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CONTRACTUAL PROBLEMS AND THEIR SOLUTION & CONTRACTURAL AWARENESS

CONTRACTUAL PROBLEMS AND THEIR SOLUTION

INTRODUCTION

This popular choice of training session relies on our speakers experience and anecdotes of representing parties in resolving construction disputes. After learning more about your business, we will select a series of common contractual problems that you are likely to encounter given the work you are providing and the contracts that you are working under. The amount of problems covered will depend on the required duration. The speaker will present the solution to each problem with reference to the contractual provisions, judicial authority and/or statutory provisions.

A SELECTION OF PROBLEMS COVERED IN THIS SEMINAR INCLUDE:

  • Discrepancies and ambiguities (Employer’s Requirements v Contractor’s Requirements, the effect of value engineering and derogation schedules)

  • Battle of the forms (Can company terms apply if not actually included in the Purchase Order?)

  • Instructions and variations (is a written instruction a condition precedent to payment for a variation? Is a revised drawing treated as a written instruction?)

  • Valuation of Variations (Should overheads and profit be included when a ‘fair valuation’ is adopted?)

  • Design responsibility and design liability (Design development or a variation?)

  • Payment and pay less notice (is a late payment notice treated as a pay less notice?)

  • Retention release dates (Retention due dates based on practical completion of another contract being achieved or when the Notice of Making Good has been issued under the Main Contract– is this permissible?)

  • Programme (who owns the float in the programme when assessing an extension of time? Can the contractor recover extended preliminaries if they finish by the completion date but later than their planned/target programme?

  • Insurances and indemnities (Does the contractor or subcontractor get paid for reinstating work that is their fault?)

  • Repudiation and termination (is a failure to pay on time a ground for termination or repudiation?)

  • Assessing and evaluating extensions of time and loss and expense (What is concurrent delay and if this exists is the contractor entitled to an extension of time? Are notices of loss and expense a condition precedent to payment)

  • Payment for materials on and off site (Does the contractor relinquish title to materials when delivered to site)

  • Exclusions and caps on liability (Are low caps in the contract enforceable when less than the specified insured amounts?)

LEARNING OUTCOMES

All attendees will obtain an understanding of the most common problems in construction contracts. This will focus the attendees on how to properly interpret and administer the relevant contract conditions to prevent all such problems occurring hence adding commercial value to your projects. If the attendees encounter the problems covered, they will all have a sound understanding of the solution and remedy, whether this a contractual, common law or statutory right.

DURATION OF WORKSHOP

Half Day, Full Day or Bitesize

NEC 3 & NEC 4 PROBLEMS AND THEIR SOLUTION

INTRODUCTION

This seminar is a ‘spin-off’ from both the NEC Standard Form and Common Contractual Problems workshop. Albeit, the NEC is now well established and widely used for both UK and international projects, the administration of its terms can still prove problematic and source for dispute. Many traditional forms are based on retrospective claim (delay and cost) whereas the NEC is drafted around prospective assessments and provides strict sanctions for failure to comply with timescales. This generates debatable points and problems on the interpretation and application of the NEC. This workshop is aimed at those who already have a sound working knowledge of the NEC form and can be applied to either a Main Contract or the Subcontract forms.

A SELECTION OF PROBLEMS COVERED IN THIS SEMINAR INCLUDE:

  • Discrepancies and ambiguities (if there is a discrepancy between the Scope provided by the Employer and Scope provided by the Contractor, which takes precedence?)

  • Errors in the Scope by the Employer (if there is an error in the design prepared by the Client, who takes responsibility and is this a compensation event?)

  • Early warning notice (can the Client reject an early warning notice and what happens if a Contractor fails to serve an early warning notice? Does the Contractor have to serve an early warning notice before notifying any compensation event?)

  • Key Dates (The Client has deducted or claimed payment for prolongation and/or disruption costs due to the Contractor’s failure to meet a stated condition for a key date – is this correct?)

  • Payment (In option A, how does a contractor get paid for materials on or off site when only completed activities are paid for?)

  • Time related risk (If allowances for time related risk are not required, does the Contractor own the resultant float?)

  • Head office based staff (When assessing a compensation event, are people spending time on the project whilst working at head office claimable if the working areas includes this location?)

  • Assumptions for compensation events (If an assumption is included in a quotation by a Contractor (or Subcontractor) which later proves to be incorrect, is the Contractor entitled to have the Prices adjusted to reflect this?)

  • Planned Completion (should a revised programme be accepted if the date of planned Completion shown as being later than the Completion Date?)

  • Dividing date (Can a compensation event be assessed as a forecast when actual costs are known at the time of preparing the quotation?)

  • Fire, flood and water leaks (Similar to JCT, do the insurance and indemnity provisions of NEC cover the risk of these events even if caused by the Contractor’s negligence)

LEARNING OUTCOMES

This session will draw attention to and deal ‘head-on’ with the typical problems and conundrums posed by the NEC form so parties can recognise the solution and plan for them during the course of a project. This will ensure that the NEC is administered as intended

DURATION OF WORKSHOP

Half Day

CONTRACTUAL AWARENESS

INTRODUCTION

This course is designed for all members and departments of your project team. It is an ideal forum for all your departments to participate together and obtain an understanding how each department relies on the other to maximise cash flow and profitability.  The session starts with covering the key features of negotiating the conclusion of a contract and will raise awareness of the basic provisions of any construction contract how to administer them effectively. The session will examine each topic by refence to and comparison of how each provision differs between the main standard forms (depending on your business).

COURSE CONTENT

  • A brief background to English Law and its application to construction contracts (common law, statute and law of contract)

  • Preparation of tenders and quotations (pricing strategies, pre-contract meetings, clarifications and assumptions)

  • Formation of a contract (battle of the forms, incorporation of terms by reference, entire agreement provisions)

  • Letters of intent and Pre-Construction Service Agreements (effective use of and drafting, enforceability of expenditure caps and termination rights)

  • Notice provisions (how to properly issue notices in writing and who they should be issued to under the contract)

  • Discrepancies and ambiguities in contract documents (discrepancies

  • Time obligations (key dates, sectional completion, preparing a baseline programme, what is time at large and obligations relating to time being of the essence))

  • Instructions and Variations (Verbal instructions, what constitutes a written instruction and what events are covered by a variation)

  • Payment and valuation of work (interim and final payment obligations, retention release, rights of set off and applying contra-charges)

  • Payment and pay less notices (a summary of rights and obligations and consequences of not issuing effective notices)

  • Practical Completion and Take Over (what is practically complete, the effect of the client taking over or using the works)

  • Claims for extension of time (time at large, time is of the essence and right to adjust the completion date)

  • Delay and disruption costs (rights of recovery with refence to different forms and sample claims)

  • Suspension and termination (Contractual and Common law remedies explained;  notices of default, grounds for default and termination e.g. not proceeding regularly and diligently, consequences of termination, rights of repudiation and when this can be exercised).

LEARNING OUTCOMES

All attendees will acquire a sound understanding of how to conclude and negotiate a contract and will be aware of the main contractual and legal principles for each key provision of a typical construction contract.

DURATION OF WORKSHOP

Half or Full Day

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