Contract Writing & Legal Principles
Course Outline
At the completion of this lecture, students will be able to explain:
• How to determine the appropriate law(s) governing your contract
• Key solicitation/tender provisions
• The preparation of the contract/purchase order
• How to prepare and/or issue contracts using the appropriate type of contract
• Key clauses for the contract with the Supplier of Goods and Supplier of Services
• How blanket agreements and contracts work
• EProcurement Contracts
• How to negotiate and write International Contracts
How to determine the appropriate law(s) governing your contract
A. UCC
B. CISG
C. Federal Contract Law
D. Other National Contract Laws
E. Other laws
Key solicitation/tender provisions
A. Description of Requirements (Specification, Statement of Work, Statement of Objectives, Drawings, Bills of Materials, etc
B. Schedule of Bid/Proposal Prices
C. Required Period for Validity of Offer
D. Responsive Offer from Responsible Offeror Requirement
E. Compliance with proposal/bid format, page and other requirements
F. Required Representations and Certifications
G. Evaluation Criteria
H. Warranty Requirements
I. Identification of Authorized Negotiators
J. Others as required by law, regulation, or good business practice
The preparation of the contract/purchase order
A. UCC rules
B. CISG Drafting guidelines
C. Federal Acquisition Regulation Contract Templates
D. Other Contract Law Guidelines
E. Twelve Provisions/Clauses To Always Include in an Agreement
F. A Purchaser’s Checklist for Necessary Terms and Conditions in an Agreement
G. Sixty Practical Contract-Drafting Tips
How to prepare and/or issue contracts using the appropriate type of contract
The difference between fixed-price and cost reimbursable contracts
A. Firm-Fixed-Price
B. Fixed-Price With Economic Price Adjustment
C. Fixed unit price (indefinite delivery and requirements)
D. Time and Materials/Labor Hour
E. Incentive Contracts
F. Reimbursable contracts
G. Other “Exotic” lesser used contracts
Key clauses for the contract with the Supplier of Goods and Supplier of Services (Other Supplier contracts will be addressed if the client desires)
Careful attention should be given to including the following risky/exculpatory terms and conditions:
A. Choice of Law and Forum
B. Disputes
C. Force Majeure (Excuses for Supplier nonperformance---negotiable, but should generally be limited to “Acts of God”.)
D. Method and Time of Inspection and Acceptance
E. Method and Timing of Payment(s)
F. “Indemnification” and “Hold Harmless”
G. Insurance Requirements
H. Claims
I. Intellectual property safeguards with strong penalties for violations
J. Invocation of “Incoterms 2000” by reference
K. Inclusion of warranties, including those for “Fitness for its Intended Purpose” and “Merchantability”
L. Rights of Termination, including damages for breach and Termination for Cause/Default
M. Order of Precedence of Language (for “dual language”contracts)
N. Rights of Reprocurement and Claim for “Excess Costs of Reprocurement”
O. Limitation of Liability
P. Liquidated (and other) Damages
Q. Type of Contract (normally Firm-Fixed-Price)
How blanket agreements and contracts work
A. Difference between agreements and contracts
B. Recommended terms and conditions
EProcurement Contracts
A. Use of Catalogs
B. Use of Electronic Marketplaces
C. Use of Procurement Card and Digital Money
D. Use of Reverse Auctions
E. Use of Electronic Solicitations and Electronic Contracts
F. ERP Systems
Negotiating and Writing International Contracts
A. Cultural differences
B. Language differences
C. Different attitudes toward contracts
D. Lack of understanding of “legalities” in many developing countries
E. The need for “Guanxi”, “Wasta”, or other connections
F. The need for an intermediary
G. The potential for “corruption”
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