Tendering and Contracting Guidelines

Copyright © 2021 Ahkam AL Taee.

All rights reserved. No part of this book may be used or reproduced by any means, graphic, electronic, or mechanical, including photocopying, recording, taping or by any information storage retrieval system without the written permission of the author except in the case of brief quotations embodied in critical articles and reviews.

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ISBN: 978-1-6632-3172-7 (sc)

ISBN: 978-1-6632-3173-4 (e)

Library of Congress Control Number: 2021923039

iUniverse rev. date: 11/10/2021

CONTENTS

Acknowledgments

Preface

About the Author

Chapter -1: TEXTURE OF TENDERS AND CONTRACTS

Part- 1 Introduction

1.1.1 Why we make Tenders and Contracts

1.1.2 Contracts History

1.1.3 Concepts of a Contract:

1.1.4 Parts of a Contract.

1.1.5 The Elements of Enforceable Contract (Valid or Legal Binding contract);

Part- 2 Types of Contracts

1.2.1 Introduction

1.2.2 Fixed-Price Contracts

1.2.3 Unit-Price Contracts

1.2.4 Cost-Reimbursement Contracts

1.2.4.1 Cost-Plus Fixed-Fee Contract

1.2.4.2 Cost plus Incentive-Fee Contract

1.2.4.3 Cost-plus-Percentage-of-Cost Contract

1.2.5 Indefinite-Quantity Contract

1.2.6 Time-Related Contract

1.2.6.1 Time and Materials

1.2.6.2 Labor-Hour Contract

1.2.7 Letter of Intent

1.2.8 Concession Contracts (Public Private Partnership or-PPP)

Part- 3 Acquisition (Supply) Chain

1.3.1 Introduction

1.3.2 Initiation of Tender Invitation Package (Request for Proposal-RFP);

1.3.3 Scope of Work (SoW)

1.3.4 Preparing Offerors (Bidders) List

1.3.4.1 Screening Process

1.3.4.1.1 Preliminary Screening

1.3.4.1.2 Formal Screening

1.3.5 Preparing Tender Invitation Package or RFP

1.3.6 Contents of Tender Invitation Package or (Request for Proposal)

1.3.6.1 Transmittal Letter; The Transmittal Letter provides a formal record of:

1.3.6.2 Acknowledgment Letter;

1.3.6.3 Instructions to Tenderer

1.3.6.4 Tender Security or (Bid Bond) and Performance Bank Guarantee Format.

1.3.6.5 Form Letter of Tender (State of Compliance)

1.3.6.6 Pro-Forma Agreement

1.3.6.7 Evaluation Criteria.

1.3.6.8 Technical Specifications

1.3.6.9 Delivery / Work Schedule.

1.3.7 Selection of Best Total Value Offer

1.3.8 Negotiation during Tendering:

1.3.9 Notes to complete the Tender or RFP:

Part- 4 Notes before Drafting a Contract or Agreement;

1.4.1 Introductory Briefing

Part- 5 Allocating Liability and Risks

1.5.1 Introduction

1.5.2 Types of Risks

1.5.3 Evaluating and Categorizing the Risk

1.5.4 Roles that Mitigate Risk

Part- 6 Justice of Contracts

1.6.1 Laws Governing Contracts

1.6.2 Alternative Dispute Resolution (ADR)

1.6.3 Advantages and Disadvantages of ADR:

1.6.4 General View on ADR:

1.6.5 Major Arbitration Bodies :

1.6.6 International Law

Part- 7 Contracts Administration (CA)

1.7.1 Introduction

1.7.2 Contract Administration Responsibilities;

1.7.3 Contract Administration Tasks

1.7.3.1 Become Familiar with Contract (Post-Award Conference);

1.7.3.2 Host Implementation meetings (Correspondences with Contractors)

1.7.3.3 Develop Project Schedules (Performance and Delivery Schedules)

1.7.3.4 Establish Proper Documentation and Payment Process (Cost Control)

1.7.3.5 Processing Variation Orders

1.7.3.6 Acceptance of the Works with Required Quality

1.7.3.7 Managing Claims and Disputes

1.7.3.8 Termination /Contractor Performance Evaluation /Close out Contract.

1.7.3.8.1 Termination of the Contract

1.7.3.8.2 Contractor Performance Evaluation

1.7.3.8.3 Close-Out of the Contract

Chapter -2: CONSTRUCTION CONTRACTS

Part 1 FIDIC Contracts Forms

2.1.1 Introduction

2.1.2 Roles of Employer, Engineer, and Contractor.

2.1.3 Extension of Time (EOT) and Liquidated Damage

2.1.4. Extension of Time for Completion

2.1.5 Delay Damages

Part 2 Risk Spectrum in Construction

2.2.1 Introduction

2.2.2 General Requirements for Insurances in Construction

2.2.3 Force Majeure / Exceptional Events

Part 3 Claims and Disputes in Construction

2.3.1 The Roles of the Engineer in Claims of Additional or Reduction Payment in construction

2.3.1.1 Contractor’s Claims Particulars

2.3.1.2 Employer’s Claims Particulars

2.3.2 Dispute Procedure in Construction

Part 4 Subcontracting in Construction:

2.4.1 Introduction

Part 5 Variations in Construction:

2.5.1 Introduction

2.5.1.1 Variation by Instruction;

2.5.1.2 Variation by Request for Proposal:

Chapter -3: ATTACHEMENTS

Attachment No 1: Form of Agreement between Client and Contractor

Attachment No 2: Form of Tender Security or (Bid Bond):

Attachment No 3; Form of Performance Bank Guarantee (Performance Security)

Attachment No 4; Form Letter of Tender or State of Compliance

Attachment No 5; Form of Variation Order

Attachment No.6; Form of Contractor Performance Evaluation Report

Attachment No 7; Complete Form of a Construction Contract.

References

ACKNOWLEDGMENTS

Let me take this opportunity to thank several .First, my mother and father for all their hard work as my first teacher. This project would never have been completed without you.

I must also mention my colleagues and any instructors who guided and supported me through. In addition, all those deserving of thanks and recognition.

Finally, as always (my wife, sons and daughter, who) are most deserving of acknowledgement for their patience, love, encouragement, and support.

PREFACE

This book provides a practical guide to various services agreements and transactions. It is not a legal textbook but a useful tool for procurement and contracts officers.

The book is designed to be ready desk reference for reviewing, understanding, negotiating or preparing a range of practical agreements and documents. The information and guidance contained herein are only matters to consider. It should not be treated as a comprehensive guide on all subjects. Some terms and conditions can be amended to reflect your particular circumstances and scope of services.

I hope you, the reader, will find this book practical is not a substitute for legal advice.

ABOUT THE AUTHOR

Ahkam Mohammed AL Taee, has B.Sc. degree in Mechanical Engineering from Mosul University,Iraq in 1971.He then got M.Sc. degree in Machine Tool Technology from Birmingham University, UK in 1975.

-Admitted as a Charter Engineer of Iraqi Union of Engineers in 1992.

-Admitted as a Professional Engineer of Board of Engineers Malaysia in1997

- Admitted as a Professional Engineer of PEO in Ontario-Canada in 2007.

He has extensive experience in both the private and public sectors in a cross section of industries ranging from oil and gas market to utility power and water in different disciplines like maintenance, construction and design.

He has also worked within a supply chain management for sixteen years in different countries. This includes gaining experience in preparing tenders, reviewing expressions for interest, evaluating commercial bids, negotiating terms and conditions of contracts/subcontracts. He is also knowledgeable in subcontracting strategy, clarifications, contractual conflict resolution, preparing change orders/ claims, correspondence with subcontractors/clients/law enforcement agencies. Finally, he is very familiar with the awarding of contracts using systems like Maximo, and Oracle.

CHAPTER -1

TEXTURE OF TENDERS AND CONTRACTS

Part- 1 Introduction

1.1.1 Why we make Tenders and Contracts

Tendering and contracting subject are vital in business. Well-versed staff with technical knowledge and in management experience act as guides to process complete tenders and successful contracts. This is how you regulate the relationship between the buyers (Employers) and the sellers (Contractors) whether the contract concerns materials or services.

All businesses, aim to maximize profits, by buying quality materials and services at the best possible price. This can be achieved through a good tendering and contracting process.

A trustworthy contracting process improves business-to-business relationships. Companies can share opportunities, and take advantage of each other’s strength.

A complete and clear contracts help to prevent future disputes; clearly written binding terms and conditions will give all parties peace mind.

Contracts can increase the operational efficiency of any organization or firm. A stipulated deadline motivates all parties to manage their activities accordingly.

Contracts secure payments. No one like to be stiffed for work that has already finished. A legal document like a contract establishes compensation for services rendered and provides recourse when terms are not met.

A contract creates a legal obligation for both parties to perform specific acts, and agreement on their rights and duties .It is problem-solving tool. Parties often have the same goals, but different methods for tracking specific issues. Well-written contract bridges the gap, giving each party enough of what they need.

A contract drafter should have formidable powers of concentration, physical stamina, mental acuity, tenacity, the ability to multitask, and a sense of humor. They need to enjoy working with people and involved parties.

Another function of the contract is to define upon whom the various risks responsibilities. All parties should be allocated some of the burden.

1.1.2 Contracts History (¹)

Plato, an Athenian philosopher during the Classical period of Greece, founder the Academy, the first institution of higher learning in the Western world. That Platonist philosophy influenced English contract law’s history and Roman thought. In The Laws, Plato recognized the same basic devoted little attention to forms of agreement, but recognized the same basic categories for cancelling agreements as exist today.

The legal system of ancient Rome was called Roman Law, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman Emperor Justinian I. It is also sometimes referred to as the Code of Justinian, although this name belongs more properly to the part titled Codex Justinian’s. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.

In the 19th Century, the principles of economics, developed alongside the Industrial Revolution. This lead to the development of contract law, with the increased rate of exchange resources, all parties involved needed assurances that obligations and promises would be honoured.

Lump-sum contract is the oldest form of contract. The first book with contract in its title was John Powell, Essay on the law of contract in 1790.

1.1.3 Concepts of a Contract:

These concepts are the foundation of every contract and when properly assembled it will, express the full business deal. (4)

• Representations

A representation is a statement of a past or present fact that induces a party to enter into the contract. This can be made before or during the time of drafting.

A party may claim misrepresentation when a falsehood is stated. A representation does not form part of a contract. A representation may be an implied representation or material representation.

• Warranties

This is a promise that one party will indemnify the other for any damages suffered because of the false statement. There are two types of warranties: express and implied. There are three major subtypes: the implied warranty of merchantability (only given by merchants), the implied warranty of fitness for a particular purpose, and the implied warranty of title.

• Covenants

This is a written promise between two or more parties where one pledges to do something (affirmative covenant) or refrains from doing something (negative covenant). Real property contracts cover covenants., for any covenant the parties must be competent and legally able to enter into a contract.

• Rights

A right is the flipside of the covenant. A right entitles a party to the other’s performance. The rights of any valid contract guaranteed the parties to do their part of obligations like providing a certain services or supplying materials and more.

• Conditions

A condition to a scope of work is a state of facts that must exist before a party is obliged to perform. Besides the rights that are expressly stated in the contract, there are also implied contract rights. These rights exist based on contract policies and laws. Each party in a valid contract is expected to operate according to good faith and fair dealing.

• Discretionary Authority

This grants the party the choice or permission to act. The holder is not required to exercise the authority granted. Commonly, discretionary authority is granted with a condition preceding it. For example, a state of facts like the inspection of the work done is done successfully so the holder with pay the price must exist before a party may exercise its discretionary authority

• Declarations

A declaration is a fact as to which both parties agree. Sometimes it is subjected to the satisfaction of a condition. The declaration has no associated rights or remedies; breaches do not necessary lead to a lawsuit. This depends on policy and law. The definitions in a contract are considered a declaration.

1.1.4 Parts of a Contract.

Regardless of the nature of the services or materials to be delivered, a contract is between two or more parties should have the following parts; (4)

A. Preamble

B. Recitals.

C. Words of agreement

D. Definitions

E. Action sections

F. Other substantive business provisions (representations and warranties, covenants, rights, conditions, discretionary authority & declarations).

G. Endgame provisions

H. General provisions

I. Signature lines.

A-Preamble:

This is an introduction to a contract that describes the purpose. The word comes from pre meaning before and amble meaning walk. A preamble can contain facts about the contract. A data packet has a preamble, which the system needs but which goes before the data that the user will use.

The following is sample of a preamble of a contract,

B-Recitals:

Contract recitals precede the main text and are referred to as the whereas clauses. They provide the reader with a general idea about the purpose of the contract, the parties involved, and why they are signing it. Recitals can be considered part of the preamble to the contract.

Recitals are not compulsory, but are frequently included in commercial contracts to set out the background to the contract. Contractual obligations should not be included in the recitals, but are more appropriately placed in the legally binding operative provisions. The same principle applies to key definitions.

The following is a sample of a recital of a contract:

C-Words of Agreement:

Usually beginning of each major contract, especially in the construction deals, there is an agreement; moreover, the wording must be sufficient to make a binding deal between the parties, which summarizes the act of coming to a mutual decision, position or arrangement.

Please refer to Chapter 3 Attachment No 1 for sample of Form of Agreement.

D-Definitions:

Normally, these would be listed in the 1st.article of general conditions of a contract. Definitions must be used to make the interpretation of a contract easier. They make contract provisions concise; the definitions are considered as a declaration.

The article of the Definitions is usually headed with the following text:

The list of definitions vary and depends on the nature of the services /materials supplied. In construction contracts, the following definitions usually noted: