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Ten Commandments of Better Contracting, 2003
- Contents
- Figures
- Tables
- Acknowledgements
- Introduction
- Terms You Should Know
- Icons
- Chapter 1 Thou Shalt Contract Within the Law and the Working Environment of the Contracting Parties: Typical Contract Problems and their Causes: Common Law
and Tort Issues, Changes in the Contracting Environment [Go to Page]
- 1.1 Contracting Basics [Go to Page]
- 1.1.1 Contract Law as Part of Common Law
- 1.1.2 Contract Formation
- 1.1.3 Breach of Contract
- 1.1.4 Terms and Conditions
- 1.1.5 Typical Content of a Contract
- 1.1.6 Obligations Outside the Terms of a Contract
- 1.1.7 "Legal" Versus "Ethical" or "Fair and Reasonable"
- 1.1.8 Contract Failure and Termination
- 1.1.9 Recourse in Law
- 1.2 Changes that Influence Contracts [Go to Page]
- 1.2.1 Change over the Past 30 Years
- 1.2.2 Effect of These Changes on How We Do Business
- 1.2.3 Effect of Changes on Contracting Options
- 1.2.4 What Has Been Found by the Construction Industry Institute and the Cost Reduction Initiative for the New Era
- 1.3 What has Changed
- Chapter 2 Thou Shalt Not Mix Up the Wrong Work Packages: Packaging Work: Combining the work and materials supply for optimal performance [Go to Page]
- 2.1 Contract Types [Go to Page]
- 2.1.1 Stipulated Price
- 2.1.2 Unit Rate
- 2.1.3 Cost Plus
- 2.2 Tendering Options [Go to Page]
- 2.2.1 Bidding
- 2.2.2 Request for Proposal
- 2.2.3 Negotiation
- 2.3 Scope of Work [Go to Page]
- 2.3.1 Supply Only
- 2.3.2 Services Only
- 2.3.3 Engineering, Procurement, and Construction (EPC)
- 2.3.4 Engineering, Procurement, and Construction Management (EPCM)
- 2.3.5 Design/Build
- 2.3.6 Build, Own and Transfer (BOT) and Build, Own, Operate and Transfer (BOOT) Contracts
- 2.3.7 Turnkey
- 2.3.8 Other Flavors
- 2.4 Vertical Integration [Go to Page]
- 2.4.1 Financing
- 2.4.2 Subcontracting
- 2.4.3 Equipment and Material Supply
- 2.4.4 Operating
- 2.5 Horizontal Integration [Go to Page]
- 2.5.1 The Effects of Mixing Some or All of the Steps in Delivery of a Project
- 2.5.2 Fast-Tracking
- 2.5.3 Concurrent Engineering
- 2.6 Multicontract Projects [Go to Page]
- 2.6.1 Coordination
- 2.6.2 Management of Contracts and Contractors
- 2.7 Multiproject Contracting [Go to Page]
- 2.7.1 Evergreen Contracts
- 2.7.2 Alliances
- 2.7.3 Term Contracts
- Chapter 3 Thou Shalt Listen to, and Understand, the Real Wishes and Needs of the Customer: Contract strategies: intent and client objectives, contractor and supplier responses [Go to Page]
- 3.1 Relevant Company Policies [Go to Page]
- 3.1.1 Procurement Policy
- 3.1.2 Value for Money
- 3.1.3 Auditability
- 3.2 Project Requirements [Go to Page]
- 3.2.1 Balancing Performance, Cost, and Time
- 3.2.2 Vendor Learning Curves
- 3.2.3 Reputation and Relationships
- 3.2.4 Clarity of Requirements and Specifications
- 3.2.5 Business Drivers for the Project
- 3.3 On-Staff Expertise and Availability of Key Skills and People [Go to Page]
- 3.3.1 Technical and Other Complexities
- 3.3.2 Project Priority in Sponsor Organization
- 3.3.3 Impact of Funding for the Project
- 3.3.4 Politics and Compliance Issues
- 3.4 Risks Associated with the Client [Go to Page]
- 3.4.1 Can the Client Pay?
- 3.4.2 Expertise and Experience of the Client
- 3.4.3 Client's Attitude to Contractors and Suppliers
- 3.4.4 Fairness in Contract Administration
- Chapter 4 Thou Shalt Not Blindly Pick the Contractor Who was Cheapest Because It may Have Made the Biggest Mistake: Contractor or supplier selection: picking partners for success [Go to Page]
- 4.1 Picking a Contractor: Selection Strategy
- 4.2 The Bid Document
- 4.3 Bid Comparisons
- 4.4 Bid Process
- 4.5 Games People Play
- 4.6 Negotiations
- 4.7 Award: Do we Really have an Agreement?
- Chapter 5 Thou Shalt Not Be Ambiguous and Vague: Clarity in wording: ambiguity, latent disputes and interpretation of contract clauses [Go to Page]
- 5.1 Language and Technology Growth
- 5.2 The Implicit Specification
- 5.3 Latent Disputes
- 5.4 Risk as a Tool to Identify Latent Disputes
- 5.5 Clarification of Clauses: Before or After Bid?
- 5.6 Managing Expectations: The Soft Side of Improving Contracting Effectiveness
- Chapter 6 Thou Shalt Share Out Risks Equitably and with Intelligence: Risk assignment through contracts: risk assessment, cost and allocation [Go to Page]
- 6.1 The Cost of Assigning Risk: The Study, Its Limitations and How it was Validated [Go to Page]
- 6.1.1 The Origins of the Study
- 6.1.2 Common Beliefs
- 6.1.3 The Investigation
- 6.1.4 Limitations
- 6.1.5 Validation
- 6.2 The Cost of Assigning Risk: What We Found [Go to Page]
- 6.2.1 Cost of Weasel Clauses
- 6.2.2 Value of Clauses
- 6.2.3 Things that Affect the Premiums Charged
- 6.2.4 Ingrained Habits and Mistrust
- 6.3 Eliminating Risk Premiums [Go to Page]
- 6.3.1 Awareness of these Costs
- 6.3.2 Awareness of the Issues
- 6.3.3 Trust and its Limitations
- 6.3.4 Auditability
- 6.3.5 Value for Money
- Chapter 7 Thou Shalt Trust thy Contracting Partner, but not Do So Unreasonably: The role of trust in contracting: types of trust and trust profiles [Go to Page]
- 7.1 The Cost-Trust Relationship [Go to Page]
- 7.1.1 Cost Elements
- 7.1.2 Trust Components
- 7.1.3 The Relationship between Cost and Trust
- 7.2 Trust Types and what they Affect in the Contract Relationship [Go to Page]
- 7.2.1 The Color Trust Model
- 7.2.2 Myth and Reality: Post-rationalization and the Need for Auditability
- 7.2.3 The Effect of Auditability on Contracts
- 7.3 Contracts in a Context of Trust [Go to Page]
- 7.3.1 Competence Trust
- 7.3.2 Integrity Trust
- 7.3.3 Intuitive Trust
- 7.3.4 Balancing Trust Types
- 7.3.5 Adapting Contracts and Managing Them Based on Trust
- Chapter 8 Thou Shalt Not Mess Unduly with the Contract After it is Agreed: Administration of contracts: payments, meetings, and documentation [Go to Page]
- 8.1 Payment and its Implications [Go to Page]
- 8.1.1 Payment Processes
- 8.1.2 Holdbacks and Lien Acts
- 8.1.3 Lender and Investor Concerns
- 8.1.4 Implicit Contract in Common Law
- 8.2 Notices Under the Contract [Go to Page]
- 8.2.1 Purpose of Notices
- 8.2.2 Notices Often Defined by the Contract
- 8.3 The Power of Progress Meeting Minutes [Go to Page]
- 8.3.1 Using Progress Meeting Minutes to Serve Notice
- 8.3.2 Using "Standard" Minutes
- 8.4 Documents that Affect Contract Terms and Conditions [Go to Page]
- 8.4.1 Memos to File
- 8.4.2 Diaries
- 8.4.3 Written Communication
- 8.4.4 Confirmation of Important Items
- 8.4.5 Other Forms of Communication
- 8.5 Legal Recourse: Will the Real Contract Please Stand Up?! [Go to Page]
- 8.5.1 Reading the Contract
- 8.5.2 Knowing What the Contract Means
- 8.5.3 Last Resort: Turning to the Law
- Chapter 9 Thou Shalt Deal Rationally and Fairly with Inevitable Changes to a Contract: Changes and Markups: Types of changes, processes, costs and games played [Go to Page]
- 9.1 Change Orders [Go to Page]
- 9.1.1 Change Basics
- 9.1.2 Processes Needed for Managing Changes
- 9.2 Process for Managing Changes [Go to Page]
- 9.2.1 Flowchart
- 9.2.2 The Need for Process to Meet Buyer and Vendor Needs
- 9.3 When is a Change a Change? [Go to Page]
- 9.3.1 Recognizing a Real Change
- 9.3.2 What Can Change?
- 9.4 The Effect of Changes and how it Alters Over Time [Go to Page]
- 9.4.1 Effects
- 9.4.2 Time Effect on a Change
- 9.4.3 Contracts
- 9.4.4 Relationships
- 9.4.5 Morale
- 9.5 Pricing Change Orders [Go to Page]
- 9.5.1 What Is Affected?
- 9.5.2 Opportunities and Risks
- 9.6 Contract Provisions for Markups and what they may Mean
- 9.7 Gamesmanship in Pricing, Negotiating and Managing Changes [Go to Page]
- 9.7.1 Pricing Change Orders
- 9.7.2 Negotiating Change Orders
- 9.7.3 Managing Change Orders
- Chapter 10 Thou Shalt Not Kill (Your Contracting Partner): Claims and Disputes: Resolution Options and Avoidance [Go to Page]
- 10.1 Negotiating Changes and Disputes
- 10.2 Mediation
- 10.3 Arbitration
- 10.4 Litigation (Classic Dispute Resolution)
- 10.5 Mini-Trials
- 10.6 Dispute Resolution Boards
- 10.7 Other Options for Dispute Resolution
- Chapter 11 Smart Contracting: An Interlude
- Chapter 12 Smart Contracting: a Framework for Better Performance of Contracts and the People Involved: It pays to be SMART about how we manage our clients and our supply chain [Go to Page]
- 12.1 Thou Shalt Contract within the Law and the Working Environment of the Contracting Parties
- 12.2 Thou Shalt not Mix up the Wrong Work Packages
- 12.3 Thou Shalt Listen to, and Understand, the Real Wishes and Needs of the Client
- 12.4 Thou Shalt not Blindly Pick the Contractor who was Cheapest Because it made the Biggest Mistake
- 12.5 Thou Shalt not be Ambiguous and Vague
- 12.6 Thou Shalt Share out Risks Equitably and with Intelligence
- 12.7 Thou Shalt Trust thy Contracting Partner, but not do so Unreasonably
- 12.8 Thou Shalt not Mess Unduly with the Contract after it is Agreed
- 12.9 Thou Shalt Deal Rationally and Fairly with Inevitable Changes
- 12.10 Thou Shalt Resolve Disputes in the Most Equitable and Efficient Way Possible
- 12.11 Closure
- References and Bibliography
- Index [Go to Page]
- A
- B
- C
- D
- E
- F
- G
- H
- I
- J
- L
- M
- N
- O
- P
- Q
- R
- S
- T
- U
- V
- W [Go to Page]