03. BQS 406 [Standard Forms of Construction Contracts]_Lecture 3.pdf - 4TH YEAR BQS_2ND SEMESTER[BQS 406 STANDARD FORMS OF CONSTRUCTION CONTRACTS

03. BQS 406 [Standard Forms of Construction Contracts]_Lecture 3.pdf

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11/15/2016 1 4 TH YEAR BQS_2 ND SEMESTER [BQS 406] STANDARD FORMS OF CONSTRUCTION CONTRACTS LECTURER: QS. NYAGAH BOORE KITHINJI GRADUATE ASSISTANT: QS. BELIS OTIENO OCHIENG SEMESTER: SEPTEMBER - DECEMBER 2016 1 LECTURE 3: STANDARD FORMS OF CONTRACTS 2 STANDARD FORM OF CONTRACTS What are Standard Forms of Contracts? What is the Historical background of the use of Standard Forms in Kenya? What are the characteristics of a good Standard Form of Contract? What are the parts of Standard Form of Contracts? What are the merits and demerits of Standard Forms of Contracts? 3 STANDARD FORM OF CONTRACTS Contract Choice There is a choice between standard and non-standard forms of contract. If standard forms are chosen, then there is a wide variety to choose from; A) Agreement and Conditions of Contract for Building Works. B) Institution of Civil Engineers FIDIC Contract C) Ministry of Work Standard Form of Contract D) World Bank Standard Form of Contract 4 STANDARD FORM OF CONTRACTS What are Standard Forms of Contracts? A contract between two parties, where the terms and conditions of the contract are set by one of the parties, and the other party has little or no ability to negotiate more favorable terms and is thus placed in a "take it or leave it" position. While these types of contracts are not illegal per se , there exists a very real possibility for unconscionability ( terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power , that they are contrary to good conscience ) . In addition, in the event of an ambiguity, such ambiguity will be resolved contra proferentem against the party drafting the contract language. 5 STANDARD FORM OF CONTRACTS What are Standard Forms of Contracts? Standard Forms of Contract used in the building and civil engineering projects take account of the accumulated wisdom of practitioners within the construction industry. They are usually negotiated by employers, professionals and consultants e.g. the “Green Book” is drafted with the participation of contractors and consultants (KABCEC and AAK) same as to FIDIC (ICE) They are regularly revised through consultation The principle idea of standard contracts is the „balance of power‟ and fairness to the parties 6
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11/15/2016 2 STANDARD FORM OF CONTRACTS History of Standard Forms of Contracts Standard Forms used for building contracts in Kenya base their origin in the UK (United Kingdom) in that the first standard form to be used in East Africa was published in 1965 which was a reflection of the standard form of the Royal British Architects of 1939. The standard form originated in the 17 th Century when design was distinguished from construction.
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