2013 10 31

Terms and conditions of contract

Jonathan Hazell31 October 2013

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Scottish Branch seminar 31/10/13http://upload.wikimedia.org/wikipedia/commons/7/70/Demon_Roller_Coaster.jpg

• Listen, don’t write anything down

• These slides are freely available on-line

• There are notes are on-line too!

• There are notes on-line too!

• But, if you’re a compulsive scribbler, I’ve flagged key messages

• There are notes on-line too!

• But, if you’re a compulsive scribbler, I’ve flagged key messages, like so

The best things come in threes

• Hopefully, I can impress on you• why you should do anything,

• Hopefully, I can impress on you• why you should do anything, and

• what you can do

• Hopefully, I can impress on you• why you should bother, and

• what you can do, and

• when to do it.

Why you should do anything

Look after your world

Look after our world too

Scottish Branch seminar 31/10/13http://upload.wikimedia.org/wikipedia/commons/b/bd/Edinburgh_Castle_Overview.jpg

What you can do

Get an invitation

Manage expectations

Don’t forget . . .

Be sympathetic

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http://static.dezeen.com/uploads/2013/10/dezeen_Tree-House-by-6a-Architects_6.jpg

Offer guidance

Clear the fog

Take the lead

Exercise your judgement

Look ahead

But remember . . .

. . . don’t be deflected

. . . don’t let on to your client

“You can’t always get what you want,

© Jonathan Hazell Scottish Branch seminar 31/10/13 Page 46http://www.gigslutz.co.uk/wp-content/uploads/2013/07/Rolling-Stones-Hyde-Park-2.jpg Writer: JAGGER, MICK / RICHARDS, KEITH Lyrics © ABKCO Music Inc.

but if you try sometimes you just

might find you get what you need”

Writer: JAGGER, MICK / RICHARDS, KEITH Lyrics © ABKCO Music Inc.

“You can’t always get what you want,

Pull all the pieces together . . .

. . .and get selected?

So, what can you do?

Define,

Define, design,

Define, design, deliver

Take your time

Beware Greeks bearing gifts

If it looks too good to be true . . .

. . . it probably is

Use your antennae . . .

. . . avoid trouble

“A verbal contract isn’t worth the paper it’s written on”

Write things down

“As every lawyer knows, setting out clear Terms for any contract, at the outset, is essential if subsequent problems are to be avoided.”

“You do not have to say anything.

But it may harm your defence if you do not mention when questioned something which you later rely on in court.

Anything you do say may be given in evidence.”

Be risk averse

Balance the risks

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This is not always an option . . .

It’s your choice

Let’s start at the very beginning

What’s a contract?

A promise or set of promises which the law will enforce.

• The normal method of enforcement is an action for damages for breach of contract, though in some cases the court may order performance by the party in default.

Elements of a contract

1. Agreement An agreement is formed when one party accepts the offer of another and involves a "meeting of the minds".

2. Consideration Both parties must have provided consideration, i.e., each side must promise to give or do something for the other.

3. Intention to create legal relations The parties must have intended their agreement to have legal consequences.

The law will not concern itself with purely domestic or social agreements.

4. Capacity The parties must be legally capable of entering into a contract.

5. Consent The agreement must have been entered into freely.

Consent may be vitiated by duress or undue influence.

5. Consent The agreement must have been entered into freely.

Consent may be vitiated by duress or undue influence.

6. Legality The purpose of the agreement must not be illegal or contrary to public policy.

Scottish Branch seminar 31/10/13

How to draft a contract?

Scottish Branch seminar 31/10/13http://www.idesignarch.com/wp-content/uploads/Kansas-City-Public-Library-Missouri_3.jpg© Jonathan Hazell Page 80

Where to begin?

Don’t think you’re a dunce

• If you haven’t a clue it doesn’t mean you’re a dunce

• If you hadn’t a clue you wouldn’t be here today

• Terms and Conditions set out the rights and obligations of the contracting parties when a contract is awarded or entered into

Terms and conditions

• Terms and Conditions set out the rights and obligations of the contracting parties when a contract is awarded or entered into• general conditions are common to all types of

contracts

• Terms and Conditions set out the rights and obligations of the contracting parties when a contract is awarded or entered into• general conditions are common to all types of

contracts

• special conditions are peculiar to a specific contract (such as contract change conditions, payment conditions, price variation clauses, penalties).

• There’s very little need to write your own as there are plenty of pro forma Ts and Cs out there

• There’s very little need to write your own as there are plenty of pro forma Ts and Cs out there• in the canon of work produced by the AA and

other industry bodies

• There’s very little need to write your own as there are plenty of pro forma Ts and Cs out there• in the canon of work produced by the AA and

other industry bodies

• in the canon of work produced by the legal profession

Civil Procedure Rules

Part 35 – Experts and assessors

• 35.1 Duty to restrict expert evidenceExpert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

• 35.3 Experts – overriding duty to the court(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

What steps are left for you?

• Exactly what remains for you to do depends upon where you fit in the supply chain, which role are you trying to fulfil?

• Exactly what remains for you to do depends upon where you fit in the supply chain, which role are you trying to fulfil?• custodian

• Exactly what remains for you to do depends upon where you fit in the supply chain, which role are you trying to fulfil?• custodian, or

• client

• client, or

• contractor

• client, or

• contractor, or

• consultant

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Riding to the rescue . . .

. . . here come the cavalry

• The Association has supported the supply chain by developing standard terms and conditions

http://www.trees.org.uk

• The Association has supported the supply chain by developing standard terms and conditions• for contractors

• The Association has supported the supply chain by developing standard terms and conditions• for contractors, and

• for consultants

• . . . but there is still work to be done

Define

• From my experience . . .

• From my experience . . . for every instruction

• From my experience . . . for every instruction • what will you do?

• what will you accept responsibility for?

• what will you charge?

“. . . I will . . .”

1. Under this proposal as the consultant I will:1. undertake a tree survey and provide a report against the requirements of

Design Stages A – D as referred to in Figure 1: The design and construction process and tree care of BS 5837:2012 Trees in relation to design, demolition and construction – Recommendations (referred to hereafter as BS 5837) at the site shown on [raw data] as supplied by [name] by [email/post] on [date received].

Do you need a sub-contractor?

Got the paperwork sorted?

Don’t get carried away

• Don’t go beyond your competence or expertise

• what will you not do?

Define

• what will you not do?

• what will you not accept responsibility or liability for?

“. . . I will not . . .”

2. Under this proposal as the consultant I will not:

1. meet or contact the local planning authority’s officers to discuss the project that is the subject of the consultancy service; if required those actions will be considered to be a variation

2. Under this proposal as the consultant I will not:

1. meet or contact the local planning authority’s officers to discuss the project that is the subject of the consultancy service; if required those actions will be considered to be a variation

2. accept any liability that may arise from third-party post-processing of the data that I have captured or recorded unless I have been given adequate opportunity to confirm the veracity of those outputs before they are forwarded to another party.

Define

• From my experience . . . almost without exception

• From my experience . . . almost without exception• the client or customer may need firm guidance

• the process flow chart will be tortured

• you will learn something to use later

Mean what you say

Always edit

When to do it?

Before it’s too late!

Design

• From my experience . . . start by looking the wrong way down the telescope

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• From my experience . . . agree the deliverables before you start

• From my experience . . . only collect the information you need

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• From my experience . . . don’t over-promise

Design

• Your client has defined what they want

• You have defined what you can deliver

• Now, you need to agree the deliverables or outputs

• Decide how few outputs will deliver the brief

• Decide which supporting documents will you need

• What pieces of information is it likely that your opinion be based on?

• How will you illustrate what you’re saying?

• Go and get on with it

Don’t forget

You do not have to say anything.

Anything you do say may be given in evidence.

Always edit

You may know what you want . . .

. . . but, can you persuade

• the architect, or developer, or quantity surveyor?

• the planners?

• the clerk of works?

• the planners?

• the digger driver?

• the planners?

• the ground worker?

• the planners?

• the owner/site manager?

• the planners?

• the owner/site manager?

• your client?

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How to get what you want?

• All sorts of styles of contract• fixed price

• Schedule of Rates

• call off

• All sorts of styles of contract• fixed price

• Schedule of Rates

• call off

• All sorts of specifications• the good,

• the bad, and

• the plain ugly

• All sorts of clients• domestic

• commercial

• publicly funded

• knowledgeable

• know all's

• interested amateurs

• un-knowing professionals

• commercial

• publicly funded

• knowledgeable

• know all's

• All sorts of ways of securing a good service• employ a good contractor

• employ a good specification

• employ a good site manager

• set up a beauty parade

• develop trust through the supply chain

• commercial

• publicly funded

• knowledgeable

• know all's

• All sorts of ways of securing a good service• employ a good contractor

• employ a good specification

• employ a good site manager

• set up a beauty parade

• develop trust through the supply chain

• Limited opportunities in the public realm to explore all of these

• The Client is seeking arboricultural companies to provide arboricultural survey services to locate and identify trees that are interfering with the overhead electricity network along specified circuits at all voltages that have been prioritised across the entire east and west service areas. Suitable companies will provide competent and qualified surveyors to:

1. Locate and identify trees along identified and prioritised circuits;

2. Identify and specify the tree cutting work required to each tree;

3. For each area of survey to prepare a Bill of Quantities, (including location maps) for the tree cutting contractors to follow and execute;

Some examples, good and bad

4. To make contact with landowners and grantors and obtain their consent for the tree work required;

5. To audit the work for quality and adherence to BS3998 and ENA TS43-8 post cutting and to sign off the work as complete;

6. To liaise with tree cutting contractors and their cutting crews in their area of survey;

7. To obtain the sign off of the landowners and grantors that the work has been completed satisfactorily and the land left clean and tidy of the contractors work;

8. To maintain accurate records for The Client of (i) all surveys completed; (ii) all written consents and completions; (iii) all completed cutting works; and (iv) all audit records;

9. To make the records available to The Client on a regular basis for entry onto the company’s SAP database;

10. To liaise with The Client’s Tree & Vegetation Planning & Policy Manager and with Infrastructure Services’ Tree Contract Manager, Tree Programme Manager, Tree Policy Manager, Tree Contract Delivery Managers & Project Managers

• What is meant by “A phase One tree survey” or “root protection zones”

• Why should you need to “map existing tree locations”

www.with Paul in the room I’d rather not reveal the source of this woeful material.jrh.co.uk

ELEMENT STAGE STAGE % CUMULATIVE TOTAL Percentage out of 100%

PRICE Stage 1 60% 60%

Quality – Method Statement Stage 2 40% 40%

Quality - Interview Stage 4 Not scored Not scored

Quality – Final Moderation Stage 5 Not scored Not scored

TOTAL 100%

• I find this sort of thing weak: why don’t clients be open and tell the contractor what they expect?

TOTAL 100%

• I find this sort of thing weak: why don’t clients be open and tell the contractor what they expect?

• The process gets progressively worse for the contractor

Section of Method Statement Percentage out of 100%

Customer Care 5%

Management of work and management/supervisorystructures

IT systems 5%Continuous Improvement 5%

Bidder’s are advised that the Stage 2 quality score will be weighted as follows:

• Stage 3

At the completion of stages 1 and 2 an overall assessment will be undertaken

• Stage 4

A further assessment of quality and performance by means of technical interviews. This is designed to examine in more detail the issues covered by the Bidder’s submitted Method Statement and the impact in terms of the successful day to day operation and management of the Contract and development of partnering to ensure the provision of a high quality service. The overall evaluation on quality and price will be adjusted to take into account the outcomes of the interview.

• Stage 5

Final moderation stage, which may involve a further round of technical interviews, case studies, taking up further references and site visits.

• Stage 5

• Expensive,

• Stage 5

• Expensive, time wasting,

• Stage 5

• Expensive, time wasting, tosh

• Beauty parade

• Output specification

• Beauty parade

• Fixed price

• Beauty parade

• Fixed price

• “We’ll spend ££££ in year 1, ££££ in years 2 and 3”

Deliver

• From my experience . . . • this can be fraught

• control is vital

• a timetable is important

• flexibility can be a strength

• Make sure you have gathered all the information you need

• Make sure you have gathered all the information you need, but no more

• Deliver the agreed output “client-ready”

You may know what you want . . .

• Did you persuade the planners?

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• The designers and cost consultants?

• The clerk of works?

• The digger driver?

• The ground worker?

• The owner/site manager?

• Your client?

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Have you delivered?

What was the brief?

• What are your client’s expectations?

• Have you answered the question that you framed?

• Have you got the data you need?

• Have you done your research?

• Do you have the references you need?

• Are you comfortable with your output?

Remember your audience

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

2. Never use a long word where a short one will do.

3. If it is possible to cut a word out, always cut it out.

4. Never use the passive where you can use the active.

5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

6. Break any of these rules sooner than say anything outright barbarous.

• Should it ever come to a dispute can you convince all parties, including yourself, that you have delivered against your brief?

Have you delivered?

The logic test

. . .it may harm your defence if you do not mention when questioned something which you later rely on . . .

• Can a continuous thread be seen throughout your work?

• Do your conclusions flow?

• Do your recommendations make sense?

“. . . when there is in prospect a good that is certain and an evil that is uncertain, it is wrong not to do the good for fear of the evil.”

Somerset Maugham, W. (1946) Then and now. London: Vintage 09 928686 6, p. 100

http://upload.wikimedia.org/wikipedia/commons/3/3e/Niccolo_Machiavelli_uffizi.jpg

Client ready data

Finally . . .

• By invoicing you confirm that you have completed your commission and you are fully satisfied that the work meets the brief.

• BUT – queries you receive after the issue of your invoice will require you to answer them, these may not be variations.

• It is not unreasonable to expect you to do everything in your power to resolve any questions raised, which may mean a return site visit at your expense.

‘coz it says so . . .

“4. Limit of consultant’s liability

1. If any part of the consultancy services are performed negligently or in breach of the provisions of this agreement then at the request of the client (if the request is made within six months of the date of completion of the consultancy services) the consultant will re-perform the relevant part of the consultancy services subject to clauses 4.2 and 4.3 below.

4. Limit of consultant’s liability

2. Except in the case of death or personal injury caused by the consultant's negligence the consultant's liability under or in connection with this agreement whether arising in contract tort breach of statutory duty or otherwise shall not exceed the greater of the consultant charges or the amount recoverable under the consultant's professional indemnity policy (if applicable).

4. Limit of consultant’s liability

3. The consultant shall not be liable for any loss or damage or expenses of any nature incurred or suffered by the client of an indirect or consequential nature including without limitation any economic loss, loss of profits turnover, business or goodwill.”

Always edit

Wrapping up

• Your take home messages include

1. Look after your world

2. Look after our world

3. You can’t always get what you want

4. Define, design, deliver

5. Take your time to get the offer right

6. Start at the beginning

7. Define

8. Edit carefully

7. Define

8. Edit carefully

9. Design

7. Define

8. Edit carefully

9. Design

10. Edit carefully

7. Define

8. Edit carefully

9. Design

10. Edit carefully

11. Deliver client ready data

7. Define

8. Edit carefully

9. Design

10. Edit carefully

11. Deliver client ready data

12. Have you met your client’s expectations?

If it all goes pear shaped . . .

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• get the good guys on side as soon as possible

Otherwise . . .

. . . see you in court

. . . or maybe the Supreme Court?

So, please take note!

• I’ve put a model proposal for consultancy services on http://jhazell.com/?page_id=200, or

• I’ve also put an example of tender documents for tree work services there, but you’ll need to refer to both GN8 and BS3998 to understand it

Some examples

Download this presentation from

email jonathan@jhazell.com for the link

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View this presentation again

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