Owner In-House Counsel Concerns in Large Construction Contracts

Abstract

When an owner contracts for a new large energy infrastructure project in Canada there are many issues they need to consider before, during and after the contract has been signed. In-house counsel can play a vital role in helping project teams achieve the desired outcome of an on time and on budget project, but only if they are diligent and involved long before a contract is ever signed. This paper will outline some of the major concerns an owner should turn their mind to in the contracting process. In Canada, there is a very well-developed body of law on the Invitation to Bid process and this will be discussed in comparison with a Request for Proposals process, with pros and cons for each. Risk allocation between the parties and the maturity of the scope of work are also major considerations in determining the correct contract pricing methodology and should also be explored in depth with the project team. Other major issues will be discussed including change orders, recovery plans, liquidated damages, dispute resolution and good faith dealings.

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