Contract Practice Flashcards

1
Q

What is a contract?

A

A contract is a legally binding promise by one party to fulfill an obligation to another party in return for consideration

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2
Q

What are the components of a legally binding contract?

A

Offer
Acceptance
Consideration - the promise made by both sides to do something e.g. providing a building in return for money
Intent - the intent to create legal relation, could be in the form of a letter of intent

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3
Q

What are ‘express’ terms?

A

Terms which are expressly stated and agreed within a contract

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4
Q

What are ‘implied’ terms?

A

A contractual term which is not expressly stated or agreed within the contract but has been implied into the contract by common law or statute

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5
Q

What is the difference between statutory provisions and contract provisions?

A

Statutory provisions are set out by the law and must be complied with regardless
Contract provisions relate to the specific contract and only apply to the project at hand

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6
Q

What are the different types of subcontractors?

A
  • Domestic - selected by the main contractor to carry out a package of works designed by someone else
  • Named - the employer provides a list of pre-approved and named subcontractors, the main contractor then selects one form this list through the tendering process
  • Nominated - selected by the employer to carry out an element of works, employed by the main contactor. Usually imposed upon the main contractor
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7
Q

Why do main contractors sublet works?

A

Complexity and specialisation
Avoids need to maintain directly employed operatives
Reduces supervision and admin costs
Flexibility as large volumes of work can be carried out

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8
Q

What is novation?

A

A process by which contractual rights and obligations are transferred from one party to another

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9
Q

What are the two main procurement routes?

A

Traditional
Design and Build

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10
Q

What is a letter of intent?

A

A document expressing an intension to enter into a contract at a future date but creates no contractual relationship until that future contract has been entered into.

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11
Q

What is typically included within a Letter of Intent?

A
  • The agreed contract sum
  • Reference to tender documents
  • Site possession date
  • Proposed form of contract, including warranties and performance bonds
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12
Q

Why are LOIs used?

A

They can be used to mobilise construction prior to a formal contract being executed.

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13
Q

What are collateral warranties?

A

A formal contractual agreement which runs alongside another contractual agreement, creating a contractual relationship between two parties which otherwise would not exist

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14
Q

What are JCT contracts?

A

JCT is a standard form of contract; Joint Contracts Tribunal

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15
Q

Name some examples of contracts within the JCT family.

A

Minor Works Building Contract
Intermediate Building Contract
Standard Building Contract
Design & Build Contract

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16
Q

What are the key project characteristics which influence which JCT contract is used?

A
  • Size, value and type of project
  • Need for contractor design
  • Certainty on final cost
  • Client experience
  • Programme requirements
17
Q

When would you use a JCT Minor Works Contract?

A
  • Smaller, basic construction projects where works are of a simple nature
  • Where the procurement route is traditional
  • Where the Client is responsible for design
18
Q

Describe the Works insurance provisions within a JCT Minor Works Contract.

A

5.4 Option A - The Contractor shall effect and maintain with insurers approved by the Employer a Joint Names Policy for All Risk Insurance for the full reinstatement value of the Works
5.4 Option B - The Employer shall effect and maintain: a Joint Names Policy in respect of Existing Structures Insurance, and a Joint Names Policy for All Risks Insurance.
5.4 Option C - Allow parties to use whatever alternative insurance arrangements they wish.

19
Q

When would you use a JCT Intermediate Contract?

A
  • Construction project involving all recognised industry trades and skills
  • Detailed contractual provisions are required but without complex building services or specialist work
  • Suitable for projects following the traditional procurement route
  • The need to complete the work in sections (Sectional Completion)
20
Q

What is a Joint Names Insurance Policy?

A

An insurance policy typically held jointly by the employer and the contractor. The key feature of this policy is that the insured parties are unable to claim against one another in respect of an insured loss.

21
Q

What are the benefits of a Joint Names Insurance Policy?

A
  • Neither party needs to take out its own insurance policy which unnecessarily increases the project’s total insurance cost.
  • It can avoid costly litigation between the jointly-insured parties who may otherwise try to claim against each other.
22
Q

Describe the Works insurance provisions within a JCT Intermediate Contract.

A

Option A - Applicable where the Contractor is required to take out a Joint Names Policy for All Risks Insurance of the Works for NEW WORKS
Option B - Applicable where the Employer has elected to take out a Joint Names Policy for NEW WORKS
Option C - Employer to insure where the works are being carried out within, or as an extension to an existing building

23
Q

When would you use JCT Design & Build Contracts?

A
  • For projects where the contractor carries out the design and construction works
  • Where the contractor’s design requirement go beyond that of a traditional contract with a ‘Contractors Design Portion’
24
Q

What is the difference between a relevant event and a relevant matter?

A

Relevant event - An event on or off site that causes delay to the completion of works, entitles the contractor to claim additional time
Relevant matter - a matter for which the client is responsible that materially effects the progress of the works entitles the contractor to claim for additional costs (loss and expense)

25
Q

What is an example of a relevant event?

A
  • Variations
  • Instructions
  • Late possession of site
  • Adverse weather
26
Q

What are liquidated damages?

A

A genuine pre-estimate of loss suffered by the employer because of late completion of the works
Not a penalty
Can be based on loss of rent or income, additional professional fees, etc

27
Q

Under JCT, what contractual documents must be in place before damages can be deducted?

A
  • A non-completion certificate
  • The contractor should be notified that the employer may require the payment of / deduction of LD’s
  • A pay less notice should be served
28
Q

What is an extension of time?

A

A contractor’s entitlement whereby the completion date can be deferred due to a relevant event

29
Q

What are some risks to the Employer associated with LOIs?

A
  • No formal contract is signed.
  • All tender documents should be produced and appended to the LOI.
30
Q

What is single-stage tendering?

A

When the client issues a tender for the whole project with all relevant information provided at the point of issue. Usually issued to multiple contractors

31
Q

When is single-stage tendering typically used?

A

Appropriate when the Employer’s requirements are sufficiently defined to enable the work to be priced.

32
Q

What is ‘two-stage’ tendering?

A

Involves an initial information stage, facilitating early collaboration between client and contractor. For more complex projects, this is useful to obtain input before there is sufficient information available for the main contract.

33
Q

What pre-construction services in the first stage are carried out by the contractor under a ‘two-stage’ tender?

A
  • Helping the design team develop the design, or the contractor undertaking all the design development themselves.
  • Helping the design team develop the method of construction
  • Obtaining prices for work packages from sub-contractors or suppliers on an open book basis.
34
Q

When is ‘two-stage’ tendering typically used?

A

Generally reserved for complex projects where the Employer’s requirements have not been clearly defined and contract/specialist input is required.

35
Q

What are some benefits of ‘two stage’ tendering?

A
  • Can allow a project to progress before the design is complete.
  • Early involvement of the contractor should also improve buildability and cost-certainty of the design.
  • Allows the Employer to transfer design risk to the contractor
36
Q

What is a Pre-Construction Services Agreement (PCSA)?

A

The PCSA will define the services that are required of the contractor during the pre-construction phase. It should make clear whether the contractor is undertaking design work, whether they will have any design liability, and what will happen to this liability if they are not appointed for the second stage. It should also set out method of payment, and any provisions for deferred payment.

37
Q

Names some different contracts within the industry.

A

JCT (The Joint Contracts Tribunal)
NEC (The New Engineering Contract)
ACA (Association of Consultant Architects)

38
Q

What is a Performance Bond within a JCT Contract?

A

A bond issued in favour of the Employer and provides a fixed amount which can be claimed upon should the Contractor fail.

39
Q
A