L4M3- Chapter 1- Understanding the legal issues Flashcards
What is a schedule?
Part of a contract that is time orientated and designed to be updated periodically
e.g. Annual price lists or a project delivery plan
Can also be the spec
What is an annex?
An attachment to a contract which is of direct relevance to the contract but is not updated regularly. E.g. addresses or org charts
Can also be the spec
What is an appendix?
Attachment to a contract which may be of interest but is independent of the contract (e.g. nice to know)
In law, a tender and quotation are essentially the same thing. In procurement what is the difference?
Quotation- used when the only variable is price, a simpler process and possibly even informal. Low value, lower risk items
Tender- Multiple variables (not just price). More formal, normally has deadlines
What is a framework agreement?
An agreement with one or more suppliers for the supply of an array of products, all with prices and T&Cs fixed for the duration of the agreement
What are the advantages and risks of RFQs?
ADV-
Formality- reduced spend on process because spec is clear and frees up resource
Speed- turnaround should be short as only variable is price. Quick to implement
DISADV
May be over simplified
Potential for a lack of an audit trail
Possible lack of transparency
Price may not be the only variable to consider
Need to comply with rules
What are the advantages and risks of ITT?
ADV
Full audit trail
Full robust process for transparency so reduces risk (e.g. conflicts of interest, bribery etc)
Forward planning as you need to think about timelines for an ITT
Clear and robust response schedules and timelines
DISADV
Requires documentation set up
Process driven so may not give specific thought
May be regulated by law
Long process
Lack of understanding of appropriate tender type
What are some of the issues that can be raised from sourcing? (seeking tenders and quotes)
Administrative costs
Audit trails
Transparency of process (ie. suppliers need to be sure its a fair process with no nepotism or coercion)
Urgency and speed (most procurement should be properly planned out not requiring immediate action scenarios)
Why are audit trails important?
Reduce bribery, corruption, collusion and extortion
Evidence for what actually has happened
Improved accountability
Trace errors
E.g. an RFQ may be less formal meaning less of an audit trail (unless using E-tenders), whereas an ITT will have a full robust audit trail
What is a waiver process?
A decision not to apply the normal rules.
To waive a tender process it needs high level authority and a business justification
May be caused by needing to do something urgently to maintain supply
If a specification is not clear, what could happen?
Poor bids (over or under priced)
Claims for extensions
Admin costs to clarify
Delay
Goods not meeting requirement
Why do you not want to over specify?
Miss opportunities for change or innovation
May refer to specific brands or manufacturers which are unnecessary
Wish list may be so specific that no supplier can meet it
Others I think:
Increased cost
Time and effort
What is PbR?
Payment by Results
This is a scheme where some or all of the payment depends on the provider achieving outcomes specified by the commissioner
This is used in the public sector in the UK
What are the main types of specification?
Performance
Conformance (also called prescriptive or technical)
Sometimes it can become a hybrid between the two
There is also outcome based schedule of outcome requirements- this is looser and more flexible than a specification and encourages innovation
What are the main differences between performance and conformance spec?
PERFORMANCE:
Focus on outputs
Sets out results
The ‘what’ not the ‘how’
Supplier has flexibility
Risk is with supplier
CONFORMANCE:
Focus on inputs
specifies methods, processes and materials
May use specific manufacturers, brands or components
It is the ‘how’ and the ‘what’
Ties suppliers to set details
Risk held by buyer
What are the 12 key things to think about when designing a specification?
Purpose
Perspective
Scope
Improvement
Compliance (standards)
Type
Relevance
Performance
Clarity
Service conditions (once in situ what does operating/ storage look like)
Budget
Waste
What problems can occur if a spec is only mentioned in the RFQ/ITT and not in the contract?
If it is not in the contract it is not valid
Anything spoken about in the tendering process could be omitted, undermining the whole contract
Failure to use the most up to date documents
What are the 3 key components of a performance management framework?
KPIs
Targets
Consequences
What are some examples of tender submission aspects that could be included in a contract?
Purchase price factors (price, inflation, payment terms)
Time scales for production
Logistical aspects e.g. delivery, packaging
Location
What are some examples of KPI aspects that could be included in a contract?
Delivery performance
Quality performance
response times
What are some examples of specification aspects that could be included in a contract?
Material requirements
ISO e.g. ISO 9001 for quality management
What determined if a contract is formal?
used for detailed contracts
where law may need to be enforced
Evidence of both parties signing and sealing
What are the advantages of a standard/template contract?
ADV
Unlikely to miss key areas
Standard clauses prompt though on relevance
Legal meaning has been fully considered
Standard list of schedules will be included
Cheaper
Consistent
DISADV
Could be inappropriate for use
Could become complacent when writing
May fail to cross check
References may be obsolete
May be ambiguity
What are the advantages of a bespoke contract?
ADV
Precise needs considered
Avoids risk/ drawbacks of standard forms
DISADV
Language may be inconsistent with legal interpretation
Potential to omit areas of low risk
May identify risk but not consider wider consequences
What is CSF?
Critical success factors
Identify the key objectives of a contract and determine the conditions that will deliver them
What are warranties in a contract?
Lesser terms in a contract which result in damages but not termination
What are conditions in a contract?
The key elements in a contract which, if breached, can result in termination
What are innominate terms?
Could be warranties or conditions depending on judgements made as part of a dispute resolution process
What are the common 5 sections of a contract?
1) Articles- a summary of the basic agreement (party A is entering a purchase agreement with party B…)
2) Recitals- Context- what is the situation that the contract happens
3) Contract particulars- some specific parameters e.g. date of completion, insurance, conditions, warranties
4) T&Cs- ifs, buts and maybes and what will happen in different scenarios
5) Schedules- specific project detail
What is market leverage?
Another term for bargaining power
The purchaser usually takes the lead in delivery of contracts, what things should they be aware of?
Market leverage- suppliers can make changes if they hold power
Regulations in procurement- once advertised, it can be difficult to execute change
It is important that a buyer understands all terms in a contract, every term should do one of the following:
Protect the supplier
Protect the buyer
Balance the protection between them
Contracts should protect both parties but the degree to which they do will be based on the bargaining powers and their influence
What should key terms in a contract cover?
Price
Payment terms
Risk
Insurance
timescales
H&S
Actions and remedies
An informal contract can be difficult to understand the terms agreed, particularly if it was over the phone or was just an RFQ followed by payment and delivery, but how would the terms be esablished?
If there was a previous contract the terms could be assumed to apply again
If there were ‘normal’ sector expectations they may apply again
Either of the above could be discounted if there was evidence for other circumstances applying
What is a schedule?
A schedule to a contract is simply an attachment to the body of the contract form
It is an easier way to incorporate project specific information without having to impact the main body of a contract and allows for standardisation of the T&Cs
What are the benefits of using a schedule?
Simpler to draft a standard contract with a schedule specific to the project
Quicker and cost effective
Within an organisation specific clauses have identical wording to avoid risk
Uniform contracts are easier to understand
What are the most common types of schedule?
Pricing schedule- could be the fees payable at different stages
Specification- Exactly what is to be delivered
Preliminaries (costs that are needed to complete a project but are not tied to specific work e.g. project management) or contraction/operational matters- usually included to cover all associated overheads and risks
Performance management framework- KPIs, targets, incentives, disincentives, bonuses
Delegated authority and contractual management
Site lists, maps and plans
H&S
Method statements- describe how the desired result is to be achieved
Sub contractors- could be simply agreeing to certain manufacturers or the supply chain
Alliancing agreements- also called contractual joint ventures- setting up joint supply chains between contractors and sub contractors
Core lists or exclusion lists- linked to schedule of rates and overview the items that may be included as part of a discount
Suppliers staff- This is where the provision of services is reliant on the skill of an individual e.g. the contract may be terminated if they no longer participate
Codes of conduct
Data management- NDAs, cyber security, rules on GDPR, IPR
What is a schedule of rates?
A list of prices associated with the products or services to be provided. it can differ by volume
Contract variations are required in contracts because conditions may change, but what should be set out in the contract?
Who can request change
Who can authorise change
Who can accept change
Mechanisms for price adjustments
What happens if a variation/ change order is rejected
Details of variance management and configuration control processes
Responsibilities for notification of affected parties
What is a variation/change order?
Change orders are also called variations or variation orders. Any modification or change to works agreed in the contract is treated as a variation.
What are the 6 basic rules for contract formation? OACICB
Offer
Acceptance
Consideration
Intention to create legal relations
Capacity to contract
Be legally binding
What is a common law, sharia law ,civil law and case law system?
Common law = in UK, a body of unwritten laws based on legal precedents and established by courts
Sharia law = also uses courts but guided by the Quran for Islamic states
Civil law = A comprehensive system of rules and principles usually arranged in codes and easily accessible to citizens and jurists. Used in Austria and Poland
Case law = Case law (or judicial precedent) is law which is made by the courts and decided by judges.
What is an ITN?
Also called an invitation to treat
Effectively a seller showcasing a product or service that is available for sale and inviting the buyer to submit a price or initiate negotiations.
In the way a buyer sends an ITT to a seller, an ITN is a seller submitting to a buyer
An ITN alone IS NOT AN OFFER, the buyers response to an ITN constitutes the offer
Similarly, an ITT alone is not an offer, it is an invitation and only becomes an offer once the parties have responded with a bid
Give some examples of ITN
Advertisement of goods
Displaying goods for sale in a shop
Auctions/ E-auctions
Online catalogues
What is an offer?
A statement of what the offerer is willing to provide and the terms in which they will provide it
What is case law?
the law as established by the outcome of former cases
Give examples of what is not an offer in case law?
ITT or ITN
Fisher vs Bell 1961
Declaration of intention- defined as an aim or plan
Harris v Nickerson 1872
Mere puff or boast- something that is not intended to be taken seriously
Carlill v Carbolic smoke ball company 1892
Provision of information (providing information not an offer)
Harvey v Facey 1893
What is a mere puff (or a boast)?
This is anything that is intended not to be taken seriously, such as advertising slogans
An offer must be communicated to become an offer, but what are the 6 ways that an offer could end?
1) Withdrawal/ Revocation- Offerer withdraws
2) Lapse- if the time limit set for acceptance elapses then it ceases to be valid (if no end date then the contract will lapse after a ‘reasonable’ period
3) Death
4) Rejection- Once a party has rejected an offer then cannot later accept. A counter offer is a rejection (e.g. A offers £1, B says they will buy for £0.9 then the original has been rejected)
5) Failure of conditionality- Express or implied terms not met
6) Acceptance
What does ‘without prejudice’ mean when making an offer?
An expression used when negotiating a contract to ensure that original offers are preserved whilst other discussions occur
What are express and implied terms?
Express- Contract terms specifically written into the contract
Implied- Contractual terms that exist in legislation and so are not written into the contract
You can accept an offer, but what conditions are required?
- Offer must be open
- Absolute and unconditional
- Intentional
- Cannot be made by someone with diminished capacity (e.g. a minor, mental health, drugs etc)
What does ‘subject to contract’ mean in offer acceptance?
Used on letters and indicates that matters are still being discussed and that the letter must not be taken as a formal offer or acceptance of terms
What does ‘letter of intent’ mean in offer acceptance?
Indicates intention to accept a tender if certain preconditions are met e.g. legal or financial
Why is it important to state the place of contract terms on the contract?
Acceptance of an offer creates the contract, so where you accept is important. With the rise of electronic contracts it could be unclear the place of contract is unless stated
What is acceptance by performance?
Acceptance does not need to be explicit, if a purchaser starts using goods supplied it is implied that they have accepted the terms
What are the two rules that override the need for acceptance to be communicated?
1) The seller can simply dispense of the need for a formal acceptance
2) Mailbox rule- this means if a letter accepting an offer has been properly posted, but not delivered, then it is effective from the date of posting
(mailbox rule does not apply to electronic comms as this is only valid from point of receival)
what is the Vienna convention?
UN convention on the international sale of goods- recognised framework for international trade
What is consideration in a contract?
In commercial contracts consideration can be thought of as the payment for goods or services (normally financial)
No consideration means no contract
Give some examples of things that could/could not be considerations
- Past consideration- something done in the past cannot act as a consideration
- Implied consideration- can be a consideration
- Promise to perform an existing obligation- if there is a legal obligation, it must be delivered
- A promise to perform over and above an existing obligation- this is consideration
- Promises to a third party
What is the difference between adequate and sufficient consideration?
Sufficient- Consideration is capable of having monetary value and does not fall into any categories that could be referred to as no consideration (e.g. past consideration, implied, promises to a third party etc)
Adequate- refers to if payment is a reasonable and fair amount to be given in exchange (in commercial contracts the law tends to not intervene here) but examples are normally big organisations vs individual consumers where government steps in (e.g. energy companies)
What is privity of contract?
A legally binding agreement between 2 or more parties which is private to those parties. This means that 3rd parties cannot claim damages directly from the contract
What is collateral warranty?
An agreement under which a subcontractor agrees to fulfil an obligation
Collateral warranties are used as a supporting document to a primary contract where an agreement needs to be put in place with a third party outside of the primary contract
Only legally binding if executed alongside a deed
P44 if required to review
What is a deed?
Agreement for the transfer of an asset
A document is a deed if it explicitly states that it is
When is consideration not needed in a contract?
When the promise is made by way of deed
Collateral warranties generally do not involve consideration
Why would a minimal consideration be added to a contract to prevent them becoming deeds?
Contracts have liability for 6 years whereas deeds are 12 years
What are some differences between contracts and deeds?
deeds have to be written, whereas a contract can be verbal and written
contracts require ‘consideration’ (i.e. something is given in return), deeds do not
deeds must state that there is an intention to be a deed
deeds have a statutory limitation period of 12 years vs six years for a simple contract
certain transaction types have to be drawn up as deeds (see below)
a deed involves more formalities to be completed when being drawn up compared to a simple contract. This includes requiring witnesses to observe its formation.
What is an intention to create legal relations/ to be legally bound?
Intending that the agreement should be capable of being enforced by courts
Commercial arrangements are generally assumed to be enforceable whereas domestic agreements do not
What is Ultra Vires?
This is in the commercial world where organisations may only legally be able to contract to do certain things
Often public sector organisations
Effectively do not have the capacity to legally enter into the contract
Ultra Vires means ‘beyond powers’ in latin
What is an article of incorporation
The legal document creating a commercial company and setting out its purpose
What is battle of the forms?
This is where orders, delivery notes etc issued in sequence may each have terms which appear to override each other.
Each issuing of forms effectively rejects the previously issued terms
In the sequence every time you provide a new form it is a counter offer in terms and once the final document is issued with terms it can be considered acceptance
Note, if a purchaser gets a quote (with terms) then the seller provides a quote (with their terms), then the purchaser issues a PO with its own terms, this is not acceptance but a counter offer and the seller would need to fulfil the PO with no further terms to accept, or provide another counter offer.
Who usually wins the battle of the forms?
It is usually the most recently issued terms that take precedent
(may not always be the case)
Contracts are complex and lots of people will have input, why is it important to ensure to explicitly outline things in a contract?
Usually anything explicit in a contract overrides anything implicit or previously agreed.
There may be a full agreement clause which explicitly states anything discussed prior shall be ignored.
Courts use rule of interpretation to decide outcomes with contract disputes
What are rules of interpretation?
Defines how courts will interpret contracts
e.g. words will have their normal everyday meaning unless the definition is provided within the contract
If a specific contract schedule is contradictory to another part of the contract how will it be interpreted?
Any specific clauses override any generic ones
This follows the logic that if the time was taken to write a specific rule, then it must be more important than generic
What are some examples of clauses in a contract? (outside reading)
Confidentiality
Force majuere
Dispute resolution
Termination
Indemnity (related to who takes on risk of losses)
Order of precedence clause
What is an order of precedence clause?
This is within a contract and outlines which terms take the lead, e.g. it may say that anything in the main document will take precedence over any drawing or schedules attached
It is applied rarely, and usually when the discrepancy is blatant
When there is a monopoly or limited number of suppliers (e.g. energy) the contract can be weighted in the suppliers favour. Give some examples of terms that could be in the suppliers favour?
No warranty of quality
Spec is what the supplier wants to sell, not for the buyers specific need
All risks are with the purchaser
Payment terms
Exclusion of liability (for damages or injury)
Lack of protection of budget overruns
Inability to change (or subject to extra costs)
Lack of protection of IP
Inability to control shared data
What are the risks of oral contracts?
Oral contracts are enforceable, it is just hard to prove what they were
Often they will be short telephone conversations so miss key areas of the contract (warranty, spec, timescales, cost, liabilities)
Uncertainty of whos terms are being agreed
Usually results in a battle of the forms (as documents begin to creep in)
What is CISG?
Contracts for the international sale of goods which seeks to harmonise terms across different countries
Part of the vienna convention (UN treaty)
What is the purpose of the vienna convention on CISG?
Set out a framework for international transactions based on a uniform approach and get around challenges with local laws
Interpretation continues to develop through case law
When is the vienna convention on contracts applicable?
To goods (not services)
Applies to private commercial transactions (B2B) not to public services or sales to customers
Only applies if the places of business are in different contracting states (different countries signed up to the convention)
CISG can be excluded if the terms explicitly say so, or if the contract states that it is subject to the legal system of a specific country
What does CISG cover?
Formation of contract (offer, acceptance, consideration)
Does not cover the validity or enforceability of the contract e.g. illegalities in certain countries
Does not require amendments in writing
Does include the provision of risk but can be overridden by INCOTERMS
What is a misrepresentation in a contract and what are the three levels?
A false statement of fact made by one of the contracting parties before or which encouraged the other party to contract
1) Intentional/ Fraudulent- meant to do it and knew consequences
2) Ignorant/ negligent- meant to do it and should have known the implications/consequences
3) Innocent- you did it but did not know you did
One off purchases can be divided into either simple or complex purchases. What are the reasons for a simple or complex purchase?
Simple- low value spend, standard terms, urgent need and lack of planning
Complex- Lack of fully developed strategy for the spend area and an inability to predict future funding (if you could do those things you would likely form a framework agreement or something greater than a one off purchase)
Note that despite being one off, the contract may not be simple.
Why would a one off purchase still have a complex contract?
The complexity of the one off purchase contract will be depending on the complexity of the product
Warranty for considerable life of the product
Insurance
Licensing an future updates on software
Specifications required
Quality standards
Ability to extend the scope/duration of the contract
Data security
What are the benefits and risks to one off contracts for the buyer and the supplier?
ADV
Buyer:
Can be fast
Could be local suppliers
Tap into falling market prices or time limited offers
Supplier:
One off spot purchase may reduce competition giving them a better price
If one off purchases are regular, their spend can still be significant
DISADV
Buyer:
Pricing may be on the day and unable to demonstrate value for money
Contract volume may be limited
Limited relationship
May be limited in public sector
Supplier:
Planning may be difficult with ad hoc purchases
If you fail one off contract, you may not get future business
What is a framework arrangement?
No legal standing and is usually where an organisation itself has decided to limit the number of suppliers it works with but there are no commonly agreed terms for working with those suppliers
AKA an approved supplier list or an approved panel
What is a formal framework agreement?
It differs from an arrangement as it does have some legal standing.
It is not a contract as there is no consideration
It is an overarching/umbrella agreement under which contracts can be created and is legally binding once that contract under the framework is created
The framework will set out the T&Cs but IF a contract is created but is not a contract itself
It can have a mechanism for determining price, but will not be as detailed as a schedule of rates
It will be set up in the same way as a contract e.g. through a tender or a series of negotiations
What does a framework agreement set out?
How call offs will be made
How price is calculated
Spec
Duration
Who can access the agreement (traditionally a closed system)
Limitations
Main terms of the contract
What is a direct call off?
The act of placing an order under a framework agreement without having further competition
What is a closed system?
A system or process that does not allow new entrants
A framework agreement is an example as there may be multiple buyers and suppliers but once set up no additional buyers or suppliers can be added
Thinking about the number of suppliers and buyers in a framework agreement, what are the different types
One to one (ie one purchaser to one supplier)
One to many
Many to one (ie many purchasers to one supplier)
Many to many
What is a mini competition
Limited tender exercise usually only on price
It can apply under a framework and apply only to the suppliers involved
The framework agreement will set out the process to be followed
What is the purpose of a mini competition under a framework agreement?
Specific needs can be priced
Contract specific terms can be refined
Maintain an element of competition amongst suppliers
Quicker than a full tender
Less resource than a full tender
What is a call off and when is it used?
AKA a term contract
The call off states the actual order (ie item, quantity and place of delivery) but all other aspects of the contract will remain
Exists for a fixed period of time rather than for a specific purchase
Used when there is a regular requirement for goods or services that you want to have provided by a single supplier
e.g. servicing equipment, services which cannot be done on site, regular requirement but stock holding is limited
Price is usually agreed quarterly or annually if it is the same requirement
What is the difference between a Framework Agreement and a Call off Contract (Term contract)?
In a term contract the supplier is committed to meeting all orders placed whereas a framework the supplier is not obliged to ender into a given call off.
What are the benefits and risks of call off contracts for the buyer?
ADV
Guaranteed delivery
Agreed price
Simple order mechanism
Electronic order systems
Longer term contracts allows collaboration
DISADV
If prices fall, you may be locked in at a higher rate
Technology may change
What are the benefits and risks of call off contracts for the supplier?
ADV
Easier to plan resources as you have some certainty of future demand
Simple order systems
Agreed spec can reduce spend on short runs
Align working practices with a longer contract
DISADV
If raw materials increase, the contract may make a loss
May need to use old technology to meet spec if tech changes
As well as classifying a contract by one off or term contracts, they can be split by their subject matter, what is a good, service or work?
Goods: products, tangible items, can be stored and moved
Services: Intangible, done by a person or group
Works: Special type of service contract, specifically construction, buildings, civil engineering etc
The majority of a contract areas for a good, service or work will be the same, what are some examples of differences with regards to contracts for a service?
Public sector may have more regulation and spend caps
International trade- e.g. vienna convention only applied to goods not services
Key personal- may be that a service contract is dependent entirely on the skills of one individual (and if they leave you may want to terminate)
Local knowledge- may be ruled that a supplier cannot be selected purely on location
Data sharing- may need more protocols as services will have a lot more personal data
Insurance
Conflicts of interests
Codes of conduct
What is the difference between a hire and a lease?
Hire- short term
Lease- legal commitment with T&Cs where the lessor (owner) charges fees to a lessee (who will use the asset)
What are some of the key things to consider when you set out a hire or lease contract?
The reason for the approach
If you are hiring as its a high expense then what does payment look like
Risks of ownership being applied
What maintenance is required
Period of hire
Financial impacts
Extension/reduction of the scope
What is a hire purchase?
Where the asset is hired for a period of time, but at the end there will be a transfer of ownership
What is the difference between an ITT and an RFQ in the eyes of the law?
Both are the same, in the eyes of the law both are offers
What are contractual terms?
Referred to as T&Cs
make up the main body of the contract
Contract terms may be the smallest part of the contract and will not be understood without schedules and supporting documents
Could be standard of bespoke terms
What are the 3 types of contract?
Standard
Bespoke
Model form- Standardised contracts used within certain industries to create a stable and consistent contract which are affordable and broadly equitable
How do you avoid losing the battle of the forms?
Careful control of documentation handling
Use of tendering procedure (insistence on buyers terms being basis of award/non compliant bids if the buyers terms are tampered with)
Use of framework agreements, where standing offer by supplier is subject to buyers terms as agreed in original agreement (Framework works like agree to enter and brose a store, but only enter a contract when you purchase, but the framework of how to purchase etc is set up ahead of time/is predetermined- think about ordering stationary and it is useful to not have to set up a relationship and new terms every time- it is good for low importance of supplier)
What is the difference between a framework and a call off contract?
Call off contract is legally binding for the stock- even if you are taking it in waves- you are still liable for all of the stock
In a framework agreement is not binding, you do not need to take the stock
What is a mini competition and what are the ADV/DISADV?
A tender process that is run under a framework agreement. The framework agreement will set out the process to follow. It is only open to suppliers on the framework and they should all be invited. Can be to be more precise with requirements and maintains competition amongst the framework suppliers
ADV
Quicker and take fewer resources than a full tender
Key terms are already defined
No need to repeat due diligence
Suppliers are already pre-qualified
DISADV
Due diligence or other checks may be outdated
There are risks if the framework agreement is not managed properly
What are the 5 necessary conditions of misrepresentation?
Must be a statement (not silence)
Must relate to a fact
The statement must be false
Must be made by a contracting party
It must induce the contract
It can be ignorant, intentional or innocent
What documents would you typically find in an ITT or RFQ?
Specification
Contractual Terms
Pricing Schedules
Health and safety schedules
What are the 6 ways an offer will end?
Withdrawal
Lapse
Death
Rejection
Failure of conditionality
Acceptance
