20090714 contracts workshop
DESCRIPTION
5 key contract mechanisms for controlling cost on an Option C contractTRANSCRIPT
NEC3 Option C5 Key Contract Mechanisms
Steve Jackson
5 Key Contract Mechanisms
• Disallowed Costs• Compensation Events and Change Control.• How to manage time• Communications.• Defects.
“A child of five would understand this. Send someone to fetch a child of five.”Groucho Marx
The Ground Rules
• Clause 10.1... shall each act as stated in this
ContractAND
In a spirit of mutual trust and cooperation
“The secret of life is honesty and fair dealing. If you can fake that, you've got it made.”Groucho Marx
Contractor’s overriding obligation
11.2(60)
… to do the work necessary to complete the works in accordance with this Contract and all incidental work services and actions which the Contract requires
20 Contractor ..
Advises on the design
Prepares forecasts
Ensures proper integration
To ‘Provide the Works’(He does what it says on the tin)
Financial ControlFinancial Control
Disallow CostsClause 11.2(23)
Control the Target CostCompensation Events
Clause 60
Make DeductionsClause 55
Goal or no goal? You are the Russian Linesman
The PM decides – Clause 11.2(23)
You cannot expect the Contractor not to claim the costs
It is your responsibility to allow or disallow
Disallowed Costs
Disallowable Costs - 1
Disallowable Costs - 2
Disallowable Costs - 3
Disallowable Costs - Summary
• Not ‘Providing the Works’• Any kind of rework (Design or
Construction)• Unnecessary work• Uneconomic work
• Repairing damage
• ‘Other costs’
Clause 11.2(23) is a bit of a jumble – but can be summarised as:
Record Keeping
Site Records
Accounts Records
You set the agenda
Be demanding
Burden of proof lies with you
Records must be communicated
Feed the system!
Don’t expect a happy response
Final thought on Disallowed Cost
But remember what Andy Warhol said ….
“Art is anything you can get away with”
The same applies to costs on a NEC Option C contract!!
Compensation Events
“If anything is certain, it is that change is certain” Philip Crosby
“A Compensation event is like a Cruise Missile – you know its coming but there is f**k all you can do about it” Anon
The Roots of Compensation Events
• Damages: Hadley v Baxendale [1854]– Liable for all losses in the contemplation of the
parties
• Loss and Expense – JCT Contracts– Contractual remedy for damages– Time dealt with separately
• Compensation Events – NEC– Takes account of time and money
Clause 16
Early Warnings & Risk Reduction
Clauses 60-65
WhatAssess
Notify
Quote
PM Assessment
Implement
Compensation Events
• A CE may arise from almost any change in the Works Information– And a few other things besides
• Contractor quotes• PM must assesses if the quote is wrong• State assumptions where necessary
Beware: The Project Manager’s indecision is final! (64.4)
How to Manage Time
“You may delay, but time will not” Benjamin Franklin
Time – the basics
Clause 30Start: on the ‘Access Date’Finish: on (or before) the ‘Completion Date’Fulfil the criteria for the ‘Key Dates’ (on or
before)Proceed: Regularly and diligentlyMitigate delay
Time Management
31 Accepted Programme
32 The Contractor revises the programme – from time to time – New Accepted Programme
63/64 Completion Date is adjusted by Compensation events
Similar to Financial Forecasts
Communications
“The single biggest problem in communication is the illusion that it has taken place.” George Bernard Shaw
PM
Contracto
r Emp
Compare with Cl 10.1
Good communication facilitates working together
13.2communication
is notCommunication
• “This 'telephone' has too many shortcomings to be seriously considered as a means of communication. The device is inherently of no value to us.”Western Union internal memo, 1876
instruction
record
registerproposal
submission
certificate
direction
order
message
refusal
non-acceptance
acceptancewarning
13.1 CommunicationCopy – Read – Record
Communication v notification
‘Gee, I’ve never had a pen pal before’
11.2(11) Communication is any form of communication as defined in Clause 13.
Defects
“In a true zero-defects approach, there are no unimportant items” Phil Crosby
43 / 44Contractor corrects all Defects
(whether notified or not)
Corrects Defects at a time to suit himself, but without delay to Completion
Employer may accept a Defect – change to cost and time
“The crack’s no fun when it’s in concrete” - Anon
Thank you!