TRAINING.

Interpretation and Enforcement of Construction Contracts

Edmonton, Alberta /
Apr 16 - 18, 2019 /
Course Code: 09-0416-2362

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  • Overview
  • Syllabus
  • Instructor
  • Location

Overview

After participating in this course you will be able to:

  • Consider contractor perceptions about interpretation and enforcement issues
  • Apply your knowledge of construction contracts
  • Understand the role of the inspection authority
  • Avoid claims caused by overly strict or untimely interpretation
  • Recognize laxity in interpretation and its consequences

Description
Ambiguous contract documents, improper interpretations, delayed decisions and wrongful enforcements can result in owners not getting their money’s worth and being stuck with costly construction claims. This seminar explores what happens when interpretation and/or enforcement are too strict or too lax, and whether or not there is a correct balance.

Course materials will cover the many details of multi-faceted contract documents and focus on developing your interpretation and enforcement skills that can reduce costs.

Course Outline

  • Enforcement of contracts
  • Structure of construction contracts
  • Contract project administration
  • Claims by contractors / claims by owners
  • Communication
  • Change requests and claims
  • Contract language by the courts
  • Bonding and insurance
  • Understanding delay and productivity claims
  • Dispute resolution

Who Should Attend
Project Engineers and Managers • Contractors • Construction Managers • Designers • Contract Administrators • Owners • Engineering Consultants

More Information

Syllabus

Daily Schedule
8:00 Registration & Coffee (Day 1 only)
8:30 Seminar begins
12:00 Lunch (provided)
4:30 Adjournment

There is a one‐hour lunch break each day in addition to a refreshments and networking break each morning and afternoon. Lunch and refreshments are provided.

Day I

Enforcement of Contracts
(Michael MacKay)

  • Basic principles
  • What is a contract?
  • Enforceability
    • Evidence of intention to be legally bound
    • Agreement as to subject matter
    • Written versus verbal contracts
  • Enforcement – what does it mean?
    • Specific performance versus damages
    • Calculation of damages
    • Limitations on the recovery of damages

Structure of Construction Contracts
(Michael MacKay)

  • The evolution of construction contracts
  • Allocation of risk
  • Fixed price
  • Cost plus
  • Unit price
  • Construction management
  • Design/Build and EPC
  • P3

Bids: Avoiding Interpretation and Enforcement Problems
(Michael MacKay)

  • The tendering process
  • The contractor’s obligations to the owner: the Ron Engineering revolution
  • Obligations of the owner to contractors: M.J.B. Enterprises, Martel Building and Double N Earth Movers
  • Exclusion of liability for owner’s breach of contract: Tercon v British Columbia
  • Bid evaluation; preventing ambiguities; technical evaluation (time, performance); financial evaluation
  • Minimizing the risk of bid disputes

Contract Project Administration
(Stephen O. Revay)

  • Parties to the process
  • Different project delivery mechanisms
  • Relation between the parties
  • Responsibility, risk allocation, and management
  • Record keeping
  • Contract administration: the paper trail, co-ordination, negotiations, payments, changes, inspection/quality control, project close

Workshop
(Stephen O. Revay)

Best Practices for Managing Risk in Construction Contracts
(Stephen O. Revay)

  • What should an owner be on the lookout for
  • What should the contractor be aware of: knowing rights and obligations
  • What should the consultant be aware of
  • Crucial factors to look for in effective contract administration
  • Top tips for managing risk in construction contracts

Day II

Claims by Contractors / Claims by Owners
(Stephen O. Revay)

  • Restricted access/changed conditions: late and/or incomplete drawings or equipment, active interference with the contractor’s means and methods, constructive acceleration, termination and suspension
  • Contractor walks off the job and delays completion: liquidated damages
  • Contractor finishes with deficiencies: cost vs. diminished value claims against design consultants (a developing trend)

Communication
(Stephen O. Revay )

  • Avoiding claims, presenting claims, and getting email under control

Interpretation and Enforcement of Change Requests and Claims
Pricing the Changes, Process of Effecting Changes

  • Introduction
  • Factors affecting pricing of changes
  • Extras and changes
  • Changes in work
  • Resolving disagreements on changes
  • Payment for extras and changes: resolving disputes

Interpretation of Contract Language by the Courts
(Michael MacKay)

  • How do courts interpret contracts?
  • General principles
  • Specific rules
  • Exclusion and limitation of liability clauses
  • Warranty provisions
  • Importance of contractual notice requirements
  • How courts resolve disputes over extras and changes
  • Contractual responses to risk of adverse site conditions
  • Delay claims
  • Contractors’ delay claims against owners
  • Owners’ delay claims against contractors
    • Enforceability of liquidated damages

Workshop
(Michael Mackay)

Day III

Bonding
(Michael MacKay)

  • The parties - principal, surety, and obligee
    • The business of bonding
    • Bondi1ng versus insurance
  • Types of bonds
    • Bid bonds
    • Performance bonds
    • Labour and material payment bonds

Insurance
(Michael MacKay)

  • Insurance requirements of the contract
  • What kind of insurance is available?
  • What does the insurance cover?
  • How to deal with insurance companies

Damage Quantification
(Stephen O. Revay)

  • Pros and cons regarding the various means of quantifying cost
  • Direct and indirect cost / equipment ownership
  • The failings of the total cost approach

Quantification Workshop

Understanding Delay and Productivity Claims
(Stephen O. Revay)

  • Types of delay: means and methods of analysing delay
  • Factors which affect productivity, discussion on different methods of calculating productivity claims(i.e. differential cost method, measured mile approach), estimated cost/industry charts)

Workshop

Dispute Resolution

  • Strengths and weakness of alternate strategies such as negotiation, partnering, mediation, project neutral, arbitration, litigation
  • Discussion on available strategies during and after construction is complete
  • Controlling costs and advisors whilst in the process of resolving disputes

Instructor

Michael MacKay, B.A., LL.B.

Michael MacKay, BA, LLB

Michael MacKay practiced law in Toronto for over 21 years, the last 19 almost exclusively in the field of construction law, and the last 14 at his own firm. He was a member of the Ontario Bar Association’s Construction Law Section’s Executive Committee from 1993 to 2009, and for most of that time co-edited its newsletter “Nuts & Bolts”. He is a frequent contributor to the Construction Law Letter. For over 20 years, he has travelled all across Canada to talk on construction law topics – including a complete construction law course for EPIC.



Steve Revay, FAACE, FCSC, CCP, CFCC

Stephen Revay has been active for the past 40 years in the analysis of progress, productivity and cost on numerous construction projects.

He has prepared or evaluated productivity andschedule analyses, including quantification of claims on construction projects throughout Canada, in the United States, the Middle East, Asia and South America. He has been qualified as an expert witness in both litigation and arbitration. He has acted as both a mediator and as arbitrator on different disputes. Mr. Revay has authored articles for various construction periodicals and conducted numerous seminars on construction disputes to owners and contractors alike. He frequently presents at in-house seminars and is a guest lecturer at the University of Calgary. He is a Past President of Construction Specifications Canada. He was also President of AACE®an association of over 7,500 project control professionals from June 2010 to June 2011.



Venue

To be announced

Although the venue is not officially confirmed, EPIC courses are generally held at the following location(s):

Radisson Hotel Edmonton South
4440 Gateway Blvd.
Edmonton AB  T6H 5C2

Please confirm with EPIC that the venue has been officially confirmed before making any reservations or travel arrangements.

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Fee & Credits
  • 2.1 Continuing Education Units (CEUs)
  • 21 Professional Development Hours (PDHs)
Early Registration Fee:

$1995 + taxes

Fee after March 8, 2019:

$2095 + taxes

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