Lecture 6 - FINALContract Concept & Types
Lecture 6 - FINALContract Concept & Types
CONTRACTS AND
ITS TYPES
Lecture - 6
Prof.
Prof. Dr.
Dr. Sajjad
Sajjad Mubin
Mubin
WHAT IS CONTRACT?
2
WHAT IS A CONTRACT?
For a contract to be valid and enforceable by law, it must meet certain criteria.
1. There must be mutual agreement or a meeting of the minds.
2. There must be an offer. An offer can normally be withdrawn up until the
time it is accepted, except the bid documents used in public works
generally state that the bid may not be written withdrawn once submitted.
3. The offer must be accepted. The acceptance completes the meeting of the
minds. In low-bid construction, the acceptance is the award of the contract
to the low bidder.
4. There must be consideration for the service performed- payment.
5. The subject matter of the contract must be lawful. A contract to commit a
crime is not legal and not enforceable.
6. The contracting parties must have the legal capacity to enter a contract.
7. A contract with a minor is not lawful.
8. Contracts are signed by representatives of both the owner and contractor
who have the legal authority to sign for their organizations.
COMPONENTS FOR A VALID
CONTRACT
To be valid, a contract must have:
(1) an offer, (2) an acceptance and (3) consideration (4) capacity
Offer
• The offerer must be in writing and shall display intent
of Offeree to contract.
• The offer must be definite and certain and
• The offer must give the offeree the right or power to
accept the offer.
ACCEPTANCE
Acceptance
Offer
Acceptance Consideration
Offer
1. Agreement
2. General Conditions
3. Special/Supplementary Conditions
4. Drawings
5. Technical Specifications
6. Addenda
AGREEMENT
Agreement is the document that represents and reflects the legal Contract
between the Owner and Contractor. It provides legal evidence and base in
case of litigation and dispute. The purpose of agreement is to record in
written form those items agreed to by the Owner and Contractor. It includes;
– Date of agreement;
– Names and Addressees of the contracting parties (inc. phone no. email
add.)
– Description of scope of work;
– Contract consideration (in figures and words);
– Payment conditions;
– Reference to other documents;
– Signature.
GENERAL CONDITIONS
They describe the general guidelines that will be used in the contract administration.
Various different general conditions are developed by different organization based
on project/ construction field experience for the use of Owner and General
Contractor (e.g. FIDIC, AIA, PEC). AIA general conditions contain these items:
• General Conditions
• The Owner
• The Contractor
• Administration of Contract
• Sub-contractors
• Changes in Work
• Time
• Payment and Completion
• Security/Protection of Person and Property
• Insurance and Bonds
• Misc. Provisions
• Termination and Suspension/Cancellation of Contracts
SPECIAL OR SUPPLEMENTARY
CONDITIONS
Special Provisions of the contract are specific requirements for
a project that are unique to it, specifically tailored for a
particular project. Special Provisions may include:
•Survey information to be provided by Owner;
•Changes in Insurance requirement;
•Site visits;
•Performance measurement and Schedule reporting;
•Traffic control, traffic handling provisions and street cleaning
requirement;
•Site Office and utilities;
•Responsibilities of testing of Material;
•Action to be taken in case of discovery of historical asset or natural
resources;
• Disputes, conflicts, LDs.
COMPARISON OF GENERAL AND
SUPPLEMENTARY CONDITIONS
Client / Owner
Consultant
Designer Sub-
Contract Sub-Contract Sub-Contract
LUMP SUM ENGINEERING,
PROCUREMENT &
CONSTRUCTION CONTRACTExecution
Design Termination
Erection/Installation/Construction
Development
Degree of risk
Impact/Value/Degree
of risk
Contrac
t Award Conce
ptual
Efforts/
Cost
Cumulative
Cost
Proposal
Time
Planning
Engineering
Procurement
Construction
Commissioning
LUMP SUM ENGINEERING,
PROCUREMENT &
CONSTRUCTION CONTRACT
Procurement Construction
KEY CHALLENGES OF
LSEPC CONTRACTS
• Very accurate estimation
• On time delivery within budget
• Keep variation orders to a minimum
• Strong claim management and follow-up
• Intelligent planning and efficient performance monitoring
• Safeguard timely delivery of equipment from subcontractors
• Control factory acceptance tests of equipment
• Ensure efficient commissioning and testing of equipment
• Secure seamless process from construction to operation
• Poor handle on project by Client / Monitoring of quality / process issues
Or, 100% Design
Select ion Complete
Design by EPC
Proposal Bidding of EPC Contractor & Owner’s Procurement Construction Commissioning
Contractor Review & Approval
Profit Profit
Congtigenc ies
Congtingen cies
Fixed and Variable Cost
Fixed and Variable Cost
a) Cost
i. Cost overrun due to change/ variation in quantity and price of goods and services.
ii. Exchange rate of currency and currency fluctuation.
iii. Error in estimation and omissions at proposal or execution stage.
iv. Change in the laws of the country (taxes, interest rate, inflation etc).
v. Problems in finding 100% technical compliance of Product/supplies.
vi. Error in FEED, (not compatible to site conditions) and omissions resulting rework.
vii. Increase in the rate of mark up on guarantees at various stages of the project
execution.
viii. Vender Service Men (VSM) overstay.
ix. Poor claim identification, preparation and follow-up.
x. Incomplete data is provided by procurement at proposal stage.
xi. Noncompliance of quality requirements from Sub-contractor.
(PDF) Innovative Approach to Risk Analysis and Management of Oil and Gas Sector EPC Contracts from a
Contractor's Perspective. (Mubin & Mannan) Available from:
https://www.researchgate.net/publication/279752175_Innovative_Approach_to_Risk_Analysis_and_Managem
ent_of_Oil_and_Gas_Sector_EPC_Contracts_from_a_Contractor's_Perspective
b) Time (Duration)
i. Error in estimation and omissions at proposal or execution stage.
ii. Timely vendor information for detail designing.
iii. Problems in finding 100% technical compliance of supplies and services.
iv. Errors in FEED, resulting in rework.
v. Increase in supply time requested by a vender.
vi. Vendor’s delay in delivery of goods and services.
vii. Stoppage of work on site due to various reasons (Client, Sub-Contractors, Locals and
Regulations).
viii. Unavailability of complete data from engineering wing for preparation of RFQ.
ix. Inadequate project planning i.e. not well in time engineering workflow.
x. (a) Change Order issued to supplier/manufacturer for change in specification by contractor.
(b) Dispute with the supplier/ vender for late supply and under performance.
(c) Delays on letter of credits (LCs) issuance
UNIT-PRICE CONTRACTS
/ ITEM RATE CONTRACTS
• BOQ Basis: The price bidders tender for such a contract is based
on a bill of quantities which lists the estimated quantities of each
type of work to be done, ‘taken off’ (i.e. measured) from the
completed drawings of the works required.
• Against each item a contractor bids his price per unit quantity
thereof, and these, multiplied by the estimated quantity of work
to be done under each item, when totalled form ‘the Contract
Sum’.
• Pro-Rata Payment Modees: This system permits the contractor
to be paid pro rata to the amount of work he actually does under
each item, and also eases valuation of the payment due to the
contractor for executing changes to the design of the works
during construction to overcome some unforeseen difficulty or
make an addition.
BENEFITS OF UNIT-PRICE CONTRACTS
/ ITEM RATE CONTRACTS
• In EPC Contracts major risks lies to the Contractor, as scope and design is not
well defined at initial stage and the contract price is fixed. But on the other
hand, major risks are higher on Owner’s part in Cost Plus contract. To have a
balance approach in maximizing projects success rate, Owners and EPC
contractor may adopt combined and convertible reimbursable cum lump
Sum approach for EPC execution by a single EPC contractor, in order to
overcome the two basic problems mentioned above.
• For fast track execution under much larger project uncertainties, it is
extremely difficult to bid by a Contractor on Lump sum basis at very initial
stage of project. Indeed, a firm estimate of total cost and schedule of an EPC
project requires today a much longer time to prepare and a much higher
bidding cost; it will thus contain a larger contingency allowance for risk
mitigation.
LSEPC Convertible
Contracts
High
Low
Lump Sum EPC
A+B+C
Contractor Owner
A+B Risk
Risk
Target Estimate
Unit Costs
Cost Plus Fix Fee
Low Cost Plus Percentage
High
Modern Contract
Types
Design, build and operate (DBO):
These contracts were increasingly used in the 1980s onwards by
government departments in the UK who saw a benefit in not
shouldering all the complications of building and operating a new
facility, but in passing this out to the commercial sector. Such
contracts have the added advantage that if a contractor has to
operate the works he has built for a number of years, he has a
financial incentive to use good quality design and materials to
minimize his expenditure on operation and maintenance. There are
several variations of DBO contracts. ABOT ‘build, operate, transfer’
contract usually implies the client pays for the works as they are
constructed
Modern Contract
Types
Built-Operate-Transfer (BOT):
Developed infrastructure plays very important role in country’s
economy and development, while the process of execution of such
projects generate economic activity in the country. Besides uplifting
economy, they facilitate general public therefore federal and
provincial governments, development authorities, private investors
and local governments all over the world are considering BOT
financing options for construction of various infrastructure projects.
BOT is a method of private-public partnership, which is different from
complete privatization or nationalization. In BOT projects private
sector bears the cost of project first, then owns it for certain period
before handing it over to the government at no cost. It not only takes
spending off the government’s balance sheet but also provides
services to end user (general public) in its operational phase.
Examples of BOT
• The Suez Canal and the Panama Canal are the example of BOTs and
had a 99-year concession period.
• Such arrangements have become particularly popular since the 1950s
and have been labeled Build-Operate-Transfer (BOT).
• Euro Tunnel is another example of BOT.
• Dulles Toll Road Extension, costing US$250 million started in 1988,
was reportedly the first BOT highway in the United States.
• The first privatized (BOT project) airport terminal in Canada is
Terminal 3 of Lester B Pearson International Airport in Toronto,
completed in 1991.
• In the far eastern countries like Malaysia and Philippine BOT contracts
played very important role in infrastructure development [3].
Forms of BOT
• BOO(build-own-operate),
• BLT(build-lease-transfer),
• BOOM(build-own-operate-maintain),
• BOOT(build-own-operate-transfer),
• BOOTT(build-own-operate-train-transfer),
• BTO(build-transfer-operate),
• DBFO(design-build-finance-operate),
• DBO(design-build-operate),
• DBOM(design-build-operate-maintain),
• DOT(design-operate-transfer),
• ROO(rehabilitate-own-operate),
• ROT(rehabilitate-operate-transfer),
• DOT(develop operate transfer) and
• PPP(public private partnership) [4].
Structure of BOT
BOT Contracts: Applicability in Pakistan for Infrastructure development
S. Mubin and A. Ghaffar, Pak. J. Engg. & Appl. Sci. Vol. 3 Jul 2008 (p.33 – 46)
Concession Period
Implementation process
of a BOT-contract