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Question:

Explain The legal obligations for preparing the tenders.

 

Answer:

The legal obligations for preparing the tenders are as follows:

Tenders are mainly used for the design, tender and documenting a new construction in the building process. So it is quite understood that the tender is the form of a contract and will have the entire obligations as followed under the law of contract (Hillman 2012). The tender is formed under the construction law must have a detailed analysis of all the facts that are noted to the property with the physical conditions as well as the limitations of the construction sites. In the matter of Murphy Corporation Ltd v Acumen Design & Development (Queensland) Pty Ltd (1991) 11 BCL 274 at 280 G N Williams J mentioned the fact that it is apparently not uncommon to the contracts concerning the building industry that are to be executed when the work is done or not.  Where the formal contracts are not executed with the technical specifications, then any of the disputes will have interference from the court.

 

It is quite imperative to note that the change of the technical specifications do not alter the terms under the contract as the change in the design specifications will affect the contractors with their contractual liability (Smith 2013). It may happen that they may not be able to deliver the work within the contracted period. In the matter of Cable (1956) Ltd v Hutcherson Bros Pty Ltd (1969) 123 CLR 143, the observation made explains about the intention of the property who intended to have a package deal with the with the builder who was responsible for all the designs related to the building along with the construction.

So, the legal obligations we have with the tenders is as same as the requirements that are explained under the contractual liabilities. It is expected from the tenders to work with fair dealings with the party concerned so that the god faith do not get violated under the contractual commitments, Hughes Aircraft Systems International v Airservices Australia.

The tender holder is expected to work concerning the implied terms of the contractual agreement, Aust-Pol Engineering Pty Ltd v Australia Maritime Safety Authority.

Since the tenders have the contractual liabilities, it is quite obvious for the holder to pay the compensation for any the damages occurred, Pratt Contractors Ltd v Palmerston North CC.

The disclaimer clauses of the tender documentation and their effectiveness are as followed:

  1. The tender is an invitation to the interested party who wants to enter into the contract with the concerned party.
  2. A process contract is made upon this context that explains the run; less which is similar to that of the contractual obligations. They are as followed:
  3. The formation of the contract must have the legal enforceability.
  4. The either party does not make a breach in the contract.
  5. The contractual breach will be subjected to the damages fulfilled by the concerned party with the form of compensation.

The disclaimer clauses of the tender include some provisions from the Section 45 of the Trade Practices Act 1974 (Cth). The act mentions that under section 45 it is prescribed that there will be no price fixing or the collusive practices that should be carried on in the practice of the leadership. Here, under sec 52 it is strictly mentioned that on any conditions the corporation must not get involved in the activity that is misleading or some act of decisiveness, 52(1). No implication can get limited under the succeeding provisions of the limitation under the sec 52(2). Section 52 may be used in the situation within the contract where there is an allegation of some misleading and deceptive contracts. There are provisions that the adequate care to be taken so that there is no distinction between the aggressive competition as well as any conduct found misleading or adverse to the act.

The disclaimer clauses have a submission to the care that is provided to the nonbinding information. So, when the soil confirmation information is delivered on the basis that without the liability the courts will attribute to the proprietor. When the tendered relies upon the information, George Wimpey & Co Ltd v Territory Enterprises Pty Ltd (1970) 45 ALJR 38;  Morrison-Knudsen International Co Inc v Commonwealth (1972) 46 ALJR 265.

So, according to the trade practice, which is implied in the terms of the agreement, the obligation depends on the fact of the following:

  1. That there must be an existing contractual relationship between the two parties who are interested in entering into the contract.
  2. The goods and the services must be delivered with the corporation of the consumer.
  3. The goods and the services so claimed must be supplied to the business course, with under the good faith and the things

The role of the effective project manager must be such that it provides an effective mode of the regulation in the form of negotiation.

 Concerning the above situation, we must say that the effective role of the project manager must be such that there is proper space for the negotiation and if there is a dispute, then there must be an offer from the part of the project manager (Dickinson 2014).

The project manager must be competent enough to face the legal consequences that can come up in the legal issues. The problem with the negotiation happens with the legal representatives and the dirty politics (Donaldson 2014). So the project manager must be efficient enough to handle such dirty politics and sort the dispute. For example, when the builder deals with the promoters of other architect or the engineer then the matter is expected to be handled by the project manager. The manager must be tactful with the negotiation skills and must be competent enough to deal with the complexity that comes in the way.

Sometimes the project manager must have the competence to make mediation as for this matter since the promoter is having the problem with the working of the tender delivered to them from the part of ECL. Although the Seal Bay is competent enough to provide the timely projects yet some issues arise with the delicate negotiation (Blake et al. 2014). When ECL claims that there is no issue from their part to visit the court on an uncertain prospect, it is the duty of the project manager to sort the things in such manner that there is no need for the application to be made on the legal grounds. The project manager manages the project till the delivery made through after the transaction made; sometimes they have to work with the mediator when there is the issue arising between the promoters as well the ECL.

The use of the experts plays an important role in the facilitate stage of the dispute which can avoid any conflict that may resolve within the party in concern. The duties and the responsibilities can be mentioned as under:

The use of the expert is mainly when the mediation mode is accepted in the initial stage of the dispute so that there is no need for the party to move in any legal forum. The method is taking the conflict that includes the undertaking of the activity with the purpose of promoting in a suitable manner (Fiadjoe 2013). In general, there are no specified rules for the experts since they are expected to work on the faith of the situations and also under the motive of the resolving problem. So the ground rules for the expert are to work under the good faith and with the avoidance of the dirty politics by giving the preference of the act (Nolan-Hale 2013). The experts collaborate with the prospect that they will help the aggrieved party explain the prospective of various disputes by setting a scene similar to their situations so that the party understands what they must do in which situations. There are possibilities that the argument may come up while using the mode of the experts in the mediations as for the matte of Fletcher case. The fact explains the serious dispute of the use of the experts since, after the expert usage, the problem is expected to get resolved which did not happen in the case of Fletcher case.

 

Brian and Eva's Bathroom Blues is the matter which is also related to the dispute of the building facilities and works (Srbová 2013). This case also demonstrates that how the usage of the mediation through the experts helps in identifying the situations and also the misunderstanding that existed between them. After the expert application of Eva, Brian bought such materials that saved the money. They were not supposed to pay in the initial stage because they did not get the assurance that the work will delivered to them on time.

In the matter given here, the fundamental issue is such that ECL will not provide an extra to what they for normal. Hence, the use of the expert was essential to sort the disputes so that there is no need to pay the court fees.

 

References:

Adafin, J., Rotimi, J.O. and Wilkinson, S., 2016. Determining Significant Risks in the Variability between Design-Stage Elemental Cost Plan and Final Tender Sum. Journal of Management in Engineering, p.05016016.

Blake, S., Browne, J. and Sime, S., 2014. A practical approach to alternative dispute resolution. Oxford University Press (UK).

Dickinson, D.L., 2014. Alternative dispute resolution. IZA World of Labor.

Donaldson, L., 2014. Alternative dispute resolution. ADR, Arbitration, and Mediation, p.91.

Fiadjoe, A., 2013. Alternative dispute resolution: a developing world perspective. Routledge.

Hillman, R.A., 2012. The richness of contract law: An analysis and critique of contemporary theories of contract law (Vol. 28). Springer Science & Business Media.

Kelly, D.R., 2016. NASW Law Note: Social Workers and Alternative Dispute Resolution. Social Work, p.sww004.

McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press (UK).

Ndekugri, I. and Rycroft, M., 2014. JCT98 Building Contract: Law and Administration. Routledge.

Nolan-Haley, J., 2013. Alternative Dispute Resolution in a Nutshell, 4th. West Academic.

Smith, R.C., 2013. Estimating and tendering for building work. Routledge.

Srbová, A., 2013, August. Alternative dispute resolution. In INPROFORUM Junior 2008.

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