Contract Administration & Management

Day 1

Roles and Responsibilities of a Contract Manager

• Drafting skills
  – Formalities, structure and format
  – Drafting with or without precedents

• Commencing the contractual process
  – Relationship building
  – Setting Targets, timelines and periodic review

• Defining expectations
• Project Manager – Outsourcing contracts
  – Role definition and responsibilities

Features of Contract Management

• Contract Management Process
• Contract Administration
• Negotiating and Managing Performance through Service Level Agreements
  – Identify issues to be managed
  – Establish an effective team
  – Lists of services and deliverables expected
  – Importance of having a well-constructed SLA
  – Evaluating and managing contractor performance
  – Developing, implementing and measuring Key Performance

• Indicators to monitor the quality of service
  – Drive business value to meet company’s goals

• Statement of Works
• Change Orders
• Outsourcing Contracts
  – Checklists for IT Outsourcing contracts
  – Services to be performed by vendor
  – Charges e.g. GST
  – Hardware and software
  – Project managers
  – Warranties e.g. performance standards
  – Backup and disaster recovery
  – Exclusion of liabilities
  – Turn-back services
  – Indemnity
  – Confidentiality
  – Force majeure
  – Waiver
  – Assignment
  – Entire agreement
  – Governing law

• Intellectual Property management Issues
  – Patents
  – Trademarks and service marks
  – Confidentiality clauses
  – Copyrights, industrial designs

Enforceability – Is the contract enforceable?

• Offer & Acceptance
  – Invitation to treat e.g. auction and tenders
  – Electronic formation of contract e.g. e-offer or e-acceptance

• The Enforcement of Bargains
  – Consideration
  – The requirement of a benefit/detriment in a contract
  – Rules of consideration in drafting innovative contracts

• Intention to Create Legal Relations
• Capacity to contract
  – Minors
  – Companies
  – Mentally ill persons

• The Contracts (Rights of Third Parties) Act

An Effective Contract Manager’s Essential Negotiation skills

• Clarifying objectives & goals
• Bargaining tools
• Compromising without losing out
• PIOC Harvard Techniques
• Tips for a Successful Negotiation

The Contents of Contract – how to manage?

• Standard form contracts
• Conditions and Warranties
• Complex Terms
• The Suisse Atlantique case
• Identifying fundamental terms and minor terms
• Recognising the practical significance of this distinction as remedies vary
• Express & Implied Terms
• Parol Evidence Rule
• Unconscionable bargains and unreasonable terms of contract
• The incorporation of terms
  – Implication by custom
  – Implication by fact
  – Implication by law

• Interpretation of Terms
  – From literal to contextual interpretation
  – Inadmissible evidence

• Exclusion Clauses
  – Contra proferentum rule
  – Exceptions of negligence liability under the Unfair Contract Terms Act
  – The enforcement mechanism under Statutory restrictions

Day 2

Managing Contract Performance

• Variations to the existing contract – Negotiating variations and potential legal pitfalls
• Extensions and renewals – effective use of extension and renewal clauses, best practices with regard to notices
• Completion of works and original expectations – reviewing contract specifications and matching with performance
• Withdrawing from the contract – understanding the legalities of wrongful withdrawal
• Termination and post-termination actions

The Effective Use of Service Level Agreements

• Measuring performance levels
• Key performance Indicators
• SLA and the substantive Contract between the parties
• Penalties, Charges, Earn back points and Invoice Adjustments

Contract Review and Meetings

• Identifying performance issues
• Constructing an Agenda for a meeting
• Setting out specific roles for participants in the meeting
• Anticipating the positions and expectations of the other party
• Managing the meeting process

Managing Contract Documentation

• Files and records
• Defensive record keeping for evidential purposes
• Version controls and software
• Document sharing and security

Vitiating Factors in a Contract

• Mistake
  – Non est factum
  – Fundamental mistake about contractual document

• Misrepresentation
  – Identifying representations from terms of contract
  – Identifying actionable statements and omissions
  – Silence (non-disclosure) to constitute misrepresentation
  – The three types of fraudulent, negligent and innocent misrepresentation
  – Consequences of misrepresentation
  – Remedies available
  – What is rescission?
  – Damages under Misrepresentation Act
  – Restitution, indemnity and damages at Common Law

• Duress to person and property
  – Illegitimate pressure
  – Voidable contracts

• Undue Influence
  – Voidable contracts

• Illegality
  – Presumption
  – Void contracts at common law
  – Contract in restraint of trades
  – Illegal contracts

Termination of contracts

• Discharge of contracts
  – By performance
  – By agreement
  – By frustration

• • Effects of frustration under Frustrated Contracts Act
  • Money paid or payable
  • Legal impossibility
  • Physical impossibility
  • Impossibility of purpose

• By repudiatory breach
• Self-induced frustration

Construction of the Contract

• Express provision
• Hardship clauses or intervener clauses
• Force majeure

Remedies for the Breach of contract

• Assessment of damages – the compensatory aim
• Obtaining injunctions
• Liquidated damages
• Penalty clauses
• Remoteness of damage under the rule in Hadley v Baxendale
• Speculative damages
• Mitigation of damages
• Specific performance
• Quantum Meruit (for the work done)

Enforcement Methods

• Identifying and evaluating the various strategies in dispute resolution
• Litigation, arbitration and mediation, mini-trials
• Ways to structure efficient dispute resolution clause

This course is ideal for contract managers or persons employed in the role of managing contracts to fulfill their responsibilities in an effective way.