Contract / Admin Law Flashcards
CDM 2015 Principal Objectives
- Ensure consideration of HS issues (feasibil-complet),
- Encourage better safety management
- Adequate resource/sufficient time to complete duties
- Involve directly clients/PD/other D/PC/other C/suppliers.
Difference between CDM 2007/15
- Apply dome/ind projects, 2/3 of 44 deaths smaller sites,
- Removal of CDM Coordi role (often appointed late),
- Introduction of principal contractor,
- HSE notif +30 days/500 pers days/<20 workers at once
- PD and PC where there are 2 or more contractors,
- Requirement to have necessary skills/knowledge/experience/org capacity for the project.
What Commercial Clients have to do
- Appoint principal contractor and designer
- Confirm competence of duty holder
- Duty holder has nec skill/knowle/experi/org capa for proj
- Notify HSE
- Prov pre-const info Docu/commu/co-op w/ proj member
- Check PC construction phase health and safety plan
- Ensure minimum HS standards are maintained on site
- Necessary minimum welfare facilit are provided on site
Principal Designer Role
- PD control over the pre-construction phase.
- Identify/eliminate/control foreseeable risks
- Ensure other designers are carrying out their duties
- Provide info to PC to help then plan/manage/monitor and co-ord HS in the Const Phase HS Plan,
- Provide info for HS file
Designer Role
- An org/individ who prep/modifie design for const project
- Eliminate/reduce/control foreseeable risks in construction/maintenance
- Provide design information
- Establish how designs interacts and influence HS
Principal Contractor Role
- Prepare construction phase HS plan
- Plan/manage/control/monitor HS in construction phase
- Provide info for HS file,
- Provide adequate welfare facilit/suitable site inductions,
- Steps to prevent unauthorised entry,
- Ensure workers are consulted on HS on site
Contractor Role
- Plan/manage/monitor const work in control w/ HS risk
- 1 contractor projects prep the HS plan /welfare facilities
- Multi-contractor must comply with PD/PC,
- Mustn’t employ without neces skill/knowle/exper/training
- Prov worker with appropiate supervision/instructions/info
- Steps to prevent unauthorised entry before work begins.
Expressions of Interest Stage
- Skills/knowledge/train assess in the tender process
- Company/org HS mngm procedure check, again at formal tender stage when specific to project.
- May include Company HS policy,
- Qualification/experience of employees
- Accident reporting/enforcement action
- Welfare provisions
- RIDDOR Procedures
RIDDOR
-(The Reporting of Injuries, Diseases and Dangerous Occurrence’s Regulations)
Pre-Construction Information Individuals
- Principal Designer
- Architect
- Structural engineer
- BSE
Construction HS Plan
Principal Contract/Other Contract/Sub-contract/Supplier
Develop before constr, otherwise gross negligence
Pre-Construction Information
- Prov info those bid/plan work/devel const phase plan/HS file.
- Info client has about building or reasonably attainable,
- Provide basis for prep of the const phase plan
- Info appro to project/appro detail/proportio to risks
- Include client brief/key const dates, resources used/time allocat to each stage arrange to ensure coop
- Site HS hazards and how they will be addressed
Construction Phase Plan
- How HS will be managed during the const phase
- Level of detail proportionate to risks involved
- HS arrangements for construction phase
- Site rules,
- Where relevant specific measures
- Record plan for significant HS / how to comm this
- Doesn’t include risk asses/records of how decisions were reached/const method statement
Health and Safety File
- Principal Designers responsibility
- Presented to client on conclusion of works
- Collection of infor on foreseeable hazards/materi used
- Retained to ensure safe mainten/cleaning/altera/demolit
- Passed onto and made available to leaseholders
- Hazards not eliminated
- Construction processes
- Hazardous materials used
Objectives of HS At Work Act 1974
- Secure HS of persons at work
- Control keeping and use of dangerous substances
- Control the emission of noxious / offensive substances
- Protect persons other than persons at work against HS risks out of work activities
HS Laws
- Ensure, reasonab practicable, HS/welf of employees
- Ensure, service/mainte of safe plant/systems of work
- Prov safe systems use/storage/transport of substances
- Prov correct info/instruct/training/supervision
- Safe place of work/safe access to and egress
- Prov/maintain a safe working environment
- Prov/maint a written statement of safety detailing policy
What is Procurement
Establishes roles, responsibilities, relationships and the risks carried out by parties that form the organisation and the contractual arrangements for the project
Traditional Procurement Information
- Sequential one stage finishes before next starts
- Sequence of working Brief, Design, Competition, Const
- Low cost risk, Med time, Low quali/perfor/design
- Up front time to devel design before const time if profit
- Separate parties involved project time overrun/cost
- Separate Design and build stages
- Slow start on site have to do complete design first
Traditional Contractual Relationships
Client -PM/Main Contrac/Desi+Cost consult/CDM Regs
Main Contractor - Sub Contractor / Suppliers
Design and Build Variants
- Direct
- Competitive
- Develop and Construct
- Novated Develop and Construct
D+B Common feature
Contractor led, providing client with single point of contact and single point of responsibility
One organisation totally responsible
Lowest bid or MEAT
D+B Contractual Relationships
- Client - PM / CDM 2015 / D+B COntractor
- D+B - Sub contractor / Designers / Suppliers
- Brief / Competition / Design + Construction
D+B Risks to Client / Information
- Lowest overall risk / buildability + lump sum tender
- Low design risk
- Low cost risk
- High quality/performance/design risk
- Client driven changes expensive / difficult
Management Contractual Relationships
- Client - PM / Mngm Contractor / Desig/Cost/HS consult
- Mngm Contractor - Works packages / Trade contractors
- Brief / Design + Construction
Management Risks to Client / Information
- Medium Cost / Time Risk Low quality/perform/time risk
- Mngm contract have responsib to program/plan work
- Overlap in const/design package competitive tender
- Buildability better team performance
- Client doesn’t know package costs added up/time
Management Contracting Contractual Relationships
Client - PM/Work Pack/Des/£/HS consult + Const Manag
- Brief / Design + Construction
- Medium Cost / Time Risk Low quality/perform/time risk
Management Contracting Information
- Experiences clients develop with own project teams
- Trade contractors in direct connection to client
- Overlap client later design decisions modify/develop
- Design tender build for each stage sequential design
Procurement Project Managers
- Appointed by client as advisers
- Help develop business case
- Project investment appraisals
- Risk assessments
- Procurement selection
- Appointing / selecting team monitoring performance
- More experienced the client less help don’t have PM
The Construction Round Table 1995
Procurement Choice Considerations
- Clients objectives/priorities
- Time
- Price Certainty - Importance of lump sum tender
- Qual/Perform level - D+B contract respon may change
- Complexity - Technically complex may turn org complex
- Competition
- Controllable variation - Ability to change design
- Division of Mngm responsibility - Manage 1 or many
- Extent of professional responsibility required -
- Risk avoidance
D+B / Traditional / Management Reason Why
Offers reliable quality / economy / speed
Innovative design / higher perform / more cost/program
Flexible / fast completion / trade off client risk early start
Time / Quality
Quality / Cost
Cost / Time
Management Procurement
Traditional Procurement
Design + Build
Cost Led Procurement
Client selects integrated supply chain teams from framework
Based on collaborative manner to complete at low cost
Need to maintain quality as well
Integrated Project Insurance
Competition for team responsible for delivery
Single insurance policy to cover all delivery risks
Packaging up all insurances normally held by client/SCM
Supply chain memebers
Two Stage Open Book
Invite suppliers on a framework
Bid basis on outline brief / cost benchmark
Successful team works up a detailed proposal
Detailed proposal based on open book cost
Main Idea of On Trial Procurement
Early involvement of Supply chain team
Create team to work in collaborative/integrative manner
Reduce risk / greater cost certainty / time performance
Bennett/Jayes report 1995
Partnering can lead to: Cost Saving Improved quality Better design/configuration Safer const methods Ealier completion time Bigger profits to be shared
High Profile unsuccessful; corporate prosecutions
R v PO Ferries Ltd 1990
Leaving Zeebrugge 193 people died
Corporate Manslaughter and Corporate Homicide Act
2007
Causes person deaths / gross breach of duty of care
Making decision or substantial part
Previously single controlling or directing mind v difficult
Need to have appropriate systems in place
Risk assessments / HS policy or procedure
Freedom of Information Act
Jan 2005
Be informed by writing whether it hold to desired info
20 days of requesting
Any company acting on behalf of public authority
Exam introduction quote
Sir Michael Latham 1994
No construction project is free of risk. Risks can be managed, minimised, shared, transferred or accepted. It cannot be ignored
Risk Sources
Procurement - 29%
Project Definition - 16.5
Finance - 16.13%
Project Deign - 10%
Principal Construction Risk
Health and safety Environmental Design Availability of resources Exisitng site / ground conditions
Contractor or Employer Risk
D+B - Major Contractor
Management Contracting - Major Employer
Traditional - Varying depending on type
NEC4
Promotes collaborative and cooperative working
Equal sharing of Risk
Managing risk rather than transferring it
NEC4 Clause 15
Early Warning of potential problems
Increase total price / delay completion / reduce quality
Have to warn Contractor or PM when first aware
Early Warning Register
PM has to create one
Clause 15.3 early warning meeting formalised
Risk register avoided or reduced
Solutions to bring advantage to all
Risk Register
Risk Identification - Early warning system
Risk Analysis - Probability/likelihood of risk occurring
Risk Response - Risk planning/tracking/controlling/commun
Importance of Cost Control
- Clients now less likely to tolerate delays
- Clients likely financial institu/gov require accountability
- Greater emphasis of sustain reduce waste cost control
- Cost effectiveness trend in WLC / LCC
Client Issues of Cost Control
Achieve most economical design
Clients expenditure to be within agreed budget
Balance design expenditure, consideration of alternative
CIOB Code of Practice for Project Management for Construction and Development 5 Stages
Feasibility Strategy Pre-Construction (design) Construction Commissioning
RIBA Outline Plan of Work 2013
Strategic Definition Preparation and brief Concept design Developed design Technical design Construction Handover and close out In use
Relationship between scope of change and cost of change
CIOB 5 Stages
X - Cost to change design
Y - Project Stages
Scope for change Decr sudden after feas to asymptotic
Cost of design changes increasing suddenly at end
Design Freeze
The point after feasibility where the scope for change reduces significantly.
Design changes significantly increase price over the cost savings from changing
Maximise Cost control at design stage
Client and PM must agree on design freeze and proejct briefing
Cost Advice
Budget estimating based on clients brief
Pre-tender price estimating
Life cycle cost planning
Cost advice on diff tendering and contract arrangements
Objectives of Cost Planning
Limit clients expenditure
Provide balanced and efficient design
Client receives value for money
Order of Cost Estimating and Cost Planning
NRM1 Oder of Cost Estimating and Cost Planning
Optimistic Cost - Realistic Cost - Pessimistic Cost
Functional Unit - Inception
Cost - Strategic Definition
NRM1 Level 1 Group Element - Prep / Brief
NRM1 Level 2 Cost Plan - Concept Design
NRM Sub elemen Level 3 Cost Plan - Developed Design
Approximate Quantities - Technical Design
NRM2 Bill of Quantities - Tender Submission
Award of Contract
Common Causes of Accidents
Not knowing safe method of work Unsafe manual handling Working too fast or cutting corners Overloading equipment Falls 52% Falling Objects 19% Electricity 5% Labourers 213 Fatalities of 5 year period Roofers 99
Breach of Contract 3 Qualifications
Remoteness
Mitigation
Third Parties
Remoteness Case
Balfour Beatty Construction Ltd vs Scottish Power Plc
Mitigation
Cannot recover loss which could have been avoided
Third Parties
Claimant cannot recover loss in respect of a loss caused by another
Liquidated Damages Case
Dunlop Pneumatic Tyre v New Garage and Motor Company 1915
Where both parties agree a fixed fee
Cannot get more money after being paid Case
Philips Hong Kong Ltd v The Attorney General of Hong Kong 1993
To claim liquidated damages must show
The LD doesn’t amount to a penalty
Definite date when damages can commence
Procedure to extend contract time carried out
Employer not waived the right to deduct LD
Express terms
Amount and timing of payment
Work to be done
Materials to be provided
Timing of work
Letter of Intent
No legal rights
Just says a contract may be formed in the future
Who works on this letter does at own risk
Must be letter of acceptance for contract to be formed
Must be letter of acceptance for contract to be formed
Tesco Stores v Contain 2003
Contract formed by allowing work to start
Westminster Building Co Ltd v Buckingham 2004
No contract must provide contractor with reasonable sum for work
The Monk Construction Ltd v Norwich Union Life Assurance Society 1992
Letter of intent in time constraints
Ampleforth Abbey Trust v Turner Townsend Project Management Ltd 2012
Judge Coulson
Cunningham v Collett and Farmer
Need to state all necessary work for a contract
Letter should set out requirements in Letter of intent
Financial Cap in letter of intent
Mowlem Plc v Stena Line Ports Ltd
Payment by restitution
British Steel Corporation v Cleveland Bridge and Engineering Co Ltd
Fair and reasonable sum
Contract by Conduct
Felton Construction v Liverpool City Council
EU Directive Section
104.1 1998
Have to give both contractors same specification
Certainty of Terms
All requirements and stipulations for the performance of a contract must be know before a contract is signed
Invitation to Tender
An invitation to treat
Employers look at every tender
Blackpool and Flyde Areo Club Ltd v Blackpool Borough Council 1990
Same Specification Case
Harmon CFEM Facades Ltd v The Corporate Officer of the House of Commons
Loss of Anticipated profit
Aquatron Marine v Strathclyde Fire Board 2007
PAS91
2013
Publicly Available Specification
Pre qualification questions Core/Optional Categ
Must disclose all information to failing clients weighting system etc
MEAT
Most Economically Advantageous Tender
Best quality/price ratio
Function of Contract Law
Compensate the Claimant
Deter someone from breaking a contract
Provide customer protection
Provide a framework
Valid Contract Requirements
Consideration
Offer and Acceptance
Contractual Intention
COunter Offer
Original Offer is now void and the counter offer is the only offer which is on the table
Consideration
What one party does or wants to do in in return for what the other party promises
Tendering Process
Shows they are trying to enter into a contract
Elements of a valid contract
No fundamental mistakes (abnormally low tenders)
Parties are capable of contract
Contract is for a legal purpose
Parties consented on own free will
Contract is in particular form 2 signatures
Ask for Acceleration
Must Pay
Williams v Roffey Bros and Nicholls Contractors
Free to Accept / reject any tender
Spencer v Harding 1870
Contract by conduct through Payment
Contract by conduct through payments
Harvey Shop Fitters v ADI Ltd 2003
Term is obvious
Term so obvious it doesnt need to be written on paper
Reigate v Union Manufacturing Co 1918
Contract on a implied request
If they achieved insurance a contract no insurance
Marston Construction v Kigass Ltd
