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Task 1

The paper is considered to analyze different aspects of contract administration and it is going to evaluate such aspects through specific segments. In conclusion, it summarizes the points discussed in the paper. This paper is also considered to deal with the concepts of contract administration separately as such creates a basis of clear understanding in order to avoid any confusion in the future.

1.

The General conditions of Contract are considered to be an essential and integral part of the construction contract as these consist of items as well as resources that are needed for project completion as such would not be a part of the finished product as it is turned over to the owner. On the other hand, special conditions of contracts refer to the terms and conditions that sets out certain rights and obligations of parties as such are peculiar to a specific contract. These are necessitated by the instances or situations of specific works and therefore, forms a part of the Contract as these are laid down in Clauses. However, the special conditions of contract need to be read in conjunction with the General Conditions as such would demonstrate the Schedule of Rates along with the specifications of work, drawings and certain other documents and this would be forming part of the Contract. It can be understood through the illustration or an example which specifies that, if a general condition is provided and such has been satisfied prior to the obligation of performance or a duty to act, then it is considered to be laid down as a specific condition as such would be amended after the performance of the act (McNamara and Sepasgozar, 2020). In addition to this, the special conditions of contract are considered to be amended through the general conditions in case of inconsistency as the Special conditions of contract takes precedence over the General conditions in such a situation. It can be explained through another example which specifies that, in case of a contract for construction of residential land if there are no special conditions laid down then such are unconditional, therefore, in case of inconsistency when one of the parties have the risk of being liable for damages due to breach of contract the general conditions would be amended through special conditions as this would be dependent on the specific terms of the contract.

2.

Contract is considered to be a binding agreement that is voluntarily agreed upon by the two parties and such are enforceable in the court of law as per the terms and conditions that are laid down. Therefore, modification of any contractual agreement needs to be agreed upon in writing as the parties need to agree to the changes as such would make the modifications valid and not invalid. Furthermore, the parties to the contract needs new consideration as such is a general proposition of the court. This rule is applicable because the amendment needs to be reasonable and agreed upon as such might determine new rules in the contract. As a result, new consideration should not be avoided by the individuals while amending the Australian standard contractual documents. In addition to this, while amending the contractual agreements the individuals should keep in mind about the changes being totally prospective as such might not have any effect on the contracts that have been entered before the legislation’s effective date. Therefore, in order to avoid such, the change needs to have a retrospective effect as such might help in preventing an ex-post invalidation from the date of the agreement to the weakening of any future performance under the prevalent contractual agreement. Thus, it can be stated that while amending a standard contractual document in Australia the amendments need to be clearly set out and the intention of agreeing to the amendments need to be explicitly stated by the parties to make the amendments effective. Therefore, the prevention of necessary things would allow the contract amendment to be valid (Koc and Gurgun, 2021).

1. General and Special Conditions of Contract

1.

Pari Materia: The principle regarding “Pari Materia” is considered to revolve around two provisions of different statutory instruments as such deals with the same subject matter or it forms part of the similar subject matter (Pari Materia, 2022). The doctrine of “Pari Materia” is supposed to be a useful tool for contract administration as well as interpretation of statutes as it works towards the same objective. However, in spite of such, in selecting one out of several meanings of a word importance should always be given to the context as such is considered to be an essential rule which helps in explaining the expressions and the meanings of the word. Therefore, the context clarifies the meaning of the word in which they appear. The case of Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 discussed the doctrine of “Pari Materia” as a reference from a different case and it was found that the general words could not be read in isolation as the color as well as the content were considered to be derived from the context. Thus, it can be understood that apart from other principles the court recognized this specific doctrine in question as such helped in establishing the contractual right in the case as it was different from the equitable principle which ordered to seek remedy for the failure of performance in the contract. Thus, this was considered to be a relevant discretion concerning law as it led to the establishment or constitution of breach.

2.

Noscitur a sociis: The legal maxim is considered to refer to the meaning of any unclear or ambiguous word and this needs to be determined through the consideration of the words with which it is related to in the context. Thus, the applicability of the rule is considered to be through the rule of interpretation as it is an offshoot rule (Baetens, 2018). It can be elucidated through the case of Codelfa Construction v State Rail Authority (1982) 149 CLR 337 where the Australian contract law case revolved around the approach to contractual construction as it depended upon the maxim as the kind of ambiguity had not been defined properly. Therefore, it was found by the Lower Courts that the current contractual construction in the Australian law was not inconsistent as the ambiguity was not deemed to be pointed out prior to the referring of the surrounding circumstances.

3.

The Mischief Rule: It is considered to be a certain rule that the judges can apply in order to discover the intention. It is implemented in order to cure a defect in the law as the ambiguity in law needs to be resolved. Therefore, it can be stated that, in contract administration the primary objective of the “mischief rule” is to prevent the misuse or abuse of the provisions as it attempts on curing the defect in law (Bray, 2020). It can be observed through the case of SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2016] VSCA 119 where it had been stated that mediation was not considered to be used as a method for resolving the disputes as such was not for the purpose of Security of Payment legislation. It can be understood that the “Mischief Rule” can be applied in this case because the law aimed to cure the defect by resolving the dispute that arose due to mediation for the purpose of Security of Payment legislation. Therefore, the validity of determination was considered to be reviewed and assessed. In addition to this, the case also demonstrated the dispute resolution process was not being taken advantage of by the contractors if they wished to avoid adjudicating disputed variations under the Victorian Act. Therefore, this helped in providing further steps to safeguard the resolution process.

2. Contract Amendments

4.

Contra Proferentem: This particular doctrine is considered to determine the ambiguity in the interpretation of specific term in the contract. The “contra proferentem rule” is supposed to act as a contractual agreement between the two parties as it tends to change or modify the clause in the contract in case of an ambiguous nature subsequently after the decision of the court (Hadi Eslami and Ghanavati, 2019). It can be highlighted through the case of Zhang v ROC Services (NSW) Pty Ltd; [2016] NSWCA 370 where the construction contract dealt with the rules of ambiguity as the construction of the exclusion clause was not supposed to be specific. It was supposed to be similar to the Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 case as the rules of ambiguity were prevalent and such needed to be determined.

5.

Quantum meruit: It is considered to be the name of the legal action that is supposed to be brought in order to recover the compensation for the work done by the labor in case the price has not been fixed. Therefore, it can be stated that, the term is supposed to refer to the individuals for the work and it states that the payment would be based on how much the work has been done. It can frequently be seen as a legal form of equitable compensation or it can also be seen as restitution (Luttrell, Marriott and Di Marco, 2019). For instance, if a party has been receiving unjust services which benefitted them then they should return it to the party that provided the benefit in the first place. The legal maxim is supposed to depict the amount that is deserved by the person providing the work should get such solely based on their work. It can be perceived through the case of Peter Mann & Anor v Paterson Constructions Pty Ltd [2019] HCA 32 where the reasonable value was supposed to be determined for the work that was performed as such could not have exceeded the contract price.

“e-Tendering” is considered to be the process where the usage of digital platforms to request creation or publication or communication is prevalent and this is supposed to create better options in the future as the storage space along with the access and retrieval of files are through the digital medium. Therefore, there are certain advantages associated with it. It is supposed to replace the conventional along with the paper-based tendering method with something that is supposed to be more secure and transparent. Furthermore, it also improves the efficiency by making an effective workforce which is supposed to help in promoting the growth of the business process (Hilmi, Breesam and Saleh, 2019). Thus, it is proved to be less time-consuming. Moreover, the “e-Tendering” process is supposed to offer an extensive range of contractors as it has access to several opportunities. Thus, the process of “e-Tendering” in Contract Administration is supposed to be advantageous as it helps in ensuring a construction contract is implemented, enforced and executed in compliance with the terms of the contract. It can also be understood or noted that, with the growing digital advancements in the world “e-Tendering” helps in increasing efficiency as the individuals do not require any more hard-copies or spreadsheets along with emails as such are time-consuming in the entire procurement processes (Delima and Dachyar, 2020). Consequently, as a result, the process helps in pooling higher quality vendors as the databases are built through the portals which offer comprehensive and across-the-board opportunities. In addition to such, feedback on vendor performance can also be provided through the digital platforms (Weenink, 2022). As a result, the individuals are considered to be comfortable in this type of environment as the vendors compete with each other for the contract and this is beneficial for the companies through the process of “e-Tendering”. This form of technology also offers transparency as well as accountability as the process supervises and monitors everything. It also gives a fair chance to the suppliers as it gives them the opportunity to check-in and find information which is right there in the system (Mali et al., 2020). Hence, it can be stated that such is valuable as it is easy to use. It can be embraced through change and it offers obvious benefit. It is also a simple contract management tool that saves the time and effort of the individual. It is paper-less and the electronic system takes care of everything as the documents can be uploaded and downloaded (Al-Yahya et al., 2018).

Task 2

Conclusion

Therefore, in conclusion, it can be stated that, the aspects of contract administration need to be adhered to as such are essential in protecting the parties in case of any breach in the contract. The above discussion helps in understanding the intricacies involved in contract administration as such are considered to make the contract binding in nature. Therefore, the legal maxims as well as the process of ‘e-Tendering’ creates a basis for analyzing the functioning of a contractual agreement as such is necessary for avoiding breaches. Hence, it can be stated that the individuals while drafting a contractual agreement considers these above-mentioned aspects as the breach would make them liable for compensation. In addition to this, the dos and don’ts in a contract also needs to be taken into consideration as mentioned above since such creates transparency and accountability since the terms and conditions are explicitly stated in order to avoid confusion. Consequently, as a result, the concepts are considered to be elaborated upon for clear comprehension of the subject. Thus, these aspects need to be assessed and kept in mind while understanding contract administration as such is beneficial in the long-run.

References

Al-Yahya, M., Skitmore, M., Bridge, A., Nepal, M.P. and Cattell, D., 2018. E-tendering readiness in construction: an a priori model. International journal of procurement management, 11(5), pp.608-638.

Anon, 2022. Pari Materia. [online] TheFreeDictionary.com. Available at: <https://legal-dictionary.thefreedictionary.com/pari+materia> [Accessed 20 Mar. 2022].

Baetens, F., 2018, July. Ejusdem Generis and Noscitur a Sociis in Municipal and International Law: Interpretative Cross-Fertilisation?. In Between the Lines of the Vienna Convention (pp. 133-160).

Bray, S.L., 2020. The Mischief Rule. Geo. LJ, 109, p.967.

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337.

Delima, P.M. and Dachyar, M., 2020, October. Advancing the E-Tendering Information System to Counter Corruption by Proposing Anti-Corruption SMART Tools. In 2020 3rd International Conference on Applied Engineering (ICAE) (pp. 1-8). IEEE.

Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407.

Hadi Eslami, S.M. and Ghanavati, J., 2019. Contra Proferentem Doctrine. Journal of Comparative Law, 6(1), pp.27-52.

Hilmi, R.R.A.R., Breesam, H.K. and Saleh, A.H., 2019. Readiness for e-tendering in the construction sector-designing a computer programme. Civil Engineering Journal, 5(8), pp.1764-1773.

Koc, K. and Gurgun, A.P., 2021. Ambiguity factors in construction contracts entailing conflicts. Engineering, Construction and Architectural Management.

Luttrell, S., Marriott, S. and Di Marco, M., 2019. Australia: Quantum Meruit and Building Contracts Clarified. Const. L. Int'l, 14, p.32.

Mali, D., Mogaveera, D., Kitawat, P. and Jawwad, M., 2020, May. Blockchain-based e-tendering system. In 2020 4th International Conference on Intelligent Computing and Control Systems (ICICCS) (pp. 357-362). IEEE.

McNamara, A.J. and Sepasgozar, S.M., 2020. Developing a theoretical framework for intelligent contract acceptance. Construction Innovation.

Peter Mann & Anor v Paterson Constructions Pty Ltd [2019] HCA 32.

SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2016] VSCA 119.

Weenink, A., 2022. The use of digital technologies in purchasing and contract management of public organisations (Master's thesis, University of Twente).

Zhang v ROC Services (NSW) Pty Ltd; [2016] NSWCA 370.

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