Orders Are A Process Not An Event
Receiving an order is not just an event, it’s a process and it’s one of the most difficult processes to get right!
Nowadays most enquiries say that you are ‘deemed’ to have read dozens of documents that you have never seen and have allowed for their contents in your price and programme.
The Contractor is trying to transfer as much responsibility as he can onto you.
Don’t make it easy for him to stitch you up!
State Your Offer Clearly
You simply don’t have time to check every document and his one sided onerous sub-contract terms and conditions, so in order to protect your interests you must qualify your tender to record precisely what you have included and, equally importantly, what you have excluded.
You should not simply accept the Contractor’s terms and conditions!
Either state that your tender is based on a standard sub-contract (such as the JCT standard building sub-contract) or your own terms and conditions.
As a very minimum, if you don’t refer to any terms you should state that the terms are to be agreed.
There are a whole host of onerous terms you need to watch out for and last week’s Wise Up Wednesday gave you lots of examples. If you are in any doubt please get in touch.
The Minimum You Should Do
If you are uncomfortable about submitting qualified bids, or just don’t have the time to respond to every enquiry in detail, you should as an absolute minimum include a general qualification along the following lines:
“Our offer is based generally on your enquiry but there are a number of commercial and contractual issues to discuss and agree before it is capable of acceptance or your order issued”
This should allow you to negotiate with the Contractor if your offer is otherwise of interest to him.
Remember It’s A Process
Whatever else you do please remember that getting an order is a process not an event.
And, you must make sure that any amendments are properly incorporated into the contract.
Just having your tender as a “Numbered Document” is NOT good enough!
In order not to be caught by onerous provision you must make it perfectly clear that you are rejecting their onerous terms. Notice I said rejecting their terms, not rejecting their order.
There may be times when you have to take a commercial decision to accept onerous terms and conditions of contract. In this situation you need to be very clear about the risks you are running and manage them accordingly.
I hope you enjoyed this week’s Wise Up Wednesday.
If you are in any doubt about how to manage this process, or whether or not the terms and conditions are onerous, you need to take professional advice and StreetwiseSubbie’s Nationwide Network of Consultants are experts in helping you to deal with such matters.
If you need help, you can call us for initial free advice on 01773 712116.
Once again thank you all for your support.