Tenders and Contracts

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Tenders and contracts


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Prodest specialises in providing hands-on support in tendering and contract negotiations. We understand the dynamics and sensitivities when competitively tendering for different types of work across a wide range of industries and delivery models. Our services include:

Contract Risk Assessment

We can assess a suite of tender documents to identify your legal, commercial, scope and pricing risks and advise how to address them when preparing your tender and your tender submission. Examples include:

NEWCASTLE HOSPITAL

Prodest performed a detailed risk review for a construction contractor tendering to build a new Medical Services Building at Newcastle Hospital under GC21. The contractor’s work involved integrating separate design specifications for the architectural, mechanical, electrical, hydraulic and security elements, and providing an overall performance guarantee for the completed facility. Prodest provided advice on scope, pricing and program allowances and qualifications to address the risks presented by inconsistencies between specifications, preliminary works by others, the decommissioning and re-use of existing equipment and multiple client dependencies.

DEPT. OF DEFENCE - HMAS STIRLING REDEVELOPMENT

 We provided a construction contractor with a detailed clause-by-clause report on the risks under the Department of Defence’s Managing Contractor Contract (MCC-1 2003). The report compared the Managing Contractor’s risks in relation to: design, delivery, quality, remuneration, completion, management control and property damage with the risks typically assumed by a D&C contractor or EPCM consultant.

Tender Submissions

We can prepare the commercial/legal comments for your tender submissions. We are highly flexible. Depending on your needs, we can prepare a ‘first pass’ submission for your legal/commercial manager to take forward, or we can work seamlessly as part of your tendering team, liaising with your commercial, legal, marketing and technical people to prepare the final submission. Typically, we would prepare two initial deliverables:

  • a review which identifies the legal, commercial, scope and pricing risks and suggests possible mitigation options
  • a draft set of tender comments with any proposed contract amendments firmly supported by rationale

The tender comments would then go through a number of revisions in consultation with your team. The final result is a compelling submission that dovetails with your chosen tender strategy and risk mitigation measures.

Examples include:

SNOWY 2.0

Prodest advised a bidder for the E&M Works for the Snowy 2.0 Project on its liability exposures and interface risks under the draft EPC Turnkey Contract (modified FIDIC 2nd Edition 2017). The assignment included preparing tabulated tender comments and drafting contract amendments to address: limitation of liability, consequential loss, liquidated damages, indemnity, latent defects and insurance.

WOODSIDE - KARRATHA LIFE EXTENSION PROJECT

Prodest prepared the commercial tender response and negotiated contract terms with WorleyParsons (on behalf of Woodside Energy) for the supply of power and distribution transformers for the upgrade of the electrical distribution system at Karratha.

Contract Negotiations

We have extensive experience in contract negotiation.  We think laterally.  We are able to articulate your preferred position across the table with robust, persuasive argument. We can help set priorities and recommend strategies aimed at achieving the best possible terms.  Our experience with operations often helps us find practical ways to circumvent obstacles.  Recent contracts we have negotiated include:

SYDNEY METRO - LINE-WIDE WORKS

Prodest advised two firms negotiating a consultancy services agreement with a bidder for the >$1bn Line-wide Works contract for station infrastructure for the Sydney Metro Project.

NORTH WEST RAIL LINK – SVC CIVIL WORKS

Prodest represented two consulting firms negotiating an agreement to provide detailed design and construction phase services for one of the D&C consortia bidding for the $340m NWRL Stage 2 surface and viaduct civil (SVC) works. The assignment also included advising the D&C consortium how to address its scope, pricing and program risks under the Project Deed arising from third party interfaces, design coordination obligations, and certification/approval risks.

NORTHCONNEX

Prodest represented a JV of three consulting firms negotiating an agreement to provide detailed design and construction phase services for one of the consortia bidding for the $2.5bn D&C contract for the NorthConnex (F3-M2 link) project.

For more examples of the experience we have negotiating contracts, please click here:

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Please contact us for more information about how we can help you with a tender submission, a contract review or a negotiation.



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Training and resources


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Prodest provides staff training tailored to our clients’ particular industry, products and services. We also provide a range of guidelines and tools, including contract risk management guidelines, tender procedures, and pro-forma project contract/commercial documentation.

 

Training and Guidelines

We share our experience and know-how through practical training courses tailored to suit your needs and help your staff perform their jobs better.

We train staff involved in winning and performing work – engineers, project managers, bid managers, estimators, programmers, commercial managers, finance personnel and lawyers. We also provide guidance materials in contract risk management.

Examples include:

CONTRACT RISK MANAGEMENT

Principles of risk allocation under different project delivery models, the profit drivers balancing the risks inherent in each, contract formation risks, rationales for limiting liability, and the interplay of liability and insurance.

Recent assignment: Prodest provided training in ‘Contract Risk Management’ and prepared a comprehensive set of contract guidelines for technical and commercial employees of a manufacturer of HV power equipment. The guidelines set out the preferred positions and supporting arguments in relation to 31 issues commonly addressed in contracts for supply/supply and installation.

SCOPE OF WORK

Defining and limiting your scope of work, how to retain savings through value engineering, how to tender to functional specifications with proprietary equipment/designs.

Recent assignments: Prodest has provided half-day training sessions in ‘Improving Returns through Better Scope Definition’ for companies involved in:

  • Power plant supply and maintenance
  • Construction and maintenance services
  • Communication network installation

CONTRACTING PRINCIPLES

Guidelines to help your team respond to clauses commonly encountered in draft contracts and secure the protections you need. The guidelines can be tailored to include your company’s preferred positions, the rationales underpinning them, and fall-back positions where appropriate.

 

Tools and Resources

We develop tender and contracting procedures from scratch, or enhance your existing systems. We can develop documentation to improve outcomes and efficiency. Examples include:

TENDER REVIEW AND APPROVAL PROCEDURES

Go/No-go and Pre-submission tender approval criteria that improve your management’s confidence that technical, commercial and legal due diligence has been co-ordinated in addressing issues raised by the tender.

DOCUMENTATION

Pro-forma company standard and project specific documents tailored to your business/project.

Recent assignments:

  • Back-to-back subcontracts to Department of Defence contract HC-1 2003 with eight variants tailored to pass through provisions that apply only to particular types of work or equipment.
  • Pro-forma Joint Venture Agreements for consulting services with variants for (i) separate scopes of work, and (ii) integrated team services.
  • Standard Conditions of Sale for a transformer manufacturer with variants for (i) supply only (ii) supply and install (iii) supply of services, and (iv) short conditions of sale.

Please contact us for more information about how we can help improve your organisation’s systems and skills or provide guidelines and tools that will help your team work smarter.


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Claims and Advisory


“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”

Abraham Lincoln

 

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Claims

Living with projects from conception to close out, we have a deep understanding of day-to-day operational issues and how to navigate them.

  • We can help you with contract interpretation and administration.
  • We can train your staff in how to prepare claims.
  • We help manage claims by and against your company.
  • We have extensive experience managing external lawyers and experts.

We provide hands-on, commercially pragmatic advice which aims to resolve problems before they go ‘legal’ and achieve outcomes that best serve your company’s broader interests.

And, if the situation demands, we are able to call on input from the very best experts in their fields, including law, insurance, forensic accounting and programming.

Examples:

AUSTRALIA PACIFIC LNG PROJECT

Management of variations claims for a major systems supplier to the upstream portion of the Australia Pacific LNG Project. The assignment involved the identification, development and presentation of hundreds of variations under a $100m-plus fixed-price contract, the co-ordination of input from staff and external legal and technical experts and face-to-face negotiations. An amicable resolution was reached without resorting to formal disputation, and the supplier continues as a valued participant in the project.

BOYNE SMELTER UPGRADE

Management of a dispute between a construction services contractor and Rio Tinto arising from substantial changes to working conditions on a $23m fixed price contract for the repair and upgrade of the crane runway at Boyne Island smelter. The contractor’s variations claims were articulated in terms of the contract and facts ‘on the ground’ and an amicable resolution was achieved without damaging the ongoing relationship.

Advisory

Prodest provides Boards, CEOs and senior management with practical help to improve business and project outcomes.

The experience we have working as part of the management team in similar companies enables us to identify key issues quickly and find workable solutions that address internal and external factors.

  • We advise on improving tender procedures including the substantive and functional inputs.
  • We perform contract commercial audits.
  • We provide forward looking reporting metrics to facilitate early intervention and improve the accuracy of forecasts.
  • We can help implement solutions for a particular project or across your organisation.

Please contact us for more information.

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