12 August 2020

Anything you say can and will be used against you!

– the paradigm of construction contract management –  

 

This is not only a catch phrase in blockbusters, but also a strategy applied by your contractual partner as soon as he becomes your dispute adversary.

And when digging through 2, 3 or 5 years of contractual correspondence, be sure that he will be able to find something to catch you off guard!

Maybe it is a minute of a meeting where the transcript of your wording is slightly “adapted” to be interpreted as a waiver of a right or claim.

Or maybe it is a commercial proposal during a failed negotiation where you were open to compromise some of your interests in order to assure the continuance of the project.

Or, perhaps it is a letter where you did not expressly cite the relevant contractual clause, or you did not find relevant to mention that you reserve your right to come back to the issue at a later point in the project.

We have seen all these and many more examples in arbitration where the outcome of an entire case can be tailored on such apparently insignificant actions, but which are majorly inclining the balance between loosing or winning the case.

Unfortunately, it is not enough to be right in order to win a case! You also have to prove it! And if you don’t have that mindset (the litigator’s paranoia, as we like to call it) from the beginning of the project, you will soon be vulnerable if a dispute arises.

In these circumstances, management services for any construction project becomes a must-have for any Contractor. Now more than ever, companies need more than just exceptional engineers and project managers to take a project to a successful end.

And interdisciplinary technical-legal teams are the answer in these times. They provide a multilateral perspective, analysing all issues from all sides and weighting risks and opportunities through every step of the way.

In a field where there is a constant seek for lowest cost and highest performance, things will inevitably go wrong at some point and you want to be prepared for that moment.

What can a contract management provider offer you in a construction project?

  1. drafting, revision and management of contractual correspondence that will work in your favour rather than against you later on;
  2. notification and follow-up on open issues with multilateral risk and opportunity analysis from a technical-legal perspective;
  3. PoWs, site visits and meeting attendance for advising on project strategy and day-by-day management of the project;
  4. claims and dispute resolution by a team ready to act and react instantly on any issue with deep knowledge of the project from day one.

How much would you bet that you can successfully take a project to an end without a contract management consultant? Will you risk taking this bet?

 

Cristina Olariu
Business Manager of Oglindă & Partners Law Firm
Coordinator of Construction Contract Management team