Nowadays not only do we rely on our commercial and sales staff to hit that bottom line but we expect our engineers and project teams to play their part too - not only through their engineering and management skills but by behaving in a commercially minded way in their dealings with their counterparts in customer or supplier organisations. This means understanding, amongst other things, the issues surrounding the commencement of work ahead of contract, having a clear contract baseline, recognising the broader implications of contract change, the need for timeliness and the consequences of failing to meet the contracted timetable. This practical one-day programme has been designed specifically to give engineers, project staff and others just that understanding. The course is designed principally to provide engineers and project staff with an appreciation of contractual obligations, liabilities, rights and remedies so that they understand the implications of their actions. It is also suitable for business development staff who are negotiating contracts on behalf of the business. The main focus of the day is on creating an awareness of when a situation may have commercial implications that would harm an organisation's business interests if not recognised and handled appropriately and how taking a positive but more commercial approach to those situations can lead to a more positive outcome for the business. As well as providing an understanding of the commercial imperatives the day also focuses on specific areas affecting engineers and project staff, such as the recognition and management of change, the risks when working outside the contract and managing delays in contracts. The course identifies the different remedies that may apply according to the reasons for the delay and provides some thoughts on pushing back should such situations arise. On completion of this programme the participants will: appreciate the need for contractual controls and will have a better understanding of their relevance and how they can be applied, particularly the issues of starting work ahead of contract, implementing changes and inadvertently creating a binding contract by their behaviour; have gained an understanding of the terminology and procedural issues pertaining to contracting within a programme; and be more commercially aware and better equipped for their roles. 1 Basic contract law - bidding and contract formation Purpose of a contract Contract formation - the key elements required to create a legally binding agreement Completeness and enforceability Express and implied terms Conditions v warranties The use of, and issues arising from, standard forms of sale and purchase Use of 'subject to contract' Letters of intent Authority to commit 2 Change management Recognising changes to a contracted requirement Pricing change Implementation and management of change 3 Key contracting terms and conditions By the end of this module participants will be able to identify the key principles associated with: Pricing Getting paid and retaining payment Cashflow Delivery and acceptance Programme delaysExamining some reasons for non-performance...Customer failureContractor's failureNo fault delays ... and the consequences of non-performance: Damages claimsLiquidated damagesForce majeureContinued performance Waiver clauses and recent case law Use of best/reasonable endeavours Contract termination 4 Warranties, indemnities and liability Express and implied warranties Limiting liability 5 Protection of information Forms of intellectual property Background/foreground intellectual property Marking intellectual property Intellectual property rights Copyright Software Confidentiality agreements Internet
This very practical two-day workshop analyses the content and implications of key MoD terms and conditions of contract. The programme explains the principles and terminology of the contractual aspects of defence procurement as well as considering a number of relevant policies and initiatives. The course covers key components, constructs and methodologies associated with any commercial venture entered into with the UK MoD. Starting at the MoD organisational level the workshop sets the scene by looking at the acquisition process and organisation, detailing the various roles and responsibilities of MoD personnel. The workshop provides an in-depth examination of MoD DEFCONs and many narrative terms, setting them in the context of the organisation and its structures. The workshop helps participants to gain an understanding of the content and purpose of the range of MoD DEFCONs and narrative conditions commonly used throughout the acquisition lifecycle. It includes a review of Part 2 of the Defence Reform Act 2014 regarding Single Source Pricing, which comes into effect in 2015 and is already starting to be applied to significant contracts. On completion of this programme the participants will understand the terminology associated with the MoD terms and conditions of contract and will have an accurate view of their relevance, usage and their legal basis and how they can affect contractual and commercial decision-making. They will have gained an insight into defence acquisition contracting and they will be more commercially aware. DAY ONE 1 The commercial environment Key roles and responsibilities of the MoD organisations at the heart of the acquisition process 2 Tendering to MoD An appraisal of some of the obligations placed upon contractors when they are submitting a proposal to the MoD pre-contract 3 Standardised contracting MoD have introduced non-negotiable standardised contracts for certain levels of procurement. This section considers their use and relevance to defence contracting 4 Pricing, profit, post-costing and payment The parameters specific to a costing structure and the differences between competitive and non-competitive bidding The role of the QMAC, the profit formula, the requirements for equality of information and post-costing Different types of pricing and issues surrounding payment 5 Defence Reform Act - Single Source Pricing Single Source Pricing under Part 2 of the new Defence Reform Act Changes from the existing position, how contractors are affected and the compliance regime that accompanies the new requirements 6 Delivery and acceptance Specific requirements and the significance and impact of failing to meet them Acceptance plans Non-performance and the remedies that may be applied by the Customer - breach of contract, liquidated damages and force majeure DAY TWO 7 Protection of information and IPR Contractor's and MoD's rights to own and use information How to identify background and foreground intellectual property Technical information and copyright in documentation and software How to protect IPR at the various stages of the bidding and contracting process 8 Defence Transformation and Defence Commercial Directorate Widening and increasing roles and functions of the Defence Commercial Directorate Background to the Defence Reform Act 2014 9 Legal requirements Terms used in MoD contracts to reflect basic legal requirements Records and materials required for MOD contracts and therefore the obligations, responsibilities and liabilities that a company undertakes when it accepts these conditions Overseas activities 10 Subcontracting and flowdown Understanding the constructs required by the MoD for subcontracting Which terms must be flowed down to the subcontractor and which are discretionary 11 Termination Termination of a contract for default Termination for convenience How to optimise the company's position on termination 12 Warranties and liabilities Obligations and liabilities a company might incur and how they might be mitigated MoD policy on indemnities and limits of liability 13 Electronic contracting environment Electronic forms of contracting Progress toward a fully electronic contracting environment
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