Can you please give us some more background about the role of the legal team in the Ministry’s Education Infrastructure Service (EIS)?
To understand the role of the EIS Legal team, you need to first appreciate the uniqueness of EIS as one of New Zealand’s largest asset managers and buyers of construction services.
EIS is responsible for managing the Crown’s investment in school property, school transport, ICT infrastructure and the schools’ payroll system. Its' $28.7 billion property portfolio includes more than 15,000 school buildings across more than 8,000 hectares. EIS includes specialist teams for Procurement, Capital Works, Infrastructure Advisory Services, Ownership & Occupancy, Risk & Assurance, Transport, Payroll as well as Finance and Policy.
Our role is to advise across all of EIS servicing teams as our “clients”. As an in-house function we are involved in both project conception and planning, playing a leading role in strategic direction and risk management, while still covering traditional legal areas like contract drafting and BAU queries. To that extent, document drafting and approval, while crucial, forms only one aspect of our role.
One of our biggest challenges as a legal team is volume. Our Capital Works team alone, as at December 2018, had $1.5 billion in active design or construction projects. In 2018 EIS Legal advised on approximately 200 construction contracts, with each contract being drafted, reviewed and approved twice (pre-tender and post-tender). Each contract can attract around 3-5 additional consultancy contracts ranging from architect, quantity surveyor to geo-technical engineer.
Then there are early contractor involvement agreements, variations, general queries and training seminars to be provided to around 130 delivery managers New Zealand wide – and that’s just for the Capital Works team. In lieu of an army of lawyers, EIS chose to think outside the box.
You’ve made some fantastic strides in document automation. Can you please describe how your contract automation system works?
EIS Legal licences a contract automation and data management tool called Contract Express to service Ministry construction contracts. It is an extensive tool that we have spent over a year building to meet the needs of our high volume portfolio.
Our tool differs from many other legal automation tools in that it fundamentally empowers the business (in our case around 130 delivery managers) while still driving efficiencies in both legal and procurement time and involvement.
Given the size of the Ministry’s property portfolio and future project pipeline, it’s in our interest to support a sustainable construction sector which can build and maintain our properties. With this in mind, automation is just one of the tools we have implemented as part of our commitment to a streamlined process and standardised construction contracts.
Instead of more lawyers doing more drafting, automation enables our frontline delivery mangers to prepare initial standardised contracts. Delivery Managers login to a portal to draft a range of construction contracts within fixed parameters and guidance written by EIS Legal and EIS Procurement. Links, comment boxes and other tools are all inbuilt to provide extensive guidance. Once drafted, the system alerts EIS Legal and EIS Procurement to review and approve only issues that deviate from the defined parameters. This alone creates a time saving across the business because it focuses us on only non-standard higher risk issues. Unapproved amendments cannot be made. All commentary, timings and the contracts journey through the approvals process is tracked with data captured at every stage.
Crucially, all approved deviations are automatically tracked enabling us to have instant data on recurring issues ready for each annual review of the contracts.
Our automation works seamlessly with other applications and we continue to explore additional functionality including electronic execution.
How has contract automation been received by the legal team, and the wider EIS business?
Brilliantly! We took time upfront to build this tool collaboratively with our users. We ran an extensive pilot programme during 2018. Automation was trialled, feedback received and the tool adjusted accordingly.
Our system stands apart from other systems for this very reason - it is not just an automation tool to advantage a single user base of lawyers. It has been built slowly and extensively to create efficiencies and better manage risks across EIS. The pilot was so successful that in February we launched our Major Works NZS3910 on the tool with various other forms of construction contract scheduled for automation this year.
As part of the launch EIS Legal has been across the country training Capital Works staff on automation. This enabled us to work across the business in small groups showing live and in real time the efficiencies of the tool. It was also an opportunity for us to listen and work through additional feedback ensuring the tool benefits all users. It has been an incredibly interactive process and the response has been overwhelmingly positive.
Do you have any recommendations for other in-house teams thinking about deploying legal technology?
I am often told my children will work in careers that don’t yet exist. To a certain extent I believe the same issue applies when considering any form of IT tool. You have to balance immediate functional needs against the ability of the tool to be agile and respond to the future (perhaps unknown) needs of the business. We have benefited enormously from a slower more detailed and collaborative approach, resulting in a tool that has multi-faceted capability that benefits teams across EIS and is not just for lawyers.
How do you see the role of the modern in-house lawyer evolving?
I think the title “in-house lawyer” is almost obsolete. We are better described as strategic advisors and risk managers.
So often as lawyers we operate as the ambulance at the bottom of the cliff. In-house lawyers today must be so much more because of the opportunities to be at the top of the cliff; they must think big picture, big risk, across multiple areas of law and across multiple teams. I am incredibly fortunate to work with amazing teams across EIS who are forward thinking and within an environment that considers its legal team a strategic partner. In the construction space alone our legal team works alongside other EIS teams to promote industry consultation and collaboration with other Crown agencies. We work together to proactively create change in the construction sector and support All of Government initiatives. To that end EIS Legal has worked with MBIE to create and now convene the first government lawyers Property and Construction practice group which we hope will promote increased dialogue across government agency lawyers.