218.763 Advanced Construction Law

Learning Outcomes

1. Draft new and amend existing terms of engagement of construction professionals and demonstrate an understanding of the roles of construction professionals and ethics.
2. Discuss and explain the dual roles of construction professionals as agent and independent certifier and liabilities of construction professionals and contractors including reasonable skill and care obligations and fitness for purpose obligations.
3. Draft new and amend standard construction contracts and subcontracts suited for Commonwealth jurisdictions. In so doing, clearly demonstrate knowledge of legal principles on formation of contracts including the legal implications of different procurement and tendering methods.
4. Discuss, explain and apply knowledge of principles of construction law and construction contracts including those relating to time, programmes, delays, and adjustments of time, payment including retentions, quality obligations, nominated and domestic subcontracting, and termination provisions.
5. Review and evaluate alternative dispute resolution methods such as negotiation, mediation, adjudication, and arbitration.

Assignment 1: Professional Engineering Consultancy Services Contract

1. Background

1.1  Typically clients in the construction industry enter into construction contracts with contractors on published standard terms of construction contracts such as (in New Zealand) the New Zealand Standards contract NZS 3910:2013.

1.2  Under a traditional procurement method, the client would additionally also have separate professional consultancy services contracts with construction professionals such as the quantity surveyor, engineer, architect, or project management consultant.

2. Professional consultancy services contracts

2.1  Obtain and read commonly published consultancy contracts for the appointment of the consultants (eg quantity surveyors, engineers, architects, and project management consultants) in New Zealand and overseas, observing the different drafting approaches adopted by the drafters.

2.2  Professional quantity surveying services: For many years the New Zealand Institute of Quantity Surveyors (NZIQS) published two quantity surveying consultancy services contracts Ð a full version and a short form. These have now been consolidated into a single contract formatted and published in 2018 as a fillable pdf document. You can download it here: https://www.nziqs.co.nz/Resources-Tools/NZIQS-Resources/Contract-QS-Consultancy-Services. This contract is accredited as a ÔClear English StandardÕ document by the Plain Language Commission, UK. This was a product of work done primarily with two students at Massey who did this course.

2.3  Professional engineering services: The engineering consultancy services contracts used in New Zealand are currently published in different versions – a full version and a short form. They are called the ÔLong Form Agreement for Consultancy EngagementÕ published in 2017 and the ÔShort Form Agreement for Consultancy EngagementÕ published in 2019. They may be downloaded under the Engineering New Zealand website here: https://www.engineeringnz.org/engineer-tools/engineering-documents/contracts/

2.4  The New Zealand Institute of Architects (NZIA) also produce their own architectural services contracts.

3. Critical evaluation of the engineering consultancy contracts and the development of a single professional engineering consultancy services contract

3.1  Critically evaluate both the current long and short engineering consultancy contracts published in New Zealand for structure, technical content, and compliance with modern legal drafting principles.

3.2  Then, draft a single consolidated and complete set of standard terms of professional engineering services consultancy contract. Include schedules for listing the services that may be offered. This can be attached within a section of the report or attached as an appendix.

3.3  Your contract must comply with current modern legal drafting principles including a logical structure and the use of modern plain English. The New Zealand Parliamentary Counsel Office drafting guideline may be one source on modern legal drafting guidelines. You may also use other modern legal drafting guidelines from New Zealand or elsewhere.