Creative Malaysia Training Center
Creative Malaysia Training Center
Creative Malaysia Training Center
Creative Malaysia Training Center
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Project, Contract & Procurement


Contract Drafting And Negotiations


  REF: PP2035  DATES: 9 - 13 Sep 2019  (One Week)  VENUE: Malaysia (Langkawi)

Overview:

Contracts are the basic structure of all business relationships, whether they be for the construction of a major new facility, or the supply of stationery, the terms and the management of the contract itself are critical to the success of all companies. As such, contracts touch every aspect of business life, and it is important that all staff (whether directly involved in contract management or not) understand how they operate, particularly in an international context.

The training course covers the three stages of contracting; negotiating the “deal”; documenting that deal in a robust, but practical way: and managing the performance of the contract itself. The intention is to develop general skills with application to a wide range of contracts, and to allow participants to have an awareness of practices in other areas and other industries, which may add value to their own situations. The course will also give an opportunity to consider matters from the perspective of the other party to a contract.

objective:

  • Be efficient as a contract drafter
  • Be familiar with formal and substantive elements of the contract
  • Identify which type of contract to use, and when
  • How to get better description of the scope of work
  • Prevent contract misinterpretation
  • Improve the negotiations in the contract
  • Be able to achieve balanced terms with contractors
  • Understand how to review and evaluate a contract on hand
  • Emphasise the need to negotiate the “deal” before structuring the contract documentation
  • Provide tools and techniques to assist in such negotiations
  • Examine the drafting and modification of specific contract clauses, using real examples
  • Look at some of the differences in approach in different jurisdictions (and the common themes that run through contracting)
  • Review some of the skills that will enhance the efficient management of contract
  • Examine ways to avoid disputes, or to manage them successfully
  • Have the latest advances in contract selection and management

Who Should attend:

  • Lawyers and non lawyers- Contract personnel
  • Project, Construction, Cost and Quantity Professionals
  • Purchasing officers
  • Procurement, Tendering, Contracts Personnel
  • Buyers & Financial Professionals
  • Those new to the function, preparing for a major project, or experienced professionals looking for a refresher

Out Lines:

Day 1: The Basis of Contracting

Principles of Good Contracting

  • Why do we use contracts?
  • Key steps in the creation of a Contract
  • Essential elements of a valid Contract
  • Overview of Tendering & Contract Award Process
  • Advantages of tendering and some pitfalls to avoid
    • Distinquishing price and values
  • Other Types of Obligation Documents
  • Bonds and guarantees
  • Letters of intent and award - are they contractual?
  • Letters of Comfort - Do they mean anything?
  • Side letters - why they can be dangerous
  • When to Obtain Legal Advice
  • Law of Agency
  • Authority to sign contracts

Organising strategies for Contract Management

  • Defining Contract Management Responsibilities
  • Basic contract planning
  • Communication and managing expectations

Day 2

How and why contracts are drafted?

  • Why we use contracts
  • Formation of a Contract
  • The key elements of a contract
  • Oral or written?
  • Electronic contracts
  • Terms and Conditions of contract
  • Agency issues
  • The basic structure of a contract
  • Incorporating documents by reference
  • Standard Forms - International and Company
  • Form of Agreement
  • Precedence of documents – Special Conditions

Day 3

Drafting Contracts

  • Using standard forms
  • Developing your own standards
  • Modifying forms
  • Dealing with contract qualifications and amendments
  • Structuring complex documents

Negotiating Contracts

  • “Level playing field” issues – how to be fair to more than one bidder
  • Dealing with errors in a bid
  • Negotiating complex wording
  • Formalities to finalise the contract
  • Authority to sign

Day 4

Drafting Specific Clauses

  • Performance of the work
  • Title
  • Risk
  • Intellectual property
  • Variations
    • To the contract
    • To the scope of work
  • Extension of time
  • Force majeure
  • Time for completion
  • Liquidated damages and penalties
  • Acceptance and testing
  • Termination and suspension
  • Law of the contract and dispute resolution

Day 5

What is the “deal” behind the contract, and how do you get there?

  • What constitutes a contract?
  • How to structure commercial arrangements
  • Innovative commercial solutions (e.g. Partnering, “BOOT” contracts etc)
  • How to negotiate a contractual structure
  • Basic techniques for negotiation
  • How to document discussions
  • Relationship between negotiation and contract drafting
  • Closing a deal
  • Dealing with difficult negotiators

Day 6

Main Contract Clauses

  • Obligation to deliver/perform
  • Rework/re-performance
  • Risk of Damage
  • Title
  • Compliance with law/change of law
  • Indemnities
  • Insurance
  • Third parties
  • Liability in negligence – relationship with contract conditions

Day 7

Main Contract Clauses - continued

  • Variations and changes
    • To the scope of work
    • To the contract
  • Product liability and defective goods - rejection of goods
  • Intellectual property
  • Taxation
  • Suspension and termination
  • Acceptance and Certificates
  • Payment
  • Liquidated damages/penalties
  • Limits of liability
  • Guarantee/Warranty/Maintenance
  • Which law to apply in international contracts

Day 8

Other Documents

  • Incorporating tender documents
  • Letters of Intent or Award
  • Letters of Comfort or Awareness
  • Side Letters
  • Bank bonds and Guarantees
  • Parent Company Guarantees

Writing Contracts

  • Clarity of language
  • Legal terms
  • Definitions
  • Translation
  • Resolving conflict with a document or between sections

Day 9

Negotiation and Resolution of Disputes

  • Contract negotiation
  • Dispute Resolution clauses
  • Unequal bargaining positions
  • Negotiation, compromise and settlement
  • Litigation
  • Arbitration
  • Alternative methods of resolving disputes
    • Mediation
    • Concilliation
    • Early Neutral Evaluation
    • Expert Determination
    • Mini-arbitration
    • Pendulum arbitration
  • Final review and questions

Day 10

Dealing with Disputes

  • Recognising potential problems
  • Dealing with issues as they arise
  • Legal rights and commercial outcomes distinguished
  • Negotiation structures for internal dispute resolution
  • Types of external dispute resolution
    • Litigation
    • Arbitration
    • Adjudication
    • Expert Determination
    • Mediation
  • Issues with different legal systems
  • Enforcement of awards
  • Management of disputes
  • Avoiding disputes in the first place

Day 11

Management of Contracts

  • Risk assessment and management
  • Kick-off meetings
  • Assignment of responsibilities
  • Setting and managing expectations
  • Planning
  • Reporting – being realistic with requirements
  • Progress meetings and expediting
  • Dealing with defaults
  • Dealing with external factors (e.g. force majeure)
  • Recognising and managing change
    • To the contract terms
    • To the scope of work
  • Payment issues – including international trade
  • Close out
  • Lessons learned

DAY 12 - How Claims and Counter Claims arise

  • Causes of typical claims 
    • Poor drafting of requirements 
    • Lack of clarity in Scope of Work/Services
    • Misunderstanding of legal or technical obligations 
      • By Client
      • By Contractor/Supplier
    • Deliberate “misunderstanding”
  • Counter claims - how they differ from claims 
  • Rights of set-off
  • Obligation to perform work
  • Standards
  • Programme 
    • Acceleration
  • Variations
  • Extension of time
  • Force majeure
  • Overview of main contractual provisions relevant to claims and counter claims 

DAY 13 - Types of Claims and Counter claims

  • Types of claims, in construction and other areas - and their distinctive features
    • Re-measure disputes
    • Variations - disputes on valuation
    • Variations - disputes as to whether there is change
    • Breaches of contract
    • Quality of workmanship
      • Re-work
    • Rejection of goods
    • Full rejection
    • Partial rejection
    • Liquidated damages and penalties
    • Warranty claims
    • Interface problems - are these always the Contractor’s responsibility?
    • Tracking change where client involvement is limited
    • Special issues with documentation in EPC and turnkey contracts
    • Special issues with EPC/Turnkey contracts

DAY 14 - Presenting and Evaluating Claims and Counter claims

  • Requirements for claim presentation
    • Notices
    • Timing, and time limits 
      • Are time limits binding?
    • Format
    • Information
    • Supporting documents
  • Defining features of claims evaluation and management 
  • Recognising the causes of claims
  • Warning signs of disputes
  • Recording claims
  • Reviewing claims 
    • Requesting further information
    • Realistic appraisal
    • When to make admissions - and denials
    • Offers of settlement
    • Independent review
  • Cumulative effects
  • Managing claims quickly and effectively to avoid disputes
  • Managing claims and disputes 
  • Involving lawyers
  • Managing the legal process
  • Setting goals
  • Decision trees
  • Controlling costs - and including them in your thinking

DAY 15

  • Ethical concerns 
    • Audit trails
    • Avoiding the suspicion of unethical behaviour 
    • Problems with settlements based on interests, not rights
    • Applying the same anti-corruption systems to claims as to tendering
  • Avoidance is better than resolution 
  • Avoiding claims and counter claims
  • Avoiding disputes
  • Avoiding litigation and arbitration
  • Opportunities to role play a few straightforward negotiation scenarios involving typical contractual claims, counter claims and disputes
  • Practical application of techniques 
  • Final questions and wrap-up 
COURSE DATES
9 - 13 Sep 2019
COURSE Duration
One Weeks
COURSE REF
PP2035
VENUE
Malaysia (Langkawi)