Tenders and Contracts

15/07/2014 / in / by Jacqui Rudd

Tenders and contracts

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:

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.

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:

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 2^nd 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.

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:

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.

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.

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:

Other services

Training and Resources

Claims and Advisory

Claims and disputes

Training and Resources

08/07/2014 / in / by Jacqui Rudd

Training and resources

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:

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.

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

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:

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.

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.