Legal Report Construction Essay

The issuer must award the tender to the company that offers the lowest price in comparison to the other companies’ presentations, depending on the steps taken by a firm in the supply of a tender. According to the scenario as it is currently written, the main business has fallen short of this requirement by awarding the tender to a competitor that wasn’t the lowest bidder. The NSW Government also emphasizes that certain procedures should be observed and dealt with before publishing the tender. However, the action will be carried out by a professional (an inspector) who will make sure that all procedures have been followed. According to a publication by Keith Potts (2014, p. 290), it is rendered impossible from contractor to experience difficulties in the application of NEC3 irrespective of their location. Additionally, with the various exceptions included in the law, the core clause of NEC3 hardly demonstrates the essential features that will make it unwise to be applied in a foreign region. The NEC is a straightforward and malleable for of contract designed to meet a common goal. The process has also led to an aspect of damages to the public, raising various opinions about the conduct of the NSW. Similarly, the contractor is likely not to deliver services based on the standards provided by the government. These incidences are likely to occur with regards to the pressure that the contractor is liable to face from the public. Nevertheless, the NSW Government is likely to be held accountable for the damages or inflation that may arise from the activities displayed by the firm that won the tender.

Rule

The NSW Government needs to identify elements of a valid contract in comparison to the activity that was executed by the auditor in issuing the tender. Similarly, there is a need to file a lawsuit to the auditor and AllTrack Ltd with regards to the awarded tender. The primary goal of the process is to reverse the tender and right steps followed by the auditor in awarding the tender. However, a new expert should be assigned these duties in analyzing the various documents that will be presented by the bidding companies. It will play a substantial role in the aspects of minimising risks and applying the right steps in awarding a tender.

The NSW Government will have to request for compensation from the auditor as NoTrack Ltd may opt to file a court case indicating practices of contempt of the law. Such instances may ignite aspects of the vote of no confidence from the public with regards to infrastructure projects that are likely to be implemented. Alternatively, the NSW will have to create an observing committee that will watch the process of issuing tenders and the technology that is being applied in the construction process. It is a strategy that will help in auditing the book of accounts of the firm presented with the mandate of constructing the new light rail network. The practice will also provide a stipulated time frame that the contracted firm will have to adhere to and reduce chances of finishing the contract at a later date as seen with the AllTrack construction company.

Application

The NSW Government will have to review previous incidences and apply similar judgments to the contracted firm. It is a move that will demonstrate the level of dissatisfaction with the services that have been provided by the company. In the long run, the public will appreciate the type of approach that has been applied to correct the actions of the previous firm. The government should also implement the penalty clause that was included in the contract. The act of trying to reclaim these losses can serve as a warning to similar firms. However, the reclaimed income can then be channeled to the renovation services from the transport network. There is an option for the NSW Government to apply the old law which is widely implemented by governments around the world. According to the documentations from High Court in Australia, the penalty doctrine provides that defense of a party breaching a pact if the contract enforces a fee or an alternative mechanism for infringement that exceeds a genuine pre-estimate of damages to the other party caused by the breach.

The government should also issue a mechanism that will help reclaim money to construct the narrowed 30cm from the construction. It will contribute to analyzing the unutilized income and the interpretation of the standards that have been applied in the building of this light rail network. Similarly, a notification can then be offered on the use of the rail system and the span that the network will serve the public. It will also help in documenting the budget that will be used in the maintenance of the rail.

Conclusion

The NSW Government should publish a notice to the public indicating the acts of the breach between the AllTrack Ltd Company and the government. They contacted firm should also be requested to pay for the damages caused and the fines related to the delay of completion of the program. Alternatively, the NSW Government should advertise for the delay in the opening of the rail network requesting for patience from the public regarding the time that the rail will be of use to the public.

An alternative transport route should be designed by the government to help in the smooth running of businesses and transportation services in the country. On the other hand, the contracted firm and the auditor need to serve a sentence, pay fines, or both for acting in contempt of the law. The auditor should be reined in court to respond to the aspect of acting against the stipulated guidelines that were issued by the NSW Government. Deliberate actions of an individual or firm to act against the law is rendered as a criminal offense that will require serving a sentence in jail.

New advertisements should then be published requesting for a new firm to carry out an audit on the AllTrack Ltd firm regarding the services that have been provided and the budget that was used in the construction process. Similarly, a new firm should then be awarded a tender for maintenance of the already constructed rail system.

Question 2

Issue

According to the matters raised by both parties, an instance of delay in signing a contract is a significant problem in the case. AllTrack Ltd will have to provide information that led to the delay in signing an agreement with the other party. It will play a significant role in minimizing penalties that may be issued to them due to their conduct. Both firms need to draft a mechanism of solving the problem and have the letter of Intent implemented. When business operations of another party stall, the accused party will have to offer an explanation that led to the occurrence or take responsibility for the losses that may occur about the business.

An issue of misrepresentation between the parties created the delays in completion of the negotiations. For example, Von Fimerick Pty Ltd may have been issued with false information that then led them to the commencement of business at an early stage. It has then created an incident of late delivery of the product, creating a refusal in the reimbursements of the funds to Von Fimerick from AllTrack Ltd.

An issue of poor communication platforms is also noticed between the parties. It creates an incident of different conclusion from both parties as both sections display issues of misdirection. An amicable solution should be provided that will help resolve the issue and have all parties resolved. The initial LOI should be implemented as per the stipulated directives, and the delivery of the slab tracks can proceed as earlier discussed by the presented parties.

Rule

Application of an arbitrator would help solve the issue and have the agreement applied as earlier discussed by the involved parties. It is an act that will contribute to analyzing the factors of the misunderstanding. According to a publication by Born (2010, p. 89), if a party refuses to comply with disclosure ordered by a tribunal, the concept of remedies and sanctions will arise. Similarly, arbitrators often lack the direct contempt authority of national courts and can hardly impose coercive sanctions. Additionally, arbitration is decided that it should include a board where all parties understand the language that is being used (Wolf, 2011, p. 369). Instances that demonstrate a failure in finding a suitable language, the act of arbitration will not be done.

The AllTrack Ltd should be held liable for the damages that merged during the transaction of the business. There was a lack of sufficient information provided to the Von Fimericy Pty Ltd leaving it to process with the manufacture of the slab tracks. For instance, if a particular time frame were offered in the LOI, an issue of delay would hardly arise, and if so, the manufacturing company would then be held liable for these actions. According to the context of a noncontractual liability and contract, it constitutes of a counter performance for a partial payment by the other party (Bar, 2010, p. 791). It is often applied to a contract with a construction firm on the demolition of a building or contracts for medical treatments. An act of following such projections will then reduce the penalties that may arise if found guilty of creating the delay in delivery.

Application

The involved parties would then seek a court ruling to identify the most appropriate approach that would help solve the problem. Alternatively, the formation of a committee would also provide guidance on the best way that AllTrack Ltd and Von Fimericy Pty Ltd would reach an agreement. Payments for the services rendered by Von Fimericy Pty Ltd would assist in reducing the friction that is arising between these companies. However, if the plaintiff in the scenario is found guilty of late delivery, they would then be asked to pay damages and also refund to the AllTrack Company that would have already been paid.

In case a lawsuit is filed by Von Fimerict Pty Ltd, the issue of delay in delivery is hardly considered in construction projects. The majority of construction projects involve expensive equipment, significant workforce, and tremendous overheads. However, the longer the time of the project, the higher the costs, thus greater potential for litigation. AllTrack Ltd will then have the responsibility of providing a well-planned and complicated schedule that can then be used against the other company. Similarly, there is a need to respect and implement the decisions that may be raised by the arbitration panel or the courts. They are liable in the detection of which party will have to pay for the delays and will also have to bear the increased costs that have been caused by the delay. Lastly, there is a need to follow the right steps as indicated in the LOI. It will then offer ideal information to the other company on the model of business that they were to conduct.

Conclusion

Unfair contract terms can be identified in the transactions that were being carried out by both parties. According to interpretation by Lawson (2011, p. 259), unfair contract terms involve the contexts of a consumer being a natural person in a contract acting for the purposes that can then be regarded as outside the trade, profession, or business. Nevertheless, these terms are highly useful in the aspect of litigation and compliance work. It further offers guidance on the most appropriate penalty that a firm will be issued when found guilty of committing a breach of contract.

On the other hand, AllTrack Ltd will have to apply the directives offered by the arbitration panel thus avoiding further lawsuits. It is considered the most appropriate approach that can be used to reach an agreement with another party. As a general rule applied to any contract, the contractors are often held liable for the foreseeable costs that may be incurred by the owner due to the issues of delay in completion of any project. However, the owners that hardly include a liquidated damages clause in their contracts will be entitled to the actual damages once the foreseeable costs are proven without reasonable certainty.

Question 3

Issue

A series of problems can be identified at the facility. Firstly, the technology used on the rail can be rendered inappropriate as it is the sole cause of the rising problems. The contracted firm may have used complex systems that hardly match with the design of the rail system. It then leaves the users at a high risk of accidents and loss of property in case another failure is detected at the rail. Secondly, the contracted firm did not test the technology after the installation process. A certificate of compliance would then be presented to the NSW Government to prove the credibility of the technology being used on the rail. It would then create an aspect of satisfaction from the government that the technology used on the rail would hardly engineer accidents.

An issue of no alternative safety signs was applied to the rail by the NSW Government during the construction. Alternative symbols would then act as a warning measure to the pedestrians concerning the model of using the rail. This would then have avoided the accident as the pedestrian would be keen on what tools can be operated when using the rail system. Additionally, the NSW Government had to employ more personnel to offer guidance to the people that are using the rail network. This would act a safety measure to the publics that would wish to use the facility. In the long run, the areas along the rail system would also witness a limited number of accidents caused by failures of the train.

Loss of income from the business class is another issue that can be linked to the failures of the light system. Business was in a stall for some time to enable the aspect of controlling traffic along the rail. The retailers then experienced massive losses as the pedestrian had to seek alternative transport measures that would lead them to their destined places. Similarly, the pedestrians then had to seek alternative places that they can purchase essential items leaving the retailers with stock that would have been sold if the rail system was operational.

Rule

The NSW Government has an option of filing a lawsuit against the contracted firm regarding the type of technology used and the failure to test the system after installation. The company should be held guilty of these actions as they left the public exposed to a series of dangers more than once. Jean Holland Ltd, should then demonstrate the other contracts that have used a similar technology and why this particular time they are experiencing multiple failures.

The Government should also issue warnings to the pedestrians on the locations that they could use their phones. Pedestrians should also be provided with designated paths that they must use and have limited contact with the rails. However, these pedestrians should also have identified places that they should board and highlight from the train to minimise the aspect of accidents. However, if the pedestrian is found to have violated traffic rules and is involved in an accident, no compensation will be issued by the government. Alternatively, violation of the traffic rules but not an accident occurs, the pedestrian will then have to serve a sentence, pay a fine, or both.

Application

The government should then initiate a sensitization program that will guide the public on the best way to use the rail system. The practice can be done through advertisements, social media platform, and the national gazette. In some localities where the rail is passing, training bodies should be established offering information on how they should use the rail system. Alternatively, such areas could then be forced to use alternative transport means and have the rail system have stopovers at other stations. It is a measure that will increase convenience to the people that are using the rail network.

There is a need to erect more traffic signs that will act as substitutes to the light system that has been installed. An individual will then have to concentrate on both sources of information that is waiting for signals from the light system. In the long run, an aspect of safety will be improved along the rail with fewer people involved in accidents.

The government will also have to pause the use of the rail system to correct the light system that is being used on the rail. In such instances, they will have to offer alternative ways that the publics will use to reach their destinations without any inconvenience. On the other hand, the contracted firm should then be requested to use simpler technology on the rail that will have fewer breakdowns compared to the current system applied in the rail. The approach should then be used based on the firm’s expenses, acting as a way of compensation for the income that would have been used in making installations.

Conclusion

The contracted firm should be held culpable for the system’s multiple failures and the cause of an accident to a pedestrian. Additionally, particular employees at the company should face jail terms as they did not use appropriate technology along the rail. However, a certificate of operation should also be provided by the firm as a security tool describing their proficiency in installing light systems on transportation networks.

The pedestrian’s family should also be compensated by the company and the government. As a model of punishment, an investigation team should be deployed in the firm and certificate of operations be terminated as investigations are being carried out. It is an approach that will help identify the proficiency level that the firm holds and the past contracts that have been executed. Additionally, the government should initiate the provision of new safety measure along the rail to reduce the incidence of accidents that are happening. An additional firm should also be offered a tender to work with the contracted company as they make the desired repairs on the system that has been installed along the rail. It will provide an aspect of credibility of the repairs that are being done and also generate a certain level of confidence in the system by the rail users and the NSW Government.

References

Bailey, I. H., Matthew Bell, L. & Bell, C., 2011. Construction law in Australia. 3rd ed. Pyrmont: Thomson Reuters. Retrieved from: http://www.worldcat.org/title/construction-law-in-australia/oclc/733561671

Bar, C. v., 2010. Principles of European law. 1st ed. München: Sellier European Law Publishers. Retreived from: http://www.worldcat.org/title/principles-of-european-law/oclc/428011619

Born, G., 2010. International arbitration and forum selection agreements: drafting and enforcing. 3rd ed. Austin: Walter Kluwer Law & Business. Retrieved from: http://www.worldcat.org/title/international-arbitration-and-forum-selection-agreements-drafting-and-enforcing/oclc/568720291

Keith Potts, N. A., 2014. Construction Cost Management: Learning from Case Studies. 1st ed. New York: Routledge. Retrieved from: https://books.google.co.ke/books?id=vJviAgAAQBAJ&printsec=frontcover&dq=Construction+Cost+Management:+Learning+from+Case+Studies&hl=en&sa=X&redir_esc=y#v=onepage&q=Construction%20Cost%20Management%3A%20Learning%20from%20Case%20Studies&f=false

Lawson, R. G., 2011. Exclusion clauses and unfair contract terms. 10th ed. London: Thomson Reuter. Retreived from: http://www.worldcat.org/title/exclusion-clauses-and-unfair-contract-terms/oclc/711940467

Wolf, R. C., 2011. The complete guide to international joint ventures with sample clauses and contracts. 3rd ed. Alphen aan den Rijn: Kluwer Law International. Retreived from: http://www.worldcat.org/title/complete-guide-to-international-joint-ventures-with-sample-clauses-and-contracts/oclc/746855053