Contract Practice Flashcards
What are the principles of Contract Law?
- Offer
- Acceptance
- Consideration
- Capacity
- Intent
- legality
What is meant by an offer?
- A promise made by one party which matures into a Contract when accepted by the other party
- An invitation to treat does not turn into a contract; it merely is a stage in negotiations, inviting the other party to make an offer
What is meant by acceptance?
- where a party agrees to the terms of the offer presented by another party, creating a binding contract
- Acceptance must be unconditional (e.g. a signature on a contract of employment)
- Negotiations are counter-offers, not acceptance
- Silence is not acceptance, unless it is clear acceptance was intended (as substantiated by that party’s conduct)
What is meant by consideration?
- Parties must exchange something of value for a contract to be binding
- For example, selling their house for £1 is valid consideration. Selling your house for nothing is not.
What is meant by capacity?
- All parties must have the ability to understand the terms of and any obligations under the contract.
- Consent to the contract must be freely given (force, fraud, misrepresentation, inebriation renders the contract void)
- People under 18, under the influence of drugs or those suffering from mental health conditions generally lack the capacity to enter into contracts.
- THE CLIENT/COMPANY MUST HAVE THE CAPACITY TO BE ABLE TO DELIVER THE WORK/PAY FOR THE WORK e.g. I do not have the capacity to enter into a Contract to deliver a £100m scheme because I am one person with £0 capital, no labour etc
What is meant by intent?
- Not all agreements between parties are contracts. It must be clear the parties intended to enter into a legally binding contract
- The person who wants the agreement to be a contract must prove the parties actually intended to enter into a legally binding contract
What is a letter of intent?
- A letter from an employer to a Contractor indicating intention to enter into a formal written Contract for works described
- LOI’s are used to begin work before formal contract is executed
What is the HGRCA 1996?
- Housing Grants, Contruction and Regeneration Act 1996
- Applies to all Contracts for “Construction Operations” (incl consultants)
- Intended to ensure payments are made promptly throughout the supply chain and that disputes and resolved swiftly
What rights does the HGRCA give construction professionals?
- Right to be paid in interim, periodic or stage payments
- Right to be informed of the amount due, or any amounts to be withheld
- Right to suspend performance for non-payment
- The right to adjudication
What were the changes to the HGCRA in 2009?
- LDEDCA 2009, local democracy, economic development and construction act saw changes to HGRCA
- Includes all Contracts, including those not in writing
- Withholding notice replaced with pay less notice, altering how the sum to be paid is built up.
List some the Forms of Contract in the JCT suite
- JCT Design and Build 2016
- JCT Standard Building Contract 2016
- JCT Intermediate Building Contract 2016
- JCT Minor Works Contract 2016
- JCT Measured Contract 2016
What are some of the other forms of Contract aside from JCT?
- NEC3 ECC
- 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 is assignment?
- The benefit of a contract is transferred from one party to another, but the burden of the contract remains with the original party
- Contrast of Novation
What is novation?
- The process whereby both the benefit and the burden of a Contract are transferred from one party to another.
- Requires consent from all parties, usually parties enter into tripartite novation agreement.
What is a collateral warranty?
A way of forming a direct contractual link between two parties with otherwise wouldn’t have a link, such as between a sub-contractor and a client.
What is a performance bond?
A means of insuring the client against the Contractor failing to fulfil their contractual obligation
Why might you get a performance bond for a smaller Contractor?
They are more at risk of going insolvent. Less well established, probably are more dependent on credit and good cash flow.
How much is a typical performance bond worth?
10% of Contract Sum
Who issues performance bonds?
Banks/Insurance Companies
What are the two variations of performance bonds?
- Conditional: Client has to prove that Contractor has not performed
- On Demand: No pre-conditions needed to be met. Not often used, seen as too harsh.
How long would you recommend a performance bond should stay in place?
Until the end of the Defects Liability Period.
Name some insurances that you may come across in a construction Contract.
- Contract Works Insurance
- Employer’s Liability Insurance
- Public Liability Insurance
- Professional Indemnity Insurance
- Terrorism Insurance
- Flood Insurance
- Legal Indemnity Insurance
What is Contract Works Insurance?
- non-standard insurance policy
- coverage for property damage and third-party injury or damage claims, the two primary types of risks on construction projects
What is Employer’s Liability Insurance?
Covers compensation if employees are injured or become ill because of the work they do.
All firms that employ staff are legally required to hold Employers Liability Insurance.
What is public liability insurance?
Provides cover against personal injury or death, loss or damage to property of third parties e.g. the general public or sub-contractors
What is professional indemnity insurance?
Provides cover for negligence on part of service provider. Will ensure service provider will not be bankrupted by successful claim, and recompense to client to re-mediate consequences of negligence.
Essential for providers of professional services
What is legal indemnity insurance?
Provides recompense in the event that the policy holder incurs capital loss or expense dealing with a range of possible legal issues.
Examples can be unforeseen rights of way issues over land that has been purchased, incurring costs to rectify.
What is an advance payment?
When a Contract Sum is paid in advance of the exchange (prior to work being done/goods supplied)
Why may a contractor request advance payment?
If there are significant start up/procurement costs, e.g. expensive items with long lead times
How might the client protect themselves when paying a Contractor in advance?
Secure a payment bond from the Contractor
What are the implications for paying for goods that the sub-contractor has ordered but have not yet been delivered to site?
Puts the client at risk in the case that the supplier/sub-contractor goes insolvent, as they may never receive the materials.
Materials for the project have been sourced and delivered to site. Does the client pay for those materials?
Yes unless stated otherwise in the Contract. Payment is made regardless of whether Contractor has paid supplier.
What is “retention of ownership” in regards to materials?
- This is a clause that allows the supplier to hold ownership of materials until payment.
- Good for supplier as it encourages payment, improves cashflow
- Bad for the client as if items are not affixed, as client may pay Main Contractor but Main Contractor may not pay supplier. Supplier could reclaim those items.
What is meant by “fluctuations”?
- A mechanism to deal with inflation, particularly useful in long lasting projects.
- Accounts for the inflation of labour costs, transport, materials (escalation), overheads.
How are fluctuations calculated?
- Using nationally published price indices
- Payment is based on cashflow projections of material, then quarterly percentage assessments of inflation are added to projection
Are all projects subject to fluctuations?
No, only projects whereby it is stated within the Contract that fluctuations will be accounted for.
What is retention?
Retention is a percentage (often 5%) of the amount certified as due to the contractor on an interim certificate, that is deducted from the amount due and retained by the client.
When does retention get released?
Half released at practical completion, half released upon certification of making good defects
Who keeps the interest on the retention money?
The client
What happens with the retention money the client keeps?
The Contract may state that the retention money is kept in a separate bank account.
What issues do sub-contractors have with regard to retention?
- Causes cashflow problems
- Release of retention can be delayed for reasons out of their control, e.g. defects liability period not ending due to other parties not remedying defects
- construction supply chain payment charter proposed abolishing retention by 2025
What is a retention bond?
- Instead of holding back money, client receives bond valued at the same amount as would otherwise be retained.
- This allows contractor to keep money, helping cashflow, but also protects the client as they can cash in on the bond if required
What is a variation?
An alteration to the original scope of works in a construction contract.
This may be an omission, substitution or addition of works.
Why do variations occur?
- Client changes mind (design development or Contract Documents not stipulating what the client originally wanted in sufficient detail)
- Geological anomolies
- Statutory changes
- Technological advances (changing client requirements)
What are express terms in a Contract?
Express terms are those that have been explicitly agreed by both parties and can be oral or in writing.
Does a Contractor have to carry out variations?
If there are no express terms, Contractor does not legally have to carry out variation.
Contractor can continue to carry out works as per agreed at tender.
How are variations valued?
- Contract rates
- If Contract rates are not available (for example in a D&B Contract that was tendered with limited design info), the PQS and Contractor’s QS will negotiate to what is deemed reasonable and fair. Market tesing, BCIS data and in-house data can be used by the PQS to review Contractor submissions.
Why do variations cause conflict?
- Conflict over the value of the change
- Over whether the change is a client cost or Contractor risk
- Often conflict occurs where there are gaps in the specification. Contractor may argue it is therefore a change, but Client is not bound to pay for things that a reasonable contractor must have understood to be done
Example: specification may not state every screw used to fix a radiator to the wall, but within the spec for a radiator, pattressing etc, a Contractor would reasonably be expected to assume the inclusion of the screws.
What is an extension of time?
Where the Client allows the Construction Period to be extended due to delays that are not the fault of the Contractor.
How does the Contractor acquire an extention of time (EoT)?
- Gives CA/EA written notice identifying the relevant event that caused the delay
- Proposes adjusted completion date
What counts as a relevant event that can result in an EOT?
- Variations
- Weather
- Terrorism
- Force Majeure
- Strikes
- Nominated sub-contractor delays
If the Contractor can foresee a delay caused by a relevant event, what should they do?
They are required to prevent or mitigate the delay even if it is not their fault.
If they cannot avoid the delay, they can request an EoT.
How should a Contractor prepare for a claim of EoT?
- Provide good quality information
- Demonstrate link between breach and delay
- Demonstrate delay against progress of the works, not programme
What are liquidated damages?
Pre-determined damages set at the time the Contract is entered in to, based on the actual loss the client is likely to incur if the Contractor fails to meet the completion date.
What are claims of loss and expense?
The Contractor can claim for direct loss and/or expense as a result of relevant matter the client is responsible for.
Give some examples of when a Contractor may be entitled to Loss and Expense?
- Failure to give Contractor site possession/access
- Delays in instruction
- Discrepancies in Contract Documents
- Failure to supply goods/materials
What costs can be claimed under Loss and Expense?
Varies between contracts, for example overheads may be excluded.
What are the various methods of dispute resolution?
- Mediation
- Adjudication
- Arbitration
- Litigation
What are the alternative dispute resolution (ADR) methods generally found in Contracts?
- Mediation
- Adjudication
- Arbitration
What is adjudication?
- Contractual or statutory procedure for swift interim dispute resolution
- Provided by a third party adjudicator selected by parties in dispute
- Purely based on documentary submissions
- Decisions are binding unless and until revised by arbitration or litigation post-completion
- No power to award costs
What are the timelines for adjudication?
- Notice of intention to adjudicate must be submitted by one party to the other
- Adjudicator appointed within 7 days of notice
- Decision made within 28 days of appointment (can be extended to 42)
- Adjudication is confidential and a statutory right
What is arbitration?
- A procedure in which both sides agree to let an impartial third party decide the case
- May be a lawyer or expert in the field of dispute, or in some cases an arbitration panel
- Arbitrators “award” is legally binding and can be enforced through the courts. (Can award costs)
- No appeal except under special circumstances
- Arbitrators have powers to ascertain facts as opposed to just review submissions
What is mediation?
- Where a third party mediator is appointed to assist in the negotiation of a resolution to a dispute
- Different types of mediation, e.g. evaluative, facilitative, settlement