Contract Practice and Administration v2 Flashcards
What 6 conditions need to be met for a contract to be in place?
- Offer by one Party
- Acceptance by the other Party
- Consideration of the Offer
- Intent to form a Contract
- Legality of Contract
- Capacity – Capacity to make agreement
NEC3 ECC stand for?
New engineering Contract - Engineering and Construction Contract (ECC)
What are the main suites of construction contract?
- JCT 2016 (Joint Contracts Tribunal)
- NEC (New Engineering Contact)
- ECC (Engineering and Construction Contract)
- FIDIC (International Federation of Consulting Engineers)
- ICE (Institution of Civil Engineers)
Please talk me through an example from your experience of a situation where you have prepared a report which recommends the appropriate form of contract to be adopted?
• On Beckton Depot Enabling works:
o Understood the needs of the client to establish the appropriate form of contract and warranties.
o TfL’s standard of form of contract used by the client is NEC3.
o Time, quality, cost which is most important
o Chose between the options
- Option A – Fixed price with activity schedule
- Option B – Fixed price with Bill of quantities
- Option C – Target Price with activity schedule
- Option D – Target Contract with bill of quantities
- Option E – Cost Reimbursable
- On establishing the use of an internal framework for the procurement option I advised the most appropriate option to implement as part of the contract. I advised option A, this was due to the client requiring time and price certainty and being risk adverse. I advised that the cost may be higher when using fixed price against the other options.
- The works required Design works as well as build. I advised due to the low complexity of the works that we should use Design and Build contract where the contractor is responsible for the design and build. The availability of a project engineer could be utilised to approve design works.
Explain how you have advised on the appropriateness and implications of proposed contractual mechanisms?
Whilst on Beckton depot enabling works I advised the use of the additional clauses
- X4 - Parent company guarantee
- X7 - Delay damages
- X16 - Retention
I was aware that the contractor was a subsidiary of a larger company so I advised that a parent company guarantee would offer insurance against insolvency of the contractor we were in contract with. It would provide a cheaper option than a bond that usually costs 10% of the project cost.
What is a Parent Company Guarantee?
An arrangement where the contractual performance of one company in a corporate group is underwritten by the other members of that corporate group.
What is a performance Bond?
A performance bond is issued to one party of a contract as a guarantee against the failure of the other party to meet obligations specified in the contract. … A performance bond is usually provided by a bank
What are the types of Parent Company Guarantee?
- Contract of Guarantee – is a secondary obligation where the guarantor fulfils the contract’s obligations. Employer must first deal with original contractor.
- Primary obligation- allows the beneficiary to claim directly against the guarantor without first having to pursue the contractor.
Difference between Parent Company Guarantee & Performance Bond?
- PB is from a third party
- PCG is related to the other contractor
- Cost/Availability – PCG is free which PB is not – if company does not have a parent
- Cover – PB does not guarantee completion of project, just recovery of loss up to a certain amount whereas a PCG does guarantee continuance but is of little use if the parent is insolvent.
- Duration – PB expires at PC – PCG lasts for 6/12 years
How are insurances dealt with under NEC3 ECC?
- Covered under section 8 - Risks and Insurance
• Contractor provides insurance stated in insurance table and any additional stated in Contract Data unless Employer stated to provide
What contracts does the rights of third parties act apply to?
All contracts made after the 11 May 2000
How can third party rights be included under NEC contracts?
Secondary Option Clause Y(UK)3
Why might third party rights be used instead of collateral warranties?
Third party rights can be used for named parties to be have cover under certain of the contract.
What are the contractual benefits of a Framework over other procurement options?
- Pre agreed rates for suppliers
- Terms and conditions already set
- Supplier relationship already exists
- Simpler to run a call off contract to make individual contract amendments for the specified works.
Explain how you have managed a compensation event in a project you worked on?
Beckton depot enabling works:
Early Warning Notification – Potential Presence of slow worms, newts, adders
Risk reduction meeting – discuss mitigation
NCE raised – assessed for entitlement – Within 8 weeks
Detailed as employers’ risk in contract data 2
Gained necessary internal approvals
Accepted NCE – Employer reply’s in 1 week
No reply Contractor notifies after 1 week
If no decision is made after 2 weeks treated as accepted
Awaited quotation - 3 weeks to submit a quotation
Assessed Quotation - 2 weeks to reply to quotation
If no reply contractor notifies, if PM does not reply then after 2 weeks quote accepted
How do you assess Cost when assessing a CE?
Actual Defined Cost
Work already done prior to the date the project manager instructed, or should have instructed, the contractor to submit a quotation.
Forecasted Defined Cost
• Second is forecasting the defined cost of work not yet done.
• The assessment of these costs requires detailed knowledge of the progress of the individual work or trade packages and a realistic estimated final account for each subcontractor.
Adjustment of Fee
• The third matter is an adjustment of the fee which, as it is a percentage addition to the defined cost, is simply dependent on ensuring that the defined cost is correctly assessed
What is the timeframe for payments under NEC3?
Contractor to submit application not less than 7 days before due date
Certificate issued 5 days after due date
Pay less notice 7 days before final date for payment
Payment cycle = 21 days (7 days for before due date + 14 days from due date to final date for payment)
How did you implement the 5% retention within the contract?
- I advised the client to use retention, to provide some security that the contractor will return to correct any defects during the defects correction period. If they do not return then the retention can be held.
- Generally, a portion of the retention is released upon completion of the works. The remainder is released when the rectification period or defects liability period has expired and the relevant certification under the contract has been issued.
- I advised that each payment period 5% would be withheld as retention and recorded.
- Under the NEC3 contract there is not a suggested retention figure under option clause X16. Half on completion (within 4 weeks of completion certificate) and the remaining amount when the defects period has ended. The figure needs to be specified in contract data part 1.
What is retention?
It is a percentage of each interim certificate deducted and retained by the employer from each interim payment to the contractor
What is the purpose of retention?
- It provides an incentive for the contractor to complete the works promptly
- It provides some financial cushion to the employer in the event of contractor default
What should employer do with retention if requested by the contractor?
• Place it in a separate bank account
- Label the account as being held in trust
- Provide the contractor with statements showing the payments and amount of money in there
- This should ensure that the money is available to the contractor in event of employer insolvency
Who gets the interest accruing on retention money?
The employer
When is the retention released to the contractor?
- Half of the retention is released to the contractor after assessment is made at Completion of the whole of the works or in the next assessment after Employer has taken over the whole of the works if this is before Completion of the whole of the works.
- Other half released when the Defects Certificate issued
On Beckton Depot how did you implement the change procedure to descope the temporary access road to the accommodation?
- Clause 14.3 allows the project manager to instruct a change to the works information,
- Clause 27.3 requires a contractor to obey such instruction.
- Clause 61.1 requires the contractor to put such instruction into effect immediately.
- Further clause 63.7 requires that compensation events are assessed assuming that the contractor acts promptly and competently.
• The quotation will be then valued on the defined cost up to the point they were informed of the PM instruction. Including any forecasted costs they are likely to still incur regardless of the instruction.
How did your advice and calculate delay damages on Beckton Depot Enabling works?
- I advised the client that if option X7 clause is selected, and the contractor does not achieve the completion date then delay damages will be due from the contractor. Similar to liquidated damages in JCT.
- They are not a penalty and are based on a genuine calculation of damages. Calculation of the cost of the actual costs to the employer of delay.
- Key dates and completion date reflected in contract data part 1
What are delay damages?
- A genuine pre-estimate of the likely loss incurred by the employer should the completion date not be met.
- X7 in NEC3 ECC. Amount defined in Part 1 of Contract Data
- If Contractor does not achieve completion date and X7 selected then delays damages are due from Contractor to Employer
What are Early Warnings?
- Both parties must give early warning of anything that could affect the cost, completion, progress or quality of the project.
- They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project.
What is the NEC3 ECC Change Process?
- Compensation events: are events which may lead to the payment to the Contractor being changed or the Completion Date being delayed.
- Compensation events are included under clause 60.1
What if a contractor submits a CE without first notifying of an early warning?
If the contractor fails to give early warning of a possible delay to the works, or increase in costs, they will only be compensated for effects that would have remained anyway even if they had given early warning.
Explain the NEC Contract Risk Register.
- The risk register is maintained throughout the contract period.
- The Employer and Contractor contribute the first entries in the risk register, via Contract Data parts 1 and 2 respectively.
- The Project Manager then adds any further risks newly identified and notified through the Early Warning process to the risk register as the projects proceeds.
- The Project Manager may revise the risk register to record the decisions made at ‘risk reduction meetings’ and issue the revised risk register to the Contractor.
What should a PM consider when assessing a CE?
The description of the NCE is accurate
Was an early warning raised?
Is it covered in one of the reasons for a compensation event under clause 60.1
Authorised to accept NCE
How you assess delay to planned completion in a CE?
Any delay to the completion date is assessed as the length of time that, due to the compensation event, planned completion is later than planned completion shown on the accepted programme
What is the price of work done to date?
depends upon which Main Option Clause is used –
- Option A - the total shown in the prices prepared by the contractor for each of the completed activities. A completed activity is a milestone without any defects which would delay following work.
- Option C - the defined cost which the project manager forecasts would have been paid by the contractor before the next assessment date, plus the fees.
- The fee is quoted by the contractor and consists of his overheads.
What is Defined Cost?
- payments due to subcontractors
- the schedule of cost components
- less disallowed costs
What is disallowed Cost?
A cost that -
• Is not justified by the Contractors accounts and record,
• Should not have been paid to a Subcontractor or
supplier in accordance with his contract
• Correcting Defects after Completion
What are the NEC3 ECC Payment Provisions?
Core Clause 50.2, the amount due to the contractor is the total of:
- price for work done to date; plus
- other amounts to be paid to the contractor (such as compensation events); less
- any amounts to be paid or retained from the Contractor.
What are the significant elements of the Housing Grants Construction and Regeneration act 1996?
a) Payment
b) Adjudication
c) Set off
d) Suspension
Why was the Housing Grants Construction and Regeneration Act introduced?
- Fairer payment conditions
- Improve the cashflow of the industry
- Introduce quicker, easier and more efficient method of dispute resolution