Case Study:

Developing Admission Criteria for SAICE Adjudicators

Ntsoli Maiketso

Trans-Caledon Tunnel Authority (TCTA), Centurion, South Africa

Email: nmaiketso@tcta.co.za

Abstract:

Adjudication is a relatively new method of alternative dispute resolution in the South African construction industry. There are low levels of knowledge and use of adjudication. There are not enough Adjudicators in the industry, and there is no established framework for skills and training. It is generally considered that the introduction of Payment and Adjudication legislation can improve the situation. The author and others have endeavoured to improve the practice and study of adjudication in the construction industry, and have continued to publish and engage in other ways with industry bodies in this pursuit. In order to develop Adjudicator Admission Criteria for the South African Institution of Civil Engineering (SAICE), the author undertook limited research, drafted the admission criteria and sourced comment on this from key industry role players. Criteria which were supported the most included experience, construction law and formal assessment. Objectivity of criteria was the most recurring theme, which led to the conclusion that the criteria as they are can only be regarded as interim, whilst a longer-term solution is being developed based on formal assessment. Keywords: adjudication, admission criteria, alternative dispute resolution, skills

1 Introduction

This paper outlines an investigation into adjudicator skills and training, presents how each admission criteria considered was identified, reviewed and subsequently modified where necessary to finalize the SAICE adjudicator admission criteria. Comments received are analysed to identify trends and themes, and conclusions are drawn where appropriate.

2 Literature Review

2.1 Fundamentals of admission criteria

The Oxford Dictionary (2000) defines admission as entering or being allowed into a building, society or school. Requirements for admission can vary from one extreme to the other, from one‘s origins, appearance, place in society, educational background, to professional achievements and national honours. For example, whilst admission to a primary school may only require that the place of residence be within a certain radius from the school, admission to a post-graduate programme at a university may require a completely different set of attributes like experience, leadership and intellectual capability. Admission into professional societies is also varied, depending on whether these are statutory bodies or voluntary associations. Statutory bodies are normally regulated from the minimum educational qualification required, the type and length of experience, and any examination or peer review mechanism employed. An examples is the Engineering Council of South Africa, which is

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regulated by the Engineering Profession Act No. 46 of 2000. Voluntary associations such as SAICE on the other hand have admission criteria defined by the society itself, with the only proviso typically being that such criteria should not be in conflict with its founding constitution. The subject of the paper relates to the latter.

2.2 SAICE in the South African Construction Industry

The South African construction industry is generally broken up into the building and engineering construction sectors. There are other related sectors and disciplines (quantity surveyors, architects, engineers, project managers, etc.) which together comprise what has come to be known as the Built Environment, including various bodies operating at different levels, from statutory bodies to voluntary associations, of which SAICE is one. Amongst the aims and objectives of SAICE, the following is relevant for this paper:

…to promote the science and practice of civil engineering.

In keeping with this noble aspiration, SAICE recently introduced a new version of its ‗General Conditions of Contract for Construction‘ (GCC 2010), and this introduces dispute resolution by adjudicators and/or dispute boards, whose nomination can be referred to the SAICE President by the contracting parties. SAICE enjoys wide recognition from other industry bodies, such as the Construction Industry Development Board (CIDB) and the Engineering Council of South Africa (ECSA), and it plays a critical role in the development of industry norms, guidelines and regulations. This is part of the reason why the idea of an industry-wide centre for dispute resolution has been mooted in many of its proceedings under the dispute resolution portfolio. The paper will however, only consider dispute resolution within the ambit of SAICE, in particular with regard to adjudicators and how these are admitted onto the SAICE President‘s List. (Discussions regarding the centre are being pursued separately). Whilst general membership of SAICE has quite straightforward admission criteria, to serve on the SAICE President‘s List of Adjudicators has its own different admission criteria due to the specialised nature of the skill required.

2.3 Knowledge, skills and training on adjudication

Adjudication is a relatively new method of alternative dispute resolution in the South African construction industry. Maritz (RICS, 2007) concluded that there were low levels of knowledge and use of adjudication. Maiketso and Maritz (RICS, 2009) concluded that there were not enough Adjudicators in the industry, and that there was no established framework for skills and training. Some research undertaken into skills and training on adjudication in South Africa showed that:

Adjudicators need an ―adjudication qualification‖, in addition to their professional qualification (Maritz, 2007).

In trying to unpack the finding above, further research (Maiketso, 2008) showed that the following amongst other findings:

There was a need to establish a framework for skills and training, including provision for accreditation;

There was general agreement on relevant skills, useful techniques and desirable personal attributes of adjudicators;

There was broad agreement on the possible content of an “adjudication qualification” if it were to be implemented, from the acquisition of knowledge and experience, to the assessment and accreditation of competence.

The foregoing references amongst others supported the introduction of Payment and Adjudication legislation to improve the situation. Efforts are starting to be put into the conception of this

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mammoth task, but until such legislation is introduced together with guidelines or regulations on all of the above aspects, each sector of the industry has to address its needs as it best sees fit. The CIDB provides guidance on this matter and therefore was relied upon in developing the SAICE admission criteria, together with the Institute of Civil Engineers (ICE, UK) admission criteria. A comparison was also made between skills and training information sourced from selected institutions associated with adjudication, i.e. CIDB, ICE (UK), Chartered Institute of Arbitrators (CIArb, UK), Dispute Resolution Board Foundation (DRBF, USA), Queensland subordinate legislation for adjudication qualification (Australia), Construction Industry Council (CIC, UK), American Association of Arbitrators (AAA, USA), Federation Internationale des Ingenieurs-Conseils (FIDIC) and others. This is presented in Table 1 below (after Maiketso, 2008). General findings from these showed that experience and professional registration appear to be widely accepted or assumed where not specified, and knowledge of the relevant conditions of contract is also taken for granted. Whilst attendance of a relevant course was considered to be adequate by a few institutions, the general trend appeared to be moving towards formal tuition and peer review to facilitate accreditation. It is with these considerations in mind that the SAICE adjudicator admission criteria were developed. Table 1: Information from selected institutions on skills framework and accreditation for adjudicators (after Maiketso, 2008) Institution Experience Registration CoC Course Assignment Examination Interview

CIDB PM past 5 yrs 45 yrs age

10 yrs standing Recom written appl x 1

ICE 10 yrs PM In past 15 yrs

10 yrs standing required x 1 x 1 x 1

CIArb required x 3 modules x 2 x 2 modules x 3 days

Queensland required x 18 x 1 x 1

CIC RICS, RIBA, ICE, CIArb,

CIOB

DRBF Attributes only

AAA 10 yrs snr As appropriate Recom Recom

FIDIC required written appl x 2 x 2 x 2 days

Abbreviations used in table: PM – Project Manager; yrs – years; CoC – Conditions of Contract; Recom – Recommended; appl – application; snr – senior

3 Research Methodology

Purposeful sampling was adopted due to the specialised nature of the research subject. Initially theoretical sampling was used to obtain all relevant views, and subsequently discriminant sampling was used to obtain closure. Having drafted the criteria, a selected sample of industry role-players was used to source comment, and the outcome was then subjected to further internal review from within the Project Management and Construction Division (PMCD) of SAICE. The criteria were first drafted based on two key reference documents:

CIDB Best Practice Guideline #C3 Adjudication, 2005; and

ICE Requirements for entry onto ICE’s List of Adjudicators, 2006. Key considerations were that these should define minimum requirements in the following aspects:

Experience;

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Professional registration; and

Forms of contract, construction law and adjudication. Work in developing the first draft commenced in 2008. PMCD was afforded an opportunity to provide initial comment on this and suggest direction in terms of sourcing further comment. As background, PMCD was also provided with the full version of Table 1 to provide context. The following institutions were then approached for comment, and feedback was received at the times shown:

SAICE PMCD (internal), Jan-Feb2009, Sep-Oct 2009;

Association of Arbitrators (Southern Africa) (AASA), Oct-2009;

Dispute Review Board Foundation (DRBF) local chapter, Nov-2009;

South African Federation of Civil Engineering Contractors (SAFCEC), Feb-2010;

Consulting Engineers South Africa (CESA), April 2010; and

Construction Industry Development Board of South Africa (CIDB), June 2010. The final draft is included in the Appendix, following the incorporation of comments, as reflected under the next section (Results). In keeping with standard research ethics, confidentiality was maintained and privacy of the respondents was respected in the presentation of results. Data handling was mostly based on content analysis. Data was organized and classified into common themes; an attempt was then made to synthesise the emerging trends into a whole, so that conclusions and/or generalisations could be drawn where possible. To provide safeguards to the case study, as recommended by Leedy and Ormrod (2005), the following disclosures would be in order:

Attention was paid to any contradictory comment and/or conclusion, in order to validate the overall results and not simply dismiss it as insignificant; and

Bias, beliefs or values may have played a role, as the author is responsible for the dispute resolution portfolio within SAICE PMCD, and as such had a direct interest in the positive outcome of the exercise, to enable the criteria to be implemented.

It is trusted that these will not have unduly compromised the results and/or conclusions, and that the outcome can still lead to meaningful debate, even if the research itself may be lacking in academic rigour and impartiality.

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4 Results Furniture and equipment for a two bedroom dwelling

The results presented below are in the form of comments made, compared against corresponding changes in the original criteria circulated for comment. Where a change was not considered necessary, a reason is provided. The last column headed ―type‖ relates to the content analysis that follows in Figure 1, which is based on the concept(s) found in the comment and to some extent in the change made / reason given.

Table 2: Comments and changes/reasons Comments raised Corresponding changes made / reasons if not changed Type

1. Exam not supported: could discourage senior applicants and needs much work in developing it, interim solution required

1. Exam initially removed, subsequently reinstated in the long-term, interim solution provided via sunset/transitional clause

a, p

2. CPD requirements needed for those on list 2. No change: administrative aspects of running the President’s list b 3. Qualifications need to be defined for Panel members 3. No change: administrative aspects of running the President’s list b 4. Include “Fellow of SAICE” or similar, to emphasize peer recognition and

respect within the industry 4. No change: SAICE resolved not to use professional

honours/peer recognition as an exclusionary criterion

c

5. Are there suitable courses? 5. No change: several courses available, suitability unconfirmed d 6. Include knowledge of contract law and procedure 6. Adopted knowledge of contract law, but not of procedure (rules

of natural justice applicable instead)

e

7. Include knowledge of the English language 7. No change: communication skills considered to be covered by Pr Eng and experience requirements

f

8. Include impartiality 8. Impartiality added to fairness and independence g 9. Formal qualification via course and exam supported only if courses

available in RSA 9. Initially watered down, then removed, but subsequently

reinstated as part of long-term solution

a, d, p

10. Include holding of senior position for approx. 10 yrs 10. No change: post Pr Eng experience requirement considered to be adequate

h

11. Include knowledge of conditions of contract, which must be examined 11. Adopted, and referred to SAICE GCC in particular, exam retained for the longer term

i, a, p

12. Make exam/interview discretionary if application/CV does not provide evidence of competence

12. No change: requirements and application of exam / interview to be defined in the longer term, but would be made standard not discretionary

a, j, p

13. Make exam/presentation mandatory, as adjudication itself requires studying a case, interviewing the disputing parties and presenting a ruling

13. Exam/interview reinstated in the longer term, current arrangement transitional whilst exam/interview requirements are being developed

a, j, p

14. Reduce experience requirement from 10 to 5 years 14. No change: 10 years post Pr Eng experience considered necessary

h

15. Remove professional registration or include other professional categories besides Pr Eng, e.g. Pr Tech

15. No change: retained Pr Eng or equivalent to provide for Pr Tech et al

k

16. Must not have criminal record 16. No change: “must not have” criteria not included l

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Comments raised Corresponding changes made / reasons if not changed Type

17. Must have legal qualification, with experience in construction 17. No change: knowledge of construction contract law and conditions of contract considered adequate

e, h, i, m

18. Knowledge of contract law essential 18. Adopted e 19. Be capable of fair, impartial and sound judgment 19. Impartiality added to fairness and independence, adjudication

requires reasoned decision (in response to sound judgment)

g

20. Knowledge of construction regulations, procurement processes, and Constitution of country

20. No change: knowledge of construction contract law, conditions of contract and adjudication considered adequate, supporting laws and regulations to be more fully defined in the longer term

e, h, i, m

21. Include lawyers, do not limit to Pr Eng 21. No change: SAICE resolved to remain within its jurisdiction of civil engineering (industry-wide centre for dispute resolution being pursued separately)

m

22. Include knowledge of construction contract law and rules of natural justice

22. Adopted e

23. Fairness and independence can be claimed by any applicant, not easy to assess

23. Impartiality introduced, key consideration being to avoid conflict of interest/bias

g

24. Assessment must allow demonstration of potential for those who haven’t done adjudications, and example adjudications for those who have

24. No change: to incorporate assessment in formal process to be adopted in the longer term

a, o, p

25. Applicants to show appreciation of tight time constraints of adjudication

25. No change: familiarity with adjudication considered sufficient o

26. Include lawyers and claims consultants, do not limit to civil engineers 26. No change: SAICE resolved to remain within its jurisdiction of civil engineering (industry-wide centre for dispute resolution being pursued separately)

m

27. Increase experience from 10 to 15 years 27. No change: 10 years post Pr Eng experience considered sufficient

h

28. Fellow of SAICE not pre-requisite, experience and contract management enough

28. No change: SAICE resolved not to use professional honours/peer recognition as an exclusionary criterion

c, e, i

29. Course/exam not supported, will put potential applicants off 29. Exam/course removed for now, to be adopted in the longer term

a, d

30. Most appointments are done by personal reference not via these lists 30. No change: Emphasises need to regularise, status quo not optimal

b

31. Course needs careful consideration, many available, but none sufficient 31. Course removed for now, to be adopted in the longer term d 32. Review panel to consist of experienced adjudicators 32. No change: administrative aspects of running the President’s list b 33. Accept or interview applicant depending on strength of CV 33. No change: acceptance criteria defined for now, interview to be

adopted in the longer term as part of the formal process

j, p

34. Pay annual fees to stay on the list 34. No change: administrative aspects of running the President’s list (currently not applied for mediators and arbitrators, but may consider in future)

b

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Comments raised Corresponding changes made / reasons if not changed Type

35. Provide for mentorship to facilitate training and experience 35. No change: further unpacking of skills and training to be addressed in the longer term

n, p

36. Include other built environment professionals, not limited to Pr Eng 36. No change: SAICE resolved to remain within its jurisdiction of civil engineering (industry-wide centre for dispute resolution being pursued separately)

k, m

37. Remove length of professional membership, as experience is addressed elsewhere

37. No change: post Pr Eng experience requirement considered to be necessary to ensure adequate seniority, and the two length requirements (i & ii) are not mutually exclusive

h

38. Provide for specialisation 38. No change: administrative aspects of running the President’s list – on application form, as done for mediators and arbitrators

b

39. Consider geographic location 39. No change: administrative aspects of running the President’s list – when selecting, proximity to disputing parties considered

b

40. Minimum requirements must be objective, assessment criteria must be in keeping with CIDB guideline, avoid vague and subjective criteria which could be open to abuse

40. Criteria qualified as a transitional arrangement whilst a formal accreditation / admission process (course/exam/interview) is being developed

p

The results above were then grouped according to key concepts identified to enable a content analysis below in Figure 1 (the numbers in brackets are the frequencies).

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CONCEPT CATEGORY THEME a d j n p b h c f e i o g l m

Exam / Assessment (8)

Administrative (7)

Peer recognition (2)

Contract Law (6)

Course (4)

Communication (1)

Impartiality (3)

Experience (7)

Conditions of contract / Contract Management

(4)

Interview (3)

Provide for Pr Tech (2)

Criminal Record (1)

Non-Engineers (5)

Mentorship (1)

Adjudication (1)

Long-term solution (9)

Formal Assessment (8+4+3+1=16)

Administrative (7)

Additional Criteria (2+1=3)

Conduct

(3+1=4)

Construction Law (6+4+1=11)

Civil other than Pr Eng (2)

Lawyers & non-engineers (5)

Objectivity of Criteria (9)

Formal Assessment &

Objectivity (16+9=25)

Construction Law, Conduct, lawyers

(11+4+5=19)

Additional, Other

(3+2=5)

Civil, Lawyers &

Non-Engineers (2+5=7)

Figu

re 1

: con

tent

ana

lysi

s

k

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5 Discussion

From the results above, the following observations can be made at the Concept level: The most numerous comments were made in connection with the long term solution,

followed by exam, experience and administrative aspects.

The least number of comments were made in connection with additional criteria of communication, criminal record and mentoring.

The following patterns emerged from a categorisation of the concepts:

The most conceived Category was formal assessment, followed by construction law and objectivity of admission criteria.

The least conceived Category of criteria was other professional designations besides Pr Eng, followed by conduct and other additional criteria.

Further synthesis revealed the following Themes out of the broad categories formulated above:

The most common Theme was objectivity of admission criteria, as supported by formal assessment and the need for a long term solution.

The second most common Theme relates to law, as supported by construction law, conduct and reference to lawyers (reference to lawyers given dual treatment, both in the positive and in the negative: for confirming additional qualifications and as a basis for exclusion).

Although it is recognised that the sourcing of comments was not on a ‗clean slate‘ basis as standard research would require, as the draft criteria on which the respondents had to comment already influenced them to think in a certain way; their responses are nonetheless useful in terms of whether they support or do not support the fundamental requirements. This recognition therefore necessitated the following further analysis of the data, which was undertaken to ascertain which fundamental requirements had been most supported, and which had been the least supported, in the original draft of the admission criteria as circulated for comment:

The most commented-upon criterion was formal assessment, as shown by reference to exam, course and interview: only four out of twenty-five comments did not support this criterion, and the rest either supported, conditionally supported, or provided suggestions/advice on how it could be implemented.

The least questioned criterion was experience, as shown by almost no dispute being raised for the requirement for familiarity with the construction process. Although the length of experience was questioned in two instances (one to increase it, the other to decrease it), the content of the necessary experience was not disputed. This however, cannot be considered to be a positive confirmation of whether the criterion is supported or not supported, but can be viewed more as a silent affirmation.

The least supported criterion appears to have been to widen the net to include lawyers and others: there was strong support and motivation for SAICE to remain within its jurisdiction of civil engineering (whilst not abandoning the pursuit of an industry-wide dispute resolution centre as a separate exercise).

It is further instructive to note the high level of interest in how the panel is constituted and operates (administrative aspects), as this would be responsible for putting these criteria into effect. Perhaps because of the long-decried fragmentation of the construction industry on dispute resolution and other contractual matters, the industry needs assurance that SAICE knows what it is doing, and that

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such fragmentation must not simply be replaced by half-baked solutions or over-regulation without properly thinking through the full process requirements.

6 Conclusion

The results therefore appear to lead to the conclusion that the admission criteria in their current form cannot be considered as final, and that more objectivity needs to be introduced to achieve this. It is considered that such objectivity will be achieved through a formal assessment process involving a course, exam and/or interview process. This conclusion led to the introduction of a ―sunset clause‖, and an interim application period during which a longer-term solution must be developed.

7 Recommendation

The following recommendations are therefore made: That SAICE adopts the proposed current adjudicator admission criteria as an interim

measure to introduce a measure of organisation into the process of adjudication and adjudicator selection in civil engineering construction contracts.

That SAICE develops robust formal assessment criteria involving a course, a qualifying exam and/or an interview to be implemented in the long term.

That SAICE publicises these measures and invites interested parties to participate in charting the way forward.

8 References

American Arbitration Association (AAA). 2000. Dispute Resolution Board Guide. [online] Available from: www.adr.org [accessed March & May 2008]

Chartered Institute of Arbitrators (CIArb) UK. [online] Various material available from: www.arbitrators.org [accessed March and May 2008]

Construction Industry Council (CIC). 2011. CIC register of adjudicators. [online] available from http://www.cic.org.uk/services/adj_become.shtml [Accessed 28 May 2011]

Dispute Resolution Board Foundation. 2007. Practices and Procedures. Seattle: Dispute Resolution Board Foundation.

Federation Internationale des Ingenieurs-Conseils (FIDIC: International federation of consulting engineers). 1999. Conditions of Contract for Construction: For Building and Engineering

Works Designed by the Employer. 1st edition. Lausanne: FIDIC. Institute of Civil Engineers (UK). 2006. Minimum Qualification Requirements for Entry onto the

ICE Register of Adjudicators. [online] Available from http://www.ice.org.uk [Accessed 25 March 2008].

Leedy, PD and Ormrod, JE. 2005. Practical Research: Planning and Design. 8th edition. New Jersey: Pearson Education.

Maiketso, NC. 2008. Adjudication as an Alternative Dispute Resolution in the South African

Construction Industry. MSc treatise. Pretoria: University of Pretoria. Maiketso, NC and Maritz, MJ. 2009. What are the requirements for the SA construction industry to

fully utilize Adjudication? International Conference: RICS COBRA 2009, Cape Town. Maritz, MJ. 2007. An investigation into the adjudication of disputes in the South African

construction industry. International Conference: RICS COBRA 2007, Atlanta, USA. Republic of South Africa. Department of Public Works. Act 38 of 2000 (CIDB). Government

Gazette Vol. 425 No. 21755. Cape Town: Post Office (Adjudication Procedure 2004 (1st ed.), Best Practice Guideline for Adjudication #C3 2005 (2nd ed.)).

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State of Queensland (Australia). 2004. Building and Construction Industry Payments Act 2004. [online] Available from: www.legislation.qld.gov.au/LEGISLTN/CURRENT/B/BuildngCIPA04.pdf [Accessed 25 March 2008].

Welman, C, Kruger, F & Mitchell, B. 2005. Research Methodology. 3rd edition. Cape Town: Oxford University Press.

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