Drafting Enforceable Project Contracts & Conditions

Project Plans have Many Associated Risks that cause uncertainty in ultimate time and cost. Most of the Risks are known but the probability of occurrence varies with the actual project details and circumstances. Some party has to take these risks and allow contingencies for them in his budgets and plans. Who takes which risks and to what extent is defined in the drafted contract conditions.

Standard Contract Conditions for Particular Type of Works have been prepared by various professional organizations (like FIDIC) and large Organizations (like Worldbank) that assign the known usual risks between the parties based on criteria including: fairness, practical quantifiability, capacity to bear the risk and company contracting policy. Generally higher the risk assigned to the contractor higher the bids one receives.

Then there arise issues regarding enforceability of the Contract Conditions. Local Laws and Legal Interpretations may not allow certain risks to be transferred on the contractor, or may require special tests to determine whether the actual risk was enforceably transferred. Any drafted contract risk transfers must meet these legal tests.

This program aims to develop understanding, competencies, and skills in the above areas.

This program will help the drafter make decisions about the risks to be transferred to the other party based on Capacity of Parties to Bear the Risk and Motivation of the Owner to pay more through the bidding process for more risks taken by the contractor

This program is intended for Legal, Contract Drafting, Contract Administration and Project Technical Staff contributing to the Contract Drafting Process.

This program is also intended for Professionals involved in Approving, Managing and Auditing these contracts.

1. Drafting Enforceable Project Contracts & Conditions
2. Business Aspects of Outsourced Project and Contracts
3. Project Stakeholders & Their Expectations
4. Legal Rules for Interpreting Drafted Clauses
5. Expressed and Implied Contractual Responsibilities.
6. Responsibilities of the Parties
7. Changes Doctrine.
8. Notice Requirements including when waived.
9. What is "Fair and Reasonable"
10. Risks on Projects
11. Legal Default Distribution of Project Risks between the Parties
12. Project Contracts Define Who will be Responsible for Which Risks
13. How Risks are transferred. What Risks can not Normally be Transferred? Means of Coordinating. When Risk Transfer is Really Complete?
14. Transferring Specific Risks:
    
    (1) Co-ordination of Contractors on Site
    
    (2) No- Damage-For- Delay-Clause
    
    (3) Project Schedule
    
    (4) Liquidated Damages
    
    (5) Unforeseen Site Conditions
    
    (6) Variation Orders
    
    (7) Right to Terminate
    
    (8) Dispute Resolution
    
    (9) Keeping appropriate Records
    
    (10) Inspection of Works
    
    (11) Safety Related Specific Requirements
    
    (12) Price Fluctuations
    
    (13) Exceptional Weather Conditions.
15. The Contract Drafting Process
16. Project Operational & Agreed Strategic Objectives to be Achieved on this Project
17. Analyzing the Clauses Addition or Changes to Incorporate the Project Objectives into the Draft Contract
18. Drafting Starting Point - A Most Appropriate Existing Standard Contract
19. Drafting the Special or Particular Conditions
20. Draft the Changes or Additional Clauses List to Incorporate Project Objectives
21. Benchmark Provisions for Similar Risks in International Benchmarked Contracts
22. Modify the Clause Closest to the Same Risk Transfer Clause
23. Validate the Drafted Clause by Testing Against the Rules of Contract Interpretation
24. Peer Review of Drafted Clauses
25. Drafted Contract Review by the Internal Stakeholders
26. Final Version of Contract Issues for use in Project Procurement Process
27. Update Contract Conditions based on relevant Bidder Queries, Bidder Site Visit Questions - Issue as Addendum
28. Build a Knowledgebase of Special Conditions of Contract for Future Drafting Effectiveness and Productivity
29. Build a Knowledgebase of Drafting Contract Inhouse Human Expertise
30. Program Recommendations & Next Steps
31. Participant Customized Detailed Action Plan

Program General Methodology