IOdeally, parties to a contract would always fulfil all their obligations. Unfortunately, for often entirely
innocent reasons, that is not always the case. Contract breaches remain a common challenge, with potential legal, financial and reputational consequences depending on their severity. This article explores the implications of contract breaches and strategies to address and mitigate
any resulting issues effectively.
This is article two in our 6-part series on contract law and administration. We started the series with a contract law refresher, with articles on time, payment and security of payment, legal implications of contract breaches and post contract award contract management to follow over the course of the next four weeks.
Contractual variations can assist parties to swiftly navigate unforeseen changes to a contract throughout the life of the project but can also cause major problems if not negotiated and implemented appropriately.
This is article three in our 6-part series on contract law and administration. We commenced our series with a contract law refresher followed by a high- level summary of contractual variations, with articles on payment and security of payment, legal implications of contract breaches and post contract award contract management still to come.
In Part 1 of this article series, we looked at strategies for adequately planning a procurement process, process contracts and managing risk in the planning stage. In part 2 of this article series, we consider the legal and probity implications for procurers and tenderers after the release of tender documents, strategies for procurers and tenderers, how to deal with conforming and non-conforming bids and closing the deal.
The dictionary definition of “probity” refers to honesty, proper and ethical conduct, uprightness and propriety in dealings with others. Good probity practices means ensuring that tenderers will be treated fairly, impartially and equitably, adopting and applying a consistent methodology in the assessment of tenders and ensuring a consistently applied and transparent process.
Tendering for contracts, whether as procurer or supplier, is difficult and requires each party to consider a number of different factors. In this article, we discuss the key considerations that procurers and suppliers must have prior to the release of a tender.
Procurement planning is an essential first step in the tender process and will assist in achieving desired procurement outcomes and in mitigating negative legal implications. When approaching the market for the delivery of a service, product or works, there a multitude of questions that a procurer should seek to answer. These questions will depend on the specific circumstances of the project and the market, but the broad questions that procurers should (at minimum) be asking themselves are as follows
Effective project management hinges on a comprehensive understanding of risk – its identification, management, and potential to create opportunities. Whilst it is tempting to view risk purely as a threat to project objectives, risk can present valuable opportunities and drive innovation. In this article, we outline a structured approach to risk management based on Australian standards and highlight the importance of embedding risk management practices into your organisation’s culture.
What is risk?
At its core, risk involves exposure to potential loss, injury, or adverse circumstances. The Oxford English Dictionary defines risk as ‘the possibility of loss, injury or other adverse or unwelcome circumstances, a chance or situation involving such a possibility’ or a ‘person or thing regarded as likely to produce a good or bad outcome in a particular respect’. Similarly, the AS/NZS ISO 31000:2009 Standard defines risk as ‘the effect of uncertainty on objectives’. Construction project risks manifest in a variety of forms, from financial setbacks to safety hazards, and can arise at any phase of the project life cycle.
Delivering a successful project requires more than just a concept, it demands meticulous planning, strategic execution and the selection of the right delivery method. In the Construction Industry, choosing the right project delivery model can mean the difference between success and costly delays or worse. From Construct Only, Design and Construct, Construction Management, Managing Contractor/Engineering, Procurement and Construction Management (EPCM), to Engineer, Procure and Construct (EPC) models, each method has unique advantages and challenges.
In this article we discuss Project Delivery including project terminology, pricing options, standard form contracts and a brief exploration of common project delivery methods, plus more complex Alliance Contracting and Financed Projects.
The complexity and scale of construction and infrastructure projects give rise to a variety of risks that can jeopardise the viability of a project, making insurance a crucial component of project management. From time and cost blowouts to liquidation and litigation, project insurance is designed to mitigate losses resulting from unforeseen events during and after construction.
Comprehensive insurance coverage safeguards all stakeholders, especially the Principal, against loss. This article explores the types of project insurance, the importance of risk mitigation and the key considerations for effective implementation of project insurance in the construction and infrastructure sector.
Insurance plays a vital role in managing the significant risks inherent in construction and infrastructure projects, to such an extent that it has become standard practice for construction contracts to require risk mitigation through insurance. Contractual indemnity clauses typically rely on insurance policies to provide the associated financial protection. Essentially, insurance policies act as the ‘guarantee’ for the obligations outlined in the indemnity, ensuring there are funds available to cover potential claims or losses. Many financial institutions also now require project insurance to be held as loan security. Typically, the contractor bears the responsibility of obtaining such insurance under the contract.
Over the course of the next six weeks, we will be covering a series of contract law and administration topics, starting with this contract law refresher, followed by variations, time, payment and security of payment, legal implications of contract breaches and post contract award contract management.
Contract law is the foundation of business and legal relationships and provides the framework for agreements between parties. Understanding the nuances of contract formation, interpretation of clauses, and how to discharge a contract is essential for those engaged in drafting or managing contracts. Contract law also has the major role to play in the tendering process. This article offers an overview of key concepts to refresh your knowledge and ensure you are equipped to navigate the complexities of contract law.
In the dynamic landscape of procurement, understanding the nuances of tendering exceptions and strategic contracting approaches allows local governments to be agile to opportunities and transform challenges into excellent outcomes. From relationship contracting through streamlined panel arrangements to agile procurement strategies, local governments can deliver value to their communities quicker and cheaper then they can using public tenders.
Traditional procurement models and regulations require local governments to conduct public tenders for goods, services, projects and disposals of valuable assets to ensure equity of opportunity and to foster competition and value for money in the marketplace. Public tenders can be effective and they exist for good reason, but they can hinder local governments from realising lucrative and beneficial opportunities, particularly in a market where contractor engagement with local government tenders is steadily diminishing.
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Muscat Tanzer, founded by Paul Muscat and Craig Tanzer, is a specialist law firm on the Gold Coast providing expert legal services in infrastructure, construction, procurement, probity, commercial, and government law across Australia. Committed to growth and excellence, the firm continues to expand its team and fosters future legal talent through internships and graduate opportunities.
