1. Contract Formation Essentials

  • Law of Contract – essential prerequisites
  • Myths and errors
  • Use of Standard Form Contracts (including exercise on types of Standards and gaps in the standards)
  • Understanding offers, acceptances and invitations to treat ƒƒIdentifying the parties – types of parties and the impact on
  • contract formation
  • Offer vs. Invitation to Treat – what is the difference?
  • Capacity and Delegation (including reference to published recent article on delegation and exceeding authority)
  • Contract vs. Deed
  • Issues with contract formation (including exercise on contractual certainty)
  • WORKSHOP Defining Contract Formation During Negotiation and Battle of the Forms

2. Heads of Agreement – explained and explored

  • What is a Heads of Agreement?
  • Are Heads of Agreement different from a letter of intent, MoU or Letter of Understanding?
  • Types of Heads of Agreement
  • Why use Heads of Agreement?

3. Engaging the market – contractual issues in the tender process

  • The difference between an RFP and an EOI
  • The tender process and contractual liability (using a published article on the most recent legal case on tendering in Australia)
  • The process contract explained and explored
  • Contractual damages and the tender process
  • How to structure RFPs
  • How tenders are assessed and getting the selection right
  • Avoiding risks in the tender process
  • Probity- what it is and why we have it
  • Managing the Procurement.
  • WORKSHOP The Process Contract - Exclusion of Contract and Excluding Liability

4. Intellectual Property

  • The law on IP and who owns what
  • Dealing with IP in contracts
  • Understanding IP ownership and IP licensing.

    5. Liability, Indemnity, Warranties and Insurance

    • Overview of contractual risk
    • Risk in a contractual sense
    • Risk Identification and Management- (including a simulated Risk Identification Workshop)
    • Liability and Limitation / Exclusion of Liability
    • The use of indemnities and tips on negotiation Consequential Loss- What it means
    • Non-contractual risk mitigation tools.
    • WORKSHOP Risk Allocation (participants will work in groups to consider appropriate risk allocation in a dummy project)
    • Transferring Risk
    • Insurance
    • Other mechanisms to meet contractor liabilities, including parent company guarantees, deeds of substitution and indemnity and comfort letters.

    6. Managing contracts through boom and bust

    • Managing contracts through boom and bust – why is it different now?
    • Getting the selection right
    • Understanding contractual rights and mechanisms to manage contractor / subcontractor solvency risk.

      7. Breach of Contract

      • Termination
      • Contractual right to terminate vs. common law right to terminate
      • Termination for convenience. Contractual Damages
      • Types of contractual damages
      • Heads of damage
      • How to assess contractual damages Types of loss explained and explored
      • How to mitigate damages.
      • Dispute Resolution
      • Is litigation the only option?
      • Expert determination vs. mediation – the difference
      • Arbitration vs. litigation.