Five of the Worst Scope Drafting Errors

Drafting scope documents for any construction project can be daunting, especially when faced with a blank page. At Procur3d it’s a scenario we’re familiar with in construction procurement and whilst we believe there’s both an art and science to drafting good scope documents for the contract, we also like to share some of the common frustrations we come across when supporting our clients. Here’s our top 5; see if you can relate to these!

1.Let designers be designers:

Construction contracts go through many phases and can involve many stakeholders. Being able to communicate the contract strategy with those stakeholders is key, especially when the contract strategy requires them to relinquish their control over the design. With design and build contracts ever present within the industry, we find a common issue when drafting scope documents is that some contributing authors consider it still to be their design and in doing so they specify requirements that prohibits any contractor/consultant from being able to design anything but the stakeholders solution. Whilst for some projects this may be a necessity, often it is not. This approach can lead to curbing innovation within the supply chain, suboptimal delivery solutions, increased tender prices and contractual complications in relation to design responsibility for errors. In many instances an output specification is a much more appropriate solution.

2. Management plan syndrome:

Most projects require careful management with procedures, data and reporting key to understand a project’s performance. In the mobilisation stages of a construction project, we find many clients are keen to ensure the Contractor has sufficient plans and procedures in place to ensure the Contractor is organised to succeed. On the face of it there is nothing wrong with this approach, however we regularly find that 1) our client’s scope authors haven’t had the time to coordinate their approaches, resulting in duplicated content in management plans, 2) overload the Contractor to produce management plans within the first few weeks of the contract and 3) do not recognise the subsequent pressure on the Client’s team to review and approve the information received from the Contractor to avoid delaying to the project.

Without due care and consideration to coordinating these requirements it can lead to increased project costs, poor initial Contractor performance and a reluctance for SMEs to bid for the works owing to the heightened administrative burden.?

3.Impossible constraints: Constraints are key to any contract and in construction they’re important to defining the way in which something must be built. Construction projects often require many consents resulting in further constraints, some of which are highly unpredictable. Where we see problems emerging with the drafting, relates to the interoperability of these constraints. A very common problem associated with constraints is the working hours requirements coupled with access procedures. Often these can conflict with consents requirements (whether that is at planning stage or via local stakeholder agreements). Not analysing your documents correctly can cause conflict, often resulting in unexpected delays and increased costs.

?4.To be agreed…: We see this statement regularly in contracts and for some contracts this may be an appropriate solution, for others however, the phrase is used inappropriately where authors aren’t sure what they want the Contractor to do. The problem with the use of this phrase is that it relies heavily on the good will of all the parties and that the Contractor has priced/programmed for what the Client will eventually agree to. We see these types of clauses as prone to dispute and an area of commercial risk.

?5.Whose scope is it anyway? Last, but not certainly least, is the persistent ambiguity regarding contract interfaces. We’ve worked on many projects in which the success of the scheme relies on multiple parties delivering discrete sections of the works. What’s not always so clear is how those parties works together and what progressively needs to be delivered to ensure all parties are aligned. A recent major project provides a good example whereby Contractor A (Civils) was told to handover to Contractor B (Mechanical & Electrical) by a certain date. Contractor B was heavily reliant on receiving Contractor A’s design in advance of the handover, to ensure that Contractor B could hit the ground running. However, the contract only focused on the physical interface of handing over the site and did not require Contractor A to share its design by a certain date. As a result, the interface failed resulting in delay and additional cost the client.

There are many more examples to the above and we recognise that specific project conditions can cause unique circumstances, but hopefully the above provides clients with an insight to the art (and science) of drafting good contract/scope documents. If you’d like to hear more from our construction procurement series, then get in touch through our various social media channels ??:

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