain, all

components of Solution Approach I will be checked to determine the

applicability the solution approach with project ‘Islands A’.

Firstly, the value of the contract that will be awarded is above the threshold

that is set in the European Directives for public work contracts (Directive

2014/24/EU Article 4) thus it must be procured according the

Aanbestedingswet 2012. The chosen procurement procedure in Solution

Approach I is the restricted procedure and this procedure is included as an

option in the Aanbestedingswet (Aw2012 Art. 2.25). In first instance, the

framework agreement seems suited for project ‘Islands A’ because the initial

contract doesn’t exceed the maximum length of both framework agreement

and project, which is four years (Aw2012 Art. 2.140 lid 3). But, when looking

into the project parameters it can be concluded that a framework agreement

is not qualified for this project. Firstly, the first expansion of the contract

(phase 2) falls within the maximum length of the framework agreement but

this doesn’t apply for phase 3 and 4. When the contract will be expanded for

the third and fourth time the framework agreement has expired and must be

awarded anew.



61

This is inconvenient, but as article 6 of the Mededingingswet prescribes, should be done to assure that no possible

tenderers are excluded. This causes to question the avail of the framework agreement in combination with this

project (see table 3 for parameters).

Secondly, the skills and experience necessary to be able to execute the project are so specific that the conditions to

award a project under the framework agreement are either too general or too specific. When the conditions are

too general the selected tenderers may not be able to execute the project, but when they are too specific the

contract cannot be awarded under the framework agreement because it doesn’t match the preset conditions.

Nevertheless, the awarding criteria are appropriate for this project. The complexity and uniqueness of this project

asks for specific skills, experience, and quality requirements and due to the duration of the project insight on

sustainable partnership and customer orientation are also reasonable criteria to ask.

Lastly, all clauses that are prescribed in Solution Approach I are applicable and in proportion with project 1A.

The use of BIM is useful because of the complexity and duration of the project. Past Performance is qualified for

in combination with this project because the contract is awarded in phases. The score obtained by Past

Performance can be taken into account when deciding if the contract is extended. And lastly, the joint incentive

system provides an extra incentive for the contractor to deliver up to standard.

PROJECT ‘ISLANDS B’

To get straight to the point, Solution Approach 1 cannot be applied with

project ‘Islands B’. This is due to the fact that the duration of the project

exceeds the maximum length of the framework agreement, which is four

years, to such an extent that the application of Solution Approach I in

combination with project “Islands B’ is prohibited by the

Aanbestedingswet (Aw2012 Art 2.140 lid 3) (See table 4).

TABLE 4: PARAMETERS


CONCLUSION PROJECT ‘ISLANDS’

Solution Approach I is not applicable in practice is combination with project ‘Islands’. This conclusion is solely

based on the presence of the framework agreement in Solution Approach I.

The framework agreement is redundant when awarding a contract like with project Islands A or B. This

conclusion is withdrawn from the following facts; the expiration of the framework agreement and the level of

complexity of the project. The duration of the contract and thus the project exceeds the maximum length of a

framework agreement and this is prohibited by the Aanbestedingswet 2012.

Solution Approach I is applicable in practice in combination with project ‘Islands A’ when the contract is

awarded without the framework agreement but with a clause in the contract that the client intends to extend the

contract if all (contract) requirements are met. The contracting authority has to notify this intention in the

procurement documents. This way not only an incentive is created for the contractor to improve its process and

project but there is also the opportunity to sever the collaboration if the involved parties aren’t satisfied or the

delivered work doesn’t meet the standard.

With the adjusted Solution Approach I all but one pillar can be applied. The only pillar that cannot be applied is

early contract involvement. This is due to the fact that the framework agreement has been eliminated. Without the

framework agreement the client cannot organize roundtables with the contractors that are part of the framework

agreement but a public client can invite parties for roundtables even though they aren’t part of a framework

agreement as long as this doesn’t provide an advantage for the invited contractors.


islands

- 1 contract

- Value of contract is 100 million

euros

- Duration of project is 8 years of

execution and 20 years of operation

and maintenance

Applying


62

Solution Approach I is also applicable in practice in combination with project ‘Islands B’ when the framework

agreement is excluded from the approach. The application of Solution Approach I without the framework

agreement enables the application of all pillars of Supply Chain Collaboration except Pillar A, strategic partnership,

but as concluded in chapter 3, Supply Chain Collaboration has two variants. The adjusted Solution Approach I in

combination with project ‘Islands B’ enables the application of the second variant of Supply Chain Collaboration

instead of the first variant.

Even though this wasn’t the starting point when Solution Approach I was developed, the prescriptions of the

solution approaches aren’t hard conditions. In other words, they can be adjusted if this enables the application of

Supply Chain Collaboration, as this is the prior incentive of the development of the solution approaches.

PROJECT ‘BRIDGES A’

At first sight it seems that Solution Approach I is applicable in practice in

combination with project ‘Bridges A’ as the duration of the contract is in

line with the maximum length of the framework agreement. But to be

certain all the components that are part of Solution Approach II will be

checked in combination with project ‘Bridges A’ (see table 5).

TABLE 5: PARAMETERS PROJECT

‘BRIDGES A’

The duration of the contract that is awarded under the framework agreement is one year and not only doesn’t

this exceed the maximum length of a framework agreement, the contract can be awarded four times before the

framework agreement expires (Aw2012 Art 2.140 lid 3). The awarding criteria that are prescribed in Solution

Approach I can be applied in combination with project ‘Bridges A’ but the criteria seem a bit too extensive for a

relatively small project. The activities this project concerns don’t ask for criteria like customer orientation. It

would make more sense to award the contract merely based on price in combination with quality.

The clauses on the other hand are almost all appropriate in combination with project ‘Bridges A’. When the

contract is finished after one year and a new contract is awarded under the framework agreement the score

obtained by Past Performance can be taken into account when awarding the new contract. The use of BIM is

beneficial for future projects concerning these bridges because all data and information about these bridges can

be saved in the BIM and thus be used when new contracts concerning the bridges will be awarded. The last

clause, joint incentive system, can be applied with Project ‘Bridges A’. For instance, when all bridges meet a

certain quality score, the contractor gets a bonus.


‘BRIDGES B’

PARAMETERS - Maintenance of 6 bridges

- Value of contract is 180.000 euros

- Duration of contract is 1 year

- New contract is awarded after 1

year

PARAMETERS

- Maintenance of 6 bridges

- Each bridge is a separate contract

- Value of each contract is 30.000

euros


The value of the contract of project ‘Bridges A’ doesn’t meet the

threshold and must be procured according the Aanbestedingsregelement

Werken 2012. The prescribed procedure, the restricted procedure, in

Solution Approach II is included in this regulation (ARW2012 Article

1.4.2) so the prescribed procurement procedure is in accordance with the

ARW2012. The selection criteria described in Solution Approach I focus

on the tenderer instead of the tender and are therefore not discussed in

combination with the project.

PROJECT BRIDGES B

If Solution Approach I is applicable in combination project ‘Bridges A’ it

can be expected that the same goes for project ‘Bridges B’. The concept of

awarding each bridge separately under a framework agreement with

three contractors in combination with Past Performance makes sense.

Just as with project ‘Bridges A’, the awarding criteria are even more too

extensive in combination with project ‘Bridges B’ because every bridge is

awarded as a single contract. It seems out of proportion to ask the about

customer orientation with each separate contract. It makes more sense to

award the contract merely based on price in combination with quality

(see table 6).



63

CONCLUSION PROJECT BRIDGES

Solution Approach I is applicable in practice in combination with project ‘Bridges’. With the application of this

approach the first variant of Supply Chain Collaboration is applied. The framework agreement enables the

application of Pillar A and B, Strategic Partnership and early contractor involvement. Pillar C, integral information

sharing is accomplished by the use of BIM as is collectively monitoring, pillar D. Past Performance motivates the

contractor to continuously improve, pillar E and project 2 with a repetition of activities incorporated in the

contract enables the application of pillar G and H, High level of repetition and standardization.

The type, duration and scale of project ‘Bridges’ are in line with Solution Approach I and thus it can be concluded

that Solution Approach I is applicable in practice. Nevertheless, it must be stated that the awarding criteria that

are prescribed in Solution Approach I are too extensive especially in combination with project ‘Bridges B’ where

every bridge is awarded as a separate contract.

It is advised to award project ‘Bridges’ on awarding criteria that focus only on price and quality because this is

most in proportion with the parameters of the contract.

7.3


In this paragraph it will be determined if Solution Approach II is applicable in practice. This is be done by

confronting the solution approach with the two projects that are introduced in 7.1. Firstly, Solution Approach II

will be confronted with the two versions of Project ‘Islands’, which results in a conclusion. Secondly, Solution

Approach I will be confronted with the two versions of Project ‘Bridges’ which also results in a conclusion. The

textboxes with parameters clarify the projects and their differences.


At first sight Solution Approach II seems applicable in combination with

Project ‘Islands A’. This kind of project is complex enough to leave room

for own input of the tenderers providing the possibility to distinguish

oneself. Also, the duration of the contract in relation with the extensive

phases before the execution starts seems in ratio. To be certain, all

components that are part of Solution Approach II will be checked in

combination with Project ‘Islands A’ (see table 7).

TABLE 7: PARAMETERS


The written documents like the RAVA and the planning, including the WR, are appropriate for project ‘Islands A’

as are the interviews with the key actors. This is due to the complexity and uniqueness of the project. These

awarding criteria in combination with a project like project ‘Bridges A’ provide the possibility for the tenderer to

distinguish oneself from the other tenderers, which is the main principle of BVP.


islands

- 4 phases

- Value of initial contract is 30

million euros

- Intention to expand contract

- Duration per phase is 3 years

- Clients is in charge of operation

and maintenance phase The value of the contract that will be awarded meets the threshold that is

set in the European Directives for public work contracts thus it must

procured according the European Directive (Directive 2014/24/EU Article

4). The most desirable procedure in Solution Approach II, the restricted

procedure, is included in this directive (Directive 2014/24/EU Article 28) so

the prescribed procurement procedure is in accordance with the European

Directive. The selection criteria described in Solution Approach II focus on

the tenderer instead of the tender and are therefore not discussed in

combination with the project. The awarding criteria that are included in

Solution Approach II are derived from the Best Value Procurement

approach.

Applying


64

On the basis of the parameters of the project it can be assumed that the client has notified in the procurement

documents that it intends to award a Design & Construct contract and based on practical experience it can be

concluded that the combination of a D&C contract with BVP is often used.

The Solution Approach II prescribes three clauses that must be included in the project. The joint incentive system

and the WR are both applicable and in line with Project ‘Islands A’. Only the severance clause can be designated

as redundant because the contracting authority has included in the procurement documents that it intends to

expand the contract if the first phase is delivered according the set requirements. This already provides an

incentive for the client to improve its performance and deliver work that is up to standard.

PROJECT ISLANDS B

Project ‘Islands B’ doesn’t differ that much from project ‘Islands A’ so at

first sight one would say that the conclusion of Solution Approach II in

combination with project ‘Islands B’ is similar to the conclusion

withdrawn from the confrontation of Solution Approach II with project

‘Islands A’. But on further consideration, the differences between the two

projects do have an impact on the applicability of Solution Approach II in

practice.

TABLE 8: PARAMETERS


On the basis of the parameters of the project it can be assumed that the client has notified in the procurement

documents that it intends to award a DBMO contract and even though it is stated that BVP can be applied with

all contracts, based on practical experience it can be concluded that the combination of a DBMO contract with

BVP is rather exception than rule.

All clauses that must be included in the contract can be applied with project ‘Islands B’. Contrary to project

‘Islands A’ where the severance clause is redundant, in project ‘Islands B’ this clause is of great importance due to

the duration of the contract.

The contract that will be awarded has a length of 28 years in total without any exit moments incorporated to

sever the collaboration and thus the contract before the end term if the results aren’t satisfying. The severance

clause enables this possibility and creates an extra incentive to work on the collaboration.

But it must be mentioned that this incentive is less than with project ‘Islands A’ because the tenderer has the

responsibility of the project as far as the operation and maintenance phase. The absence of the transfer of

responsibility causes less incentive for the contractor to foster the collaboration.

CONCLUSION PROJECT ISLANDS

Solution Approach II is applicable in practice in combination with project ‘Islands’. The type, scale, and duration

of the project are appropriate for BVP and thus Solution Approach II. The complexity and uniqueness of the

project leave room for the tenderers to show their expertise and distinguish one from the other tenderers. This is

in line with the core principle of BVP where the contractor is seen as the expert and the client as the non-expert.


islands

- 1 contract

- Value of contract is 100 million

euros

- Duration of project is 8 years of

execution and 20 years of operation

and maintenance

The contract and as a result, the duration of the project as well as the

responsibility of the project differs from project ‘Islands A. the components

of Solution Approach II will be checked in combination with project

‘Islands B’ to determine if Solution Approach II is applicable in practice in

combination with project ‘Islands B’ (see table 8 for parameters of the

project).



65

Solution Approach II focuses on the second variant of Supply Chain Collaboration. That is, all pillars of Supply

Chain Collaboration that are included in Solution Approach II as explained in paragraph 6.3 can be applied in

combination with project ‘Islands’. This type of project where four times the same island is requested even

enables the application of Pillar G, High level of repetition, as it was explained that the type of project must enable

the application of this pillar. This is achieved because the activities for each of the islands are the same, which

indicates a level of repetition.

But both project ‘Islands A’ and ‘Islands B’ leave something to be desired in combination with the application of

Solution Approach II. The contract that is awarded in project ‘Islands A’ in which is described that the

contracting authority intends to extend the contract if the set requirements are met eliminates the need for the

severance clause. Nevertheless it is advices to keep the clause included in the contract in case one of the involved

parties wants to sever the collaboration before the end of the contract.

In project ‘Islands B’, the type of contract also influences the applicability of Solution Approach II. The contract

includes the operation and maintenance phase of the project. This indicates that the client intends to award a

DBMO contract. Even though BVP can be applied with all contracts, in practice the combination of a DBMO

contract with BVP does not occur. This is due to the owner of the responsibility and the need to transfer this

responsibility.

Based on the above-described assumptions it can be concluded that Solution Approach II is best applicable in

practice when the parameters of both ‘Islands’ projects are combined. The ideal project would be a project where

the contract is awarded at once and only includes the design and construction phase. This way a D&C contract

can be awarded which is most suited and most applied in practice with BVP. Secondly, the severance clause can

be used and this makes all of the components including the clauses of Solution Approach II of importance and

nothing is redundant or too extensive.

PROJECT ‘BRIDGES A’

At first sight it seems that Solution Approach II is too extensive for a

project like project 2A. The duration of the contract doesn’t seem in

accordance with the length of the selection and awarding phase that are

part of BVP. Secondly, this kind of project doesn’t require specific skills

and expertise from the tenderers, which makes it difficult to distinguish

oneself. To be certain, all components that are part of Solution Approach II

will be checked in combination with Project 2A (see table 9).


‘BRIDGES A’

The value of the contract of project ‘Bridges A’ doesn’t meet threshold and must be procured according the

Aanbestedingsregelement Werken. The prescribed procedure, the restricted procedure, in Solution Approach II is

included in this regulation (ARW2012 Article 1.4.2) so the prescribed procurement procedure is in accordance

with this regulation. The selection criteria described in Solution Approach II focus on the tenderer instead of the

tender and are therefore not discussed in combination with the project. The awarding criteria that are included in

Solution Approach II are derived from the Best Value Procurement approach. The written documents including

the RAVA and the planning, and the interviews are too extensive and time consuming in comparison to the

duration of the contract and the type of project. In general, this type of project doesn’t require specific skills or

experience from the tenderer. In other words, the distinction between expert (contractor) and non-expert (client)

isn’t necessary. Secondly, this type of work leaves little room for the tenderer to distinguish oneself. This

contradicts the core principle of BVP. Besides, this type of project does not request for interviews with key actors

to elaborate on the collaboration and finally, it is most likely that the client has notified in the procurement

documents that it intends to award a performance contract or a traditional contract and even though it is stated

that BVP can be applied with all contracts, in practice the before mentioned contracts are not likely to be awarded

in combination with BVP.

PARAMETERS - Maintenance of 6 bridges

- Value of contract is 180.000 euros


- New contract is awarded after 1

year

Applying


66

Nevertheless, the clauses in Solution Approach II can be included in all contracts and do work with this type of

project. The Weekly Report may seem a bit extensive especially when the contract that is awarded is a

performance contract but the Weekly Report can be adjusted to a report that needs to be filled in after the

maintenance of each of the bridges.

PROJECT ‘BRIDGES B’

If Solution Approach II doesn’t match project ‘Bridges A’ it can be

expected that the same is true for project ‘Bridges B’ and most likely to a

greater extent.

TABLE 10: PARAMETERS

PROJECT ‘BRIDGES B’

CONCLUSION PROJECT 2

Solution Approach II is not applicable in practice in combination with project ‘Bridges’. This conclusion is drawn

based on a combination of factors. First of all, the type of work doesn’t require specific skills or expertise, which

makes the distinction between expert and non-expert unnecessary and leaves no room for the tenderer to

distinguish one from other tenderers. Secondly, the value and duration of the contract is disproportionate in

comparison with the time, effort and costs that need to put in the awarding phase. And thirdly, it is most likely

that the awarded contract is a performance contract. Even though it is stated that BVP can be applied with all

contracts, in practice it is uncommon to award a performance contract combined with BVP.

But, even though Solution Approach II is not in proportion with project ‘Bridges’, when this combination is

applied it must be concluded that all pillars that are part of the second variant of Supply Chain Collaboration can

be applied. Project ‘Bridges A’ even enables the application of Pillar G, High level of repetition, because the contract

includes 6 bridges. The same cannot be said about project ‘Bridges B’. Every bridge is awarded separately which

hinders the application of pillar G.

All in all, albeit objectively Solution Approach II can be applied with project ‘Bridges’ it must be concluded that

this will not happen in practice because this solution approach is not in proportion with the parameters of project

‘Bridges’. Adjusting either project ‘Bridges A or ‘Bridges B’ doesn’t make a difference resulting in the conclusion

Solution Approach II is not applicable in practice in combination with project ‘Bridges’.

PARAMETERS

- Maintenance of 6 bridges

- Each bridge is a separate contract

- Value of each contract is 30.000

euros


Combing Solution Approach II with project ‘Bridges B’ doesn’t match at

all. The reasoning to underpin this conclusion is similar to project ‘Bridges

A’ but it is even less logical to combine Solution Approach II with project

2B because every bridge is awarded as a single contract. It is too time

consuming and expensive to award every contract singly according

Solution Approach II when looking at the type of work and value of each

contract (table 10).



67

7.4

RESULTS

In the previous paragraphs the solution approaches that are introduced in chapter 6 have been confronted with

virtual projects in order to determine if the solution approaches are applicable in practice and what kind of

project enables this application. What is the final judgment of the Solution Approaches? Are the solution

approaches applicable in practice? And if so, what kinds of projects enable the application? This chapter ends

with the results that can be withdrawn from the previous paragraphs. It starts with a matrix of the solution

approaches and projects after which it is presented if the solution approaches are indeed applicable in practice.

MATRIX

This matrix (table 11) shows if the solution approaches are applicable in practice in combination with the two

versions of the two virtual projects. The results are displayed as applicable (+) or not applicable (-).

TABLE 11: CONFRONTATION OF SOLUTION APPROACHES WITH VIRTUAL PROJECTS

SOLUTION APPROACH I

As shown in the matrix Solution Approach I is applicable in practice. Even though Solution Approach I is not

applicable in combination with project ‘Islands’, project ‘Bridges’ does enable the application of Solution

Approach I and is thus applicable in practice.

It can be concluded that Solution Approach I is best applicable in combination with maintenance projects and this

combination enables the application of the first variant of Supply Chain Collaboration. Most qualified for the

application of Solution Approach I are projects that have a high level of repetition like project ‘Bridges A’.

SOLUTION APPROACH I

As shown in the matrix Solution Approach II is applicable in practice. Even though Solution Approach II is not

applicable in combination with project ‘Bridges’, Project ‘Islands’ does enable the application of Solution

Approach II and is thus applicable in practice.

It can be concluded that Solution Approach II is best applicable in combination with design and construct projects

and this combination enables the application of the second variant of Supply Chain Collaboration. Most qualified

for the application of Solution Approach II are project that only include the design and construct phase and

where the entire contract is awarded at once.

All in all, it can be concluded that both solution approaches are indeed applicable in practice based on the

outcome of the confrontation with two virtual projects.

SOLUTION

APPROACH I

PROJECT ‘ISLANDS’

- -

-

++ +

A

B

+

++

- -

A

B

SOLUTION

APPROACH II

PROJECT ‘BRIDGES’

Applying


68

PART IVCONCLUSION

CHAPTER 8MANAGERIAL IMPLICATIONS

CHAPTER 9CONCLUSION

Applying


70

IV

How can public sector clients apply Supply Chain Collaboration?

Part IV, Conclusion, is twofold as it provides recommendations for public clients and gives an answer to the

research question. This part consists of two chapters. Chapter 8, Managerial implications, explains to public clients

why it should apply the solution approaches and what these approaches enable. Secondly, recommendations are

giving for public sector clients who want to apply Supply Chain Collaboration.

Chapter 9, Conclusion, brings the research to full circle. It will start with explaining the relevance of the research,

the broader perspective and the limitations. Secondly, it will give answers to the sub and main questions that

were introduced in part I and this chapter ends with recommendations for further research.

Part IV aims (figure 13) to provide recommendations for public clients on how to apply Supply Chain

Collaboration and to give an answer to the central research question.

FIGURE 13: AIM OF PART IV, OWN ILL.

Findings

Recommendations

Conclusions



71

CHAPTER 8

MANAGERIAL IMPLICATIONS

Part III focused on the development and testing of two solution approaches. But what do these approaches enable

and why should public clients apply the proposed solution approaches?

As stated in the first chapter of this research, the relationships in the Dutch construction industry are mostly

characterized by market-based, short-term interactions between independent businesses. This has resulted in cost

and time overruns, and projects lacking quality. A method that has been opted to transform the traditional

relationships within the Dutch construction industry is Supply Chain Collaboration.

Thus far, only housing corporations have applied Supply Chain Collaboration but the results are promising and

the practitioners are enthusiastic. Unfortunately, public clients cannot apply Supply Chain Collaboration the

same way private clients can. This is due the legal framework in which the public client has to operate. This legal

framework creates barriers that hinder the application of Supply Chain Collaboration. The Aanbestedingswet

2012 that is in force in the public sector prohibits public clients to enter into strategic partnerships. This

complicates the application of Supply Chain Collaboration by public clients, as strategic partnership is the first

pillar of the method. The Aanbestedingswet 2012 is not in force in the private sector, hence the possibility for

private clients to apply Supply Chain Collaboration.



created by the legal framework to enable the application of Supply Chain Collaboration.

As concluded in chapter 3, Supply Chain Collaboration has two variants. The first variant in which all eight

pillars are included and the second variant, in which the first pillar, strategic partnership, is excluded. These two

variants have been the starting point for the solution approaches. Solution Approach I is developed to enable the

application of the first variant of Supply Chain Collaboration whilst Solution Approach II is developed to enable

the application of the second variant of Supply Chain Collaboration. Both solution approaches have been tested

by means of confronting them with virtual projects in order to determine their applicability in practice. The

results in chapter 7 show that both solution approaches are indeed applicable in practice and thus enable the

possibility for public clients to apply both variants of Supply Chain Collaboration within the boundaries of the

legal framework of the construction industry by means of applying one of the solution approaches.

RECOMMENDATIONS FOR PUBLIC CLIENTS

Trying to change a tradition by applying a new method is most likely to succeed when the new method is

supported and understood by the top management of a company. In other words, top management commitment

is necessary when a new method like Supply Chain Collaboration is applied. It is advised that all partners that

are involved with the application of Supply Chain Collaboration understand the rational of the method,

including the top management. This is recommended in order to avoid confusion about the method and simplify

the implementation of Supply Chain Collaboration.

In this research two solution approaches are proposed. The solution approaches are carefully developed and

designed to enable the application of Supply Chain Collaboration in the public sector. It is therefor advised that

when public clients intend to apply one of the approaches that the components that are part of the solution

approaches are applied as prescribed but it must be stated that the prescriptions of the solution approaches aren’t

hard conditions. It must not be forgotten that the solution approaches are a tool and not the goal. The goal is to

apply Supply Chain Collaboration. When it appears that applying a component in a different way simplifies or

benefits the application of Supply Chain Collaboration it is allowed to adjust the solution approaches.

Applying


72

It is recommended that public clients decide per awarded contract which solution approach is being applied. The

decision to apply either Solution Approach I or Solution Approach II depends on the type of contract that is being

awarded. As can be seen in the matrix on page 67, Solution Approach I is not applicable in practice when a

Design & Construct contract is being awarded and Solution Approach II is not applicable in combination with a

maintenance project. For types of projects that have not been virtually tested in this research it is advised to apply

the solution approach that seems most applicable in combination with the project.

The private scetor does have experience with Supply Chain Collaboration. It is recommended that when a public

client wants to apply Supply Chain Collaboration it addresses a private client for advice. Albeit, private clients

can apply Supply Chain Collaboration in a different way, it can share their lessons-learned and experience and

this may benefit the public client. Collaboration is the core of Supply Chain Collaboration and this is, as stated in

this research, project independent. Clients must be willing to share their knowledge to improve Supply Chain

Collaboration and as a result the construction industry.

RESULTS

If public clients apply the solution approaches and thus Supply Chain Collaboration it changes the relationship

between the client and contractor from an adversarial relationship to a more equal one. It will take time to find an

equilibrium in this newfound collaboration but when this is achieved it will not only be beneficial for both client

and contractor it will also change the traditional, fragmented, project oriented construction industry as Supply

Chain Collaboration is seen as a effective measure to address these problems and as a result reduce the time and

cost overrun and improve the quality of projects.



73

CHAPTER 9

CONCLUSION

This chapter brings the research to full circle. It will provide the answer to the main research question that was

presented in chapter 1:


BOUNDARIES OF THE EXISTING LAWS THAT ARE IN FORCE IN THE DUTCH CONSTRUCTION

INDUSTRY?’

Before the answer to this research question will be given (9.2) the relevance of the research, broader perspective,

and limitations will be discussed (9.1) and this chapter will end with recommendations for further research (9.3)

9.1

DISCUSSION

RELEVANCE

This graduation thesis can be seen as a relevant addition to the existing knowledge in the field of research

regarding Supply Chain Collaboration. Thus far research has only been conducted on Supply Chain

Collaboration in relation with the private sector of the construction industry. This research contributes to the

knowledge of Supply Chain Collaboration with regard to the public sector. The interpretation of the findings and

conclusions withdrawn from literature survey has been validated during explorative conversations and

interviews with professionals. The solution approaches have been presented to professionals and this ensured the

justification of the proposed solution approaches in this field of research.

This research not only provides an answer to the question what barriers of the legal framework hinder the

application of Supply Chain Collaboration in the public sector of the construction industry, it also proposes

approaches to enable the application of Supply Chain Collaboration. Literature about and solutions for this

problem have thus far been lacking and therefor this graduation thesis can be considered as a relevant and

integrated Construction Management and Engineering (CME) research, which is likely to deliver a contribution

to the field of Supply Chain Collaboration.

Placing the research within a broader perspective, this research has provided a link between Supply Chain

Collaboration and the legal framework that is in force in the public sector of the construction industry. Supply

Chain Collaboration opts for strategic partnership between clients and contractor to improve their relationship

and as a result overcome time and cost overruns. Unfortunately, The Aanbestedingswet 2012 prohibits strategic

partnership and the Mededingingswet 2012 fosters competition and it is concluded that public sector clients can

only apply Supply Chain Collaboration in the same way private clients can when the Aanbestedingswet is more

flexible towards this type of partnership. But is it possible to change a law?

Applying


74

LIMITATIONS

The time and resources available for this research were finite. Therefore it is bounded to limitations, which have

to be taken into account.

Firstly, this research focuses on the barriers of the legal framework in the construction industry when applying

Supply Chain Collaboration. That does not mean that there aren’t other barriers that need to be overcome to

enable the application of Supply Chain Collaboration. From the literature survey it is derived that the behavior of

the client and the contractor has a huge impact on the success of applying Supply Chain Collaboration. This

research is bounded by the ‘Construction Management & Engineering’ field of research and behavior, in other

words sociological research is outside the scope of this research.

Secondly, due to time constraints only two solution approaches have been developed during this research but

this does not prelude that there are other approaches that enable the application of Supply Chain Collaboration in

the public sector of the construction industry.

Thirdly, the solution approaches have been presented to seven professionals. These professionals all work for

different public clients and are chosen because of their legal background and experience. A larger number of

professionals could have influenced the outcome of the interviews but nevertheless it can be stated that the

outcome of the interviews is use. All interviews were recorded and interviewees have reviewed the reports to

check for any inconsistencies (appendix F4).

Fourthly, the solution approaches have been confronted with two virtual projects. It was impossible to test the

solution approaches on actual projects due to time constraints.

These four limitations have bounded the research but nevertheless it was possible to answer the research question

within these boundaries.

9.2

ANWER TO RESEARCH QUESTION

Before the answer to the main research question is presented the sub-questions will be answered as the answers

of these sub-questions yield information that is useful and necessary to be able to answer the main research

question. The sub-questions were introduced in paragraph 2.2 and have been answered throughout chapter 3

until chapter 7. This paragraph presents the answers to the three sub-questions.

SUB-QUESTIONS

Part II, chapter 3 and chapter 4 provided the information that was needed to be able to answer the first two sub-

questions in chapter 5:

II1 Which (parts of the) laws that are in force in the public sector hinder the application of supply chain collaboration?

II2 What pillars of Supply Chain Collaboration cannot be applied in the public sector?



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In order to be able to answer the first sub-question (II1) it was necessary to define Supply Chain Collaboration.

From the literature survey in chapter 3 about Supply Chain Collaboration it was concluded that there isn’t a

general accepted definition for Supply Chain Collaboration. Comparing the definitions that are used by four

scientific researchers complemented by findings derived from this research has resulted in the following

definition of Supply Chain Collaboration that is applied in this thesis:




Supply Chain collaboration is composed of eight different pillars that all consist of practices. Supply Chain

Collaboration has two variants, the first variant in which all pillars, including strategic partnership, are present

and the second variant in which all pillars except strategic partnership are present. A simplified representation is

of SCC is displayed below (figure 14).

FIGURE 14: SIMPLIFIED DISPLAY OF SUPPLY CHAIN COLLABORATION, OWN ILL.

From the literature survey in chapter 4 about the legal framework of the construction industry it is concluded that

contracting authorities have to award every contract according legislation. When the value of a contract meets the

European threshold as published in the European Directives (Directive 2014/24/EU) it has to procure the contract

according the legislation of the Aanbestedingswet 2012. When the value of the contract doesn’t meet the

European threshold the contract has to be procured according the Aanbestedingsregelement Werken 2012. Both

include legislation about the procurement procedure, exclusion grounds, and selection and awarding criteria.

Contracting authorities have to operate within the boundaries of the legal framework in which the

Aanbestedingswet 2012 obligates contracting authorities to procure every contract according legislation. The

presence of the Aanbestedingswet prohibits or complicates the application of four pillars of Supply Chain

Collaboration. Firstly, the Aanbestedingswet prohibits strategic partnership (pillar A). Secondly, early contractor

involvement (pillar B) is difficult to apply because the Aanbestedingswet prohibits that public clients interact

with contractors before a contract is awarded. Thirdly, the obligation to procure every contract according the

Aanbestedingswet complicates a high level of repetition (pillar G) and standardization (pillar H) because a

contracting authority cannot favor a contractor with whom it already collaborated. This hinders the continuation

of experience and thus repetition and standardization. In other words, the Aanbestedingswet hinders the

application of both variants of Supply Chain Collaboration.

Furthermore, the Mededingingswet fosters competition and monitors competitive relationships in the Dutch

business sector by prohibiting collaboration and strategic partnerships that hinder competition on the Dutch

market.

SUPPLY CHAIN COLLABORATIO

N



Intergral information

sharing





Standardization

A B C D E F

Second

variant

G H

First

variant

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These conclusion are compared in the final chapter of Part II and this resulted in the following barriers:








Part III of this research provided the input to be able the last sub-question:

III3 Which solution approaches enable the application of Supply Chain Collaboration in the public sector within the

boundaries of the existing legal framework?

Chapter 6 of this research investigated two draft solution approaches that resulted in two solution approaches

that enable the application of Supply Chain Collaboration in the public sector within the boundaries of the legal

framework.

The starting point of the design of the solution approaches has been the two variants of Supply Chain

Collaboration. It was concluded in 6.1 that the first variant of Supply Chain Collaboration and in particular

strategic partnership could only be achieved under a framework agreement. This is the starting point of Solution

Approach I.

From literature survey it was derived that Best Value Procurement improves collaboration and alignment in the

chain and is therefore chosen to enable the second variant of Supply Chain Collaboration. This is the starting

point of Solution Approach II.

Both solution approaches have the same structure. In chapter 4 it was concluded that the Aanbestedingswet 2012

includes legislation when it comes to procurement procedures, and selection and awarding criteria. These

components are the basis of the Solution Approaches. This structure is chosen to be certain that the law is

followed and as a result to increase the success rate of the application of the solution approaches. Also included

in the solution approaches are clauses that must be incorporated in the contract to optimize the application of


SOLUTION APPROACH I

The first solution approach enables the application of the first variant of Supply Chain Collaboration. Solution

Approach I prescribes to award the framework agreement according the restricted procedure. Two selection

criteria are included in the solution approach on which the tenderer is ranked. The first selection criterion

includes a short description of the way upon which and the extent to which the tenderer gives content and form

to Supply Chain Collaboration with regard to the contracting authority. The second selection criteria includes a

short description of the way upon which and the extent to which the tenderer gives content and form to the eight

pillars of Supply Chain Collaboration.

The contracting authority intends to award the framework agreement to the three tenderers with the highest

ranking.

The contracts that are awarded under the framework agreement are awarded based on the following awarding

criteria: price, quality, sustainable partnership, and customer orientation.


the application of Supply Chain Collaboration: the BIM Norm, Past Performance, and a Joint incentive System.



77


The second solution approach enables the application of the second variant of Supply Chain Collaboration.

Solution Approach II is based on the Best Value Procurement. This solution approach prescribes to award the

contract according the restricted procedure. Two selection criteria are included in the solution approach on which

the tenderer is ranked. The first selection criteria includes a short description of the way upon which and the

extent to which the tenderer gives content and form to Supply Chain Collaboration with regard to the contracting

authority. The second selection criterion includes a short description of the way upon which and the extent to

which the tenderer give content and form to seven pillars of Supply Chain Collaboration. That is to say, all pillars

except pillar A, strategic partnership.



The contract is awarded based on the following awarding criteria; quality and price. The first awarding criterion,

quality, must by all means include the following written documents: a planning including the Weekly Report,

Risk Assessment plan and a Value Added plan (RAVA). This awarding criterion also includes interviews with

key actors and these interviews must provide insight on how the key actors intend to collaborate with the client

as well as with other actors that will participate in the execution phase.

The contracting authority awards the contract to the tenderer that submits the tender with the highest ranking.


the application of Supply Chain Collaboration: a Joint incentive system, measurability of results (Weekly Report),

and Severance.

The two above described Solution Approaches enable the application of Supply Chain Collaboration in the public

sector within the boundaries of the legal framework.

RESEARCH QUESTION

This research starts with the formulation of the problem definition in the first chapter: ‘laws that are in force in the

Dutch construction industry hinder the application of Supply Chain Collaboration in the public sector’. Supply Chain

Collaboration is a method that is opted to transform the traditional relationships within the Dutch construction

industry and to reduce cost and time overruns that have been characteristic for this industry. The objective of this

thesis is therefore: to propose solution approaches that enable the application of Supply Chain Collaboration for public

clients within the boundaries of the existing legal framework of the Dutch construction industry. Public clients that are

active in the construction industry are obliged to operate within the boundaries of a legal framework. This legal

framework and in particular the Aanbestedingswet 2012 hinders the application of Supply Chain Collaboration

because the Aanbestedingswet 2012 prohibits that public clients form strategic partnership with partners because

every contract needs to be procured according legislation. This research is conducted to result in proposing

solution approaches that enable public clients to apply Supply Chain Collaboration within the boundaries of the

legal framework. In order to accomplish this objective the following research question is central in this thesis:


BOUNDARIES OF THE LEGAL FRAMEWORK THAT IS IN FORCE IN THE DUTCH

CONSTRUCTION INDUSTRY?’

Due to the legal framework in which the public client has to operate it cannot apply Supply Chain Collaboration

as easily as private clients can.



created by the legal framework to enable the application of Supply Chain Collaboration. Both solution

approaches have been tested by means of confronting them with virtual projects in order to determine their

applicability in practice. The results in chapter 7 show that both solution approaches are indeed applicable in

practice and thus enable the possibility for public clients to apply both variants of Supply Chain Collaboration

within the boundaries of the legal framework of the construction industry by means of applying one of the

solution approaches.

All in all, it can be concluded that it is not impossible for public clients to apply Supply Chain Collaboration as

long as it applies one of the solution approaches that are proposed in this research.

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9.3

RECOMMENDATIONS

Research never ends. This paragraph provides recommendations for further research and for the application in

practice.

The solution approaches have been confronted with virtual projects. It is recommended to test the

solution approaches in practice on actual projects to determine the applicability in practice and adjust

the solution approaches if necessary.

In this research the solution approaches have been presented to seven professionals to determine the

feasibility and adjust the solution approaches if necessary. It is recommended to present the solution

approaches to more professionals to better align the solution approaches with the expectations and

experiences of public clients.

The perspective of this research has been the public clients’ point of view. It is recommended to present

the solution approaches to contactors as well to align their expectations and experiences with those of

the client to be able to propose solution approaches that are accepted by client and contractor.

A conclusion from Solution Approach I in combination with project 1 is that this solution approach can

be applied in combination with a design project when the framework agreement is excluded from the

Solution Approach. This new solution approach must be further researched to determine its

applicability.

In this research the solution approaches have been confronted with two types of projects, design and

maintenance. It was tried to vary the projects as much as possible by changing the parameters but it is

recommended to further research the possibilities of the solution approaches sin combination with other

projects.

In this research two solution approaches have been proposed to enable the application of Supply Chain

Collaboration. This doesn’t exclude that there are other solution approaches that enable the application

of Supply Chain Collaboration within the boundaries of the legal framework. It is advised to further

research solution approaches.

It is stated in this research that public clients can best apply Supply Chain Collaboration when the

Aanbestedingswet becomes more flexible. It is recommended to keep a track of all the results that have

been achieved by applying Supply Chain Collaboration, in the public sector as well as the private sector.

Keeping track of the results can influence the Aanbestedingswet when the results show that Supply

Chain Collaboration and strategic partnership in particular doesn’t hinder competition or exclude SME’s

from participating.

The paradigm shift between the client and contractor when Supply Chain Collaboration is applied also

influences the roles of and relationships with the other partners in the chain. It is recommended to

research this shift and identify the new roles of the actors in the chain.

This research focuses on the barriers of the legal framework in the construction industry when applying

Supply Chain Collaboration. That does not mean that there aren’t other barriers that need to be

overcome to enable the application of Supply Chain Collaboration. From the literature survey it is

derived that the behavior of the client and the contractor has a huge impact on the success of applying

Supply Chain Collaboration. It is recommended to further research the influence behavior has on the

application of Supply Chain Collaboration. This can be done from a client’s perspective as well as from a

contractor’s perspective.

It is advised that public clients that intend to apply Supply Chain Collaboration speak to private clients

who have experience with applying the method. This way public clients can learn from their mistakes

and they can help each other (collaborate!).

PART VAPPENDICES

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V

APPENDICES

APPENDIX A: EXPLORATIVE CONVERSATIONS 81

A1. List with interviewees 81

A2. Current state of affairs 81

APPENDIX B: SUPPLY CHAIN COLLABORATION 84

B1. Client-contractor relationship 84

B2. Early contractor involvement 85

B3. Learning curve 86

B4. Trust 87

B5. Building Information Model(ing) 89

APPENDIX C: LEGAL FRAMEWORK 92

C1. Procurement procedures 92

C2. Best Value Procurement 93

C3. Criteria 95

C4. Contract models 97

C5. Contracts 98

C6. Competition vs collaboration 100

APPENDIX D: PUBLIC CLIENTS 102

D1. Rijkswaterstaat 102

D2. ProRail 103

D3. Rijksvastgoedbedrijf 103

APPENDIX E: PILLARS 105

APPENDIX F: INTERVIEWS 107

F1. List with interviewees 107

F2. Briefing 107

F2. Protocol 113

F3. Outcome 115

APPENDIX G: OPLOSSINGSRICHTINGEN 123

G1: Oplossingsrichting I 123

G2: Oplossingsrichting II 125



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APPENDIX A

EXPLORATIVE CONVERSATIONS

A1

LIST WITH INTERVIEWEES

The following professionals provided input, by means of conversations and email corresponding.

Dr. ing. Marcel Noordhuis, Director Deloitte Real Estate Consulting and has a PhD in Supply Chain

Management in the building sector, member of executive platform Ketensamenwerking

Prof. Dr. Jack van der Veen, Professor of Supply Chain Management and holder of the EVO Chair for SCM at

Nyenrode Business University, member of executive platform Ketensamenwerking

Ferry van Wilgenburg, consultant/trainer SCM and founder of BouwKetens.nl

P. Oskam, founder and director of Centrum voor Innovatie van de Bouwkolom

Mr. J. Janmaat, legal advisor at Janmaat Juridisch Advies

Timothy Lievendag, BIM manager at HFB

Tom van de Ven, Director at Covalis

Ir. Jelle Koolwijk, researcher at the faculty of architecture TU Delft, researcher at CPI

Dr. Ir. Ruben Vrijhoef, lectureship Vernieuwing van de bouwketen at HU Utrecht, scientific researcher at CPI,

independent advisor of SCM in the building sector and has a PhD in Supply Chain Integration in the building

industry, researcher at CPI

Prof. mr. dr. Monika Chao-Duivis, Director at IBR, chair of building law at the faculty of architecture TU

Delft, researcher at CPI

Bert Keijts, board member Portaal, board member CPI, old director-general Rijkswaterstaat

Stephan Zeegers, Regio Coordinator Samen Slimmer Bouwen

A2

CURRENT STATE OF AFFAIRS

In order to get a clear view of the current state of affairs of Supply Chain Collaboration with regard to the

building sector in the Netherlands desk research was conducted. Key words were; Ketensamenwerking,

Ketenintegratie, Ketensamenwerking in Nederland and Ketensamenwerking in de bouw1.

Figure 21 gives a simplified image of the current state of affairs. Supply Chain Collaboration in the building

sector can be divided in three parts; platforms, centers, and others. By reference to figure 15 the current state of

affairs of Supply Chain Collaboration in the building sector will be explained.

1 Translations to English; supply chain management, supply chain integration, supply chain management in the

Netherlands and supply chain management in the building sector.

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FIGURE 15: SUPPLY CHAIN COLLABORATION IN THE BUIDLING SECTOR, OWN ILL.

PLATFORMS

There are two large platforms in the building sector in the Netherlands, the Executive Platform

Ketensamenwerking and Platform Ketensamenwerking Woningbouw.

The Executive Platform Ketensamenwerking is founded by Nyenrode Business University in collaboration with

Deloitte Real Estate Consulting in 2010 (Noordhuis, 2015). It was initiated to accelerate the process of SCC in the

building sector. The goal of this platform is to inspire people and organizations through sharing and gathering

knowledge and ‘best practices’ from theory, practice and other sectors. At the same time, the platform facilitates a

platform for real estate agencies where they can share their experiences with others in an open and transparent

environment. The platform also makes an inventory of matters the organizations struggle with. These matters

will be (scientifically) researched in order to find solutions.

The members of the platform are directors from every link in the chain. Clients like corporations, healthcare,

educational institutes but also construction companies, contractors, suppliers, architects. The platform believes

that SCC can only succeed if it is supported and understood by the highest level of a company. In other words,

top down management.

The second platform is the Platform Ketensamenwerking Woningbouw. This platform is an initiative of Aedes,

Bouwend Nederland and Vernieuwing Bouw. Their incentive is to accelerate the development of SCC in the

building sector. The platform aims at helping builders and corporations with collaborating according the

principles of SCC ("Platform Ketensamenwerking Woningbouw,"). Supporting, stimulating, and assisting the

chain practices are key at this platform.

The platform has developed a chain academy (De Ketenacademie) for and by the building sector. This academy

teaches the links (companies) in a chain how to collaborate with practice examples in combination with the

ketenmonitor.

CENTERS

There are two centers in the Netherlands; Centre for Process and Innovation and Centrum voor Innovatie van de

Bouwkolom.

CPI is a knowledge center where leaders from the business, research institutions, clients, and suppliers have

joined forces in the field of building process innovation ("CPI," 2011). This center is a foundation that is affiliated

to the TU Delft. This center focuses on the development and application of innovative concepts like new


PLATFORMS

EXECUTIVE PLATFORM

KETENSAMEN WERKING

PLATFORM KETENSAMEN

WERKING WONINGBOUW

CENTERS

CENTRE FOR PROCESS AND INNOVATION

CENTRUM VOOR INNOVATIE VAN DE

BOUWKOLOM

OTHERS

BOUWKETENS.NL

HFB



83

collaboration forms using supply chain integration and information management systems like BIM (Building

Information Model).

This center has developed the Ketenmonitor. This tool is developed to research the results and effects of supply

chain collaboration in the building sector.

This center exists of a board with professionals working in the building sector and researchers, most of them

working for the TU Delft. The researchers publish scientific papers in the field of building innovations.

The other center, CIB, was founded in 2002. This center is an industry-specific consultancy for organizations in

the building sector ("CIB," 2011). This center guides and stimulates all organizations within the building sector

with developments where innovation, collaboration, customer focus, and sustainability are the core themes. The

goal of the CIB is to effectuate that integral thinking and working at building projects will become a matter of

course of the entire supply chain in the building sector.

OTHERS

Besides platforms and centers, there are also other businesses that work with supply chain collaboration in a

greater or lesser extend. Two of these businesses will be elaborated; bouwketens.nl and HFB.

The corporation bouwketens.nl was founded in 2013. The goal of the corporation is to accelerate the needed

change in the building sector ("Bouwketens.nl," 2013). They are a network organization with independent

professionals from various disciplines. Bouwketens.nl works with clients as well as contractors from the building

sector. They offer advice, training, coaching, and guidance in the range of supply chain collaboration, lean

management, leadership, sustainability and marketing. The mission of Bouwketens.nl is ‘ sustainable

collaboration in the chain’. They have developed the ketenmeter™. This tool measures the degree of supply chain

management in organizations.

HFB, Het Facilitair Buro, was founded in 2008 and is a full service BIM buro. Their mission is based on three

pillars; strength, innovation and collaboration ("HFB," 2008). HFB sees the BIM as the accelerant for a building

sector that is renewing itself. According to HFB BIM is a technique, a process and communication, but most

important, trusting each other. HFB is operates independently. This way they can best serve their clients with

strategic collaboration, smart innovations, and optimizing process.

HFB is member of the Executive Platform Ketensamenwerking and has strategic partnerships with Dura

Vermeer2 and Ymere3 and a project independent partnership with Portaal4.

2 A Dutch contractor active in the building and infrastructure sector 3 A Dutch housing corporation 4 A Dutch housing corporation

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APPENDIX B


B1

CLIENT CONTRACTOR RELATIONSHIP

Client-contractor relationships in the construction industry are often criticized as being hostile, competitive, and

adversarial (Eriksson, 2008; Larson, 1997; Meng, 2012). In an industry where inter-organizational relationships are

key factors for the success of a project, the ability to build sustainable relationships is of great importance (Wood,

McDermott, & Swan, 2002). Construction supply chain relationships are usually complex and multifaceted

(Meng, Sun, & Jones, 2011), and involve a large number of key participants. Though, the client-contractor

relationship is seen as the main relationship in the supply chain (Cox, Ireland, & Townsend, 2006).

TYPES OF RELATIONSHIPS

Supply chain relationships in the construction industry are quite diverse but Meng (2012) distinguishes three

types of client-contractor relationships in his research; the traditional adversarial, the short-term collaborative,

and the long-term collaborative. The traditional adversarial relationships is characterized by a focus on win-lose,

suspicion of one another, withholding or manipulating information, ineffective problem solving and unfair risk

allocation (Larson, 1997). This type of relationship often leads to selfish objectives, a lack of trust and continuous

improvement (G. Thomas & Thomas, 2005). This traditional approach forms a barrier for the application of SCC

(Saad, Jones, & James, 2002; Vrijhoef & Koskela, 2000). A shift is needed from traditional relationships to the

collaborative relationships in order to successfully apply SCC (Egan, 2002). Short-term collaborative relationships

can be described as project partnering based on one project while long-term collaborative relationships can be

described as strategic partnering based on multiple projects (Meng, 2012). The characteristics of these

relationships are identified as communication for effective problem solving, sharing culture, clear definition of

responsibilities, commitment to win–win attitude, and regular monitoring of the partnering process (Chan et al.,

2004). These characteristics are the key indicators in the research Meng conducted in order to determine the

effects of relationship management on project performance (2012). He concludes that deterioration of supply

chain relationships is a major reason for the occurrence of poor performance, resulting in cost overruns, time

delays and lack of quality. He states that when improving project performance, the strategic partnership

approach leads to better result than the traditional or project partnership approach. Choosing the project

partnership approach over the traditional approach will not automatically lead to better performance of the

project. This is because project partnering is still an immature collaborative relationship. He says that when better

project performance is admired, long-term relationships are more appropriate to adopt.

ROLE OF THE CLIENT

Implementation of a new approach, method or concept begins with the client (Latham, 1994). The client is the

core of the process and is the key driver of performance improvement and innovation. The client’s role in the

integration of the supply chain is critically important and without the desire of the client to develop supply chain

relationships, it cannot be realized (Briscoe, Dainty, Millett, & Neale, 2003). A change from the traditional

approach is necessary in order to implement supply chain collaboration. This means the client needs to make

more cooperative choices instead of competitive choices. Ng, Rose, Mak, and Chen (2002) conclude in their

research that (public) clients must change their behavior in order to succeed in creating supply chain

relationships. Based on the experiences and opinions of contractors they came up with recommendations for

clients. These recommendations include that the client should implement a less restrictive tendering arrangement

and should facilitate and implement a form of monitoring team goals and a clear problem resolution process.



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B2

EARLY CONTRACTOR INVOLVEMENT

The importance of integrating construction knowledge into the design process has long been recognized by the

construction industry but the traditional approach of design-bid-build still predominates. This approach

aggravates the separation of the design and construction processes, hinders the integration (Song, Mohamed, &

AbouRzik, 2009) and leaves little room for innovation by contractors (van Valkenburg, Lenferink, Nijsten, & Arts,

2008). Designers work closely with the client during the design phase of a project but contractors only get

involved after the bid thus have little impact on the design. Although it is commonly known that construction

knowlegde and experience is of great importance as design input, its impact on the design is limited by the

designer’s lack of construction skills (Arditi, Elhassan, & Toklu, 2002) resulting in scheduling problems, delays

and disputes during the construction process and harming the overall project performance.

Early contractor involvement (ECI) is a strategy that aims at involving contractors before the bidding process.

Song et al. (2009) researched this strategy in both early design and construction as one of the strategies to

integrate construction knowledge into design to identify the contractor’s input and as a result the influence on the

entire project performance. They concluded that ECI reduced the project duration and total man-hours during a

project. In the Netherlands this strategy is known as the collaboration model ‘Het Bouwteam’ (M.A.B Chao-Duivis,

2012)This model has been developed from the fifties onward and has become an inherent part of the building

contract law. Even though this model is frequently used in the private sector, the public sector is falling behind on

the application of this type of contract model.

A part of the public sector is infrastructure. In the Netherlands the government is responsible for the

development and maintenance of the road infrastructure network. Traditionally, in the infrastructure sector a

procurement procedure does not start until the public decision-making procedure is completely finished

(Lenferink, Arts, Tillema, van Valkenburg, & Nijsten, 2012). In the traditional procurement approach contractors

are asked during the tender procedure to generate solutions for construction and/or maintenance that complies

with the decisions made during the public decision-making procedure (Route Decision) about the infrastructure

project (van Valkenburg et al., 2008). For example, location, height and width are all ready determined and are

legally binding by the Route Decision (RD), so room for innovation and ideas is little. ECI aims at involving the

contractor in the procurement procedure before the Route Decision (Lenferink et al., 2012). There are two specific

ways to combine the tender procedure with the RD (van Valkenburg et al., 2008, p. 326).

Parallelization: the tender procedure start before the consent decision and therefore runs parallel to the

RD. An important characteristic is that there is no exchange of information between the procedures.

Interweaving: the tender procedure starts before the consent and is ‘interwoven’ with the RD. An

important characteristic is that the procedures are coordinated and information is exchanged explicitly.

van Valkenburg et al. (2008) concluded after their research that the first experiences of ECI in the Netherlands,

combining the tender procedure and planning consent procedure might have promising results. They concluded

that especially an interweaving approach might serve the various goals of ECI but that an early start in the

planning process is essential and that all involved partners should acknowledge that insecurity is inherent

because it is needed to create room for innovation. They end their paper with the conclusion that recent Dutch

experience shows that time efficiency and a more controlled project scope are easy to reach through ECI but

production innovation is harder to achieve (van Valkenburg et al., 2008, p. 352).

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B3

LEARNING CURVE

It is widely known that production rates and/or the productivity of performing repetitive construction tasks will

improve with additional experience and practice. Resulting in a decrease of time and effort to complete repetitive

actions as the number of repetitions increases. H. Thomas, Mathews, and Ward (1986) state that there are several

reasons for this, namely: increased worker familiarization, improved equipment and crew coordination,

improved job organization, better engineering support, better day-to-day management and supervision,

development of more efficient techniques and methods, development of more efficient material supply systems,

and stabilized design leading to fewer modifications and rework.

The learning curve theory states that when the production quantity of a product doubles, the unit of cumulative

average cost (hours, man-hours etc.) will decline by a certain percentage of the previous unit of cumulative rate

(H. Thomas et al., 1986). The learning curve theory is based on 3 principles:

The necessary time to produce a specific product will decrease as the production levels increases.

Reduction of time will decrease after every repetition per product as the level of repetition increases.

The reduction of time is predictable.

The learning curve theory is a concept that is used to assist with process design, capacity planning and

investment decisions (H. Thomas et al., 1986). To optimize the learning curve, (Linton & Walsch, 2004) state that

three things are of interest:

1. The involved partners need to work in the same formation for a longer period of time because when

there is a lot of conversion in the team, the new team members need to get trained/informed and this

interrupts the learning process.

2. The level of disturbances during the production process needs to be as low as possible. Therefor, it is of

importance that the involved partners collaborate project independently and without interruptions.

3. The number of changes of the product or during the production process needs to be as low as possible in

order to optimize the learning curve because changes affect this curve.

Even though the learning curve theory proves that standardization and repetition have a positive influence on

production time and cost but Linton and Walsch (2004) argues that this concept is rarely successful in the

construction industry because every project (house) is treated as a pilot model for a design that never had any

runs.



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B4

TRUST

Trust is seen as the core of (client-contractor) relationships (Gann, 1996). Reciprocal trust between a client and

contractor is necessary in order to maintain a (long-term) relationship. Several authors (Kadefors, 2004; Pinto,

Slevin, & English, 2009; Wood et al., 2002) applied the definition of trust formulated by Rosseau (1988) in their

papers. This definition will also be used in this thesis.

‘Trust is a psychological state comprising the intention to accept vulnerability based upon positive expectations of the

intentions or behavior of another.’

Rosseau et al. (1988, p. 396) identifies three different forms of trust, namely; calculus-based trust, relational trust,

and institutional-based trust. Calculus-based trust has a rational choice perspective. In this form trust emerges

when the trusting party perceives that the trusted party intends to perform an action that is beneficial for the

trusting party. The trust is based on the existence of economic incentives for cooperation or contractual sanctions.

Individuals are motivated primarily by economic self-interest. Calculus-based trust is influences by references,

certificates, diplomas and other tangible information. The second form of trust, relational trust exist between

individuals who repeatedly interact over time. Direct, personal experience and information form the basis of this

form of trust and the relationship is influenced by emotion and personal attachment. In relational trust strong

feelings are involved which can cause psychological and social risks. The last form of trust, institutional-based

trust refers to the role of institutions in shaping conditions necessary for trust to arise. Important institutions are

legal systems and societal norms, as well as systems regulating education and professional practice.

As can be derived from the previous part, trust involves various mechanisms and sources of information. Trust

theory emphasizes that trust is not only tied to a person but also to circumstances (Rosseau et al., 1988). All three

types of trust are related to client-contractor relationships. The client expects that the contractor has the

knowledge and experience to accomplish the work (calculus-based trust), the client and contractor are both

persons so they interact on a personal level and share experiences and information (relational trust) but they both

rely on the legal system and contracts when it ends in a dispute (institutional-based trust).

Based on a literature study, Mayer, Davis, and Schoorman (1995) identified that the most important antecedents

of interpersonal trust can be grouped in three categories; the trusted party his perceived ability, benevolence, and

integrity. The first one, ability, refers to skills, competencies and characteristics that are relevant to a specific

situation. The second one, benevolence, is the extent to which a trusted party is believed to want to do good to the

trusting party. This includes factors such as loyalty and caring. The final one, integrity, involves a perception that

the trusted party adheres to a set of principles that the trusting party finds acceptable like consistency, fairness

and reliability. Mayer et al conclude that all three qualities, ability, benevolence and integrity, need to be present

in order for trust to arise.

In the construction industry a shift is desirable from business as competition to business as co-operation (Mayer

et al., 1995) in order to obtain trustful, long-term relationships, but trust always involves an element of risk that a

partner will abuse the trust (Wood et al., 2002, p. 4). Trust between client and contractor can be improved by

more open contracts and closer cooperation but many clients associate this with risk for opportunism more than

with opportunities for improvement (Wood et al., 2002, p. 5), resulting in a waiting attitude from the clients.

The question ‘who is willing to instigate the first cooperate move?’ can be framed as a prisoners’ dilemma (Kadefors,

2004, p. 178). This framework (table XX) shows that the outcome relies on the behavior of the other party. Partner

A can either trust or mistrust while partner B can honor or exploit. When both partners cooperate with mutual

trust and honor, they will both benefit but when they both want to compete, mistrust and exploit, their

investments in trust are equal to 0. When partner A choses to invest in the trust but partner B wants to exploit

this, partner A will lose their investment (-Ca), but partner B will get a reward (R+P). The other way around is

also possible. When partner B choses to honor the trust but partner A mistrusts Partner B, Partner B will lose their

investment (-Cb) while partner A will not win or lose anything. In the construction industry the tendency is that

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nobody is trustworthy (James, 2002) resulting in a low incentive for partner A to trust partner B if he anticipates

that partner B will exploit the trust( figure 16).

Based on the prisoner’s dilemma, Wong, Cheung, and Ho (2005) have researched which party should be the trust

driver, the one who initiates the trust, the client or the contractor. They conclude that to promote trust between

the client and contractor, the key factors are to perform competently and communicate openly and effectively

(Wong et al., 2005). Without competent performance, trust can never be established. They also concluded, based

on responses from questionnaires, that when the contractor is the trust driver, meaning that the contractor

initiates the trusting moves, there is a good chance that reciprocal trusting moves from the client will be returned

(Wong et al., 2005, p. 1051).

FIGURE 16: THE PRISONER’S DILEMMA, OWN ILL BASED ON JAMES (2002)

Partner A

Partner B

-Ca, R+P

R,R

0, -Cb 0,0

Honor

Exploit

Trust

Misrust



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B5

BUILDING INFORMATION MODEL(ING)

Building Information Model(ing) (BIM) has been emerging as an innovative way to virtually design and manage

projects (Wong et al., 2005, p. 1052). First of all, to avoid confusion it must be clear that BIM is not only a software

tool but also a process, which represents a new paradigm within the architectural, engineering and construction

industry (AEC), encouraging integration of the roles of all stakeholders on a project, that ultimately involves

broad process changes in the construction industry (Azhar, 2011). BIM is not just a 3D model or modeling

package. A 3D model combined with other digital project data form the Building Information Model.

APPLICATION

With BIM, an accurate virtual model of a design is constructed. This model can be used for planning, design,

construction and operation of the design. This model helps architects, engineers, and constructors to visualize

what is build in a simulated environment to detect potential issues and risks instead of encountering these

problems onsite. BIM can be seen a virtual process that encompasses all aspects, disciplines, and systems of a

design within a single model, allowing all team members to collaborate more accurately and efficiently, resulting

in improved profitability, reduced costs, better time management and a improved customer-client relationship

(Azhar, 2011; Eastman, Teicholz, Sacks, & Liston, 2008).

BIM can be used for several purposes including visualization, fabrication/shop drawings, code reviews, cost

estimations, construction sequencing, conflict, interference, and collusion detection, forensic analysis, and

facilities management. A BIM characterizes the geometry, spatial relationships, geographic information,

quantities and properties of building elements, cost estimates, material inventories, and project schedule. When

the model is completed, it contains precise geometry and relevant data needed to support the design,

procurement, fabrication, and construction activities needed to realize the design and after the completion of the

design the model can be used for operations and maintenance purposes (Azhar, 2011).

BENEFITS

A BIM model is not only a 3D visualization of a design; fourth and fifth dimensions can be added in the form of

schedules and costs (Azhar, 2011). Other benefits of using a BIM are faster and more effective processes, a better

design, controlled whole-life costs and environmental data, a better production quality and customer service, and

lifecycle data (Thomson & Miner, 2007), but this paradigm shift also incorporates new risks and as collaboration

increases, the traditional lines of responsibility dissolve. The standard contract forms do not adequately allocate

risk and responsibility between the involved partners (Azhar, 2011). One of the most effective ways to deal with

risk is to have a collaborative, integrated project delivery contract in which the risks of using BIM are defined and

shared among the involved partners as well as the rewards (Thomson & Miner, 2007).

PROTOCOL

There is no clear consensus on how to implement or use BIM resulting in a need to standardize the BIM process

and to define guidelines (Azhar, 2011). In the Netherlands, 30 architect firms launched the Model BIM Protocol

1.0 in 2012 and due to the fast developments of BIM this protocol was renewed to version 2.0 in 2013. This

protocol helps partners with the implementation of BIM by providing a step-by-step model including all aspects

that need to be agreed upon for the use of BIM (ModelBIMProtocol, 2013) All involved partners need to sign this

protocol, which states that they know and understand the aspects of BIM and their role in the process, and this

protocol has legal relevance in most of the case. In addition to this protocol, M.A.B. Chao-Duivis (2015) has

written a legal guideline with recommendations when implementing BIM based on Model BIM protocol 2.0 in

relation with The New Rules 2011. This guideline elaborates on different legal aspects of working with BIM.

RISKS

The risks that can occur during the implementation and use of BIM can be categorized in legal (contractual) risk

and technical risk (M.A.B. Chao-Duivis, 2015). These risks will be set out and supported by the recommendations

of Chao-Duivis.

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The first risk is the lack of determination of ownership of the BIM data. Copyright and patent laws protect this

ownership. This is necessary to avoid inhibitions or disincentives that discourage involved partners from fully

realizing the model’s potential (Azhar, 2011). When working with BIM, the final design that will be constructed is

the result of a collaboration of all involved partners. This doesn’t differ much from the traditional approach. By

copyright this means that for example, the intellectual property of the architectonical design belongs to the

architect and the elaboration of the concrete construction belongs to the civil engineer. But it can be decided at

forehand that none of the involved partners have ownership of their input because, due to the way of working in

one model, they share ownership. When choosing for individual ownership it must be traceable who did what in

the model (Thomson, 2001).

Another aspect that needs to be agreed upon at forehand between the chain partners is who will control the entry

of data into the model and be responsible for any inaccuracies (ModelBIMProtocol, 2013, p. 31). The Model BIM

protocol 2.0 distinguishes three types of roles within the BIM management; a BIM manager, BIM coordinators

and BIM modelers (figure 17). There is a hierarchy in the different roles of the BIM management. The BIM

modeler is responsible for building and managing the aspect model of his company conform the agreements

made in the protocol and in conjunction to the aspect models of the other companies. The modeler is also

responsible for monitoring the quality of the design and consistency of their own aspect model. The BIM

coordinator is responsible for testing the conjunction of his aspect model with the aspect models of the other

partners and making his aspect model available for these partners. The coordinator is also the contact of the

modelers within his company and with the other coordinators and the manager.

The BIM manager is the link between the different coordinators and the client. He is responsible, among other

things, for the integral conjunction of the BIM. He has to monitor the process progress and the streams of

information and has to prepare the BIM aspects in contracts with the other partners. The manager has to

combine/synchronize the different aspect models into a coordination model and clash control this model. Lastly,

he has to maintain contact with the coordinators of the partners and coordinate their activities. The activities that

are part of the different roles need to be accomplished according the standard of article 12 DNR 2011. In other

words, these activities and responsibilities are enforceable obligations (M.A.B. Chao-Duivis, 2015, p. 33).

The client is responsible that the different activities assigned to the different roles of the BIM management are

documented in the agreement or a reference to the protocol is included in the agreement (M.A.B. Chao-Duivis,

2015, p. 33). BIM blurs the level of responsibility so much that risk and liability are likely to be enhanced(Azhar,

2011, p. 8), raising the question who is responsible if a problem occurs. Before starting a BIM project, all involved

partners need to discuss whether are not they will work as a team or independently. Working independently

contradicts the ideas of BIM but if this approach is chosen all partners are responsible for their own work. The

client needs to figure out who did which activity when he wants to hold someone liable. When partners work

independently they will build on the work of other partners. They have the obligation to research if the delivered

work is up to standard or that they have to warn the BIM manager or client that the work contains mistakes.

When a partner builds on the work that contains mistakes without warning anyone, he becomes co-responsible.

When partners choose to work in a team, two different forms of liability can be chosen (M.A.B. Chao-Duivis,

2015, p. 61). Either the team is collectively liable or all partners are liable for their own work. The advantage of the

collective liability is that the client can hold any member of the team responsible for mistakes that are made

irrespective of the mistake being made by that member. The addressed member can either address the member

that caused the mistake or it is agreed upon that all members are hold responsible for a proportional part. The

advantage for the client is that he doesn’t need to figure out who is responsible for the mistake(s). The

disadvantage for the team members is that they can be confronted with ‘lending’ compensation to the client.

When the partners choose to be liable for their own work they can choose to work with the contract type The

Building Team (M.A.B. Chao-Duivis, 2015, p. 61). The principle is the same as individual liability only with one

exception. When a team member gives a certain advice about a question that is not part of his field of knowledge,

and this advice is accepted and used by a member whose field of knowledge it is, the liability moves from the

advice giver to the advice taker. The advantage of this rule on liability is that it is stimulated to come up with new

ideas because the advice giver will not be hold liable if it is not his field of expertise.



91

BIM AND SCC

BIM can be used as tool to optimize the supply chain collaboration. Not only can it be used for the integral sharing

of information aspect of SCC, it can also be used for the collectively monitoring of performance and because all data

and information about a project is stored in one model it can be used for improvement of the process and

product, stimulating the learning curve. But it must be kept in mind that BIM is not supply chain collaboration.

There are still aspects and partners that are not included in the BIM. This is shown in figure XX where the graphic

display of SCC is combined with BIM. The inner circle is the display of BIM and the outer circle is the display of

SCC. As shown in figure 18, it is necessary to appoint a process manager besides a BIM manager. This project

manager is independent and not working with or for one of the chain partners. He is the link between the BIM

related aspects of the collaboration and remaining aspects. This manager takes care that partners, like

municipalities, understand the information that is part of BIM.

FIGURE 17: GRAPHIC DISPLAY OF BIM INCLUDING ALL DIFFERENT ROLES, OWN ILL.

FIGURE 18: BIM IN RELATION WITH SUPPLY CHAIN COLLABORATION, OWN ILL.

CLIENT

BIM MODELER

Company 1

BIM MODELER

Company 1

BIM MODELER

Company 3

BIM MODELER

Company 3

BIM COORDINATOR

Company 2

BIM MODELER

Company 1

BIM MODELER

Company 1

BIM MANAGER BIM COORDINATOR

Company 1

BIM COORDINATOR

Company 3

CLIENT

BIM MODELER

Company 1

BIM MODELER

Company 1

BIM MODELER

Company 3

BIM MODELER

Company 3

BIM COORDINATOR

Company 2

BIM MODELER

Company 1

BIM MODELER

Company 1

BIM MANAGER BIM COORDINATOR

Company 1

BIM COORDINATOR

Company 3

PROCESS MANAGER

Company 4

SCC BIM

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APPENDIX C

LEGAL FRAMEWORK

C1

PROCUREMENT PROCEDURES

EUROPEAN

When a contract meets the European threshold the Aanbestedingswet 2012(Aw2012) enters into force. This Dutch

act gives an interpretation to the European Directive on public procurement 2014/24/EC5. This act mandates the

procedures a contracting authority has to follow when tendering a contract. There are two standard procedures

that can be followed (Aw2012 Art 2.25). The first one is the open procedure, where any interested tenderer may

submit a tender in response to a call for competition (Directive 2014/24/EU Art. 27). This type of procedure may

always be applied and the announcement will be notified via TenderNed. The open procedure exists of one

round in which all tenderers submit their tender. The tenderers and tenders will be judge simultaneously; both

need to meet the set criteria. The contract will be awarded to the most qualified tenderer with the most qualified

tender. The second procurement procedure is the restricted procedure, where any tenderer may submit a request to

participate in response to a call for competition (Directive 2014/24/EU Art. 28). This procedure may also always be

applied and the announcement will also be notified via TenderNed. The difference with the open procedure is

that with the restricted procedure there are two rounds before the contract will be awarded. In the first round the

tenderers will be found qualified based on predetermined selection criteria. The tenderers need to meet the

minimum selection criteria in order to be invited to submit their tender. In the second round the tender will be

judged on basis of lowest bid or Most Economically Advantageous Tender (MEAT) (see appendix C3) (Aw2012

Art 2.114 lid 1).

When the contracting authority is of the opinion that the open or restricted procedure is not applicable based on

the complexity of the project, they can apply the competitive dialogue as procedure (Aw2012 Art 2.28). In

competitive dialogues, any tenderer may submit a request to participate in response to a contract notice by

providing the information for qualitative selection that is requested by the contracting authority (Directive

2014/24/EU Art. 30). This procedure exists of two round before the contract is awarded. In the first round the

tenderers will be found qualified based on predetermined selection criteria. If the tenderers are selected they will

be invited to participate in a dialogue with the contracting authority to discuss different aspect of the contract,

including financial elements. This dialogue can exists of different rounds in which tenderers are excluded on the

basis of awarding criteria. In the end, one or more tenderers are found qualified and are asked to submit their

tender. The contracting authority is obliged to apply MEAT as awarding criteria to award the contract (Aw2012

Art 2.114 lid 1).

A contracting authority can apply the negotiated procedure without prior publication when no tenders or no suitable

tenders or no requests to participate or no suitable requests to participate have been submitted in response to an

open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially

altered and that a report is sent to the Commission where it so requests (Directive 2014/24/EU Art. 32). With this

type of procedure no announcement needs to be notified. Depending on the particular circumstances, the

contracting authority will negotiate with one or more tenderers about the price and execution conditions. If only

one tenderer seems qualified to execute the project, the contracting authority only negotiates with this tenderer.

The contract will be awarded based on MEAT or lowest bid.

5 As reference the European Directives 2014/24/EU is being used which will come into force in the Netherlands in

April 2016.



93

NATIONAL

When a contract doesn’t meet the European threshold, the Aanbestedingsregelement Werken 2012 (ARW2012)

enters into force. The ARW2012 mandates the procedures a contracting authority has to follow when tendering a

contract that doesn’t meet the European threshold. There are four different types of procurement procedures that

can be applied. Two procedures, the national open and national restricted procedure, are the same as the European

ones with as exception that the announcement will be notified nationally and shorter terms can be applied than

prescribed by the European procedures. The third procedure that can be applied is the private invitation to tender.

When applying this procedure, the contracting authority invites one tenderer to submit a tender. After probable

negotiations, the contracting authority awards the contract. The fourth procedure is the multiple invitations to

tender. When this procedure is applied the contracting authority invites several tenderers. The tenderers are

chosen based on objective grounds by the contracting authority. The contract is awarded to the tenderer that

submits the lowest price of has the most economically advantageous tender.

C2

BEST VALUE PROCUREMENT

Best Value Procurement (BVP) is a buying process, including the procurement procedure and risk management

(D. Kashiwagi, 2009). Over 15 years ago Dean Kashiwagi developed this process to select the most suitable

tenderers, to spur this tenderer on to highest performance and to reduce the clients management and control

tasks (D. Kashiwagi, 2009). The aim of this process is to select the best quality for the lowest bid (Rijkswaterstaat,

2013).

D. Kashiwagi (2011) claims that this approach differs from any other procurement and risk management systems

because it minimizes subjective decision-making of the client’s experts. The philosophy of BVP assumes that the

tenderers are the experts and the clients are the non-experts (Santema, van de Rijt, & Witteveen, 2011). This

changes the paradigm of the role of the client from managing, controlling and regulating to observing, listening

and adjusting (D. Kashiwagi, Kashiwagi, Smithwick, & Kashiwagi, 2012).

Having a client set all criteria, standards, norms and specifications leads to getting more or less the same bids

from the different tenderers (van de Rijt & Witteveen, 2011). In the philosophy of Best Value Procurement the

suppliers each set their own performance level, without the client indicating which performance level it wants

(van de Rijt & Witteveen, 2013).

Since the beginning of this century, BVP has been applied in The Netherlands and has gained popularity since the

successful application of BVP at 16 projects by RWS (van de Rijt, Witteveen, Vis, & Santema, 2011).

The reason to apply BVP in the Netherlands is twofold. The fist reason is due to comments on the high

transaction costs and long tender procedures when awarding a Design & Construct contract (Santema et al.,

2011). The second reason must be seen in the light of the collusion debacle of the Dutch construction industry (see

paragraph 4.1). The discovery of this collusion has led to the installation of The Netherlands’ parliamentary

inquiry Committee of Construction Fraud (van de Rijt, Hompes, & Santema, 2010). The most important

recommendations of this committee that are relevant for BVP is that there is a need for harmonized procurement

procedures, that public contracting authorities need to adapt their policies towards more integrated contract such

as Design & Construct and DBFM contracts, and that more use must be made of awarding criteria based on both

price and quality (MEAT). Especially the latter recommendation corresponds with BVP because BVP can be

classified as a very specific way of awarding contracts based on quality and price (Santema et al., 2011).

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The BVP procedure has been the developed in America and the American legislation differs from the European

legislation. Due to stricter public laws, the procedure needed to be revised before it could be applied in The

Netherlands. It was tried to stay as close to the original methodology as possible (van de Rijt et al., 2011, p. 93).

This has resulted in the following BVP procedure, consisting of four phases (figure 19) that can be applied in the

Netherlands:

FIGURE 19: THE FOUR PHASES OF BEST VALUE PROCUREMENT, D. KASHIWAGI (2009)

1. THE PRE-QUALIFICATION PHASE) - In this phase the contracting authority selects tenderers that are

qualified to submit their tender. The tenderers are selected based on set selection criteria. When the tenderer

doesn’t meet the criteria he is excluded from further participation.

2. AWARDING PHASE - In the awarding phase all qualified tenderers are invited to submit the following written

plans: planning (including the Weekly Report), Risk Assessment plan and Value Added plan (RAVA). These

documents may not exceed 2 A4 papers of information. This limit is set because it is assumed that the experts

(tenderers) can report the asked information in a clear, concise and dominant (= undebatable, verifiable, accurate,

use of numbers) way understandable for non-experts (contracting authority). Besides these documents interviews

will be held with two key actors who will execute the project. These interviews are held to determine if the key

actors understand the project from beginning to end and if the key actors have the ability to minimize risk by

deviation, to be proactive, to act in the best interest of the client, and to understand BVP (D. Kashiwagi, 2011).

These four aspects together are 75% of the awarding criteria. The other 25% is the price. The contract authority

awards the contract in this phase to the tenderer with the highest ranking. The contract consists of the following;

the tender documents (Weekly Report, RAVA), the most important statements made during the interviews, and

the documents from the clarification phase. The client and contractor enter into an agreement before they enter

the clarification phase.

3. CLARIFICATION PHASE - During this phase the client and contractor clarify the plans and align their

expectations. This concerns i.e. agreements about locating risks and seizing opportunities. The tenderer creates a

risk management plan, weekly risk report and performance measurements. These documents and clarifications

are part of the contract as explained in the awarding phase. It is not so much the contract itself that is central, but

the agreements made that it contains. The contract also includes a termination clause. This is included in the

contract in order that the client can terminate the contract if the client and contractor are unable to align their

expectations in this phase.

The benefit of this phase is it that the plan of approach is ready before the execution phase has started. A

disadvantage is that these three phases together are time consuming.

4. EXECUTION PHASE - The three previous phases focus on the project on paper whilst this phase is about the

actual execution of the project. In this phase the contractor reports to contracting authority through Weekly

Reports. The Weekly Report enables the client and tenderer to clarify the progress of the project (milestones),

shows time and cost delays, gives the client a clear view on the progress of the project, risks are documented and

a list of performance indicators are recorded. Hence, the weekly report can be seen as an extensive logbook.

Pre-qualification

Awarding Clarification Execution1 2 3 4



95

C3

CRITERIA

A contracting authority can apply different types of criteria and requirements for a qualitative selection. Three

types of criteria can be distinguished; exclusion grounds, selection criteria and awarding criteria. The first two

focus on the tenderer whilst the latter one focuses on the tender itself. Firstly the contracting authority will

determine if the tenderer can participate in the procurement procedure based on exclusion grounds, secondly,

selection criteria will determine if the tenderer is qualified, whereupon the tender will be ranked based on

awarding criteria.

EXCLUSION GROUNDS

Exclusion grounds monitor circumstances that concern the tenderer and justify exclusion from participation in a

procurement procedure (GidsProportionaliteit, 2013).

When the value of the contract meets the European threshold two types of exclusion grounds are into force,

obliged exclusion grounds and facultative exclusion grounds. When the threshold isn’t met it is facultative to

demand exclusion grounds. The European Directives 2014/24/EU set out the obliged grounds on which tenderers

can be excluded from participation; contracting authorities shall exclude tenderers from participation in a

procurement procedure for one of the following reasons; participation in a criminal organization, corruption,

fraud, terrorist offences, money laundering and/or child labor (Directive 2014/24/EU Art. 57, Aw2012 Art2.86).

The contracting authority can also exclude a tenderer from participation in a procurement procedure based on

facultative exclusion grounds like; bankruptcy, infringement of relevant professional rule of conduct, and/or

misstatements (Aw2012 Art. 2.87 lid 1). The contracting authority can only apply lid 1 if the circumstances

occurred in four years prior to the time of submitting the request of participation (Aw2012 Art. 2.87 lid 2).

Contracting authorities can waive the exclusion grounds on the ground of compulsory reasons of common

interest (Aw2012 Art. 2.88 a), in case the tenderer, according the judgment of the contracting authority, has

undertaken enough actions to repair the broken trust (Aw2012 Art. 2.88 b) or if, according the judgment of the

contracting authority, the ground of exclusion in not within proportion forasmuch the time passed since the

condemnation or considering the subject of the project (Aw2102 Art. 2.88 c). The Gids Proportionaliteit prescribes

that only facultative exclusion grounds are applied that are relevant for the concerning project (GP 3.5 A).

SELECTION CRITERIA

When the tenderer is not excluded from participation in a procurement procedure based on the exclusion

grounds, the tenderer will be qualified based on predetermined selection criteria.

Selection criteria6 may relate to (Directive 2014/24/EU Art. 58 lid 1); suitability to pursue the professional activity,

economic and financial standing, and technical and professional ability. Selection criteria are minimum

requirements, which the tenderer has to meet. With regard to suitability to pursue the professional activity,

contracting authorities may require tenderers to be enrolled in one of the professional or trade registers kept in

their Member State of establishment (Directive 2014/24/EU Art. 58 lid 2). The tenderer can proof that he meets the

requirements by showing that they hold such authorization or membership. With regard to economic and

financial standing, contracting authorities may impose requirements ensuring that the tenderer possess the

necessary economic and financial capacity to perform the contract. For that purpose, contracting authorities may

require, in particular, that tenderers have a certain minimum yearly turnover, including a certain minimum

turnover in the area covered by the contract (Directive 2014/24/EU Art. 58 lid 3). The tenderer can prove that he

meets the requirements by showing bank statements or a proof of professional risk indemnity insurance. With

regard to technical and professional ability, contracting authorities may impose requirements ensuring that

tenderers possess the necessary human and technical resources and experience to perform the contract to an

appropriate quality standard (Directive 2014/24/EU Art. 58 lid 4). The tenderer can meet the requirements by

showing references of projects he accomplished in the past five, accompanied by certificates that prove that the

6 In Dutch: geschiktheidseisen

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96

delivered work was up to standard (Aw2012 Art. 2.93 a). The selection criteria are formulated as ‘knock-out’

criteria. In other words, when the tenderer does not meet one or more of the selection criteria he is excluded from

further participation of the procurement procedure.

When the open procedure is applied as the procurement procedure the contract is awarded to one of the

tenderers that are qualified based on the selection criteria and simultaneously the tender is judged.

When the restricted or competitive dialogue procedure is applied as the procurement procedure there will be a

second round of selection before the contract is awarded. When one of these procedures is applied, the law

prescribes a minimum number of participants whereby competition is guaranteed (GidsProportionaliteit, 2013, p.

41). The selection criteria7 in this round can be comparable to the previous selection criteria but can also be a new

set of selection criteria. The difference with the previous selection criteria is that these criteria cannot be

formulated as ‘knock out’ criteria (GidsProportionaliteit, 2013, p. 41). This is because all the selected tenderers are

qualified based on the first selection round. By giving weight to the selection criteria the tenderers are ranked.

This ranking determines whether or not a tenderer is selected to submit a tender.

AWARDING CRITERIA

The contracting authority judges the submitted tenders on the score of the Most Economically Advantageous

Tender (MEAT) (Mw2012 Art 2.114 lid 1). By way of derogation from article 2.114 lid 1, the contracting authority

can award the contract on lowest bid (Mw2012 Art. 2.114 lid 2). In this case, the application of this criterion is

motivated in the procurement documents. The MEAT judgment is based on predetermined norms, functional

requirements and criteria (Mw2012 Art. 2.113). When the criterion MEAT is applied, the contracting authority

announces via the notice of the contract which concerning award criteria are demanded considering the

application of this criterion (Mw2012 Art. 2.115 lid 1). The concerning award criteria can include:

(a) Quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users,

social, environmental and innovative characteristics and trading and its conditions;

(b) Organization, qualification and experience of staff assigned to performing the contract, where the quality of

the staff assigned can have a significant impact on the level of performance of the contract;

(c) After-sales service and technical assistance, delivery conditions such as delivery date, delivery process and

delivery period or period of completion. (Directive 2014/24/EU Art. 67)

In the announcement of the contract notice the contracting authority specifies the relative weight of each of the,

by the contracting authority chosen, award criterion for the determination of the MEAT (Mw2012 Art. 2.115 lid 3).

The award criteria must be published in advance, must be clearly formulated and must not be changed following

publication (Broerse, Peelen, & Vis, 2013). The criteria must be proportionate, one of the general principles, and

must be substantively related to the contract and must not be geared towards one tenderer (GidsProportionaliteit,

2013).

7 In Dutch: selectie criteria



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C4

CONTRACT MODELS

The definition of a contract reads as follows in the Burgelijk Wetboek (B.W. Article 6:123): An agreement in the

meaning of this Title is a multilateral juridical act whereby one or more parties enter into an obligation towards one or more

other parties. The agreement comes into force by means of offer and acceptance. (B.W. Art. 6:217). Contracting

includes contract models as well as contract types. These two are interrelated. The contract model that is being

applied depends on the type of contract that is awarded.

CONTRACTING MODELS

The Dutch construction law distinguishes between various contract models (M.A.B. Chao-Duivis et al., 2015, p.

25). These models differ mainly on the degree of influence of the client and the resulting liability. Four types of

contract models can be distinguished; the traditional model, the integrated model, the design team, and the

alliance model.

FIGURE 20: THE TRADITIONAL MODEL, M.A.B.

CHAO-DUIVIS ET AL. (2015)

FIGURE 21: INTEGRATED

MODELS, M.A.B. CHAO-DUIVIS ET AL. (2015)

Client

Contractor(s)

Consultant

Architect

Consulting engineer

Client

Contractor

(= building contractor

consultant/architect)

(Sub) contractor(s)

Client

Contractor(s)

(Sub) contractor(s)

Designer

consultant

engineer

TRADITIONAL MODEL - A triangle shape

characterizes the traditional model. On top of the

triangle is the client. He initiates the project by first

commissioning a design from the architect and

consulting engineer. The type of contract between

the client and architect and engineer is usually

governed by general terms and conditions, The

New Rules 2011. After the design is completed, the

client awards a contractor who has to execute the

design. The type of contract awarded to the

contractor in this model is The Building Contract,

which is based on the UAV 2012. The UAC is

based on the ‘traditional’ legal relationship

between a client and a contractor (figure 20).

INTEGRATED MODEL - In the

integrated model the design and

execution of the project are in the hands

of a single party. This model is an

umbrella term in which different types

can be distinguished. The point in every

type is that the client plays a small role

and the contractor has far more liability.

Different types of contracts can be

awarded in this model. For instance;

DBFMO contracts, D&C contracts, and

E&C contracts. This model is governed

by the UAV-GC 2005 (figure 21).

Applying


98

DESIGN TEAM - A design team is characterized by the fact that the contractor is involved in the design. In this

way he can contribute his knowlegde of execution at this early stage and this can be integrated in the design. The

liability in this model is organized in such a way that the liability for a particular idea rests with the person whose

field of expertise the idea is in. The contractor is part of the design phase with the intention to get the execution of

the project awarded. The design phase is separated from the execution phase and both phases are governed by

own conditions. There is a set of general terms and conditions for the contract between the client and the design

team contractor, namely the Standard Design Team Contract 1992. In this model, the client enters into separate

contracts with each of the design team members and in addition, the client gets all the members to enter into a

‘coordination agreement’(M.A.B. Chao-Duivis et al., 2015, p. 86) (figure 22).

FIGURE 22: THE DESIGN TEAM MODEL, M.A.B. CHAO-DUIVIS ET AL. (2015)

ALLIANCE MODEL – The alliance model differs from all other types of

models. The different is that the client is more involved in the design and

execution of the project. In an alliance the client and contractor enter into a

partnership where they treat each other as equals. The alliance bears a large

proportion of risks, which are shared is circumstances occur. This model is

mostly applied in combination with the integrated model (figure 23).

FIGURE 23: THE ALLIANCE

MODEL,M.A.B. CHAO-DUIVIS

ET AL. (2015)

C5

CONTRACTS

The type of contract model depends on the contract that is being awarded For the contract it can be decided to

drawn up a unique contract for every particular project or to work with standard contracts. The latter is used

more and more often. A contract determines the legal commitment of the contractual agreements between all

involved partners. There are standard contracts from traditional contracts to comprehensive integrated contracts.

Underlying these contracts are standard conditions known as the Uniform Administrative Conditions for the

Execution of Works and Technical Installation Works (UAV)8. The types of contracts differ from traditional

contracts to integrated contracts and frameworks.

UAV 2012 AND UAV-GC 2005 - Clients and contractors have commonly drafted the UAV. These terms and

conditions are a combination of buying and supplying conditions. There are two types of UAVs; UAV 2012 and

UAV-GC 2005. Both are not automatically in force. They need to be in forced explicitly in an agreement. The

UAVs are an important framework when drafting contracts. The UAV 2012 is applicable when only the execution

of a project is procured and the client or a third party does all other activities. This type of conditions is mostly

used in combination with traditional contracts. The conditions of UAV-GC 2005 are applied when the client

awards an integrated contract or applies an integrated model.

8 In Dutch: Uniforme Administratieve Voorwaarden (UAV)

Client Contractor

Client

ArchitectStructural

engineering consultant

Technical engineering consultant

Project coordinator

Installation engineer(s)

Cost expertMain contractor

and subcontractors



99

The UAV-GC has specially been developed for D&C contracts and is therefore most suitable for this type of

contract. These standardized conditions are not suitable for DBFM or DBFMO contracts.

FRAMEWORKS - There are two types of frameworks, namely framework agreements and framework contracts.

It must be noted that the European Directive and the Mw2012 do not distinguish the two. The European

commission even uses these terms interchangeably. Only in the Draft Policy Guidelines (CC/92/91 Rev. I d.d.

18.12.1992) a distinction between framework agreements and framework contracts is made. But the two

frameworks do differ at certain aspects. The most frequently used term is framework agreement. A framework

agreement means an agreement between one or more contracting authorities and one or more tenderers, the

purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular

with regard to price and, where appropriate, the quantity envisaged (Directive 2014/24/EU Art. 33). Two types of

framework agreements can be awarded; an agreement with one tenderer (Mw2102 Art. 2.142) or with several

tenderers (Mw2012 Art. 2.143). The duration of a framework agreement shall not exceed four years (Directive

2014/24/EU Art. 33 lid 1) but the duration of the contract awarded under the framework agreement may exceed

these four years as long as the duration of the contract is not longer than four years as well. A framework

agreement can be procured according the open or restricted procedure, competitive dialogue, or the negotiated

procedure without prior publication. Depending on the value of the agreement the contract has to be procured

either national or European. In the framework agreement conditions are determined under which future contracts

will be awarded. When the framework agreement is procured it is not necessary to procure the contract that fall

under the agreements. A contracting authority is not obliged to purchase within a framework agreement.

The framework contract has a lot of similarities with the framework agreement but there are two important

differences between a framework agreement and a framework contract. Firstly, a framework contract doesn’t

have a maximum duration and the same goes for the contracts that fall within the framework contract, and

secondly, the contracting authority is obliged to purchase within a framework agreement. All other aspects

described about framework agreements are similar to framework contracts.

THE BUILDING CONTRACT – The building contract is a traditional contract between a client and a contractor

for the execution of a design. In the contract is documented what the work involves and who the involved parties

are. The UAV 2012 are the general terms and conditions that apply to the building contract.

THE NEW RULES 2011 – The New Rules 2011 are the general terms and conditions that govern a contract

between a client and consultant for the draw up of a design. The New Rules include a Standard Basic Contract,

Explanatory Notes on The New Rules and the Standard Basic Contract, and a Standard Job Description (M.A.B.

Chao-Duivis et al., 2015, p. 31). The New Rules can be applied to all client-consultant commissions.

INTEGRATED CONTRACTS – the term ‘integrated contract’ refers to the fact that the design and execution of a

project are the responsibility of one single party in relation to the client (M.A.B. Chao-Duivis et al., 2015, p. 99).

There are different types of integrated contracts that can be applied. The most frequently used one is the Design

and Construct (D&C) contract. With this kind of contract the contractor is responsible for the design and

construction of the project. The client draws up a functional specification and the contractor gets the possibility to

optimize the design and construction. The contractor also takes care of an optimal alignment between these two

phases. The underlying idea of this type of contract is that the contractor is the most qualified actor to find and

apply this optimization. By D&C contracts is it the responsibility of the contractor to determine which activities

must be carry out in order to execute the project. Requirements are set for activities that are of importance

according the client. Clients use the contract Specification Process for these requirements. The D&C contract is

based on the UAV-GC 2005. Another type of construct contract is the Engineering and Construct (E&C) contract.

This type of contract is mostly used for design projects and variable maintenance projects that involve little or

none design components. The contractor executes work with a minimum part of detail engineering. This type of

contract has a lot in common with a D&C contract but the design is limited to engineering. The client draws up a

functional specification. The functional requirements are usually on a lower abstraction level than with D&C

contracts. E&C contracts focus on projects with a restricted risks profile and a high level of repetition. By an E&C

contract it is the responsibility of the contractor to determine which activities must be carried out in order to

execute the project. Requirements are set for activities that are of importance according the client. Clients use the

contract Specification Process for these requirements.

Applying


100

Other types of integrated contracts are the so-called Design, Build, Finance, Maintain, and Operate (DBFMO)

contracts. These come in different forms. A Design, Build, Maintain, (& Operate) (DBM(O)) contract is an

integrated contract whereby the design, build, maintenance and in case of an O also the operation of a project is

executed by one contractor. Supply chain integration in the form of a DBM(O) contract enables the contractor to

make a life cycle consideration and act accordingly. The construction, maintenance and operation costs are

included in the investment consideration. The goal is to come up with an integrated and sustainable solution that

is in line with the needs of the end user. This means the building costs can be more expensive but this is evened

out by lower maintenance costs. This type of contract is less complex and relatively simpler to draw up and

organize than a DBFM(O) contract but in comparison with a DBFM(O) contract a DBM(O) contract lacks the

incentive of banks as to the finance.

A Design, Build, Finance, & Maintenance (DBFM) contract is an integrated contract whereby the contractor

responsible is for the funding, design and construction of a project as well as the maintenance. If the contractor is

also responsible for the operation of the project than it is a DBFMO contract. When the public client wants an

incentive from the financial sector they apply these kinds of contracts. By D&C contracts the client buys a

products but by a DBFM contracts a client buys a service. The contractor takes the responsibility of the entire

project. Depending on the contract, the contractor is, after the design, build and finance, responsible for the

project for another 20 to 30 years. Starting point of a DBFM contract is that risks and responsibilities are placed

with the partner who can carry and control this best.

PERFORMANCE CONTRACTS - Performance contracts are mostly applied with management and maintenance

projects. With this type of contract it is up to the contractor to keep the maintenance at a certain level. A

performance contract forms the basis for professional contract- and supply management whereby the

performance goals are stipulated for the supplier. This type of contract concerns weekly measurable

performances, whereby a clear and univocal image of the procured activities is developed and whereby

operational control of the supplier becomes unnecessary. A performance contract can be extended with a

bonus/malus arrangement.

The rating of the performance of the supplier is a continuous process, which can be executed with the plan-do-

check-act principle. The underlying idea of this type of contract is that the market is more capable to estimate

when maintenance needs to be executed. This yields several benefits; the quality of the maintenance becomes

more uniform. The contractor can take the life cycle into account and the efficiency of the coordination increases.

This leads to less hinder for the end user and less preparation- and transaction costs for the client as well as the

contractor. The standard performance contract is based on the UAV-GC 2005.

C6

COMPETITION LAW VS COLLABORATION

Collaboration between businesses in the construction sector has become a sensitive subject since the introduction

of the Mededingingswet and the discovery of the collusion. That is why M.A.B. Chao-Duivis and Wamelink

(2013) dedicated a chapter in their book to Supply Chain Collaboration and the Mededingingswet. Not only

dominance on the market is prohibited, the Mededingingswet also restricts other forms of anticompetitive

regulations. This can be a horizontal cartel agreement between competitive businesses but also vertical cartel

agreements between suppliers and buyers, for example price fixing between a manufacturer and distributor. This

last example falls within the scope of Supply Chain Collaboration.

Of importance is the term ‘onderling afgestemde feitelijke gedraging’(M.A.B. Chao-Duivis & Wamelink, 2013, p.

159). This is a form of parallel behavior of businesses where no agreements or plans have been underlying.

Businesses copy each other’s behavior, whereby factual a situation is created as if an agreement is underlying.



101

The Mededingingswet prohibits this kind of behavior (Mw Art 6 lid 1) and getting together to share information

about intended market behavior is enough to break the law. It doesn’t matter if the involved businesses don’t

have each other’s confirmation that their behavior will be copied nor does it matter that there is no common plan

whereby things are discussed.

This is not the case with Supply Chain Collaboration with framework agreements but it can occur in cases

whereby organizations or businesses collaborate without expressed agreements or plans; spontaneous networks

(M.A.B. Chao-Duivis & Wamelink, 2013, p. 159).

Chao-Duivis and Wamelink state that Article 6 of the Mededingingswet causes problems for businesses that want

to collaborate. This can occur with Supply Chain Collaboration where businesses seek each other to collectively

improve. They complement each other’s expertise, manpower or material to increase the chance to get a contract

awarded. Considering the social desirability to collaborate a policy of the minister of economic affairs9 has been

introduced. The policy can be used to check whether or not cartels are formatted. This policy contains a second

exception on the formation of cartels. This exception states that Article 6 lid 1 of the Mededingingswet doesn’t

apply to agreements, decisions or ‘onderling afgestemde feitelijke gedragingen’ that contribute to improvement

of production or distribution or the advancement of technological or economical progress. But only if a

reasonable share of the advantages that stem from it will end up by the (end) users, and without restricting the

involved businesses to achieve their goals, or giving them the ability to eliminate competitors.

A combination of businesses like this is described in the policy as following:

Combination agreements are agreements between two or more independent partners collectively submit a tender and intend

to execute the project as a team.

The course of affairs with regard to this policy is that firstly it will be tested if a certain combination of businesses

falls within the prohibition of lid 1 art 6 of the Mededingingswet. If this is the case, it will be checked if the

exception of lid 3 applies. By this check the rules of the policy play a roles. The following conditions are checked:

is the collaboration limited to one project? Do the agreements go further than necessary for the tender and

execution? Is there still competition? Are there any additional agreements? Is there objectively measurable

improvement of production or distribution? Is there a righteous share for the user? Does the client benefit from

lower prices, better quality or new technological inventions?

M.A.B. Chao-Duivis and Wamelink (2013) conclude that with project independent collaboration a combination of

partners can be confronted with the fact that Article 6 lid 3 of the Mededingingswet does not apply. The

circumstances of each independent combination will decide whether or not the collaboration is adverse to the

Mededingingswet (M.A.B. Chao-Duivis & Wamelink, 2013).

9 Into effect at 11 septemebr 2009, nr WJZ/9153048

Applying


102

APPENDIX D

PUBLIC CLIENTS

D1

RIJKSWATERSTAAT

Rijkswaterstaat (RWS) is the executive arm of the Ministry of Infrastructure and Environment. They are

responsible for the design, construction, management, and maintenance of the main road- and water networks

and water systems in the Netherlands. Their mission is to provide and develop safe and accessible infrastructures

in a sustainable way. Annually, they award contracts with an average volume of 3 to 4 billion euros.

As a public client RWS is obliged to follow the legal framework. RWS follows the European directives (2004-18-

EG) to place government projects for works, services and supplies. These directives form the current framework

for contracts that meet the European threshold. The Aanbestedingswet and Gids Proportionaliteit applies to all

contracts RWS puts out. RWS has chosen to apply the Aanbestedingsregelement Werken 2012 (ARW 2012) for

works above threshold. When the contract doesn’t meet the threshold the ARW is obliged by law for works but

doesn’t apply to services and supplies. RWS applies the following procedures when putting out contracts; for

works between €150.000 and €1.500.000 they work with meervoudig onderhandse procedure and invite 3 to 5

contractors to send an offer. For works between €1.500.000 and the threshold they apply the national or European

tender procedure. For services and supplies between €50.000 and the threshold the same procedure is applied as

with works under 1.5 million. When the threshold is met the European tender procedure is obliged. RWS applies

three types of procedures. The open procedure when the project is of a simple nature and when RWS expects low

transaction costs. In all other cases RWS applies the restricted procedure. When they expect more than 6

candidates they apply further selection. By further selection it is decided based on ranking or drawing lots which

candidates are invited. The last procedure RWS applies is competitive dialogue. This procedure is applied with

more complex infrastructural projects because this procedure gives the possibility to specify the requirements or

design brief in consultation with the contractors (RWS, 2015c).

The criteria RWS applies to award a contract can be divided into selection criteria and awarding criteria (RWS,

2015g). As selection criteria, they require that the contractor can show they have experience with project

management. Besides that, technical experience requirements can be asked. They use Past Performance when

further selection occurs during a procurement procedure. As awarding criteria RWS always uses Most

Economically Advantageous Tender, which is a combination of lowest bid and level of quality.

To involve contractors as much as possible in the design phase of a project, RWS works with integrated contracts

(RWS, 2015e). For construction they work with Design, Build, Finance, and Maintenance (DBFM) contracts or

Design and Construct (D&C) contracts. The procurement procedures for awarding these contracts usually start

after the Route Decision (RD).

For maintenance projects, RWS works with either performance contracts or Engineering & Construct (E&C)

contracts. For multiannual maintenance projects performance contracts are awarded in which it is the contractors

responsibility that during the duration of the contract all predetermined requirements are met.

RWS also experiences with other contract types and procurement procedures (RWS, 2015a). Examples are

parallelization and interweaving, Best Value Procurement and Performance Measurements (PM). Parallelization

is used when the procurement starts parallel with the RD and interweaving is applied when aspects of the tender

are interweaved with the RD (see appendix B2). Best Value Procurement is a buying method most value for the

lowest price is strived. During BVP the contractor takes the lead so they can fully use their expertise. Advantages

of this method are less cost and more quality for RWS and the contactor has more possibilities to distinguish

oneself. The market executes most of the projects of RWS.



103

In order to increase the collaboration between RWS and the market and to increase the professionalism of the

contractors, RWS works with PM. During the execution of a project RWS measures whether or not the contractors

meet the requirements of the contract. In turn, the contractors judge RWS. RWS works with PM because one of

their goals is to improve collaboration.

D2

PRORAIL

ProRail is the concessionaire of the Dutch main railway network and the Ministry of Infrastructure and

Environment is the grantor of this concession. As a concessionaire, ProRail is responsible for the construction,

maintenance, management and safety of this network. They put projects, services and supplies out to contract.

When it comes to procurement procedures, ProRail makes a distinction between public and non-public

procedures. For public procedures they use the open, restricted or negotiated procedure (see table XX) to award a

contract (ProRail, 2015). Some procurement procedures are ‘under recognition’. Which means that only certified

contractors may participate. An example is tenders for railway construction works. For more complex projects,

ProRail sometimes uses Best Value Procurement. They use this procedure to select the best supplier for the job.

ProRail awards integrated contracts but the type of contract, varying from D&C to DBFMO contracts, depends on

the project. ProRail doesn’t use any type of performance measurements during the duration of the contract to

monitor the performance and quality delivered by the contractor.

D3

RIJKSVASTGOEDBEDRIJF

Rijksvastgoedbedrijf (RVB) is the execution authority of and for the government and is part of Home Affairs and

Kingdom Relations. They are responsible for the management, maintenance, rent and sale of the real estate

portfolio of the Netherlands. This portfolio includes jails, court buildings, national museums, airports and

ministerial offices.

As RWS, the Rijksvastgoedbedrijf is obliged to use the ARW 2012 for works that don’t meet the threshold. For

work that do meet threshold they apply the European procurement procedure. RVB choses to work with Public-

Private Partnership (PPP) for large projects (RVB, 2015c). This method combines different phases of a project into

one tender and one contract. When applying PPP, RVB works with a contractor for a longer period of time and

the contractor is paid on basis of the delivered performance.

Functional Specification (FS) is an important first phase in the buying process. RVB works with this type of

specification because it stimulates the contractor to guard the quality of the project himself (RVB, 2015e). FS

focuses on the ‘what’ of a project instead of the ‘how’. This gives the contractor the freedom to fully use their

expertise.

RGD increasingly uses integrated contracts. The most used is Design, Build, Finance, Maintenance, and Operate

(DBFMO). This type of contract reduces the costs because the different phases of a project are better aligned. They

are researching the possibilities of Design & Build and Design, Build and Maintenance contracts.

Applying


104

For management and maintenance RVB awards Maincontracting/ Integraal Beheer contracts (IBC). With this type

of contract they enter into an agreement with one contractor; the main contractor, who manages and maintains

the building for a duration between 8 and 18 years.

RVB uses BIM to build a concrete, reliable, uniform database of their portfolio (see appendix B5). They prescribe

suppliers of housing and maintenance a BIM norm (RVB, 2015a). They apply this norm in their DBFMO contract

as a performance requirement. Thus far, RVB has experience with BIM in the design and build phase but within a

couple of years the BIM norm must be part of both DBM and IBC contracts.

During the duration of a contract and afterwards, RVB applies Past Performance and Systeemgerichte

contractbeheersing (SCB) to monitor the contractor and their performances. To monitor the compliance of the

contracts, RVB uses SCB. With SCB they steer contracts on basis of risks and from the beginning of a projects

instead of afterwards. With SCB the contractor himself guards if the performances are according the

specifications of the contract. This method fits best within integrated contracts. RVB monitors the performance of

the contractor with the help of the Past Performance method. This method gives grades to the delivered

performance of the contractor. When this grade is positive it is used as a reference. When awarding a contract,

RVB uses these references when selecting contractors. Past Performance measures the customer focus of the

contractor and not if the project is delivered according the contract.



105

APPENDIX E

PILLARS

PILLAR A- STRATEGIC LONG-TERM COLLABORATION

The first pillar of SCC cannot be applied in the public sector. This is due to the obligation of awarding each

contract following a procurement procedure. The Aanbestedingswet 2012 mandates this. Depending on the value

of the contract the procedure can be national or European but it must be procured. This obligation makes it

impossible for public clients to enter a strategic long-term collaboration with parties. Secondly, the

Mededingingswet prohibits parties to use agreements with other parties that hinder, limit or falsify competition.

The ACM monitors collaboration between parties and sees to it that competition is fostered. This complicates

strategic long-term collaboration as well.

The only practice of pillar A that can be applied is top management commitment. It is possible to apply this practice

because it only involves one party. All parties involved in the chain must perform this practice individually.

PILLAR B - EARLY INVOLVEMENT OF PARTNERS IN CONSTRUCTION PROCESS

The second pillar can partly be applied in the public sector. Two options are opted by literature to facilitate early

involvement of partners, interweaving and parallelization. These methods do create an environment in which

parties can be early involved in the process but not in the way the practices of this pillar are described. Another

option to facilitate this pillar is a type of contract that fosters early contractor involvement, The Design Team. In

this type of contract the contractor is involved in the design phase of the project. This implies early contractor

involvement but this type of contract focuses only on the design. The execution of the contract is awarded in a

different contract. This can result in different contractor executing the project. This process is not in line with

pillar B of SCC, which strives to involve partners from the beginning of the process of a project until the end

without changing contractors.

PILLAR C: INTEGRAL INFORMATION SHARING

Pillar C of SCC can be applied in the public sector. The Aanbestedingswet and Mededingingswet do not prohibit

or restrict sharing of information. Secondly, they do not indicate what kind of information can (not) be shared.

The level of application of this pillar lies fully within the agreements made between the different chain partners.

PILLAR D: COLLECTIVELY MONITORING OF PERFORMANCES

Also pillar D can be fully applied in the public sector. The Aanbestedingswet and Mededingingswet do not

prescribe guidelines on how to monitor performances. The level of application of this pillar lies fully within the

agreements made between the different chain partners. The only restriction of this pillar is that the results of the

monitored performances cannot be used in future projects because the arrangement of the chain can be

completely different due to the fact that future projects need to be procured again.

PILLAR E: CONTINUOUS IMPROVEMENT

Pillar E can be fully applied in the public sector. Both laws do not restrict improving products and processes. The

only restriction is that when a project is finished the improvements also ends Just like pillar D, the made

improvements cannot be used in future projects.

PILLAR F: USE OF A JOINT INCENTIVE SYSTEM

Pillar F can be applied in the public sector. As with the previous discussed pillars, the Aanbestedingswet and

Mededingingswet do not prohibit or restrict the use of a joint incentive system. The level of application of this

pillars lies within the agreements made between the different chain partners involved in the project.

Applying


106

PILLAR G: HIGH LEVEL OF REPETITION

Pillar G can partly be applied in the public sector. Within a project it is possible to develop and/or discover

methods and concept that increase the level of repetition of the process and product but this pillar cannot fully

thrive in the public sector due to the obligation of procuring each new project. When a client can make an

agreement with a contractor to design and execute 10 houses four times for example, there is a large level of

repetition and this pillar can thrive. This is possible in the private sector where procuring is not obliged but not in

the public sector due to the Aw2012.

PILLAR H: STANDARDIZATION OF PRODUCTION AND PROCESS

The last pillar of SCC, H can partly be applied. As pillar G, standardization of production and process can be

achieved within a project but the rational of supply chain collaboration is working project independently. With this

in mind it can be concluded pillar H is also impeded by the Aanbestedingswet 2012.



107

APPENDIX F

INTERVIEWS

F1

LIST OF INTERVIEWEES

NAME PUBLIC CLIENT FUNCTION CODE

B. SWIERS PRORAIL SENIOR TENDERMANAGER PR001

R. SIMONS RIJKSVASTGOEDBEDRIJF SENIOR ADVISEUR AANBESTEDEN EN

CONTRACTEN

RVB001

M. VOORHAM RIJKSVASTGOEDBEDRIJF SENIOR ADVISEUR INKOOP EN CONTRACTEN RVB002

D. STELLING RIJKSWATERSTAAT SENIOR JURIDISCH ADVISEUR RWS001

T. LANDER RIJKSWATERSTAAT EIGENAAR PRESTATIECONTRACT MODEL RWS002

P. PIETERS RIJKSWATERSTAAT CONTRACTMANAGER RWS003

P. MOUSSET RIJKSWATERSTAAT MANAGER LEGAL TEAM, RWS004

W. BOSSINK RIJKSWATERSTAAT SENIOR ADVISOR RWS005

F2

BRIEFING

INTRODUCTIE

Ik ben Joyce van Tellingen en op dit moment ben ik mijn master Construction Management & Engineering aan

het afronden aan de TU Delft. In 2007 ben ik begonnen met de bachelor Bouwkunde maar na een stage bij een

architectenbureau ben ik overgestapt naar Civiele Techniek om de verbreding op te zoeken. Sinds maart ben ik

bezig met afstuderen op het onderwerp Ketensamenwerking in de publieke sector. Ik doe dit bij Royal

HaskoningDHV en de begeleiding binnen de TU is in handen van mevrouw Chao-Duivis, meneer Prins en

mevrouw Bosch-Rekveldt.

AFSTUDEERONDERZOEK

Ik studeer af op de toepassing van Ketensamenwerking (KSW) in de publieke sector vanuit het perspectief van de

opdrachtgever. Mijn onderzoek richt zich op de toepassingsmogelijkheden van KSW in de publieke sector met

accent op de juridische aspecten. In mijn onderzoek heb ik, na onder andere een literatuurstudie, twee kansrijke

oplossingsrichtingen geselecteerd voor het toepassen van KSW in de publieke sector. Deze oplossingsrichtingen

Applying


108

wil ik aan u voorleggen om te bepalen of en hoe deze oplossingsrichtingen in de praktijk kunnen werken en of er

wellicht andere, meer kansrijke, oplossingsrichtingen zijn.

KETENSAMENWERKING EN DE PUBLIEKE SECTOR

Ketensamenwerking wordt in mijn scriptie gedefinieerd als ‘het systematisch en strategisch coördineren

van alle schakels in de keten met als doel het optimaliseren van de lange termijn prestatie van de gehele keten’.

Het wordt gezien als een methode die de traditionele aanpak en relaties in de constructie industrie kan

veranderen met als resultaat dat faalkosten gereduceerd worden en een beter antwoord op de vraag vanuit de

markt.

Ketensamenwerking is opgebouwd uit acht hoofdactiviteiten. Elk van de hoofdactiviteiten zijn geconcretiseerd

door practices. Deze practices beschrijven activiteiten die tezamen de hoofdactiviteit vormen. De acht

hoofdactiviteiten zijn hieronder weergegeven.

1. Strategische lange termijn samenwerking tussen partners

2. Gezamenlijk incentive systeem

3. Continu verbeteren

4. Delen van informatie

5. Gezamenlijk monitor systeem

6. Vroege betrokkenheid ketenpartners

7. Hoog niveau van repetitie

8. Standaardisatie van product en proces

Het ideaalbeeld van ketensamenwerking is dat alle acht de hoofdactiviteiten worden uitgevoerd. De eerste

hoofdactiviteit, Strategische lange termijn samenwerking tussen partners, kan in de private sector worden toegepast

omdat deze sector niet aanbestedingsplichtig is. Hierdoor kunnen strategische partnerships worden aangegaan

die project overstijgend zijn. De publieke sector daarentegen, is aanbestedingsplichtig waardoor dit soort

partnerships niet mogelijk zijn. De Aanbestedingswet 2012 en het Aanbestedingsregelement Werken, van kracht

in de publieke sector, schrijven voor dat elk nieuw contract moet worden aanbesteed volgens bepaalde

richtlijnen. Dit hindert de toepassing van de eerste hoofdactiviteit van KSW. Door het niet kunnen aangaan van

strategische samenwerkingen wordt het standaardiseren van product en proces bemoeilijkt. Deze standaardisatie

vindt plaats door verschillende projecten met dezelfde keten uit te voeren. Ditzelfde geldt voor het behalen van

een hoog niveau van repetitie. Ook het vroeg betrekken van ketenpartners wordt bemoeilijkt door de

aanbestedingsplicht doordat de opdrachtnemer pas onderdeel van de keten wordt na het gunnen van het

contract. In deze fase ligt al een groot deel van het project vast.

In een strikt formele toepassing van KSW kunnen de volgende activiteiten niet, dan wel bepekt worden

toegepast; Strategische lange termijn samenwerking tussen partners (1), Vroege betrokkenheid ketenpartners (6),

Hoog niveau van repetitie (7) en Standaardisatie van product en proces (8).

Mijn onderzoek richt zich op de mogelijkheden van de toepassing van alle hoofdactiviteiten van KSW.

Hiervoor heb ik twee oplossingsrichtingen bedacht waarin ruimte wordt gecreëerd om alle activiteiten van KSW

toe te kunnen passen. Deze oplossingsrichtingen worden uitgewerkt tot een blauwdruk voor het toepassen van

KSW door publieke opdrachtgevers.

De eerste oplossingsrichting richt zich op beheer & onderhoud projecten terwijl de tweede oplossingsrichting

zich richt op nieuwe initiatieven, projecten. Beide oplossingsrichtingen worden hieronder verder onderbouwd en

toegelicht aan de hand van aanbestedingsprocedures, geschiktheidseisen, selectiecriteria, contracten, en de

activiteiten van KSW. Deze procedures, eisen en criteria heb ik aan de hand van de Aanbestedingswet 2012 en

Gids Proportionaliteit samengesteld. Hierbij heb ik ook gekeken naar aankondigingen van publieke

opdrachtgevers op TenderNed. De oplossingsrichting als zodanig is door mij samengesteld en is een interpretatie

van hoe ik denk dat in de publieke sector KSW kan worden toegepast.



109

Tijdens het interview wil ik deze twee oplossingsrichtingen aan u voorleggen om aan de hand van uw ervaringen

vast te kunnen stellen of KSW in deze beide oplossingsrichtingen toepasbaar is met het oog op de praktijk of dat

er andere, meer kansrijke oplossingsrichtingen zijn.

OPLOSSINGSRICHTING I: RAAMCONTRACT IN COMBINATIE MET PRESTATIECONTRACT

In de eerste oplossingsrichting gaat de opdrachtgever een raamcontract aan met drie partijen. Er is gekozen voor

drie partijen om concurrentie en innovatie te bevorderen. Deze oplossingsrichting is het meest geschikt voor

projecten die routinematig uitgevoerd worden. Hierbij moet gedacht worden aan beheer & onderhoud projecten.

Wanneer een project binnen de reikwijdte van het raamcontract valt wordt aan de hand van een minicompetitie,

tussen de partijen waarmee het raamcontract is aangegaan, het contract aan de meest geschikte partij gegund. Die

partij krijgt dan de opdracht om het desbetreffende project onder de voorwaarden van het raamcontract uit te

voeren. Het contract dat wordt aangegaan is een prestatiecontract. Bij een prestatiecontract is het de

verantwoording van de opdrachtnemer om het onderhoud op een bepaald niveau te houden. Het niveau dat

behaald moet worden is van te voren vastgelegd en aan de hand van meetbare prestaties wordt gecontroleerd of

deze behaald zijn. Dit wordt gedaan in een contractbeheersysteem. Wanneer er niet aan de verplichtingen

voldaan is worden er sancties opgelegd wat uiteindelijk kan resulteren in het vroegtijdig beëindigen van het

contract.

AANBESTEDINGSPROCEDURE

Een raamwerkcontract wordt aanbesteed volgens de openbare of niet-openbare procedure (Aw2012 art. 2.44). In

deze oplossingsrichting wordt niet-openbaar aanbesteed om aan de hand van selectiecriteria het contract te

gunnen.

GESCHIKTHEIDSEISEN

De volgende geschiktheidseisen zijn, naast de standaard eisen die de publieke opdrachtgever hanteert

noodzakelijk. In deze oplossingsrichting, de gids proportionaliteit volgend, zijn de geschiktheidseisen knock-out

eisen. In andere worden, wanneer niet aan deze eisen kan worden voldaan wordt de inschrijvende partij

uitgesloten van verdere deelname.

Geschiktheidseis 1 - Aanbesteder streeft naar ketensamenwerking met als doel de continue verbetering van de

kwaliteit van haar operationele bedrijfsvoering en dienstverlening en om steeds efficiëntere prijsvorming

mogelijk te maken. De inschrijvende partij dient daarom aantoonbare kennis en ervaring met ketensamenwerking

met haar opdrachtgevers en onderaannemers c.q. leveranciers te hebben, de onderneming van inschrijvende

partij dient als organisatie een ontwikkeling door te maken naar steeds verder gaande ketensamenwerking. De

inschrijvende partij dient aan te tonen op welke wijze zij een bijdrage levert aan bovengenoemde doelstelling van

ketensamenwerking. Bij voorkeur aantoonbare ervaring met ketensamenwerking met opdrachtgevers met een

vergelijkbare bedrijfsvoering en activiteiten als aanbesteder; keten-georiënteerd te zijn.

De door aanbesteder gewenste kerncompetentie, die ten grondslag ligt aan deze geschiktheidseis, dient te

worden aangetoond door middel van:

1. Een korte beschrijving – maximaal vijf (5) A4 – van de wijze waarop en de mate waarin gegadigde inhoud

en vorm geeft aan ketensamenwerking met opdrachtgevers, en

2. Audits c.q. auditverslagen van bijvoorbeeld het INK of vergelijkbare organisaties/instanties.

De onder 1 bedoelde beschrijving dient in ieder geval inzicht te geven in:

· De aanwezige kennis en ervaring van inschrijvende partij met ketensamenwerking met haar

opdrachtgevers te hebben in algemene zin;

· De aanwezige kennis en ervaring van inschrijvende partij met ketensamenwerking met haar en

onderaannemers c.q. leveranciers te hebben in algemene zin;

· De ontwikkeling die inschrijvende partij heeft doorgemaakt en doormaakt op het gebied van

ketenintegratie;

· De fase of dimensie waarin inschrijvende partij zit, de doelstelling(en) van inschrijvende partij voor wat

betreft de te bereiken fase of dimensie en het plan van aanpak om die doelstelling te realiseren, en

Applying


110

· De wijze waarop inschrijvende partij zal bijdragen aan ketensamenwerking en meer concreet aan de

doelstelling en wens van aanbesteder tot continue verbetering van de kwaliteit van haar operationele

bedrijfsvoering en dienstverlening en om efficiëntere prijsvorming mogelijk te maken.

Geschiktheidseis 2 – Aanbesteder streeft naar een transparante en uniforme manier van informatie deling.

Daarnaast moet deze informatie continu beschikbaar zijn voor aanbesteder dan wel inschrijvende partij. De

aanbesteder deelt informatie in een BIM omgeving. De inschrijvende partij dient daarom aantoonbaar te kunnen

maken ervaring te hebben met het werken in een BIM omgeving en op welke wijze zij dit hebben toepast tijdens

projecten.




en vorm geeft aan een BIM omgeving met opdrachtgevers, en

2. Referenties van project(en) waarin gewerkt is in een BIM omgeving.

SELECTIE CRITERIA

Zoals aangegeven, worden de geschiktheidseisen als knock-out criteria gebruikt en worden vervolgens de

overgebleven inschrijvende partijen kwalitatief met elkaar vergeleken. Dit zal resulteren in een rangorde van

inschrijvende partijen. De inschrijvende partijen met de hoogste ranking zullen uitgenodigd worden voor de

inschrijvingsfase.

Om de rangorde te bepalen worden de beschrijvingen, audits en referenties van beide geschiktheidseisen

beoordeeld en worden hieraan punten toegekend.

De scores van de verschillende beschrijvingen, audits en referenties van een inschrijvende partij zullen worden

opgeteld. Deze totaalscore zal vergeleken worden met die van de andere inschrijvende partij om de uiteindelijke

rangorde te bepalen.

GUNNINGSCRITERIA

De aanbestedende dienst gunt de opdracht, in dit geval het contract, op de grond van de naar het oordeel van de

aanbestedende dienst economisch meest voordelige inschrijving (EMVI) (Aw2012 Art. 2.114 lid 1). Gunning op

laagste prijs moet gemotiveerd worden door de aanbestedende dienst in de aanbestedingsstukken (Aw2012, Art.

2.114 lid 2).

CONTRACTEN

De opdrachtgever is voornemens een raamcontract aan te gaan. Deze wordt aangevuld met een prestatiecontract

wanneer er sprake is van een project dat binnen de reikwijdte van het raamcontract valt.

In het prestatiecontract wordt een bonus/malus regeling opgenomen.

Wanneer een opdrachtnemer in gebreke wordt gesteld en vervolgens niet binnen de gestelde termijn voldoet

wordt het contract vroegtijdig beëindigd.

Tevens wordt er in het contract vastgelegd dat er volgens de BIM norm wordt gewerkt en worden afspraken

gemaakt over het delen van de risico’s.

OPLOSSINSGRICHTING I MET BETREKKING TOT KWS

Oplossingsrichting I creëert een omgeving waarin de activiteiten van Ketensamenwerking ten volle toegepast

kunnen worden; Doordat de opdrachtgever een raamcontract aangaat met drie partijen en bijbehorende ketens

zonder dat er sprake is van een opdracht gaan ze een strategische samenwerking aan. Het gegunde

prestatiecontract zorgt ervoor dat er continue verbeterd wordt. Door de opgenomen bonus/malus regeling in het

contract wordt er een incentive systeem gecreëerd. Doordat het in deze oplossingsrichting onderhoud en beheer

projecten betreft is, deze projecten hebben een routinematig karakter, is er ruimte voor standaardisatie van



111

product en proces. Door de geschiktheidseis competentie 2 wordt er vastgelegd dat er volgens de BIM norm

gewerkt wordt wat ervoor zorgt dat informatie op een herleidbare en transparante manier gedeeld wordt

OPLOSSINGSRICHTING II: BETREDEN VAN BESTAANDE KETEN

In de tweede oplossingsrichting betreedt de opdrachtgever een bestaande keten voor de duur van een project.

Deze oplossingsrichting is meest geschikt voor nieuwe initiatieven en grote projecten. De opdrachtgever gaat een

samenwerkingsovereenkomst aan met een keten die al vaker samengewerkt heeft.

Het project wordt ingekocht volgens de uitgangspunten van Best Value Procurement (BVP). Dit is een aanpak

waarbij wordt uitgegaan van de meeste waarde voor de laagste prijs. De inschrijvende partijen zijn hierbij ‘in the

lead’ en krijgen de kans om hun expertise maximaal te laten zien. Daarbij kunnen ze zich onderscheiden van hun

concurrenten. De BVP aanpak wordt beoogd te resulteren in een betere samenwerking en meer afstemming in de

keten. Er wordt van de opdrachtnemer verwacht dat hij tijdens de uitvoeringsfase wekelijks ongewenste

gebeurtenissen rapporteert in de Wekelijkse Rapportage en hierin aangeeft wat de gevolgen zijn en hoe hij dit

heeft opgelost. Verder bevat de WR Key Performance Indicators (KPI’s), die de prestaties van opdrachtgever en

opdrachtnemer zichtbaar maken en zo SMART weergeven in hoeverre de projectdoelstellingen zijn behaald.

AANBESTEDINGSPROCEDURE

Het contract wordt gegund volgens de openbare of niet-openbare procedure (Aw2012 art. 2.44). In deze

oplossingsrichting wordt niet-openbaar aanbesteed om aan de hand van selectiecriteria het contract te gunnen.

GESCHIKTHEIDSEISEN

Bij BVP worden weinig standaarden en kwaliteitseisen voorgeschreven om de kwaliteit van de opdracht te

garanderen.

Echter, om ketensamenwerking te garanderen wordt er één geschiktheidseis gesteld aan de inschrijvende

partijen. . In deze oplossingsrichting, de gids proportionaliteit volgend, zijn de geschiktheidseisen knock-out

eisen. In andere worden, wanneer niet aan deze eis kan worden voldaan wordt de inschrijvende partij uitgesloten

van verdere deelname.

Geschiktheidseis 1 - Aanbesteder streeft naar ketensamenwerking met als doel de continue verbetering van de











en vorm geeft aan ketensamenwerking met opdrachtgevers, en

2. Audits c.q. auditverslagen van bijvoorbeeld het INK of vergelijkbare organisaties/instanties.







ketenintegratie;

· De fase of dimensie waarin inschrijvende partij zit, de doelstelling(en) van inschrijvende partij voor wat

betreft de te bereiken fase of dimensie en het plan van aanpak om die doelstelling te realiseren, en

Applying


112




SELECTIE CRITERIA

Zoals aangegeven, worden de geschiktheidseisen als knock-out criteria gebruikt en worden vervolgens de

overgebleven inschrijvende partijen kwalitatief met elkaar vergeleken. Dit zal resulteren in een rangorde van

inschrijvende partijen. De inschrijvende partijen met de hoogste ranking zullen uitgenodigd worden voor de

inschrijvingsfase.

Het risicodossier, het kansendossier en de prestatie-onderbouwing gepresenteerd door de inschrijvende partijen

vormen, in combinatie met de beschrijving over de wijze waarop en de mate waarin gegadigde inhoud en vorm

geeft aan ketensamenwerking en de audits, de input voor de selectiecriteria. Daarnaast zijn er per aanbieder twee

interviews met sleutelfiguren die de opdracht in de uitvoeringsfase gaan uitvoeren.

Om de rangorde te bepalen worden de beschrijvingen en audits van beide geschiktheidseisen beoordeeld en

worden hieraan punten toegekend.

De scores van de verschillende beschrijvingen en audits van een inschrijvende partij zullen worden opgeteld.

Deze totaalscore zal, in combinatie met de interviews, vergeleken worden met die van de andere inschrijvende

partij om de uiteindelijke rangorde te bepalen.

GUNNINGSCRITERIA

De aanbestedende dienst gunt de opdracht, in dit geval het contract, op de grond van de naar het oordeel van de

aanbestedende dienst economisch meest voordelige inschrijving (EMVI) (Mw2012 Art. 2.114 lid 1).

Het gaat bij een EMVI om de combinatie van prijs en kwaliteit waarbij, met minimaal 75% van de beoordeling, de

nadruk ligt op kwaliteit. Bij BVP wordt veel waarde gehecht aan het risicodossier, het kansendossier en de

prestatie-onderbouwing.

PRE-AWARD FASE

Na de gunningsfase volgt er in de BVP procedure nog een pre-award fase voordat het project uitgevoerd wordt.

In deze fase geeft de beoogde opdrachtnemer, die geselecteerd is aan de hand van EMVI, een verdere

onderbouwing van zijn plannen en werkt hij die, samen met zijn keten, in detail uit. Ook laat hij zien hoe de

beloofde resultaten tijdens de uitvoeringsfase meetbaar zijn. In deze fase wordt de basis gelegd voor het

beheersen van risico’s en het benutten van kansen tijdens de uitvoering. Mocht tijdens deze fase blijken dat de

beoogde opdrachtgever, samen met zijn keten, niet voldoet aan de gestelde eisen dan kan deze fase opnieuw

worden belopen met de partij (keten) die de één-na-beste inschrijving heeft ingediend.

CONTRACTEN

De opdrachtgever is voornemens een Design & Construct contract aan te gaan.

OPLOSSINSGRICHTING II MET BETREKKING TOT KWS

Oplossingsrichting II creëert een omgeving waarbij de opdrachtgever tijdelijk onderdeel wordt van een

strategisch partnership tussen opdrachtnemer en zijn ketenpartners. Door het toepassen van de BVP procedure

worden de inschrijvende partijen al vroeg bij het project betrokken en ligt het plan van aanpak klaar voor de

uitvoeringsfase. Door het risico- en kansendossier wordt er een gezamenlijk incentive systeem ontwikkeld en op

basis van de dominante en transparante informatie in de Wekelijkse Rapportage kan de opdrachtnemer bijsturen

waar nodig en zo prestaties verbeteren. In deze oplossingsrichting is er in mindere mate sprake van

standaardisatie en repetitie. Er is sprake van repetitie en standaardisatie in de vorm van het meermalig

samenwerken van de keten. Hierbij ligt de focus meer op het proces dan op het project.



113

F3

INTERVIEW PROTOCOL

Geïnterviewde: [naam], [functie]

Organisatie: [bedrijf]

Datum: [tijd], [datum]

Locatie: [kamer,] [gebouw]

Code: [code]

ALGEMEEN

1. In hoeverre is [organisatie] bezig met nieuwe methoden voor het verbeteren van de samenwerking met

opdrachtnemers?

Welke methoden worden toegepast/ onderzocht?

Op welke schaal gebeurt dit?

2. Is [organisatie] bezig met Ketensamenwerking en de mogelijkheden hiervan?

Indien ja, op welke manier?

Indien nee, waarom niet?

Staat [bedrijf] open voor deze toepassing?

3. Heeft [organisatie] strategische partnerships met partijen?

Zo ja, met wie?

Zo ja, op welke manier zijn deze vastgelegd?

Zo nee, waarom niet?

4. Welke aanbestedingsprocedure past [organisatie] het meest toe?

Waar is dat van afhankelijk?

5. In hoeverre werkt [organisatie] met standaard geschiktheidseisen voor inschrijvende partijen?

Wanneer worden er specifieke geschiktheidseisen gesteld?

6. Wanneer er selectiecriteria worden toegepast wordt er dan gebruik gemaakt van een standaard ranking?

Zo niet, waar wordt de ranking op gebaseerd?

OPLOSSINGSRICHTING I : RAAMCONTRACT IN COMBINATIE MET PRESTATIECONTRACT

1. Wordt er binnen nu [organisatie] gewerkt met raamcontracten?

Indien ja, bij wat voor een soort projecten wordt er een raamcontract gegund?

Hoe is de ervaring met dit soort contracten?

Indien nee, wat is de reden dat er niet met raamcontracten wordt gewerkt?

Zou [bedrijf] het in de toekomst overwegen met raamcontracten te werken?

2. Wordt er binnen [organisatie] met prestatiecontracten gewerkt?

Indien ja, bij wat voor een soort projecten wordt er een prestatiecontract gegund?

Hoe is de ervaring met dit soort contracten?

Indien nee, wat is de reden dat er niet met prestatiecontracten wordt gewerkt?

Zou [organisatie] in de toekomst overwegen met prestatiecontracten te werken?

Applying


114

3. Wordt er bij [organisatie] gewerkt in BIM omgeving?

Waarom wel/niet

Zo ja, op welke manier?

Zo ja, wordt dit als eis gesteld aan inschrijvende partijen?

4. Wat is uw eerste indruk van de oplossingsrichting?

5. Zou [organisatie] de oplossingsrichting toepassen?

Waarom wel/niet?

6. Zou deze oplossingsrichting ketensamenwerking bevorderen?

Waarom wel/niet?

7. Heeft u tips en/of suggesties om de oplossingsrichting te verbeteren?

8. Wat vindt u het zwakste punt van de oplossingsrichting?

OPLOSSINGSRICHTING II : INSTAPPEN IN BESTAANDE KETEN

1. Wordt er binnen [organisatie] gewerkt met Best Value Procurement?

Indien ja, bij wat voor een soort projecten wordt BVP toegepast?

Hoe is de ervaring met dit BVP?

Indien nee, wat is de reden dat BVP niet wordt toegepast?

Zou [organisatie] in de toekomst overwegen BVP toe te passen?

2. Stelt [organisatie] eisen aan derden waarmee de inschrijvende partij werkt?

Indien ja, wat voor eisen worden er gesteld?

Indien nee, waarom worden er geen eisen aan derden gesteld?

Zou [organisatie] in de toekomst eisen aan derden stellen als dit de toepassing van KSW verbeterd?

3. Wat is uw eerste indruk van de oplossingsrichting?

4. Zou [organisatie] de oplossingsrichting toepassen?

5. Zou deze oplossingsrichting ketensamenwerking bevorderen?

Waarom wel/niet?

6. Heeft u tips en/of suggesties om de oplossingsrichting te verbeteren?

7. Wat vindt u het zwakste punt van de oplossingsrichting

ALGEMEEN

is [organisatie] bezig

met nieuwe methoden

voor het verbeteren van

de samenwerking met

opdrachtnemers?

Welke methoden

worden toegepast/

onderzocht?

Is [organisatief] bezig

met

Ketensamenwerking

en de mogelijkheden

hiervan?

Heeft [organisatie]

strategische

partnerships met

partijen?

Welke

aanbestedings

procedure

past

[organisatie]

het meest toe?

Werkt [organisatie] met

standaard

geschiktheidseisen voor

inschrijvende partijen?

Wanneer er selectiecriteria

worden toegepast wordt er

dan gebruik gemaakt van

een standaard ranking?

PR001 Ja BVP Concurerende

raamcontracten

Ja Nee Niet-openbare

procedure

80% van de

aanbestedingen. We

hebben een database met

standaardeisen.

Nee

RWS001 Ja BVP, Systeemgerichte

contract beheersing

Nee. Niet zo een heel

erg bekend begrip.

Niet heel sterk mee

aan de gang. Het is

nog niet geland bij

RWS.

Ja, universiteiten,

bouwend

Nederland,

partnership met

PWC, pelsrijke

landsadvocaat.

PWC is adviseur

vast gelegd in

raamovereenkomst.

Niet-openbare

procedure

Ja zijn standaard en

eigen verklaring die

daarvoor gebruikt

wordt.

Er worden altijd

selectiecriteria gevraagd.

Altijd vermeld in leidraad.

Zitten vaak in omzet.

Omzet is belangrijkste.

RWS002 Altijd mee bezig, zeker

in de keten. Zoeken ook

altijd toenadering met

contractvormen. In

UAV waren wij op OG

en ON mocht niks

weinig zelf bepalen.

RWS trekt zich steeds

verder terug.

Prestatiecontract,

D&C contract, E&C

contract. Zo veel

mogelijk uniform

maken

Ja maar alleen met

ON, niet met

contractpartners van

de opdrachtnemers.

Nee, niet met

prestatiecontracten.

Er moet altijd

worden aanbesteed

Niet-openbare

procedure

PC is repeterend dus zo

veel mogelijk werken we

met standaard

geschiktheidseisen.

Alleen bij heel specifieke

projecten, bijv het

monitoren van

bekleding van een dijk

kan hier een specifieke

eis voor worden gesteld.

In het

Aanbestedingsprocedure

beleid staan alle

standaard eisen.

projectmanagement.

Prestatiecontracten

selecteren niet. Iedereen die

geschikt is mag ook

inschrijven. Er wordt niet

teruggeschroefd naar 5

partijen. Markt is niet

gewend om geselecteerd te

worden. Willen zelf uit

maken of ze meedoen met

een aanbesteding.

RWS003 Ja Prestatie bestekken,

DC contracten

ja, proberen proces te

verbeteren door

ervaringen mee te

nemen maar alleen

aan publieke kant

Nee, niet met

marktpartijen

Niet-openbare

procedure

Ja we hebben set van

eisen waar we gebruik

van kunnen maken

Standaard 3 geselecteerd op

ranking en twee andere

partijen door loting

RWS004 Ja, altijd wel mee bezig Project

doelstellingsrisicos

neer te zetten. Soms

Speciaal EMVI

criteria met

samenwerken

We hebben

overkoepelende

gesprekken met de

markt los van

projecten

Nee Alle maar

meest niet-

openbaar

Ja, bij dbfmo. Maar bij

andere contracten per

project. Maatwerk

Bij prestatie en dbfm niet

toegepast maar bij alle

andere contracten wel.

Selectiecriteria zijn anders

dan geschiktheidseisen

RWS005 Ja, altijd wel mee bezig BVP Is wel een onderwerp

om mee verder te

gaan. Wordt al

besproken. Maar in

welke vorm, mate ne

sector is nog

onduidelijk.

Wel veel

overleggen met

verschillende

partners maar dit

mag niet

beschouwd worden

als strategisch

partnership

Hangt af van

de vraag. Bij

aanleg is het

openbaar

Per project gekeken Project afhankelijk

RVB001 Constant Systeemgerichte

contractbeheersing

Niet onder die naam Bouwcampus en

overheden

Niet-openbare

procedure

Gedeeltelijk, risico

management, kwaliteit

borgen

We werken met twee

soorten. Zwart-wit

meetbare maar ook met

kwalitatief meetbare

criteria.

RVB002 Ja Vertrouwen meetbaar

maken selectie

gesprekken gevoerd.

Onderdeel zoals

gedeelde incentives

maar daar zijn we

niet op een

bevredigende manier

uit gekomen

Niet met

opdrachtnemers

Niet-openbare

procedure

Geen leidraad waar

standaard eisen in staan.

Wel repeterende thema’s

is wel een spanningsveld,

aan de ene kant willen we

meer standaardiseren en

eenduidigheid naar de

markt uitstralen, aan de

andere kant heeft ieder

project unieke kenmerken.

TABLE 12: OUTCOME INTERVIEW ALGEMEEN

SOLUTION APPROACH I

Wordt er

binnen

[organisatie]

onderscheid

gemaakt tussen

een

raamovereenko

mst en een

raamcontract?

Wordt er binnen

[organisatie] nu

gewerkt met

raamcontracten?

Wordt er binnen

[organisatie] met

prestatiecontracte

n gewerkt?

Wordt er bij

[organisatie] gewerkt in

BIM omgeving?

Zou [organisatie]

het scenario

toepassen

Zou dit scenario

ketensamenwerking

bevorderen?

Wat vindt u het zwakste punt

van het scenario?

PR001 Geen verschil

tussen

overeenkomst

en contract.

Ja maar er wordt

een overeenkomst

bedoeld.

Ja,

onderhoudsproje

cten.

Ja, maar weet niet

precies hoe de ervaring

was.

Nee Klein beetje Wat wil je precies met KSW?

Geschiktheidseisen zeggen me

niks. Verwerk KSW in

contractteksten. In contracten

iets creëren waarmee KSW

wordt gestimuleerd.

RWS001 Verschil tussen

overeenkomst

en contract is

dubieus

Ja Worden onder

UAV GC

gesloten.

Onderhoudsproje

cten waar weinig

wordt

gerealiseerd.

Aannemer is niet

flexibel en RSW

niet flexibel met

prijsstelling.

Er wordt aan gewerkt.

RWS bezig met

bibliotheek. Wordt bij

DBFM contract A9

project mee gewerkt.

Nee. RWS hangt

nog heel erg op

UAV GC. Als je

echt pc wil

afsluiten moet je

met andere

algemene

voorwaarden

werken. PC is

diensten

overeenkomst en

niet realiseren

van werken. Ik

denk niet dat we

die kant op gaan.

Voor mij is keten OG-ON

en ON- OON. Onder

opdrachtnemer (OON)

worden door ON

uitgeknepen want moeten

tegen relatief lage tarieven

opleveren. Bij probleem

sluist ON dit door naar

OON en dit bemoeilijkt

volgens mij KSW. Dit is in

het algemeen wat de zaak

KSW moeilijk maakt en

zolang er nog een grote

druk blijft op de oprijs

wordt de samenwerking er

niet beter op.

KWS moet plaatsvinden.

Jammer dat je je focust op 4 jaar

contracten. Contract duur moet

langer. Wat het echt tegenwerkt

is de prijsdruk en de

onduidelijkheid waar precies

op samengewerkt moet

worden.

RWS002 Nee Niet in combinatie

met

prestatiecontract.

PC wordt altijd los

aanbesteed en

raamovereenkomst

is een aparte tak

van sport.

Ja, RWS heeft PC

ontwikkeld.

Met Pc nog niet. Ik zit

zelf in BIM project.

Zijn begonnen met

DBFM en we zitten nu

in fase plan van aanpak

om per 01-01-2017 op 1

prestatiecontract te

piloten met BIM. BIM

wordt gebruikt

voorinformatie

overdracht. Onderhoud

is toch een andere

markt en we moeten de

markt meenemen.

Alleen als we niet

meer verplicht

zijn aan te

besteden. Hier is

een weg te gaan

richting Brussel

(wijziging

Europese

wetgeving)

Niet haalbaar voor

prestatiecontracten.

Raamcontract met 3

partijen in combinatie met

Pc en dan werk verdelen.

Gebeurt nu nog niet.

Leg raamcontract/

overeenkomst uit. Je hebt het

over selectiecriteria. Hoe ga je

selecteren? Welk systeem?

Punten? Transparant afrekenen

op bepaalde dingen? Welke

score geef je? Je moet oppassen

wat je doel is

RWS003 Nee Ja maar er wordt

een overeenkomst

bedoeld

Ja,

onderhoudsproje

cten

Ja, maar ik weet niet bij

welke projecten het

wordt toegepast.

Ja maar niet met

die aanvullende

selectiecriteria

Als het lukt om het toe te

passen dan wel

De selectiecriteria. Meer op

ervaring ranken.

RWS004 Nee Ja maar er wordt

een overeenkomst

bedoeld

Ja,

onderhoudsproje

cten

Ja, standaard in

contract DBFM maar

werken ermee is nog

niet standaard

Is niet het doel Aanbesteding staat haaks

op KSW. Opdrachtgever

kan nooit goede

ketensamenwerking aan

gaan met opdrachtnemer.

ON moet KSW aangaan

met onderaannemer als

antwoord op vraag van OG

Aantal partijen in

raamovereenkomst kan te groot

zijn maar bij te weinig

verpieterd de markt. Je krijgt

hierdoor niet 1-op1-

samenwerking. Dit is een

aanbesteding scenario

RWS005 Altijd

raamovereenko

msten maar

termen worden

door elkaar

heen gebruikt

Ja, met advies

bureaus

ingenieursdiensten

en alles intern

(koffie, wc papier

etc.)

Alleen nog voor

beheer en

onderhoud.

Aanleg vooral

D&C contracten

Wordt toegepast maar

bedacht op het droge

en wordt dan uitgestort

over projecten. Werkt

niet altijd. Wordt op

propaganda achtige

manier gebracht

Is de vraag. Niet

in combinatie met

PC. Enkel op

laagste prijs

Weet ik niet. Ik vraag me af

of je niet teveel bezig bent

met een soort

samenwerkingsvorm die je

administratief vastlegt. Win

je daar iets mee op deze

manier? We spreken al met

aannemers zonder

overeenkomsten

wat is winst van

raamovereenkomst icm met

prestatie contract? Wat win je

aan tijd?

RVB001 Onderscheid

contract-

overeenkomst

niet gemaakt

Raamovereenkomst

en hebben we

gehad voor de

brandveiligheid

Prestatie op

contract zelf is

veel minder

interessant dan

over meerdere

contracten heen

in een

raamovereenkom

st. = prestatie

meten.

In ieder geval bij

DBFMO. Wordt niet in

selectie criteria

gevraagd maar is een

norm en die moeten

ON gewoon toe passen.

Staat in contract.

Ja maar niet in

combinatie met

prestatiecontract

Ja, maar zet goed contract

management over de

projecten heen. Zodat je de

prestaties kan meten en

belonen maar het moet wel

verder gaan dan een enkel

project want anders kan je

het net zo goed los.

De geschiktheidseisen vind ik

niet sterk. Er wordt gevraagd

naar referenties over KSW

terwijl de definitie nog niet

helder is. Dit is lastig. Breek

geschiktheidseisen af in

bepaalde stukjes. Bijv. Waarde

toevoeging door inkoopproces.

Gerichter vragen. Of

activiteiten van KSW opdelen.

Lastig meetbaar zijn de geëiste

geschiktheidseisen.

RVB002 Ik zal verschil

tussen de twee

niet maken.

We maken gebruik

van overeenkomst

omdat er geen

financiële waarden

aan hangt.

Dus manier

waarop jij

[Joyce] het

beschrijft in

scenario wordt

niet toegepast

door RVB

Eisen van RVB doen er

niet meer toe. Daar

hebben ze allemaal

tools voor. BIM wordt

al veel meer door ze

gebruikt want het helpt

de ON. Bij DBFMO

contracten hebben

opdrachtgevers weinig

belang bij het toepassen

van BIM. Meer bij D&C

en traditioneel.

Ja maar niet in

combinatie met

prestatiecontract

1 brug: goed gedaan.

Volgende brug weer mini

competitie. Dan maakt het

niet uit hoe vorige brug is

gedaan. Dan is het alsof het

een normale situatie is waar

alleen procedures anders

zijn ingericht. Dan haal je

niet uit raamcontract wat je

er qua langdurige

samenwerking uit kan

halen.

dat het voor ON moeilijk is om

de risico’s in the schatten.

Komen die 20 projecten wel

echt? Onnodig personeel

aannemen etc.

JC: raamcontract heeft afname

plicht.

RBV002: dan draai ik het om.

Dan wordt het risicovol voor

OG

TABLE 13: OUTCOME INTERVIEW SOLUTION APPROACH I



121


Wordt er binnen

[organisatie] gewerkt met

Best Value Procurement?

Stelt [organisatie] eisen

aan derden waarmee de

inschrijvende partij

werkt?

Zou [organisatie] het

scenario toepassen?

Wat vindt u het zwakste

punt van het scenario?

PR001 Ja Ja, kan in

aanbestedingsfase zijn

maar ook in

uitvoeringsfase, stellen

we op in contract

Ja KSW heeft ruimte en

vrijheid nodig, kan je niet

heel strak beschrijven.

Aanbestedingsrecht eist dit

wel.

RWS001 Ja, maar ik weet niet op

welke projecten. Volgens

mij sinds 2009 toegepast.

RWS vindt het moeilijk

om oude rol los te laten

en de markt de

oplossingen te laten

bedenken.

Niet. Ook niet aan

certificaten etc. die

derden moeten hebben.

Dit is de

verantwoordelijkheid

van de ON.

Ja Zit hem in de cultuur van

RWS. Wij willen heel graag

onze eigen kennis naar

voren brengen omdat wij

nog steeds denken dat we

meer weten dan de

marktpartijen.

RWS002 Net besluit genomen dat

prestatiecontracten ook

BVP gaan doen.

Ja, liquide, niet

meegewerkt aan

bouwfraude, niets

illegaals

(uitsluitingsgronden).

Geldt boven € 130.000

Geschiktheidseis BIM

maakt toepassing lastig

omdat pas in 2017 voor

het eerst (op 1 plaats)

met BIM wordt

geëxperimenteerd.

Geschiktheidseis BIM. Moet

je ervaring mee hebben.

Waar halen partijen de

ervaring vandaan?

RWS003 Ja nee maar wel ten

aanzien van de

uitsluitingsgronden

Ja, maar niet bij alle

projecten

Geschiktheidseis ON werkt

samen met.. Niet

noodzakelijk voor OG

RWS004 Ja Nee Ja, maar niet bij alle

projecten

Geschiktheidseis. Is "na

volle tevredenheid" is

objectief?

RWS005 Ja, maar met wisselend

succes

Ja, maar vaak ook al

vanuit weten

regelgeving al geregeld

Ja, opzich wel. Maar hoe

diep wil je BVP naar

beneden toepassen? Het

werkt goed bij grote

projecten in combinatie

met de gestelde

geschiktheidseisen.

Grote aannemers hebben

hun vaste clubje dus

eisen zijn niet

onderscheidend maar

wel geschikt

BVP niet voor alle projecten

geschikt. RWS moet met

overkoepelende organisatie

afspreken dat KSW een

standaard wordten dit

kenbaar maken aan de

markt

Applying


122

TABLE 14: OUTCOME INTERVIEW SOLUTION APPROACH II

RVB001 Nee Ja, vaak wel. Eisen aan

ervaring van installatie

aannemer. Ook bij D&C

of DBFMO eisen aan

architect, ontwerpende

partijen. Vaak

kwalitatieve eisen.

Ik hoop het De geschiktheidseisen.

Beschrijving “scenario II

met betrekking tot KWS” te

kort door de bocht op

sommige punten. Jammere

aan wekelijkse rapportages

van BVP is dat je ze niet

mag gebruiken voor

volgende aanbestedingen

RVB002 Nee Ja Ik begrijp BVP niet

helemaal maar ik hoor

wel mensen die er

enthousiast over zijn. Ik

ben benieuwd naar de

impact van het gebruik

van BVP binnen onze

organisatie.

Nadeel van scenario is dat

er een HR component aan

zit die aangrijpend is voor

een dienst.



123

APPENDIX G

OPLOSSINGSRICHTINGEN

G1

OPLOSSINGSRICHTING I

Aanbestedingsprocedure – Het contract wordt gegund volgens de niet-openbare procedure.

Geschiktheidseis - Aanbesteder streeft naar ketensamenwerking met als doel de continue verbetering van de










1. Een korte beschrijving – maximaal vijf (5) A4 – van de wijze waarop en de mate waarin gegadigde

inhoud en vorm geeft aan ketensamenwerking met opdrachtgevers, en


inhoud en vorm geeft aan de acht pilaren van ketensamenwerking.







ketenintegratie, en




De onder 2 bedoelde beschrijving dient in ieder geval inzicht te geven in de volgende pilaren:

A. Strategische lange termijn samenwerking tussen partners

B. Vroege betrokkenheid ketenpartners

C. Delen van informatie

D. Gezamenlijk monitor systeem

E. Continu verbeteren

F. Gezamenlijk incentive systeem

G. Hoog niveau van repetitie

H. Standaardisatie van product en proces

Selectiecriteria – Weging selectie criteria 1: 20%

Weging selectie criteria 2: 8x10%

De aanbestedende dienst is voornemens de raamwerkovereenkomst te gunnen aan de drie inschrijvende partijen

met de hoogte score aan de hand van de gestelde selectiecriteria.

Applying


124

Gunningscriteria – De aanbestedende dienst is voornemens om een contract te gunnen onder het

raamwerkovereenkomst aan de hand van de volgende gunningscriteria.

1. Kwaliteit 30%

2. Prijs 30%

3. Duurzaam partnerschap 20%

4. Klantgerichtheid 20%

De onder 3 bedoelde gunningscriteria moet in ieder geval inzicht geven over de mate waarin opdrachtnemer zijn

processen gericht op duurzaam partnerschap, ontwerpen, realiseren en exploitatie inzichtelijk maakt, de mate

waarin duidelijk gemaakt wordt welke afwegingen hieraan ten grondslag liggen en de mate waarin continue

verbeteren onderdeel is van de processen van de opdrachtnemer zodat de Opdrachtgever het vertrouwen krijgt

dat de opdrachtnemer verantwoordelijkheid neemt voor de uitvoering van de Werkzaamheden.

De onder 4 bedoelde gunningscriteria moet in ieder geval inzicht geven over mate waarin de opdrachtnemer zijn

processen gericht op dienstverlening en gastheerschap inzichtelijk heeft gemaakt, de mate waarin duidelijk

gemaakt wordt welke afwegingen hieraan ten grondslag liggen en de mate waarin continue verbeteren onderdeel

is van de processen van de opdrachtnemer zodat de opdrachtgever het vertrouwen krijgt dat de opdrachtnemer

de werkzaamheden continue afstemt op de behoeftes van de klanten.

De aanbestedende dienst is voornemens om het contract te gunnen aan de inschrijvende partij die de hoogste

score behaald aan de hand van de gestelde gunningscriteria.

Clausules – De volgende clausules moeten opgenomen worden in het contract ongeacht welk contract gegund

wordt:

De BIM norm

Prestatie Meten

Een gezamenlijk incentive systeem



125

G2

OPLOSSINGSRICHTING II

Aanbestedingsprocedure – Het contract wordt gegund volgens de niet-openbare procedure.

Geschiktheidseis - Aanbesteder streeft naar ketensamenwerking met als doel de continue verbetering van de











inhoud en vorm geeft aan ketensamenwerking met opdrachtgevers, en


inhoud en vorm geeft aan de acht pilaren van ketensamenwerking.







ketenintegratie, en




De onder 2 bedoelde beschrijving dient in ieder geval inzicht te geven in de volgende pilaren:

I. Vroege betrokkenheid ketenpartners

J. Delen van informatie

K. Gezamenlijk monitor systeem

L. Continu verbeteren

M. Gezamenlijk incentive systeem

N. Hoog niveau van repetitie

O. Standaardisatie van product en proces

De aanbestedende dienst is voornemens om alle inschrijvende partijen uit te nodigen om een aanbesteding in te

dienen die geschikt zijn geacht aan de hand van de gestelde geschiktheidseisen.

Applying


126

Gunningscriteria – De aanbestedende dienst is voornemens om een contract te gunnen onder het

raamwerkovereenkomst aan de hand van de volgende gunningscriteria.

5. Kwaliteit 75%

6. Prijs 25%

De onder 1 bedoelde gunningscriteria moet in ieder geval de volgende geschreven documenten bevatten:

De planning inclusief de Wekelijkse Rapportage – maximaal twee (2) A4 –

Het Risicodossier – maximaal twee (2) A4 –

Het kansendossier – maximaal twee (2) A4 –

De onder 1 bedoelde gunningscriteria bevat daarnaast interviews met sleutelfiguren die de opdracht in de

uitvoeringsfase gaan uitvoeren. Deze interviews moeten inzicht verschaffen over hoe de sleutelfiguren

voornemens zijn om samen te werken met de opdrachtgever as mede met actoren die onderdeel uitmaken van de

uitvoeringsfase.

De aanbestedende dienst is voornemens om het contract te gunnen aan de inschrijvende partij die de hoogste

score behaald aan de hand van de gestelde gunningscriteria.

Clausules – De volgende clausules moeten opgenomen worden in het contract ongeacht welk contract gegund

wordt:

Een gezamenlijk incentive systeem

De meetbaarheid van de resultaten (Wekelijkse Rapportage)

Afvloeiingsregeling

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A method proclaimed by supporters to be the solution to improve the relationshipbetween clients and contractors active in the construction industry and as a resultreducing time and cost overruns and improving the quality of projects.

Supply Chain Collaboration has found its way to the Dutch construction industry butthus far it has only been applied in the private sector of the construction industry andmainly by housing corporations. Why hasn’t Supply Chain Collaboration beenapplied by public clients? An explanation can be that private and public clientsoperate within the boundaries of different legal frameworks. The legal framework inwhich the public client has to operate creates barriers that hinder the application ofSupply Chain Collaboration.

This research proposes two solution approaches that public sector clients can apply to enable the application of Supply Chain Collaboration within the boundaries of thelegal framework of the construction industry.

Each solution approach focuses on a different variant of Supply ChainCollaboration and is applicable in practice in combination with a different kind of project.

This research is interesting for public clients who intend to apply Supply ChainCollaboration as well as for students and scientific researchers who want to learn more about this field of research.

Joyce van Tellingen is a master student at the Delft University of Technology, Facultyof Civil Engineering and Geo Science. This thesis is the result of the graduation research that is the final part of the master degree Construction Management andEngineering.

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APPLYING SUPPLY CHAIN COLLABORATION IN THE PUBLIC … SECTOR OF THE CONSTRUCTION INDUSTRY ... ALL LINKS IN THE CHAIN WITH AS GOAL TO OPTIMIZE THE LONG-TERM PERFORMANCE OF ... Applying