Critical Analysis of Case Law: Are Partnering Charters Binding?

Abstract

Construction project partnering in the United States has been used successfully for nearly 30 years in reducing disputes. Most partnered projects are characterized by the joint development of a nonbinding partnering charter between the owner and the contractor, which encapsulates the project’s goals and lays out the desired process for resolving issues at the lowest level. This paper explores the outcomes when partnered projects fail and the parties involved must turn to the courts to settle their disputes. The paper evaluates the case law for 16 partnered projects through content analysis and cross-case comparison. The paper explores the question of whether the good faith and fair dealing (GFFD) doctrine applies to partnering charters, potentially rendering them binding. The paper finds that while the courts have not yet directly applied GFFD to make a charter binding, there is sufficient cause to consider giving it the force of the contract.