Navigating Risk in Construction Contracts & Projects

This session will present a variety of construction models, and the risks, the rewards and the costs associated with each delivery method.

Topics of discussion include:

• Examining the successes and challenges to date of traditional Design-Bid-Build, Design-Build, P3s and Progressive Design-Build, using real-world experiences; what are the risks associated with each?
• Understanding the core features of Integrated Project Delivery (IPD) and Alliance models
• Understanding the benefits and disadvantages of collaborative delivery models and the value of each
• Analyzing which projects are right for a collaborative delivery model and delineating the factors that parties must consider when making this decision.

Gain real-world insights into the IPD model, exploring how it differs from less integrated methods and assessing its suitability for complex projects in a collaborative environment. Topics of discussion include:

• Differentiating IPD from more traditional Design-Bid-Build, Design-Build and Design-Build models
• Determining if IPD is a fit for your project, including when it works and when it doesn’t
• Time and schedule benefits, and cost implications
• Identifying ideal project types for this model
• Minimizing disputes and budget challenges with IPD agreements
• Resolving disputes through mutual benefit and teamwork in IPD
• Comparing Canadian IPD trends to other countries and lessons learned

Construction contracts form the heart of the agreement between the parties, and impact on every level and scale of the work. Too often it is made up of boiler plate supplementary general conditions, and “Frankenstein” clauses taken from other projects and precedents, rendering them irrelevant in the contract at hand, and “coveralls” which unfairly foist the burden on one party.

Creating a fair and enforceable construction contract that can be effectively managed is key to preventing future conflicts. Learn how to handle changes, delays, and identify critical legal precedents that might cause issues.

In this session, topics of discussion will include:

• How and when to use a “boiler plate”
• Understanding the potential risks and complications of the “Frankenstein” contract, where clauses are borrowed from other contracts, or address non-existent conditions
• Understanding the coverall clause, which can create a high-stakes environment, with contractors having to account for conditions that may never occur, leading to increased costs
• Issuing notifications of change and delay within contractual requirements for form and notice, and working through the ensuing Change Order
• Assessing a Change Directive, and its potential effect on your bottom line
• Documenting and tracking delays clearly and in conformity with the contract
• Changes are often the subject of discord: Solutions to arrive at an equitable and defendable claim for costs and delays

There are substantial sea changes in the marketplace, as globalization may be tariffed out of existence, and we rely more on local markets to supply product to construction projects. Prices will fluctuate due to shortfalls in capacity, and there may be pressures to allow contracts to account for price volatility. The other side of this is importation of goods to be incorporated into projects to save cost, which don’t meet the required standards.

Topics of discussion include:

• Expanding contractual relief provisions beyond traditional force majeure to address emerging risks
• Rethinking Guaranteed Maximum Price and similar contracts in response to price volatility
• Applying lessons from recent case law on supply chain disruption and price escalation
• Evaluating collaborative solutions, to avoid disputes and support continuity
• How do imported materials stand up to the regulatory requirements for Canadian standards mandated by codes

While the principles for good contracts remain the same, and building strong operating and cooperative relationships is important, disputes become magnified simply by the scale of the project.

De-risking and contingency planning are critical to ensure that ample alternative routes are considered to reduce risks and disputes.

• Upfront planning and its influence in de-risking the project
• Commercial frameworks that promote collaboration and align interests
• Dispute Resolution Boards and Combined Dispute Boards
• Resolving disputes in a timely manner and preserving your business relationships

Effectively addressing the low bidder dilemma is an essential skill in the selection of labour, materials, and sub-contractors. The “low bidder must be taken” approach carries risks to timelines, costs, and quality.
This session explores strategies to navigate these challenges, offering insights on balancing fairness, competitiveness, and flexibility for resilient bidding decisions.

Topics of discussion include:

• Analyzing the low bidder dilemma and if negotiated bidding yields the better results
• What to do when a low bidder is substantially lower than the next bid
• Working with the low bidder to ensure best performance and to avoid retaliatory Change Orders
• Exploring the public owner’s duty of fairness and its implications
• Understanding debarment and exclusion clauses and their usage to ensure quality and qualified bidders going forward
• Navigating evolving definitions of the procurement process start, including tender response implications and the balance between flexibility and competitiveness.

Rapid technological advancements can reduce costs and improve efficiency in construction projects, contract evaluations, and litigation readiness. However, challenges like data breaches and privacy law violations pose significant risks.

This session will cover:

• Using AI for RFPs, contract review, and drafting correspondence and pleadings
• Ensuring your privacy and data protection programs meet the demands of provincial, national, and international privacy laws
• Developing cyber-security protocols to protect your data
• Responding effectively to data breaches or theft
• Discovering the best and newest strategies for data management
• Is AI being used effectively for schematic design, scheduling and budgeting?

With an aging construction workplace, what are the real means by which we can increase the productivity of skilled labour? How do factors like Immigration, government incentives for skilled trades training, automation of more tasks in construction and remote pre-fabrication impact the industry?
This panel will bring together industry leaders to explore strategies for attracting and retaining talent, including practical training initiatives and policy reforms. We will discuss how to tackle the labor shortage and create a thriving, resilient, and sustainable construction sector in Canada.