Nuclear Power Plant Development: Contract Issues, Claims and Disputes

Cover
Half Title
Series
Title
Copyright
Contents
Detailed Contents
Preface
Acknowledgements
Table of Cases
Table of UK Legislation
Table of International Legislation
Chapter 1 The underlying basics: Nuclear energy and reactors
	Nuclear Power
	Reactor Types and Designs
	Nuclear Reactor Systems
	Different Types of Systems – Advantages and Disadvantages
	The Future
Chapter 2 Nuclear energy engineering and contracts overview
	Preliminary steps
	Risk Measurement
	Who owns Risk?
	Risk Management
	Adverse Physical Conditions or Obstructions
	Delay and Disruption
	Defective Materials or Workmanship of Contractor
	Direction and Supervision by the Employer or the Engineer
	Damage and Injury to Persons and Property
	Shortage of Resources
	Government Policy and Change of Legislation
	Conflicts and war
	Labour Demands and Unrest
	Inflation
	Arbitration and Law
	Lump sum contracts
	Measurement Contracts
	Cost Reimbursement Contracts
	Cost plus percentage fee
	Design and build procurement
	For management procurement
	Management contracts
	Construction management
	Design, manage, construct and in some instances maintain
	The Joint Contracts Tribunal (JCT) Forms
	Main Forms
	The Main Contracts
	Smaller project contracts
	The Main Features
	Format and structure
	Main Provisions
	Design and Build Contract (DB)
	Standard Building Contract (SBC)
	Major Project Construction (MP)
	Main JCT contracts
	The Government Conditions of Contract, Gc Works
	The New Engineering Contract Documents (NEC3 and NEC4)
	The Engineering and Construction Contract (ECC)
	The Engineering and Construction Subcontract Contract (ECS)
	The Engineering and Construction Short Contract (ECSC)
	The Engineering and Construction Short Subcontract (ECSS)
	The Professional Services Contract (PSC)
	The Professional Services Short Contract (PSSC)
	Framework Contract (FC)
	Term Service Contract (TSC)
	Supply Contract/Short Supply Contract (SC/SSC)
	Adjudicator’s Contract (AC)
	Guidance Notes and Flowcharts
	Specific Risks
	Adverse Ground or Physical Obstructions or Conditions on the Site
	Delay, Disruption of the Works
	Extensions of Time
	Summary
Chapter 3 NPP contract issues at inception, standard form contract provisions: Regarding NPP risk, delay and potential for disruption
	EPC Contracts
	Forms of Standard Construction Contract
	The Guaranteed Maximum Price Contract
	The Remeasurement Type of Contract
	The Cost Reimbursement or Cost Plus Fee Contract
	Target Cost Contracts
	The ICE Conditions of Contract
	Measurement Version 7th Edition
	ICE Design and Construct Contract
	ICE Minor Works Contract
	Time and Cost Issues Under the Measurement Version, Design and Construct, Minor Works
	The NEC3 – The New Engineering Contract Engineering and Construction Contract – NEC ECC
	Overview
	Some Important Provisions
	Prevention Clause 19
	The Concept of Key Dates
	Design Liability
	Payment for Defective Work
	Contractor Incentives
	Variations
	Contractor’s Rights and Obligations
	Additional Obligations and Issues
	Termination Issues
	Force Majeure
	The Silver Book
	Damages
		Sub-Clause 1.1.4.3
		Sub-Clause 1.1.6.9
		Sub-Clause 1.3 (Communications)
		Sub-Clause 1.9 (Delayed Drawings or Instructions)
		Sub-Clause 2.1 (Right of Access to the Site)
		Sub-Clause 3.3 (Instructions of the Engineer)
		Sub-Clause 3.5 (Determinations)
		Sub-Clause 4.7 (Setting Out)
		Sub-Clause 4.12 (Unforeseeable Physical Conditions)
		Sub-Clause 4.24 (Fossils)
		Sub-Clause 7.4 (Testing)
		Sub-Clause 8.1 (Commencement of Works)
		Sub-Clause 8.2 (Time for Completion)
		Sub-Clause 8.3 (Programme)
		Sub-Clause 8.4 (Extension of Time for Completion)
		Sub-Clause 8.5 (Delays Caused by Authorities)
		Sub-Clause 8.7 (Delay Damages)
		Sub-Clause 10.1 (Taking Over of the Works and Sections)
		Sub-Clause 10.3 (Interference with Tests on Completion)
		Sub-Clause 13.1 (Right to Vary)
		Sub-Clause 13.3 (Variation Procedure)
		Sub-Clause 13.7 (Adjustments for Changes in Legislation)
		Sub-Clause 16.1 (Contractor’s Entitlement to Suspend Work)
		Sub-Clause 17.4 (Consequences of Employer’s Risks)
		Sub-Clauses 19.1 (Definition of Force Majeure) and 19.4 (Consequences of Force Majeure)
		Sub-Clause 20.1 (Contractor’s Claims)
	The Other Form Contracts Delaying with Delay
	The JCT Form Contract
	Extensions of time
	Clause 2.3.1.1 Delay events
	Clause 2.3.1.2 Delay notices
	2.3.1.3 Assessment
	2.3.1.4 Delay avoidance
	NEC3 Form of Contact 2013 (and the NEC4 2017)
	NEC3 terminology
	Delay events
	Delay notices
	Assessment
	ICE Conditions of Contract, 7th Edition
Chapter 4 Bespoke NPP agreement terms and conditions
	Sample Nuclear Power Plant Agreement
	Clause 1 – Definitions
	Clause 2 – Basis for the Plant Contract
	Clause 3 – Scope of the Plant Contract
	Clause 4 – Documents
	Clause 5 – General Conditions
	Clause 6 – Risks, Liabilities and Title
	Clause 7 – Insurances
	Clause 8 – Licensability and Licensing
	Clause 9 – Training of Plant Personnel
	Clause 10 – Pre-Operational Testing, Commissioning (including performance testing), Demonstration Run and Provisional Takeover
	Clause 11 – Plant Contract Schedules
	Clause 12 – Technical Guarantees
	Clause 13 – Availability Guarantees
	Clause 14 – Intellectual Property Rights
	Clause 15 – Owner’s Acceptance and Final Takeover
	Clause 16 – Contractual Price
	Clause 17 – Price Revisions for the Contractual Price
	Clause 18 – Terms of Payment
	Clause 19 – Execution of Payments
	Clause 20 – Force Majeure
	Clause 21 – Rejection of Plant and Termination of Plant Contract
	Clause 22 – Applicable Law
	Clause 23 – Jurisdiction, and Dispute Resolution
	Clause 24 – Miscellaneous Conditions
	Clause 25 – Availability of Spare Parts
	Clause 26 – Severability
	Clause 27 – Survival of Obligations; Non-Waiver
	Clause 28 – Relationship of the Parties
	Clause 29 – Entire Agreement and Amendments
	Clause 30 – Transfer
Chapter 5 Delay – an overview
	But what is complete and at what cost?
	Due Diligence Progression to Completion
	Complying with the Programme
	Standard Form Contract and Programming
	Delay – Who Is at Fault?
	Force Majeure
	Is the Contract Terminated?
	Acts of God
	The Purpose of Force Majeure Clauses – Historically and Internationally
	Typical Force Majeure Clause Usage Excusing Delay
	The Necessary Requirements for Force Majeure
	When Does Force Majeure Commence?
	The Duration of the Condition
	When Should Notice Be Given?
	Force Majeure’s Effect
	Frustration
	Extension of Time
	Standard Forms – Relevant Events and/or Compensation Events
	Concurrent Delay Issues
	Other Related Delay Issues
	Time Is of the Essence Provisions
	JCT, NEC3 and Others
	Delay Analysis –Methods and Types
	As-planned versus as-built
	Impacted as-planned
	Collapsed as-built
	Time impact analysis
	Critical Path
	“Float” of non-critical works
	Disruption
Chapter 6 Delay analysis tools
	Delay and Disruption Claims
	Complexity
	Lack of a Uniform Approach
	Practical Considerations
	Delay Categories
	Delay Classifications
	Concurrent Delay Synopsis
	Float
	The Issue of Float
	Contractor’s Right to Finish Early
	Net Effect Method
	Notification of Claim
	But Which Method?
	The Problem
	Information
	Deficiencies in Contractors’ Programmes
	Reluctance
	Baseline Programme Problems
	Deficiencies in the Planning and Programming Process
	The Difference between Delay and Disruption
	The Methods
	The Methodologies
	Delay Analysis Methods Simplified
	Which Method Is Best?
	Disruption Analysis Methodologies
	The Measured Mile Technique
	Industry Studies and Guidelines
	Total Cost Method
	Modified total cost approach
	Time and Motion Studies
	System Dynamics Modelling Approach
	Earned Value Management (EVM)
	Final Overview
Chapter 7 Construction delay analysis
	Summary diagram
	Foresight (forward-looking)
	Hindsight (backward-looking)
	Contemporaneous
	Delay Log
	Where the Problems start
	Requests for Information
	Typical Reasons and Costs – the real world
	Critical Path
	Real-World of Delay
	Float
	Summary
Chapter 8 Forensic schedule analysis and discretionary logic
	Time of performance
	Legal entitlement
	Technical entitlement – Delay Analysis Techniques and analysis methods
	The Observational/Static/Gross (MIP 3.1)
	The Observational/Static/Periodic (MIP 3.2)
	The Observational/Dynamic/Contemporaneous As-Is (MIP 3.3)
	The Observational/ Dynamic/Contemporaneous Split (MIP 3.4)
	The Observational/Dynamic/Modified or Recreated (MIP 3.5)
	The Modelled/Additive/Single Base (MIP 3.6)
	The Modelled/Additive/Multiple Base (MIP 3.7)
	The Modelled/Subtractive/Single Simulation (MIP 3.8)
	The Modelled/Subtractive/Multiple Base (MIP 3.9)
	Critical path method logic
	The advantage of forensic schedule analysis in the context of the management of arbitration/adjudication procedures
	Conclusion
Chapter 9 Distortion of delay analysis
	Where to start
	Scenario 1
	Calendars
	Diagram Grouping and Sorting
	Constraints and Negative Total Float
	Labour Resources
	Other Areas for Deception
	Longest Path or Critical Path?
Chapter 10 Unforeseen ground conditions
	The USA
	Contractor’s Duty?
	Employer’s Duty?
	Is Silence a Basis for a Claim?
	History
	Type 1 and Type 2 conditions
	Type 1
	Type 2
	Type 3
	Materiality
Chapter 11 Claims for extensions of time
	The Risk Register in the Notice process
	Risk identification
	Risk analysis
	Warnings and Risk resolutions
	The Final Step – Allocating Responsibility
	No Reply Needed
	The risk reduction meeting
	Difference between Early warnings, RFIs and TQs
	Preparing and Proving an EOT claim
	Creating a Systematic Approach to EOT Claims Documentation
	The Baseline Programme Planning
	Pre-planning tasks at the start
	Who Owns the Float?
	Who Owns the Float – Standard Form Contracts
	JCT contracts
	NEC3 contracts
	ICE contracts
	Baseline Programme Checklist
	Programme updates
	Changes to the Baseline Programme – Revisions
	Identifying and Quantifying the delays to the programme updates
	Categorisation of Delay
	Risk Events versus Delay
	Documenting delays
	Concurrent Delay
	Records
	The Approval Process
Chapter 12 Constructive acceleration
	The Requirements
	Constructive Acceleration
	The Courts in the UK and the USA
Chapter 13 Notice requirements
	When Exactly does the 28-Day Notice Period Commence?
	Who Exactly at the Contractor is Supposed to Acquire Knowledge of the Event or Circumstance?
	Type of Records and Claim
	The Need for Proper Records as Part of the Claim Submission
	Has the Dispute Crystallised and can it be Enforced?
	Is There a Dispute to Enforce?
	The Standard Forms
	Prevention
	But When Does the Delay Impact the Critical Path?
Chapter 14 Legal systems
	The Common Law
	History
	Common Law Countries
	Civil Law
	The Napoleonic Code
	Differences Between Common and Civil Law
	Sharia – Islamic Law
	History
	Enforcement of Adjudication Decisions versus arbitration awards
	Dispute Resolution in Delay and Construction Matters
	Other Dispute Resolution Methods
	The Engineer/Arbitrator as Judge
	The Engineer as Quasi-Arbitrator
	Non-Statutory Adjudication
	The Advent of Dispute Boards in England
	Extension to International Cases
	Specific Regional Differences and Methods
Chapter 15 Dispute resolution methods
	The Dispute Board Concept
	Mediation
	Arbitration
	Litigation
	Dispute Board
	What is a dispute board?
	What makes a dispute board unique? What can be achieved by using a dispute board?
	Recommendations versus Binding Decisions
	Non-binding recommendations
	Interim-binding decisions
	Differences between dispute boards and arbitration, mediation, adjudication and alternative dispute resolution (ADR)
	Mediation
	Ancient Cultures
	Early China
	Qing Dynasty – Three Steps of Mediation
	The First Step
	The Second Step
	The Third Step
	USA
	Change of Direction
	United Kingdom
	Islamic Tradition
	Global Reach
	The Development of Commercial Construction Mediation in the United Kingdom
	Woolf Reforms
	CPR Rules
	Building and Construction Disputes
	Halsey
	Failure to Mediate Justified
	Limited Circumstances
	Enforcing Mediation
	The Continuum of Dispute resolution
Index