20150818 L&O

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  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    BY A POACHER TURNED GAMEKEEPER

    STEPHEN TENNANT, Director - Plus Three Consultants (HK) Ltd

    CONTRACTS, DISPUTES,ETHICS AND ARCHITECTS

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    Todays Discussion

    Contracts Who needs them?

    Disputes Origins and effect of Change.

    Ethics and Architects Duties and Liabilities.

    Crystal Ball Gazing

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    Why do we need Contracts? To provide a

    description of responsibilities.

    Bind parties to their duties.

    Establish a time frame for duties.

    To secure payment. To provide recourse

    when the relationship falters.

    Best to be in writing, but oral contract can be valid!

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    Where do Disputes come from?

    Change!!!

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    Change? Revised/New

    Drawings. Revised/New

    Specifications. Revised/New

    Timings. Revised/New

    Requirements.

    Changed Law/ Regulations.

    Changed Weather. Changed Economy. Changed Labour

    Situation. Changed

    Expectations.

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    How does the Contract Address Change?

    Does the Change fall within the scope of the Variation Clauses?

    Does the Change fall within the scope of the Claims Clauses?

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    What are the Architects primary duties?

    Design the Project, or approve the Design for the Project.

    Administer the Contract.

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    How does the Architect undertake his duties?

    Rule 3.2A member shall inform his client in advance of the Conditions in the HKIA Agreement and shall agree with his client that those Conditions shall be the basis of his appointment.

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    How does the Architect undertake his duties?

    Rule 1.3A Member shall act impartially in all cases in which he is acting between parties, and shall interpret the conditions of a building contract with fairness.

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    Impartiality and the Architect How do you tell the

    client you got it wrong?

    Should I give the client a draft of my award for approvalcomment?

    Its OK to do what the client says, isnt it?

    Reality Check Who pays the

    Architects Fees? Who gives the

    Architect more work?

    Who is in charge of the Design?

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    Fairness and the Architect Architect not a party

    to Contract (privity of contract!).

    Architect cannot change or ignore terms of Contract.

    Who is the Architect liable to?

    Reality Check Are Contracts fair? Should the Contract

    be fair? Apply a fair

    Contract unfairly? Apply an unfair

    Contract fairly?

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    Who is the Architect Liable to?Third Parties

    Liability in Tort (duty of care).

    If acts or omissions cause loss and damage to other person or other property.

    Subsequent purchasers?

    His Client Express terms under

    Contract. Implied terms under

    law. e.g. reasonable skill

    and care Higher standard if

    employed by Contractor under D&C Contract

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    Architect Liable to Contractor?

    No privity of contract. Act /omission of Architect can

    adversely affect Contractor directly. It WAS the law that an Architect does

    not owe duty of care (liability under tort) to Contractor in issuing certificates.

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    Architect Liable to Contractor?

    In 21st Century, law continues to develop, and change!

    Some Courts now considering liability of Architect to Contractor as certifier.

    Architect has been found, in some cases, as certifier, to owe duty of care to Contractor.

    Developing area of law!

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    Liability from BIM?

    Multiple parties inputting into model. Who owns the model? Are you jointly and severally liable

    (Only 20% to blame but 100% liable!)? Absence of case law, at the moment! Does your PI Insurance respond?

  • PLANNINGPROJECT CONTROL

    FINAL ACCOUNTCONTRACT CLAIM

    ARBITRATIONEXPERT WITNESS

    www.plus3.com.my

    COMMERCIALCONTRACT MANAGEMENT

    www.plus3.com.my

    Architects and the Future?

    More complex projects. Increased liabilities for Architects. You look after your client.

    But who looks after You?

  • n Preliminary Claim Evaluation Reportn Technical Issue Analysis

    n Schedule and Delay Analysisn Loss of Productivity, Acceleration and Out Of

    Sequence Work Analysisn Damages Quantification

    n Defective Plans and Specifications Analysisn Claims Avoidance

    n Quantum & Delay Expert Reportsn Change Order/Claims Evaluation, Preparation

    and Negotiation n Mediationn Documents Discoveryn Litigation Support

    n Exhibits Preparationn Expert Witness Testimonyn Project Management and Contract Managementwww.plus3.com.my

    PLUS THREE CONSULTANTSContractual & Commercial Services For Construction, Infrastructure and Oil & Gas

    Thank You