Alliance contracting: Enforceability of the consensusdocs 300 mutual waiver of liability in us courts

Project alliances are on the leading edge of innovation in alternative project delivery methodologies and the mutual waiver of liability is a central canon thereof. Enforceability of this waiver, however, has yet to be tested in any court of law. If enforcement can be relied upon it has the effect of making claims and dispute resolution processes irrelevant as between the parties to the project alliance whereby the project alliance agreement fulfils one of its principal purposes, elimination of claims. This research examines the mutual waiver of liability that flows from safe-harbour decisions under the ConsensusDocs 300ª Standard Tri-Party Agreement for Integrated Project Delivery in order to determine its potential for enforceability in the courts of the US. It adopts a classic legal research methodology focused upon primary and secondary legal research sources and designed to provide balanced findings in the form of a memorandum of law. Case history findings reveal that courts have increasingly found implied duties of good faith and fair dealing in both design services contracts and construction contracts; that courts have also found fiduciary relationships in cost-plus construction contracts; but that courts have been unwilling to find fiduciary relationships in all design services contracts. Enforceability hinges upon the likelihood of courts finding common law fiduciary relationships and duties of good faith and fair dealing for both design and construction services within the express words of ConsensusDocs 300ª. The research concludes with an appeal to the academic community to educate industry participants in the common law meaning of both good faith and fair dealing and the expectations of a fiduciary.