Flexibility of the DBFM contract

Abstract

Recently, in the construction industry a shift is taking place from conventional contracts models, in which the client has the responsibility for the (re)design of an asset, to integrated contract models in which the role of the client is much more limited. Further, in integrated models for road infrastructure, projects are contracted for the whole life cycle of the road; and more design freedom is given to the contractors of the project; also, private investors finance those projects more and more; and finally, those contracts tend to be negotiated for longer terms. The DBFM contract is such a model. DBFM stands for ‘design, build, finance and maintain’ and since 1999 this contract model has been increasingly applied by the Dutch government because it is believed to deliver value for money. However, this new type of contract is said to be (relatively) inflexible. Not only in the Netherlands but also in the United Kingdom, where similar types of contracts (DBFO) are administered by the English equivalent of Rijkswaterstaat, the Highways Agency. Usually, DBFM and DBFO contracts, in which O stands for operate, have a term of about 15 to 30 years. Inflexibility of the DBFM contract is believed to be a problem for the public sector client, such as Rijkswaterstaat or ProRail, who is worried that public resources are tied up that could also be used elsewhere. It is worried because it is unknown whether the DBFM contract can put changing circumstances, which by definition exist as the project’s context is dynamic, into effect. This is particularly an issue for changing circumstances in the long term, because the longer the contract runs the more uncertainties there are at the outset of the project. In literature is suggested that flexibility of the DBFM contract is provided by the change procedure. This is a mechanism in the DBFM contract through which both physical changes in the asset and changes in the contract’s terms can be made. These changes can be initiated either by the client or the commissionee. Therefore, in this research is investigated what flexibility is offered by the change procedure in the DBFM contract for Dutch transportation infrastructure projects that have been issued the completion certificate. Moreover, as it is observed that it is unknown how the interests of the main actors in the DBFM project play a role in making changes and in flexibility, this is studied too. The central research question is: What flexibility is offered by the change procedure in the DBFM contract for Dutch infrastructure projects and how do the interests of the contracting parties and the financiers of DBFM play a role therein? The research objective is to propose recommendations for improving the DBFM approach of infrastructure projects. To reach that research objective the project has been divided into three phases. Phase 1 is the literature study, on basis of which an analytical framework is established. It includes 4 propositions (see below). In phase 2, which is divided into three parts, respectively changes in case projects are identified and characterised by means of a case study research (2a); the interests of the contracting parties and the financiers are analysed (2b); and the experience with flexibility of DBFO projects in England is assessed (2c). The projects that were selected for the case study research are three road projects, namely the A59, A12 motorways and the N31 highway, and one rail project, the HSL-Zuid. These are 4 Dutch transportation infrastructure projects which have reached the projects’ completion date, which means that the commissioneehas finished realisation and now has to ‘exploit’ the asset2. Finally, in phase 3 by means of an analysis of the data the research question is answered and the recommendations for improving the DBFM approach is presented.