Traditional Canadian pavement construction contracts provide detailed specifications for the work that needs to be carried out. This is the case for both maintenance and rehabilitation contracts. However, for many road agencies around the world, this traditional way of contracting had shortcomings. These agencies have been proactive in changing their contracts to maintain the road networks while reducing the cost. The challenge of maintaining the road networks to the highest possible condition while investing the minimal amount of money has promoted innovative contracting approaches. Furthermore, road agencies have increased the private sector involvement through warranty contracts. According to road agencies around the world, there has been a movement over the last two decades towards Performance Based Contracts (PBCs); a long term warranty contract. In PBCs, the client agency specifies certain clearly defined minimal performance measures to be met or exceeded during the contract period and payments are explicitly linked to the contractor successfully meeting or exceeding those performance measures. Therefore, the PBC maintenance and rehabilitation selection differs significantly from that of traditional asset management contracts and more complex due to the pavement deterioration process and probability of failure to achieve the specified level of service for various performance measures along the contract period. This thesis involves the development of a novel framework that facilitates the selection of maintenance and rehabilitation activities for pavement assets under PBCs. The framework consists of two phases. Phase-One, called the Initial Program, uses historical data, performance modeling, and optimization to establish and select the maintenance and rehabilitation program for the bidding stage. Phase-Two, called Project Asset Management, is implemented after the contract is awarded. This phase uses the contract performance monitoring data and the cost estimate from Phase-One as a baseline budget to update and validate the established program through performance modeling and optimization. A case study using data from the Ministry of Transportation Ontario (MTO) second generation Pavement Management System (PMS2) is used to illustrate the framework.

Vadovaujantis pacta sunt servanta principu, iš esmės kiekvienas sutarties neįvykdymas, lygiai kaip ir netinkamas vykdymas reiškia sutarties pažeidimą, už kurį atsakingas skolininkas. Tačiau ši taisyklė turi išimtį – ji netaikoma tuomet, kai sutarties vykdymui trukdo po sutarties sudarymo atsiradusios tam tikros teisiškai reikšmingos aplinkybės, nepapuolančios į nė vienos iš šalių rizikos sritį. Tokioms situacijoms spręsti užsienio, tarptautinėje ir nacionalinėje praktikoje įtvirtinami ir taikomi sutarties vykdymo neįmanomumo dėl iš esmės pasikeitusių aplinkybių ir sutarties vykdymo apsunkinimo dėl iš esmės pasikeitusių aplinkybių teisiniai institutai, įvairiais aspektais tiriami šiame magistriniame darbe. Pirmoje darbo dalyje nagrinėjamos sutarčių vykdymo pasikeitus aplinkybėms problemai spręsti skirtų teisinių institutų ištakos, samprata, pagrindiniai požymiai ir tarpusavio santykis. Nustatyta, kad institutai yra savarankiški, todėl negali būti taikomi paraleliai ar subsidiariai. Antroje dalyje istoriniu – lyginamuoju aspektu tiriami Vokietijos, Prancūzijos ir Anglijos pasirinkti sutarčių vykdymo pasikeitus aplinkybėms problemos sprendimo būdai. Analizė parodė, kad šiose valstybėse sutarčių vykdymo neįmanomumo dėl iš esmės pasikeitusių aplinkybių situacijos sprendžiamos labai panašiai. Tačiau valstybių požiūris į sutarties vykdymo apsunkinimo dėl iš esmės pasikeitusių aplinkybių teisinį institutą yra ganėtinai skirtingas. Trečioji darbo dalis skirta Lietuvai reikšminguose... [toliau žr. visą tekstą] / According to principle pacta sunt servanta, commonly each non-fulfilment of the contract as well as undue fulfilment is considered as an infringement, for which the promisor is liable. However, this rule has an exception – it is not applied, when performance of a contract is impeded by particular legally significant circumstances, which occurred after conclusion of a contract and the risk thereof was not assumed by either party. Such situations in foreign, international and national practice are dealt by applying legal institutes of impossibility of performance due to change of circumstances and hardship of performance due to change of circumstances, the various aspects whereof are analysed in the master thesis. First part of the thesis analyses origins, concepts, main features and correlation between the legal institutes, developed to deal with the problem of performance of contracts under changed circumstances. It has been found out that they are independent and, thus could not be applied simultaneously or subsidiary. In second part the author historically-comparatively reviews, how the problem of performance of contract under changed circumstances is dealt in Germany, France and England. The study has shown that these countries solve problem of impossibility to perform the contract due to changed circumstances in a very similar way. However, they have quite a different approach towards the legal institute of hardship of performance due to change of circumstances. Third... [to full text]

Traditional Canadian pavement construction contracts provide detailed specifications for the work that needs to be carried out. This is the case for both maintenance and rehabilitation contracts. However, for many road agencies around the world, this traditional way of contracting had shortcomings. These agencies have been proactive in changing their contracts to maintain the road networks while reducing the cost. The challenge of maintaining the road networks to the highest possible condition while investing the minimal amount of money has promoted innovative contracting approaches. Furthermore, road agencies have increased the private sector involvement through warranty contracts. According to road agencies around the world, there has been a movement over the last two decades towards Performance Based Contracts (PBCs); a long term warranty contract. In PBCs, the client agency specifies certain clearly defined minimal performance measures to be met or exceeded during the contract period and payments are explicitly linked to the contractor successfully meeting or exceeding those performance measures. Therefore, the PBC maintenance and rehabilitation selection differs significantly from that of traditional asset management contracts and more complex due to the pavement deterioration process and probability of failure to achieve the specified level of service for various performance measures along the contract period. This thesis involves the development of a novel framework that facilitates the selection of maintenance and rehabilitation activities for pavement assets under PBCs. The framework consists of two phases. Phase-One, called the Initial Program, uses historical data, performance modeling, and optimization to establish and select the maintenance and rehabilitation program for the bidding stage. Phase-Two, called Project Asset Management, is implemented after the contract is awarded. This phase uses the contract performance monitoring data and the cost estimate from Phase-One as a baseline budget to update and validate the established program through performance modeling and optimization. A case study using data from the Ministry of Transportation Ontario (MTO) second generation Pavement Management System (PMS2) is used to illustrate the framework.

It is generally accepted that the award of contract damages in English law is governed by the expectation principle. This principle provides that following an actual or anticipated breach of contract the innocent party is entitled to be put into the position that he or she would have occupied had the contract been performed. There is significant ambiguity over what ‘position’ means in this context. The conventional understanding of the expectation principle is that it stipulates the appropriate measure of loss for an award of compensation. This thesis challenges this understanding and proposes a new performance-oriented account of awards given in accordance with the expectation principle. The thesis is in two parts. Part I outlines and challenges the orthodox understanding of awards given in accordance with the expectation principle. Chapter One outlines the orthodox account, and explains the traditional interpretation of loss in this context. Chapter Two mounts a doctrinal challenge to the orthodox account, demonstrating the existence of many awards for breach of contract that do not reflect the actual loss suffered by the innocent party. Chapter Three highlights the conceptual difficulty of the orthodox account and outlines the problems with conventional terminology, proposing stable definitions for important legal concepts. Part II advances an alternative account of contract damages that draws a distinction between two different kinds of money awards. The first is an award substituting for performance. The second is an award compensating for loss. Chapter Four outlines the account’s foundations by defending the existence of the right to performance and the existence of the proposed distinction. Chapter Five explains the quantification and restriction of money awards substituting for performance. Chapter Six explains the nature of money awards compensating for loss. Finally, Chapter Seven defends English law’s preference for awarding monetary substitutes for performance rather than ordering specific performance.

Performance-based contracting (PBC) redefines the relationships between suppliers and buyers and differs from traditional contracting approaches with its reward/payment scheme, emphasis on the performance outcomes, increased supplier autonomy, and transfer of risk and responsibilities to suppliers. Given the 70% of life cycle costs of products/systems reside in sustainment, PBC has led to substantial improvements in availability, maintainability, reliability, and thus total cost of ownership of systems/products. Though PBC has changed the way of doing business and its presence has increased across multiple industry, private and public sectors, for profit and not-for-profit, its implications on various aspects of logistics and supply chain management have been understudied. It is important to explore and establish evidence regarding these implications through academic rigor. Therefore, this three-essay dissertation aims to give some insight regarding structural and behavioral implications of PBC using a multi-method approach. Specifically, it (1) explores the relationship between PBC and supply chain resilience (SCRES), (2) examines the supplier goal commitment (i.e., motivation) in PBC, (3) proposes a mathematical model to find optimal contract length, periodic contract price and investment that concurrently maximizing supplier profit and satisfying buyer requirements. This dissertation offers theoretical and managerial contributions as well.