Australian Government and Corporate Contracting - Assignment Example

LAW Name Course Institution Date Seminar 3 Without considering any other Clause in this Agreement, the Covenanters’ hereby jointly and severally agree with the Covenantee that during the Restricted Period and within the ambit of the Restricted Territory, they will not compete with the Business whether such competition be by direct or indirect means or via the agency of any third party or by the Covenanters’ successors or assigns, save that it will not be a breach of this provision in the event that the Covenantors jointly or severally acquire less than twenty per cent of the equity securities of any entity engaged in a business competitive to the Business , the securities of which aforementioned entity are publically traded” “Restricted Territory” shall mean Australia; “Restricted Period” shall mean two years “Business” shall mean the business which the Covenanters’ here before carried on and which hereinafter is to be carried on by the Covenantee after the Completion Date. What are the issues with this clause? Can you redraft it so that it is in plain English? The clause protects the business from intrusion through competition. That any business competing with this company will be forced to part with less than 20% of their equity and these shall be publicly traded. Seminar 4 workshop 1. Management of risk and liability to the Tender There are necessary steps to be taken for a complete risk and liability management for the tender. The Department of Information (hereafter referred as DI) has to ensure that Crafty Builders (CB) see the project as an integral part of the department. In turn, there should be presentations and discussions focusing on aspects of departmental offices. The DI, as the project sponsor as well as representatives needs to champion the project. There is a need for regular consultation sessions between CB and DI and keep all informed about the project progress. DI should set suitable feedback mechanisms by registering issues, quality and control. As CB has accepted a standard contract, DI should assist in creating suitable tools that are compatible with the Department’s activities as well as the general policies, guidelines and guides. From preliminary discussion by the tender team, it appears that there are suspected quality outcomes on work and sporadic activities can lead to deliverables that will deteriorate over time. There is a need for tight control if the project will be a success. Some of suggested solution to manage the risk and liability would be to define the mechanisms by monitoring regimes, quality control and reinforce support. There is a great deal to achieve within the remaining months for the project. Despite CB’s best intentions, the project can blow out. Revisions of some work might be needed, DI staffs may take longer in consultation, approvals delayed as well as lack of scope for a contingency when issues like illness arise. Where possible, variations should be made to the work but in a manner that saves time and that does not encroach on quality. Department activities will be identified and work be broken down into stages. The project plan should be reviewed at the end of every stage. Any changes to the plan should be negotiated between DI and CB. In addition, staff in different sections of the department and who are to occupy the spaces should be informed of project progress and highlight the tasks to be dealt with. During handover, the work to maintain the facility and refurbishing various areas will be agreed upon. The will be a team appointed to identify all phases and inform CB of its responsibilities in future. 2. Criteria and method to assess the risks A full spectrum criterion is applicable in assessing the risks in this project. The profile should cover the major four categories including time, cost, environmental sustainability and quality. As the project involves general construction work, each of the above areas should be looked at and sources of risk be identified, determine the impact as well as develop appropriate management responses. Economic, infrastructure risks as well as unidentifiable risks and future orientation should be specified. 3. Key risks and ranking The major risks for this project are time factor, quality of deliverables and cost considerations. CB is noted to have cash flow issues and that might affect the deployment of project team and supplies. Adequate finances and capital are necessary aspects of a contractor and determines the favorable position of the supplier for the project. CB might not have the necessary capacity, tools, skills and personnel to carry out the project in an effective manner. Time also affects costs in a way. Quality has resurfaced twice in the tender team’s considerations with main risks including the need for repairs if the building is damaged during fit out and rectification of finalized fit out in not fit for department’s purpose. CB has few similar projects for comparison as it is said to have only done a few small-sized commercial fit outs. Cost is considered as a risk in two major ways. First, CB contract is higher compared to BBE offer with $0.2 million. Though there are considerations that CB accepts the terms of standard contract. Secondly, there are three possibilities of expenses that might result from project failure. Expenses for repair after damage, expenses for alternative accommodation and rectifying the fit out are considered. 4. Addressing risks Budgeting for risk management, mapping risk management process and authorizing stages plan should be included. 5. Improving processes for the management of the Tender There is a need for risk assessment and a contingency plan to seek and evaluate alternative solutions. The scope of work, including the deliverables has to be specified. Other things required in management of the tender include the OHS requirements as well as specifications- functional, performance and technical areas. Seminar 5 workshop 1. Legal restrictions that pertain to copyright can affect the use of open-source software. Patent compliance issues can arise leading to loss of initial cost of installation and additional hassles. Difficulties exist in indicating important regulatory requirements particularly when a business is subject to regulations such as recoverability. The license allows any party to sell or give away the software. 2. Source IT Licence and Support Contract a. The structure is divided into two major parts with their constituents. First, the structure delineates the extent to which the licence can be used. Second, there it offers the companies and institutions simple and standardized way for granting copyright permissions. However, it limits the scope of usage and regulates the other users according to the first terms in the contract. b. When a contract is made between a supplier and Government Department, then, a Contracting Officer or the Government's agent automatically becomes the customer. The contracting officer acts on behalf of the government. However, the officer does not have authority to act outside the warrant or deviate from regulations or laws that control Government contracts. c. The Contracting Officer may not take into consideration the supplier’s agreed limitation over the authority. In case, the department sub-licence to a competitor, the supplier may in turn be liable to loss, damage caused by directly or indirectly action. d. Confidential information in this case means specific data elements subject to stringent security requirements. The common law definition account for information abstract information shared between two parties. It sets it clear that, where not otherwise specified, the information is restricted. Where no authentication is required for access, the information is then explicitly availed to the public. Section 26.2 shift liability to the first party in case the party does not consult with the other party in subsequent dealings. The first party request is not promptly arrange by the other party, the agreement between them can lead to a claim. e. There should be a sub-clause stating an obligations and limitations of the first party in transactions involving the third party. The software should indicate the relevant legislation that regulate its use to make it accessible to other parties and thus promote liability in case of failure to regulate the use. f. Provision 9.4 which bides the contractor to allow access to premises and cooperate in providing its premises and facilities is unnecessary as client might take advantage by accessing regulated information and contact with other personnel that might leak precious business information. It should be modified by requiring the parties to decide and agreed on a specified point where further services can be offered. g. The clause shifts the whole liability to the contractor to promote careful consideration of delivery and fulfilling the requirements. The rebates should not exceed the amount as set in service charge payable to contractor is meant to put the customer at a place it would be if there was no breach. h. In the first model, the contractor owns the IP and where no specifications are made, it is considered as the appropriate form. In the second, the customer owns the IP. Where the contractor is supplying the technology, the first one is most appropriate. Where the customer specify what they want compiled for their business, then the second one prevails. i. If at all the first party is not connected with any infringement of IP and moral rights and losses are sustained due to a third party, then they can be indemnified. Read More