Contract Practice Flashcards
What does NEC say about retention?
Optional clause X16. Retention % identified in Contract Data pt 1.
What is a contract?
A legally binding agreement that recognises and governs the rights and duties of the parties to the agreement
What’s a bilateral agreement?
a set of promises that each party has made to the other
What’s a unilateral agreement?
only one party will make a promise to do something if the other party actually does something stipulated by the former
What are the 6 principles of contract law?
- Offer
- Acceptance
- Intent
- Consideration
- Capacity
- Legality
What is NEC3 for?
Used for the appointment of a contractor for engineering and construction work, including any level of design responsibility.
It is a suite of construction contracts intended to promote partnering and collaboration.
What are the options under NEC?
I have never used NEC however know the options are:
Option A: Priced contract with activity schedule.
Option B: Priced contract with bill of quantities.
Option C: Target contract with activity schedule.
Option D: Target contract with bill of quantities.
Option E: Cost reimbursable contract.
Option F: Management contract.
What are the contract documents required under NEC?
- The form of agreement.
- Conditions of contract.
- Contract data
- Prices, activities schedules and bill of quantities.
- Works information (describing what is to be done on the site).
- Site information
What are the core clauses under NEC?
- General terms.
- Contractor’s main responsibilities.
- Time.
- Testing and Defects.
- Payment.
- Compensation events.
- Title.
- Risk and insurance.
- Termination.
What are Z clauses?
Used to amend standard form NEC contracts. They can be inserted into NEC contracts as a means of adding conditions or amending wording.
Are you aware of any other forms of contract aside from JCT/NEC?
- FIDIC
- ACA
- Complex Projects Contract 2013’ or ‘CPC 2013’.
What are the different FIDIC contract suites?
- FIDIC Red Book (Conditions of Contract for Construction)
- FIDIC Yellow Book (Conditions of contract for Plant & Design-Build)
- FIDIC Silver Book (Conditions of Contract for EPC Turnkey Projects)
What are the main differences between NEC3 and NEC4?
Changes in terminology (WI to Scope and Employer to Client)
Updated payment provisions to ensure contractors submit payment applications opposed to PM making assessments.
Introduction of an optional 4 week dispute negotiation phase prior to formal proceedings.
What guidance note does RICS public on payment timelines?
RICS Interim Valuations and Payments 2015
What is the payment cycle in NEC3?
21 days if no period stated in the contract data.
What guidance is published on contract selection?
Formerly appropriate contract selection. Currently under revision
What’s the difference between contract particulars and amendments?
Contract Particulars “fill the blanks”. The Contract, clauses are already fixed.
Amendments change the clauses, fundamentally changing the contract
Why are contracts amended?
To suit clients needs, many clients have amendments they use on all projects
To change the balance of risk to the benefit of the client or contractor
What’s the structure to an NEC contract?
Form of Agreement core clauses main option clauses secondary option clauses Dispute resolution clauses Z clauses Works Information Site information
What are the sections in Core clauses?
1 General 2 Contractor's responsibilities 3 Time 4 Testing and defects 5 Payment 6 CE's 7 Title 8 Risks and insurance 9 Termination
What are the insurance options in NEC3?
Identified in the insurance table at clause 84 and/or those identified to be provided by the contractor in the contract data.
Standard:
Contractor’s all risk - covers damage to the works
Employer’s liability - covers death or injury to employees
Public/third party liability - covers the same for third parties
PI - covers negligence/breach of duty in design.
What are recitals in a Contract?
- Introductory statements at the begining of a contract
- First Recital - name of project + address
- Scene setting, explanatory in nature
What do Contract Particulars in a Contract do?
- Sets out aspects of Contract that are particular to the project, fills in the blanks
e. g. where the ERs/CPs/CSA can be found, drawing references, key dates, sections, payment method, insurance option. - It is a schedule of variables for the agreement and conditions
What is Attestation in a Contract?
The attestation is the process of confirming that something is correct or genuine or that a particular requirement has been met. It may be completed:
- Under seal (signed by both parties, witnessed & made clear it is executed as a deed)
- Under hand (just signed by both parties)
Why are insurances joint name?
Insured parties are unable to claim against one another in respect of an insured loss, as they are considered to be one-and-the-same for the purposes of the insurance.
What are the advantages of joint name insurances?
- neither party needs to take out its own insurance policy, which can lead to dual insurance, unnecessarily increasing the project’s total insurance cost
- it can help avoid costly litigation between the jointly-insured parties who may otherwise try to claim against the other
- The insurer has no rights of subrogation
What’s subrogation?
When an insurance company pursues a third party for damages, it is said to “step into the shoes of the policyholder,” and thus will have the same rights and legal standing as the policyholder when seeking compensation for losses.
What are the implications of waivering the rights to subrogation in an insurance policy?
- No fault claims, so sub-contractor can claim on insurance and the main contractor won’t be sued by sub-contractor’s insurer
- Higher insurance cost
Who would advise client on making amendments?
- Ideally no amendments will be made, contracts are designed to be balanced in terms of risk for their procurement route
- Client’s may have their own
- Amendments must go through Lawyers
Do you advise on LDs/insurances?
No
- LDs are based on employer’s loss of income/expense in delay, I do not know what that is
- Insurance company to advise on insurances