Many project construction disputes have their origin in:
1. Inadequate initial design;
2. Employers adding Special Conditions which are unnecessarily draconian and grossly unfair to the
contractor; or
3. The contractor, when tendering, introducing clever tags or amendments designed to enable the contractor to (i) recover for underbidding; (ii) switch all or part of the works onto a “cost plus” basis in circumstances when that would not normally be permitted to happen; and (iii) in other ways, lay the ground for a “claim based” mentality.
It has become fashionable to endeavour to soften the impact of these tensions through concepts such as partnering, alliancing and sharing in cost savings, whereas a well-drawn contract which correctly and clearly indentifies the respective risks taken by the parties may be adequate or even better placed to achieve the same objective.
The thrust of this paper is to identify these common causes of disputes and how to anticipate and address them in the contract in a constructive manner. The discussion will include a number of suggestions and describe the manner in which they have worked in practice and can work alongside the better-known standard forms of contract.