Instrument - JBCC - Course - 5-6 April 2011-Durban

Short Course onConstruction Lawwith particular reference to theJBCC 2000 Series of Contractsin particular the application ofJBCC Principal Building Agreements Edition 5 (2007) and Edition 4.1 (2005),JBCC Nominated / Selected Subcontract Agreements Edition 5 (2007) and Edition 4.1 (2005),MBSA Domestic Subcontract Agreement Edition 5 (2008) and Edition 4.1 (2005)Venue:Durban Country Club - Isaiah Ntshangase Road, DurbanCourse Dates:5 - 6 April 2011

OverviewThe construction industry is becoming ever more competitive anddemanding. It is no longer sufficient for practitioners to understandthe technicalities of their field. In addition to understanding thetechnicalities, construction practitioners are required to understandthe legal framework within which they operate.Every member of the construction team should have anunderstanding of contractual issues, the law regulating claims, thelaw regulating negligence and other legal issues. In an industry that isseeing increased insolvencies, increasing claims and numerousdisputes, the importance of a sound understanding of the legalbackground cannot be underestimated. For, as many constructionprofessionals understand, the business of construction is not so muchthe business of completing works as it is the business of managingmoney and controlling risk. A thorough understanding of the legalframework provides the key both to successful money managementand to reliable risk management.Most construction players have encountered the law during thecourse of their work, yet few have the competitive advantage gainedfrom a comprehensive understanding of the law. In order to meet theneeds of this sector, Instrument Property Consultants has designedan in-depth, course on construction and engineering law.The course is aimed at all levels of construction personnel who havehad little or no formal training in construction law. The course willcover all key areas of construction law, in an informative, interactiveand educational manner.WorkshopsSessions will include workshops that will be designed to: meet the needs of those who have no formal legal training butwho do have an understanding of the constructionenvironment. meet the needs of those who have legal training, but who donot have experience in the construction environment. cover areas where disputes and conflict often arise. cover case studies based on practical experiences and real lifescenarios allow for maximum communication between presenters anddelegates and amongst the delegates.Standard ContractsThis course will be designed around the JBCC 2000 suite ofdocuments, in particular the JBCC Principal Building AgreementsEdition 5 (2007) and Edition 4.1 (2005), the Nominated / SelectedSubcontract Agreements Edition 5 (2007) and Edition 4.1 (2005) andthe MBSA Domestic Subcontract Agreement Edition 4.1 (2005) andEdition 5 (2008).Presenters will use this contract to illustrate issues and to show howthe standard contract deals with important issues. Practical exercisesand group exercises will be designed around these contracts. In orderto gain the full benefit of this course, delegates will be expected tohave a copy of the contract available.Course NotesCore Notes designed for each section will be made available to theDelegates at registration.Special FeaturesA special feature of the seminar will be the in debt analysis of eventsthat impact on the JBCC/MBSA Subcontracts and the possibleremedies/claims for cost and time, that the Main Contractor will havein terms of the JBCC PBA. The importance of sound procurement ofSubcontracts and possible pitfalls with current appointment methods.Another special feature will be the detail comparison between theJBCC 2005 Agreements and the JBCC 2007 Agreements and theimpact of such changes.Course ContentThe sessions will deal with the various Topics as listed below, withreference to the applicable clauses in the JBCC. In the varioussessions a number of frequently encountered practical problems willbe dealt with. These sessions will cover a wide range of issues fromtender stage, through execution, commissioning and beyond finalcompletion.Instructor : Toit Malan (in conjunction with Rudolf van Graan)Educational Qualifications B.Eng (Civil) University of Stellenbosch (1984-1987)M.Eng (Project Management) University of Stellenbosch (19881990)LLB (University of Natal, Unisa and Western Cape) 1994Higher Diploma Specialisation in Construction Law (Associationof Arbitrators) 1999Certificate Sports Law (University of Cape Town; AngliaPolytechnic University, UK) (2000)Certificate Arbitration Skills (The Arbitration Forum) (2001)Certificate Construction Management (The SA ConstructionManagement Programme) (2001)Commenced a Ph.D in Design and Construction Disruption andDelay ClaimsExperience Lecturing at Stellenbosch University - Engineering Managementand Construction and Engineering Law.(also Cape Technikon and Peninsula Technikon)Project Management of multi-disciplinary projects.Advice and Acts for a wide range of Clients including owners,developers, lawyers, consortia, joint ventures, governmentdepartments, contractors, consultants, subcontractors, suppliers,financiers and insurers on a wide range of Engineering andBuilding Construction Projects including residential, commercial,retail, industrial and infrastructureFront-end: – By using legal risk management instruments,ensuring that risk be allocated to party best able to control it.Risk clearly defined to minimize disputes and enhance pro-activerisk management. Prepare, draft, negotiate and reviewDocuments or Agreements on behalf of clients and;Back-end: – By participating in Claims and Disputes on behalf ofor representing an Affected Party or act as Mediator orAdjudicator.CPD PointsPersons registered with ECSA shall receive 2 CPD points uponcompletion of the course.

Topic 1 – Requirements for a Valid ContractTopic 5 – Penalties, Damages and TerminationMost litigation concerns the issue whether a Valid Contract wasconcluded and if so, the Interpretation of its terms.The focus will be on the different forms of agreements and penaltyand/or damages provisions.Issues to be covered include: Letters of Intent Offer and Acceptance Agreement between Parties Capacity to Act Formalities Non Variation Clauses Rules of Interpretation Interpretation of Contractual Terms Express and Implied Terms General Principles of ContractIssues to be covered include: Penalties Act Penalties Reduction of Penalty LAD’s Damages TerminationTopic 2 – The Role of Agents and Design ResponsibilityThe Principal Agent fulfils an extremely important role in theexecution of the contract. The dual function includes the role ofindependent certifier on the one hand and Employer’s Agent onother hand. The professional responsibilities of the other agents,including design, supervision, contract administration and financialinvolvement are some.Issue to be covered include: Principal Agent Architects Quantity Surveyors Engineers Design Supervision Professional Services AgreementsTopic 3 – ProgrammeThe various contractual obligations will be examined to determinethe requirements and status of the Programme and InformationRequired Schedule.Issue to be covered include: Commencement Dates Possession Access Construction Completion Dates Contractual Completion Dates Sectional Completion Dates Critical Path Approval of Programme AccelerationTopic 6 – Prevention PrincipleThe Prevention Principle will be discussed and its effect on completionand penalties.Issues to be covered include: Defining the Prevention Principle Historic Overview Implied and Express Terms Requirements for the Prevention Principle Scope of Prevention Principle in standard contracts Prevention Principle as it relates to time at large and penaltiesTopic 7 –Claim ProcedureThe procedure for submitting claims and the effect if not adhered to byclaimants will be perused.Issues to be covered include: Claim procedure clauses Notice periods Time Barring The programmeTopic 8 – Ownership of FloatOwnership of float and the effect thereof relating to claims forextension of time and compensation.Issues to be covered include: Defining float Case law overview Float and extension of timeTopic 9 – Concurrent DelaysTopic 4 – Extension of TimeThe focus will be on allocation of risk between the parties forcircumstances or events that may cause a delay to progress of theworks.Issues to be covered include: Employer’s Risk Events Contractor’s Risk Events Neutral Risk Events Entitlements to EoTThe focus will be on concurrent delays as it is one of the mostcontentious issues in the determination of extension of time andrecoverable prolongation compensation.Issues to be covered include: Contractual provisions Defining concurrency Concurrency relating to Extension of time Concurrency relating to Compensation

Topic 10 – Compensation for ProlongationTopic 13 – Risk and InsurancesThe focus will be the on the recoverability of compensation forprolongation, which depends on the terms of the contract and thecause of the prolongation.The focus will be on the insurances that the parties are contractuallyobliged to effect. Different forms of insurance will be considered and abrief overview of each provided.Issues to be covered include: Contractual provisions relating to Compensation forProlongation Contractor Risk Events Employer Risk Events Heads of ClaimIssues to be covered include: Contractor’s All Risk Insurance Public Liability Insurance SASRIA Delay Insurance Contractors’ Plant Professional Indemnity Principal Controlled Insurance IndemnificationsTopic 11 - PaymentThe procedures and contractual provisions regarding payment willbe discussed.Issues to be covered include: Contractual provisions Payment Certificates Liquid documents Variations Valuations Ownership of MaterialsTopic 12 – Commencement and CompletionThe focus will be on the requirements and implications of thevarious stages of completion.Issues to be covered include: Commencement DateInterim CompletionPractical CompletionWorks CompletionFinal CompletionSectional CompletionCertificates of CompletionLatent Defect LiabilityTopic 14 - Security and GuaranteesThe various forms of security available to both employer andcontractor will be discussed. We consider the various legal andfinancial instruments available to transfer risk.Issues to be covered include: Performance guarantees Payment guarantees Advance Payment Retention money The builders’ lien Warranty CessionTopic 15 – Alternative Dispute ResolutionThe focus will be on the different forms of dispute resolution,advantages and disadvantages of each, the procedures to be followedand the legal rules to be complied with.Issues to be covered include: Claims determination Mediation Adjudication Arbitration Litigation