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Construction industry personnel and their lawyers are increasingly aware of the need to anticipate the legal implications of communication and ‘issue management’ throughout the project life cycle. Therefore, this subject aims to equip industry professionals and lawyers with the skills necessary to identify and proactively manage legal risk during the procurement and delivery phases. Complementing other subjects within Melbourne Law School’s construction law program that examine legal risks and their management, this subject provides practical insights into key aspects of the legal/project interface, including tendering and contract preparation procedures that efficiently ‘document the deal’ and contract administration techniques that minimise disputation.
The subject lecturers are practising lawyers who have substantial expertise and experience in advising during the various phases of a project, enabling students to develop an advanced and critical understanding of this specialised area of law.
Principal topics include:
- An exploration of the concept of legal risk and how it manifests in construction projects
- Project inception, including project feasibility and financing
- Procurement model selection and alternative contracting models and an analysis of the pillars of success in relation to each of the procurement models
- An analysis of pre-tender documentation, including consortium and joint venture agreements; an analysis of tender documentation including expressions of interest and requests for tender; and an analysis of the considerations when responding to a request for tender
- Legal risks to be managed during the pre-tender and tendering phase
- Analysis of the key project risks and their allocation and adoption between a contractor and client under a construction contract, as well as an introduction to qualitative and quantitative risk assessment
- Analysis of the key features of a construction contract and the negotiation positions available to a contractor and client in negotiating a construction contract (this will include consideration of alternative approaches and legal risks to be considered by contractors and clients in the negotiation of these obligations)
- The interface between the project management and legal disciplines, including a consideration of the ethical dilemmas that confront construction professionals
- Risk identification and mitigation strategies employed during the delivery phase and their role in avoiding unnecessary disputation
- Administering (making and assessing) claims for time and cost under construction contracts
- Managing sub-contract and interface risk (including a consideration of building information modelling (BIM))
- Managing the ‘paper war’ during the delivery phase: gaining, keeping, sharing and losing privilege in communications on and off site
- Managing defects to the works: reaching completion and post-completion issues
- A consideration of the practicalities of construction dispute resolution.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of legal risk in relation to construction projects
- Have enhanced their expert and specialised cognitive and technical skills required to manage and advise upon legal risk in the construction industry during the tendering and construction phases
- Be familiar with, be able to critically reflect on, and be confident in working across, the interaction between the technical, commercial and legal aspects of construction risk
- Be able to demonstrate the research and communication skills required to independently investigate, examine and analyse existing and emerging legal issues relating to construction risk.
- Be able to competently draft complex project correspondence and internal briefing papers in relation to legal risks in construction.
Last updated: 12 November 2021