Professional Documents
Culture Documents
Chapter 2 - Contract
Chapter 2 - Contract
Chapter 2 - Contract
Chapter
h Outline
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2.1. Principles of Contract Law
2.2. Types of Construction Contract
2.3. Contract Documents
2.4. Contract Management :
Contract Administration and Closing
Claims and Dispute Management
Preface
Procurement Preparation
Tendering
Tender Evaluation & Notice of Acceptance
Principles
p of Contract Law
Principles of Contract Law
Principles of Contract Law
Principles of Contract Law
Principles of Contract Law
A contract is an agreement whereby two or more
persons as between themselves create, vary or
extinguish obligations of a proprietary nature.
An agreement that affects the legal relationship
between two or more parties.
Principles of Contract Law
Elements of a Contract ‐
Elements of a Contract ‐ What does it
What does it
take to have a legally binding
contract?
t t?
Contracts require 4 basic elements
Mutual Agreement
Offer
Acceptance
Legal Objective
Valid Consideration
Legal Capacity of the parties
Principles of Contract Law
1. What is Mutual Agreement?
It should show evidence that there was ‘MEETING OF MIND’’
Offer – Clear and Unambiguous
Acceptance – clearly accepting deal offered & anything else
clearly accepting deal offered & anything else –
Counteroffer & Non acceptance
2. What is legal objective?
The thing contracted must be legal in and of itself.
h h d b l l d f lf
3. What is a valid consideration?
In exchange for the offer to perform, the recipient or client
In exchange for the offer to perform the recipient or client
must offer something of value
Money
Promise of future work or revenue
Goods or Services
Principles of Contract Law
Without valid consideration a contract is invalid
Without valid consideration a contract is invalid
& unenforceable
4. What is legal Capacity?
In simplest form, parties must be:
In simplest form, parties must be:
Of Age
Mentally Competent
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In construction environment, parties must have:
Legal authority to issue & execute contracts
Must have proper license to have legal capacity
Principles of Contract Law
Concepts and Basic Terms of Contracts:
Concepts and Basic Terms of Contracts: ‐
Offer: ‐ proposal to enter into a contract.
Acceptance:
Acceptance: ‐
Performance of Contracts: ‐
Performance – fulfilling respective legal obligations
Performance fulfilling respective legal obligations
Contractual Liability:
Extra –
Extra – Contractual Liability: ‐
Contractual Liability: ‐
Types of Construction Contracts
Types of Construction Contracts
Types of Construction Contracts
Contracts for the execution of civil engineering works are
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of following type:
(a) Lump sum contract
(b) Unit rate contract
(c) Lump sum and schedule contract
(d) Cost plus fixed fee contract
(d) Cost plus fixed fee contract
(e) Cost plus percentage of cost contract
A. Lump Sum Contract( Fixed Price)
A. Lump Sum Contract( Fixed Price)
Lump sum contract are typically used for buildings.
Difficult to make adjustments.
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Types of Construction Contracts
A lump sum contract is more suitable for works
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for which contractors have prior construction
experience.
Not suitable for unpredictable conditions.
N i bl f di bl di i
B. Unit Price or Bill of Quantity (Fixed Price)
Also called Schedule contract
Al ll d S h d l t t
Used for work where it is not possible to
calculate the exact quantity of materials that will
calculate the exact quantity of materials that will
be required.
Unit‐price contracts are commonly used for
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heavy/highway work.
Types of Construction Contracts
Types of Construction Contracts
Items whose actual quantity varies from the
Items whose actual quantity varies from the
estimated quantity by more than 15 or 20%, either
above or below the estimated quantity, are
sometimes subject to renegotiation of the unit
price.
C. Lump sum and scheduled contract
Combines the features of the Lump sum and
schedule contracts
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Additional items are amounted as per the
attached item rate.
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Types of Construction Contracts
D. Cost plus
Used when it is impossible to predict their costs during the negotiation, bid,
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and award process.
Factors ‐ unpredictable and extreme weather conditions, transportation
problems, combat or war, or contracts where the amount of effort that will be
required depends on another contractor’s work.
Cost plus contracts take many forms: most common cost plus fixed fee and
cost plus a percentage.
D.1. Cost plus Fixed Fee Contact
Is desirable when the scope and nature of the work can at least be broadly
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defined.
The amount of fee is determined as a lump sum from a consideration of the
scope of work, its approximate cost, nature of work, estimated time of
construction, manpower and equipment requirements etc.
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The contractor will not be tempted to increase the cost to get more revenue.
The contractor in this type of contract is selected on the basis of merit rather
than the fee alone.
Types of Construction Contracts
D.2. Cost plus Percentage of Cost Contract
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In this type of materials and labor are arranged between
the client and the contractor.
The tendency of the contractor to increase the cost of work
to earn more profit by way of percentage of enhanced
actual cost is the major demerit of this contract type.
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Special Types of Contracts:
Turn – key Contract
Package Contract
Negotiated Contract
Running Contract
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2.3. Contract Documents
The main contract documents are:
Invitation to tender,
I it ti t t d
Instruction to tender,
Form of tender,
Form of tender
The Agreement,
Condition of contract( General and Particular),
( ),
Specification (General and Particular),
Bill of Quantities,
Drawings,
Addenda and
Appendix to Tender.
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2.3. Contract Documents
Donors’ Interest
Donors
Business Interest Professional Interest
In Ethiopia Construction Industry the following
In Ethiopia Construction Industry the following
standard conditions of contracts are commonly
used:
FIDIC (1987) – Condition of Contract
PPA, Standard Bid Document
PPA Standard Bid Document
MoWUD, Standard Condition of
Contract (1994)
BaTCoDA, Condition of Contract
BaTCoDA Condition of Contract
2.3. Contract Documents
1995 – ORAGE BOOK
For Design Build and Turnkey Projects
1999 – GREEN BOOK
For short period projects ( 6 months)
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Low contract value ($ 500,000)
1999 – SILVER BOOK
For turnkey for power plants, factories and facilities
MBD – Harmonized Edition
Multi‐later banks (MDBs) tried to harmonize the FIDIC
conditions to suite there procurement needs.
W ld B k has published one in 2004
World Bank – h bli h d i 2004
2.3. Contract Documents
ETHIOPIAN CONSTRUCTION INDUSTRY
1959 – Ministry of Housing
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1987 – Building and Transport Construction and Design
Authority (BaTCoDA)
1994 – Ministry of Works and Urban Development
1994 Ministry of Works and Urban Development
(MoWUD)
Based on FIDIC RED Book
Difficult to use for private contacts
2006 – Public Procurement Authority (PPA), Standard
2006 P bli P t A th it (PPA) St d d
Bid Document
2.3. Contract Documents
ETHIOPIAN CONSTRUCTION INDUSTRY
Claims can be associated with three major
Cl i b i t d ith th j
categories that can be understood as the different
types of claims These are:
types of claims. These are:
Cl i and
Claims d Di
Dispute M
Management
Time Related Claims: Claims associated with delay or in time
completion of projects where either of the following six Entitlements or
completion of projects where either of the following six Entitlements or
Penalties are subjected to:
Time Extension only
Liquidated Damages only
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Time Extension and Cost Compensation
E t i dC tC ti
Concurrent Compensations
Bonus
Reliving of Obligation
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Cost Related Claims: Claims associated with monetary compensation
where either of the following entitlements or penalties are entertained:
Additions requiring rate adjustments
Price Changes
Price Changes
Provisional sum adjustments
Default by Contracting Parties: Claims associated with non
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performances of contractual obligations such as:
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Delay in Payment Certificates
Suspensions and Terminations
Cl i and
Claims d Di
Dispute M
Management
Claim Administration Processes
Claim Administration Processes
Contract Conditions related to Claims
Major Causes for Claims
Levy, 2000 outlined 11 reasons why claims can
Levy, 2000 outlined 11 reasons why claims can
be initiated. They are related to
poor or unclear tender and/or contract documents,
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poor or inadequate administration of
responsibilities by stakeholders, and
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Unforeseen or uncertain situations during execution
t i it ti d i ti
Wideman, 2001 has also identified claim causes
into three main categories:
into three main categories:
Changed conditions
Additional works and
Additional works, and
Delay for cost overruns and time extension.
Al
Alternative
i DiDispute R
Resolution
l i S System
ADR – includes
Preventive Dispute Resolution System ‐ Partnering, Use of dispute
resolution advisors and Use of Facilitators
Amicable Dispute Resolution System ‐ Negotiation, Mediation,
Conciliation and use of Mini‐Trials to administer the claim in a less
formal, simple procedure, more flexible, less adversarial and strictly
confidential mode so as to avoid the time and cost implication of
confidential mode so as to avoid the time and cost implication of
claim processing.
Judgmental Dispute Resolution System
Judgmental Dispute Resolution System including Adjucation or
including Adjucation or
use of Dispute review board, Arbitration and Litigation where the
formal adjucatory or common law system is applicable to bring the
closure of claim processing.
Alternative Dispute Resolution System
Preventive
i Dispute
i Resolution
l i System
PARTNERING –
Project Partnering
Project Partnering
Strategic Partnering
Alternative Dispute Resolution System
P
Preventive
i Dispute
i Resolution
l i System
ALLIANCING
Alliancing is generally a tender arrangement where all the principal
tenderers organise into groups with common aims, prior to submitting
the tender.
STANDING NEUTRALS
DISPUTE REVIEW BOARDS
DRB ‐ a representative from the owner, one from the contractor and a
third, selected by these two representatives. The third member chairs
the board.
The members usually have experience in the kind of construction work
being undertaken and are also familiar and experienced in dispute
resolution. It is important that all the board members are independent
of any of the contracting parties, although they are paid by them.
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Alternative Dispute Resolution System
Amicable
i bl Dispute
i Resolution
l i System
Amicable Dispute Resolution System
Amicable Dispute Resolution System includes
includes
Negotiation, Mediation, Conciliation and use of
Mini‐Trials
NEGOTIATION
IS NEGOTIATION AN ALTERNATIVE DISPUTE
RESOLUTION METHOD?
It can be argued that negotiation is not part of an
ADR at all, largely because it is not a specific,
detailed system such as arbitration or even
mediation
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Alternative Dispute Resolution System
Amicable
i bl Dispute
i Resolution
l i System
MEDIATION
Defn: “a process in which the parties to a dispute, with the
assistance of a neutral third party (the mediator), identify
the disputed issues develop options consider alternatives
the disputed issues, develop options, consider alternatives
and endeavour to reach an agreement. The mediator has no
advisory or determinative role in regard to the content of
the dispute or the outcome of its resolution but may advise
the dispute or the outcome of its resolution, but may advise
on or determine the process of mediation whereby
resolution is attempted”.
WHY USE MEDIATION?
WHY USE MEDIATION?
Save money
Preserve relationships
Maintain confidentiality and privacy
Alternative Dispute Resolution System
Amicable
i bl Dispute
i Resolution
l i System
Alternative Dispute Resolution System
A i bl Dispute
Amicable i Resolution
l i System
CONCILIATION
Conciliation is in many respects similar to
mediation. The conciliator is still an independent
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third party but the difference is that the
conciliator may make more specific suggestions
to resolve the dispute. The conciliator may also
have a more forceful and powerful role in the
various meetings
various meetings.
Unlike mediation, there is an international set of
rules for conciliation
rules for conciliation
Alternative Dispute Resolution System
Judgmental
d l Dispute
i Resolution
l i System
Includes Adjucation or use of Dispute review
Includes Adjucation or use of Dispute review
board, Arbitration and Litigation
The Adjucation
j or dispute review board has been
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discussed in the above section.
Litigation
g means going to court and being judged
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by a public appointed jury. This process is
obvious quite expensive as the public judiciary
system is less efficient and time taking.
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The most common alternative to litigation is
arbitration.
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ARBITRATION
‘Arbitration’
Arbitration has been defined as:
has been defined as: “ is the
is the
reference of dispute or difference between not less
than two parties for determination, after hearing
both sides in a judicial manner, by a person or
persons other than a court of competent
j i di ti ”
jurisdiction”.
ARBITRATOR
He is private in so far as
H i i i f
He is chosen and paid by the disputants
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He does not sit in public
t it i bli
ARBITRATION
He acts in accordance with privately chosen
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procedure so far as that is not repugnant to public
policy
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So far as the law allows he is set up to the exclusion of
th l ll h i t t th l i f
the state courts
His authority and powers are only whatsoever he is
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given by the disputant’s agreement
ARBITRATION ADVANTAGES
There is belief by both parties that Arbitrator is
qualified to handle the case
ARBITRATION
The Arbitrator is an expert in the field
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The procedures are open to the parties
Hearing are private
The decision is binding
THE LEGISLATION
The UNCITRAL Model Law on International
C
Commercial Arbitration is used as the starting
i l A bi i i d h i
point from which to consider current and
proposed legislation in relation to a given clause
proposed legislation in relation to a given clause.
ARBITRATION
MODEL LAW
O
One of the advances in using arbitration as a tool for dispute
f h d b lf d
resolution around the world was the publication of the Model Law as
adopted by the United Nations Commission on International Trade
Law on 21 June 1985.
The Model Law applies specifically to international arbitration.
The definition provided by the Model Law to the interpretation of the
words ‘commercial’ states that it should be applied to all relationships
of a commercial nature whether contractual or not (Model Law
of a commercial nature, whether contractual or not (Model Law
Endnote 2).
In Ethiopia the important source of legislation for Arbitration is Addis
Ababa Chamber of Commerce & Sectoral Associations (AACCSA)
Arbitration Institute
Arbitration Institute.
Regional sources of information include Kenya (Dispute Resolution
Center and Nairobi Peace Initiative), Malta (Malta Arbitration Center),
Nigeria (Nigerian Arbitration and Conciliation Act) and South Africa
(C
(Center for Conflict Resolution and Commission for Conciliation,
f C fli R l i dC i i f C ili i
Mediation and Arbitration).
THE ARBITRATION PROCEDURE