Bespoke Form of Contracts: A Scourge or Necessity?

Bespoke Form of take ons A Scourge or Necessity?Chapter 1 Introduction enquiry RationaleThe use of standard castings of keep down, FIDIC wild bind (Red prevail Engineer/ employer designed necessitateor executed) was introduced in the UAE during the late 80s and early 90s, more specifically on Dubai Municipality floor projects by the Dubai Municipality, later been transformed to RTA in 2006. Ever since FIDIC based bespeak forms introduced in the UAE, it has been utilize extensively in the facial expression industry, the Red script based FIDIC forms be extensively used in different types varying from lump sum to re-measurement entreats by many large organizations.Every project is associated with risk of exposure and is inevitable and the impact is spread across the project. Whilst the intention to introduce a standard form of bundle was to achieve a balance in harm of risk sharing amidst the parties, conversely at a later stage clients started amending the standard form of pressures to synthetic rubber guard their interests. Many much(prenominal) signal versions did non achieve the intended purpose as it became one sided due to the alterations. The one sided contracts, in separate words i.e. by drafting partial contracts to safe guard the employers risks and financial positions tin sop up a tendency to impact the construction cost. If the risk is high, the cost increases proportionally (Mohamed Hartman, 2000, p 15)UAE as a landed estate has high potential and growth comp atomic number 18d to the neighboring Gulf countries in the recent years (2003 2008), which led to many fast track infrastructure and building projects, near of those be innovative, having ambitious aspirations to become international land marks, having the common feature of shorter durations. unrivaled of the main reasons for adopting fast track projects was to reduce the financial burdens (loans and repayment period) and to minimize the risk for escalation due to the construction boom in the region. Also in a raising market, the cost of the construction was proportional to the duration of the project as the contractors were including the risk for escalation in their bids. A few examples for such(prenominal) land mark projects with shorter duration captured the attention are Burj Khalifa tower, Dubai Metro, Palm Island and Dubai Mall.The multinational construction interface between the parties and culture stipulated the importance of victimization standard forms of construction contracts in the UAE, one of the main reasons to use standard forms of contracts are the familiarity among the parties, which has been used across many developments worldwide, horizontal practiced at courts, assumed to be downstairsstood by parties, the risks are apportioned in a balance way and understood by withal the stake holders, reduced healthy and construction cost.As mentioned above, one of such standard form of contract, FIDIC 1987 quaternary edition red book was introduced by Dubai Municipality in early 90s with amendments to the original form (bespoke version is called as Dubai Municipality general conditions of Contract), later been followed by many public and private sector clients in UAE. Many such amendments in the creation of bespoke versions of FIDIC forms get hold of defeated the intended purpose of achieving a balanced version of contractBy the mid of 2006, many clients started using bespoke versions of tender FIDIC i.e. FIDIC 99 Contracts, however there is a significant deflexion between these devil forms (FIDIC 1999 FIDIC 1987) of contracts in many areas. Like any some other place in the world, the competitions in the construction industry among the contractors are very high in UAE also. Many clients in the region, whilst using open or discriminating tendering (as they invite tenders from their own tender pool), beforehand and after the current economic crisis, do have the habit of awarding the whole shebang to the lowest bidder. In entrap to overcome the competition in the market, the contractors at convictions started under quoting the formulates, were trying to recover through variation and claims at a later stage. This situation resulted in arguments and disputes due to the wrong exposition of the forms of contract used by different parties, in addition, the unbalanced and void bespoke versions contributed much to these kinds of disputes. Many such disputes were revolving nearly the poor interpretation and understanding of the variations clauses, leading to claims and disputes on fast track projects. The intended purpose of this dissertation is to detectThe essential clauses needed to administer a contractThe importance of making right interpretations era using contractsAn over observe of the bespoke versions of contractsResearch MethodologyA detailed analysis of Variation clause in Nakheel Conditions of Contract ( bespoke FIDIC 1987) and the possible interpretations by dis similar parties to the contract, briefly stating the difference between 1999 1987 based forms clauses that relates to variation and varied work clauses.Identify the potential difference between the two bespoke versions i.e. FIDIC 1999 1987 4th edition Nakheel Conditions of Contract on major clauses.A case study on a dispute from ALDARs Conditions of Contract (bespoke of FIDIC 1999) on variations while using the bespoke versions of contractProposed study chaptersThe intended study focusing on the meaning of construction contracts, their existence and the different forms of contracts. The lit review is covered in the first four Chapters, Chapter 2 covers the use of different forms of FIDIC contracts, including a brief history of their start in the UAE, Chapter 3 focus on the essential clauses needed for the administration of any forms of manifestation contracts, Chapter 4 an analysis of Nakheels conditions of contract (bespoke FIDIC 1987 4th edition) variation clause, the possibl e interpretations by different parties to the Contract, Chapter 5 a comparison between Two bespoke forms of Nakheels Conditions of contract (FIDIC 99 and FIDIC 87 4th edition) on major clauses, Chapter 6 a survey to identify whether the employers achieved the intended purpose by using bespoke versions, Chapter 7 analysis of the data collected ,chapter 8 recommendation. An overview of the construction ContractsConstruction contracts are generally classified ad ad as Oral (when the act will not apply) or written (if the other criteria are met, the act applies). The form of written contracts are again classified intoi. A simple exchange of correspondencesii. A tailor made written agreementiii. A standard form such as JCT,Fidic and so forthiv. type monetary value and conditions of the business.Contract in broader confines is defined or explicit as conformity between two or more person i.e individuals, businesses, organizations or governance agencies to carryout, or to abstain from doing things in exchange for something of value. Contracts can be oral or written, using formal or informal terms. If one company to the contract fails to live up to its part of the bargain, there shall be a break away and certain remedies for solving this is available. The expressions of the contract who, what, where, when, and how of the contract describe the binding assures of each party to the contract. In other words the significance of the agreement becomes important simply when a breach occurs by the counterpart and it becomes necessary to protect the right of the other party (http//law.freeadvice.com/general_practice/contract_law/contract_agreement.htm) and the breach of contract is recognized by the common law and the remedies are available as surface.On the other hand, the strongest contract, in terms of enforceability, shall have an offer, betrothal with considerations for the exchange, the terms of such an agreement shall be without ambiguity, and is signed by th e parties to the contract who has the proper capacity to enter into the contract. Weaker contracts can be classified as verbal agreements or contracts agreed by parties in direct violation of state or federal laws of the country. There are several aspects related to legitimate contracts in fact, an entire course in law school is often devoted to contract law (http//www.wisegeek.com/what-is-a-contract.htm).John Adriaanse (2007) quoting Lord Diplock who classified construction contract as the sale of goods, work and labor for a lump sum price payable by installments as the goods are delivered and the work done. Decisions have to be made from time to time about such essential matters as the marking of variation orders, the expenditure of readinessal and prime cost sums and the extension of time for carrying out the work under the contract. He also tell that a construction contract is best described as a composite web of competing interests. At the same time Charles.S. Philip (1999 ) defining contracts as binding agreement between two or more persons or parties construction contracts are defined as agreements, oral or written, executed between Clients and Contractors for construction / maintenance work done for compensation. In another definition we must(prenominal) understand that a construction contract is merely a set of criteria, or expectations, that bind the contracting parties (Gilbreath, 1992)The basic elements of a contract are an offer, acceptation of the offer with considerations. This can even be described as concurrence of wills or ad idem or meeting of the minds of two or more parties (http//www.alway-associates.co.uk/legal-update/article.asp?id=165).Consideration, on the other hand, makes sure that e that something is exchanged. In certain situations, the law requires the consideration to be adequate, which is, a relatively reasonable price, or ostensible, where even a dirham will do.Contracts may or may not be enforceable by law. The good exa mple is the agreement between the parent and child cannot be enforceable by law whereas the agreement for a loan probably enforceable by law. On the other hand whether a contract is enforceable by law or not depends on many factors, the primary and most important factor being whether the parties to contract anticipated / intended the contract to be legally enforceable or not.Most of the construction contracts are bilateral contracts, some cases the unilateral contracts becomes bilateral with considerations. Contracts can be bilateral or unilateral. In a bilateral contract, each part makes promise or promises to the other party. A good example is while selling a home, the emptor promises to pay the seller AED 1 Million in return the seller agree / promise to deliver the title of such property. Where as in a unilateral contract only one party to the contract make the promise. A good example is the reward contract. X promise to pay a reward to Y if Y find Xs stolen car. Here Y is not obliged to find Xs stolen car, but X is obliged to pay the reward to Y only if Y finds Xs car. The consideration for the agreement is Ys trust on Xs promise or Y giving up his legal right to anything he cherished at the time he was in the process of finding of the car.Here, conditions spring to Xs obligation to pay is the finding of the car, although this is not a legal condition precedent as technically no binding contract has arisen until the time car is found (because Y hasnt agreed / accepted Xs offer until he find the car, referring covering fire to the basis of contract as it requires offer, acceptance and considerations), the terminology condition precedent is used in contract law to establish a condition of promise in an agreement. For example, If Y has promised to X to find the car, and X has promised to pay Y when the car was found, Xs offer has been considered as a condition attached to it, and an offer and acceptance have been occurred. This is an incident in which a condition precedent attached to a bilateral contract.In the construction industry, the significance of having a balanced contract agreement has become essential to avoid disputes and to facilitate a smooth administration during the construction period. According to Lord Lathams report 1994, constructing the team, construction is a very unique process, the construction industry is different than the manufacturing and other industries, each project is unique with its nature and conditions, having heterogeneous conditions and situations, however definition of Latham for contracts not throttle here, but include the design activities, advise and other legislations (Adriaanse 2007) which specify many details that a construction contract should take care of.Chapter 2 The vastness of using Standard forms of Contract 2.1 IntroductionThe adversarial nature (Cheung et al., 2006 and Cheung and Yiu, 2007) and inborn risks (El-Sayegh, 2008) of the construction industry contributes to the speedy developments of construction disputes. Construction disputes are originated by many sources (Cheng et al., 2009). iodine of the main sources is the lack of understanding on the Contracts. Deprived interpretation and poor understanding of the construction contracts make the contracts clauses (Broome and Hayes, 1997, Cutts, 2004 and Styllis, 2005) and legalese (Cutts, 2004 and Candlin et al., 2002), which results in differences between the parties to the contract on their legal rights and responsibilities. It is to be noted that this statement is justified in a study conducted by Mohamad and Zulkifli (2006), where majority of the contractors reported about the problems in understanding the contract documents. It is to be concluded that contractors need to be well versed in the interpretation and understanding of clauses stated in contracts.Dispute resolution methods at the early stages of disputes are the soft-skill resolution technique, i.e. avoidance (White, 2002), which offers a practical approach to prevent the predictability of conflicts that may occur in a project by understanding the form of contract used. The main objective of dispute avoidance technique is to promote teamwork and to create a harmonious atmosphere (Cheung, 1999). Thus, a proper appreciation of the construction contracts to the stakeholders will prevent a dispute from rotting, although a total elimination may be impossible.The importance of this chapter is to make a improved insight into the need for clearness of contract documents. Furthermore, it will assist contract drafters and experts review and clarify the clauses of the contract form in an understanding way to the parties. After the parties understand and consent to the clauses stated in the contract, the parties would recognize their obligations and contractual rights as required in the contract.2.2 The need for contract clarityThe need for this research comes up out of many conflicts set in the construction industry due to th e usage of different versions of contracts with amendments. A good example is, the senior officials of a leading developer in Dubai alleged that faux ceiling collapsed and burst the pipes above the false ceiling at the buildings were related to the supervision problem and lack of access to the project site by the unionises (Developer eye supervision authority2007). The engineers were not allowed on site due to some health and safety construction complications at certain times. This resulted inadequate supervision for the works. The problem modify up although the standard contract form clearly points out that the engineer, as being responsible for the overall supervision and direction of the project. Additionally, the Engineers representatives had the right of access to the works and construction site of the contractor (Clause 23 of bespoke Form). An explanation for this dispute was, contractor misinterpreted the conditions of contract and also failed to understand the legal oblig ations outlined in the contract. Thus, the pass of clarity of contract conditions in the contract must be resolved.In addition, the court usually try to find out the intentions of contracting parties using plain, cut-and-dry and popular meanings of the words. Scott vs Wawanesa Mutual Insurance Company brought out the clarity issue to the court attention (1994). The judge held that if the row of an insurance contract is ambiguous, the contra proferentem doctrine applies, that is the draw rein against the party who impose the inclusion of the ambiguous clause in the contract. On the other hand, if the wordings are unambiguous, the courts would not give any different meaning from what is expressed in its clear terms, unless the contract is highly unfair or hold an effect contrary to the intention of the parties (Duhaime, 2007 Duhaime, L., 2007. Part 7 interpretation of previous termcontracts.next term Duhaime Law, Victoria, Retrieved 22 May 2008, from .Duhaime, 2007). Thus, clarity of contract clauses is very important for the construction industry too. This shows the importance of understanding the contract by the contracting parties.Besides, the legalese takes place in the contract. The use of highly formal and technical language in legal documents disturbs interpretation (Feinman, 2003). Legal drafters made most damage by shrouding the mysteries of contracts with complex language and technical legal terms (Cutts, 2004). The deficiencies of legalese are mainly due to the unnecessary length and complexity. Sometimes, there are more serious errors that go unnoticed (Hill, 2001) because the interpretation of the contract clause was not actually written or interpreted in the contract (Thomas et al., 1994). Legalese would result the contracting parties fail to appreciate the contractual rights and obligations in a project (Semple et al., 1994). In the end, it shatters the working atmosphere of the project (Wang and Yang, 2005), resulting claims and delay to the project delivery.2.3. Understanding the importance of standard formConstruction contracts are well written agreements duly signed by the parties to the contract to define their contractual positions, relationships and obligations (Zaghloul and Hartman, 2003). The conditions of the contract are critical to ensure that the parties are put up by rules and regulations (Semple et al., 1994). The reduced understanding of the construction contract usually lead to construction disputes, as highlighted by many researches such as (Thomas et al., 1994, Semple et al., 1994, Broome and Hayes, 1997 and Mohamad and Zulkifli, 2006). It is simply because of the reason that the parties could not achieve their contractual expectations (Harmon, 2003).Dubai Municipalitys be spoke forms of contract was followed and amended by dissimilar developers in the UAE industry. The origin of the contract can be traced to FIDIC Red Book 1987 standard form of contract. It had several amendments and revisions over t he years by many developers and private sector clients in the UAE. The latest version of this form of contract was explicate in 2001 (Dr.Sam, 2004). The old-fashioned language used in it makes it difficult to understand and make the right interpretations. This is mainly due to lack of clarity and use of legalese in the contract clauses. Table 1 and Table 2 give a summary of clarity and legalese problems identified in the contract clauses of this Form.2.4 History of FIDIC and other Standard forms of Contracts used in UAE IndustryThe most brilliant designs for any civil engineering or building project would remain in the documents and paper unless off into reality by operations. This transaction process requires i.e. from the design to the reality requires the selection of the contract that reflects the aspirations of the parties as well as the demands of the successful project. The essential skills required for a Contract Administrator is the selection and management of proper form o f contract and for each project, two the key criteria needed to be considered and risks should be identified and allocated, before the selection of the proper form of contract. This can be done from a range of standard forms of contract.In the UAE, the FIDIC form of contract (red book) was introduced in the early 90s for the infrastructure projects by Dubai Municipality, later been followed by many major clients such as Emmar, Nakheel and Damac. The standard form of contract identifies the roles and responsibilities of the parties, their agrents and provides rules to protect direct parties from doing wrong. The selection of the form of contracts depends on various criteria such as the responsibility and position of the parties involved in the contract. For example, factors such as , magnitude and nature of the works, procurement method (Lump sum, Measurement, Cost reimbursement), soma responsibility ( whether by the Employer, Part by the contractor or fully by the Contractor), rol es and relationships (Client, Contractor, Design team and Specialists), the type of cost control document used (such as bill of quantities, schedule of rates, priced specification or contract sum analysis),Payment method (stage, time related, turnkey) and Time (Open, fixed, acceleration and Damages). (Martin Brook, third edition, p 33-44)The various such forms of contracts available are JCT written by the Joint Contract Tribunal, NEC reinvigorated engineering contract, a form recommended by Michal Lathams report (1994) for the use of both public and private sector clients because of its flexibility and written in simple English, ICE provided by the Institution of Civil Engineers, GC/Works/1 for political science Contracts, ACA Project Partnering Contract- PPC 2000, FIDIC..etc.A brief history of the FIDIC form of contract along with available forms are described below as the dissertation is focused on the FIDIC, the most commonly used for both building and Civil Engineering projec ts in the UAE.The Fdration Internationale des Ingnieurs-Conseils (FIDIC) organisation was founded in 1913 by France, Belgium and Switzerland. The UK joined only in 1949. The first edition of the Conditions of Contract (International) for Works of Civil Engineering Construction was published in August 1957 having been prepared on behalf of FIDIC and the Fdration Internationale des Btiment et des Travaux Publics (FIBTP). The form of the early FIDIC contracts was prepared in line with the fourth edition of the ICE Conditions of contract.One difference with the initially published FIDIC contract was that they were based on the design being provided by the Employer or his Engineer to the Contractor. It therefore became best suited for various civil engineering as well as to various types of infrastructure projects such as roads, bridges, dams, tunnels and utility works such as water, sewerage etc. At the same time it was not so suited for contracts having major items of plant that were m anufactured away from site. This led to thought of having the Yellow Book (the conventional one is known as the Red Book it was called as Red book because of the red color of the cover page) published in 1963 by FIDIC for windup(prenominal) and electrical works. This had the provisions for testing and commissioning which was more appropriate for the manufacture and installation of plant. The revised (second edition) was published in 1980.The revised editions of both Red book and yellow books FIDIC was published in 1987. A most important feature of the revised edition of Red Book (or Old Red Book)was provision for the Engineer to act impartially while giving a decision or in any action which affect the rights and obligations of the parties, whereas the previous versions assumed this implicitly. Although this blab out concentrates on the new FIDIC forms, it should be remembered that the Old Red Book remains the contract of choice throughout much of the Middle East, particularly the UAE.A new form of contract was published (known as the Orange Book) in 1995 for the use on projects procured as design and build or turnkey, dispensing with the Engineer, providing for an Employers Representative who, while determining the value, costs or extensions of times need to determine the matter fairly, reasonably and in accordance with the Contract.However, in 1999 FIDIC published new versions of the Red and Yellow books together with a Green and silver Books called as the short form of contract and turnkey contracts respectively. One of the significant differences between the 1999 edition and 1987 4th edition was the arguably diminishing role of the Engineer a fair interpretation is making the Engineer as an assistant to the Employer. The other differences between these two versions will be discussed in the following chapters of this dissertation.Chapter 33.1 The important clauses and terminologies needed contract administration and a comparison with the bespoke version s elected for the dissertation workDuring the process of making bespoke versions of contracts by amending the articles of the standard forms shall be done with extreme care as they run the risk of damaging the consistency as well as the integrity of the contract and the other contract related documents. Most of the standard conditions of contracts are developed over many years and been highly complex to deal with the unforeseen problems and legal decisions including statute law and an ever changing world. The contract must state clearly the documents that are having the status of the contractual documents, following are the documents that shall be considered as the contract documents.i. The signed agreementii. Tenderiii. General and particular conditions of contractiv. Drawingsv. Bills of Quantitiesvi. Specificationvii. Schedulesviii. ProgramThere are certain clauses required in the contract to facilitate the smooth administration of any contracts. The following are the commonly found and essential clauses required in construction contracts between the employer and the contractor irrespective of the forms and types of contracts. A detailed analysis with its importance is analyzed in this chapter for the dissertation purpose.Possession the date by which the employer shall provide obstinance to the contractor of the site to enable the work to begin, In FIDIC 1987, the commencement of work is described under the clause 41.1. The commencement shall be given with in the period agreed in the appendix to tender and failure to provide possession to the site within a reasonable time is interpretted as the breach from the employer.(CEM course material, Construction Law, chapter..). Under FIDIC 1987, the employer will, with the Engineers notice to commence the works, give to the Contractor the possession of the site (E.C Corbett, FIDIC 4th Legal Guide, p 238-239). Failure to give possession is dealt under clause 42.1, under such circumstances, the Engineer shall, after d ue consultation with Employer and Contractor determine Contractors entitlement for extension of time and also the associated cost, which shall be added to the Contract price, notify the Contractor with copy to the Employer (E.C Corbett, FIDIC 4th Legal Guide, p 238-239). Hence this clause is essential while drafting an agreement or contract for the administration. goal The date, by which the contractor shall have the obligation to finish the work, this can be extended under various provisions if the employer or his contract administrator / engineer grant extension of time. Under FIDIC 1987, upon substantial completion of the work, the Contractor serve notice to the Engineer with copy to the Employer for the taking over certificate, and if the work in the view of the Engineer is substantially expeld, issue a taking over certificate with in 21days. This is a very essential clause in any form of contract as in the absence of a completion date in the contract the contractor shall be r equired to finish the work only within a reasonable time(ref John Uff..).Non completion this clause shall deal with the situations when the contractor fails to complete the work by the agreed completion date or the extended completion date. If the work is not completed within the specified time, due to any reasons that the contractor is not liable or any co-occurrent delays, the contractor get the benefit of having an extension time with associated costs. However for Contractors own delay, the contractor shall not be entitled for the entitled for any extension of time, the still available in the contract is to make payment to the employer as liquidated damages or penalty as mentioned in the contract. Hence it is very essential to have a non-completion clause in agreements and contracts.Liquidated damages / Penalty Liquidated damages are usually add is fixed and genuine pre-estimate of the loss in cases of breach, easy to reckon on building or commercial projects, however not easy on infrastructure projects. Whereas penalty is also a fixed amount, the contractor demand to pay this if a breach occurs. However in UAE, the term penalty is applicable as the same is followed in civil court. Whereas, under the English Law, Liquidated damages are applicable, if the sum mentioned in the appendix to tender is penalty and not the liquidated damages, the Contractor under the English law can challenge it, however under the UAE Law Civil code, Article,.. the penalty is applicable. Most of the Countries penalties are not acceptable. Refer, for example, a few leading cases on penalties, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd 1915 AC 79, 86-87, where the House of Lords recognized the principles on how to decide a damage clause that is actually a penalty and thereby unenforceable. This case was cited by the High Court of Australia in Ringrow Pty Ltd v BP Australia Pty Ltd 2005 HCA 71, section 12, and by the Supreme Court of Ireland in ODo nnell v Truck and Machinery Sales trammel 1998 4 IR 191. The Supreme Court of Canada has adapted a similar approach in Elsley v. J.G. Collins Ins Agencies, 1978 2 S.C.R. 916, 946, and does not allow for any recovery of an amount exceeding the actual damage (J.Frank McKenna (2008) Critical Path. Reed Smith, p1-6). Hence this clause is essential in a contract or agreement.Defects liability- The defects are to be find out with the period mentioned in the contract. Failure to rectify the defects within a reasonable time will enable the employer to engage a third party to do the work and deduct the amount from the contract sum. Under FIDIC 4th edition, clause 62 deals with the defects liability period. The issuance of the defects liability certificates signals the completion of the Contract and under FIDIC form, such a certificate shall be issued within 28days from the completion of Defects liability period, in both forms of FIDIC 99 as well as in 87 including the bespoke versions, the defects liability period shall not be extended beyond 2 years from the taking over certificate (E.C Corbett, FIDIC 4th Legal Guide, p391-392).Variations any variations should be authorized by the employer before the contractor is entitled for the payment. Variations are common to traditional procurement path than the Design and Build system (Ashworth, 1998). In construction due to the complexity of construction works it is almost impossible to complete a project without changes to the plans or the construction process itself however good and the complete the design details are at the start of the project. Baxendale and Schofield (1996) define variation as any change to the basis on which the original contract was signed. Construction plans are formed form of designs, drawings, quantities and specifications earmarked for a specific construction site and Variations are imminent in any construction project due to various reasons from finance, design, aesthetic, geotechnical, geologic al, weather conditions to feasibility of construction. Hence it is essential to have a provision to instruct and ev