Cooperation instead of control – what construction contracts have to achieve today
Anyone building today first documents, then calculates – and hopes that there will still be time for the project at the end. Legislative requirements such as the Supply Chain Duty of Care Act are leading to increasingly confusing contracts in which compliance systems and ESG statements have long taken up more space than the actual construction task. The construction process itself? Slipping further and further behind.
This is rarely about real risks on the construction site, but about the fear of being held financially liable if something does not go according to plan. Public clients in particular resort to rigid contract models with fixed deadlines, fixed prices and penalties. And case law does not help: even in the event of delays for which Our Company is not at fault, the associated risks and additional costs remain with Our Company – including contractual penalties.
The result: instead of finding solutions together, project participants spend their time on supplements, obstruction notices and escalations. This costs resources and blocks progress.
Trust instead of a contractual penalty
What construction projects really need are not legal bulwarks – but contracts that stand up to reality. Not everything can be planned precisely from the outset. Requirements, schedules and framework conditions change. Good contracts accept this and create a framework in which construction can be carried out together despite the complexity.
Cooperative contract models offer the right basis for this. They rely on fair risk allocation, clear communication processes and flexible mechanisms for adaptation. Trust is not assumed here, but systematically generated.
Three levers for better contracts
- Anchoring trust contractually
Incentive systems are needed instead of punitive logic. Bonus-malus models reward cooperation and efficiency without taking away economic ground in the event of deviations. Those who take responsibility do not have to defend themselves – they can shape things. - Sharing costs – not calculating against each other
An open-book approach with a target cost agreement creates transparency instead of tactics. Both sides win: Those who stay under target benefit. Those who need more do not automatically lose. Trust replaces the need to calculate against each other. - Realistic Scheduling
Instead of rigid calendar dates, flexible models with buffer zones and jointly defined worst-case scenarios are needed. This way, not every postponement becomes a dispute, but part of a controllable process.
Our own experience shows that this approach is not just theoretically sensible. In several projects that we have accompanied in this way, the time and cost frame remained stable – the planned buffers were hardly used. This was not least due to the fact that everyone involved worked together as equals right from the start. Planning, invoicing and Schedule Control were transparent and comprehensible. Instead of enforcing rigid specifications, the project started with a joint risk workshop. In this workshop, probabilities of occurrence, causalities and possible interactions were analyzed. The result: a realistic time frame with rewards for earlier completion within budget.
Cooperation instead of control
However, those who continue to rely on traditional contracts for complex Projects are not saving money, but risking failure. If you want to enable cooperation, you have to see the contract as a tool. Flexibility, transparency and a common understanding are the basis for projects that work.
Of course, this model does not make sense for every project. For standardized projects with clearly defined services, such as single-family house construction, classic contract forms are sufficient. But wherever uncertainties and interfaces dominate, more flexible solutions are needed. These can also be designed pragmatically within the framework of public procurement law and the VOB/B contract.
A new mindset is required. Projects are made by people – with individual interests, uncertainties and expectations. They thrive on communication, trust and the willingness to assume joint responsibility. The task is to contractually organize cooperation in such a way that the individual interests of the company are satisfied in the best possible way so that the project goals are met. Those who dare to break new ground not only create better contracts, but also successful projects.
Contact the author
Jörg Müller
Senior Expert Contract & Claims Management