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20150818 L&O

S
Steve Tennant

This document summarizes a presentation on contracts, disputes, ethics, and architects. It discusses why contracts are needed, common sources of disputes like changes, and an architect's duties to act impartially and fairly. It also addresses an architect's potential liabilities, including to third parties and contractors. Emerging issues are covered like liability risks from building information modeling. The presentation aims to help architects navigate complex projects and increasing legal responsibilities.

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PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT BY A POACHER TURNED GAMEKEEPER STEPHEN TENNANT, Director -足 Plus Three Consultants (HK) Ltd CONTRACTS, DISPUTES, ETHICS AND ARCHITECTS
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT Todays Discussion Contracts Who needs them? Disputes Origins and effect of Change. Ethics and Architects Duties and Liabilities. Crystal Ball Gazing
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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!
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT Where do Disputes come from? Change!!!
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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.
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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?
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT www.plus3.com.my What are the Architects primary duties? Design the Project, or approve the Design for the Project. Administer the Contract.
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT www.plus3.com.my How does the Architect undertake his duties? Rule 3.2 A 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.
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT www.plus3.com.my How does the Architect undertake his duties? Rule 1.3 A 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.
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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 approval comment? 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?
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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?
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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.
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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!
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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?
PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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 Report n Technical Issue Analysis n Schedule and Delay Analysis n Loss of Productivity, Acceleration and Out Of Sequence Work Analysis n Damages Quantification n Defective Plans and Specifications Analysis n Claims Avoidance n Quantum & Delay Expert Reports n Change Order/Claims Evaluation, Preparation and Negotiation n Mediation n Documents Discovery n Litigation Support n Exhibits Preparation n Expert Witness Testimony n Project Management and Contract Management www.plus3.com.my PLUS THREE CONSULTANTS Contractual & Commercial Services For Construction, Infrastructure and Oil & Gas Thank You

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20150818 L&O

  • 1. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT BY A POACHER TURNED GAMEKEEPER STEPHEN TENNANT, Director -足 Plus Three Consultants (HK) Ltd CONTRACTS, DISPUTES, ETHICS AND ARCHITECTS
  • 2. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT Todays Discussion Contracts Who needs them? Disputes Origins and effect of Change. Ethics and Architects Duties and Liabilities. Crystal Ball Gazing
  • 3. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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!
  • 4. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT Where do Disputes come from? Change!!!
  • 5. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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.
  • 6. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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?
  • 7. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT www.plus3.com.my What are the Architects primary duties? Design the Project, or approve the Design for the Project. Administer the Contract.
  • 8. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT www.plus3.com.my How does the Architect undertake his duties? Rule 3.2 A 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.
  • 9. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT MANAGEMENT www.plus3.com.my How does the Architect undertake his duties? Rule 1.3 A 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.
  • 10. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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 approval comment? 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?
  • 11. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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?
  • 12. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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
  • 13. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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.
  • 14. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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!
  • 15. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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?
  • 16. PLANNING PROJECT CONTROL FINAL ACCOUNT CONTRACT CLAIM ARBITRATION EXPERT WITNESS www.plus3.com.my COMMERCIAL CONTRACT 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?
  • 17. n Preliminary Claim Evaluation Report n Technical Issue Analysis n Schedule and Delay Analysis n Loss of Productivity, Acceleration and Out Of Sequence Work Analysis n Damages Quantification n Defective Plans and Specifications Analysis n Claims Avoidance n Quantum & Delay Expert Reports n Change Order/Claims Evaluation, Preparation and Negotiation n Mediation n Documents Discovery n Litigation Support n Exhibits Preparation n Expert Witness Testimony n Project Management and Contract Management www.plus3.com.my PLUS THREE CONSULTANTS Contractual & Commercial Services For Construction, Infrastructure and Oil & Gas Thank You