Key Learning Outcomes
This workshop provides a comprehensive overview of the legal regime and key considerations in bidding, negotiating for and managing public sector procurement contracts across tendering phases. Key issues arising from pre-award bidding phase, post-award and during contract execution as well as important contract provisions and clauses will be highlighted through practical case studies and recent legal cases in the region. Specifically, attendees will learn:
- Legal regime and contract lawin public procurement – global, Singapore and ASEAN
- Public procurement life cycle – how public sector qualifies contractors?
- Fundamental strategies and best practices for successful bidding and tendering
- Standard forms of contract, key contract clauses and best practices for negotiating contract terms
- Case studies: cross-border public sector contracts; bidding in consortium and sub-contracting
- Contract pricing and cost estimating
- Claims, disputes arising – remediation processes and case law updates
Who Should Attend?
- Contractors and equipment/material suppliers
- Contract management, bidders and administrators
- Project development
- Legal advisers
- Project management
- Commercial managers / directors
- Proposal managers
- Project owners
Director, CMS Holborn Asia
Kelvin Aw is a Director in CMS Holborn Asia, the Formal Law Alliance between CMS Singapore and Singapore law practice, Holborn Law LLC.
Kelvin represents clients in their transactional and litigation matters in the construction, engineering, and infrastructure industries. He provides advice throughout the changing dynamics of a project cycle, ranging from front-end structuring and procurement to back-end work in which disputes have arisen. In Singapore, he represents clients in large-scale, landmark development matters. He also advises parties with projects in China, India, Indonesia, Cambodia, Vietnam, Malaysia, Myanmar, and the Middle East. Some of his work include
- Project counsel of one of the largest integrated resort developments in Singapore which was valued at more than SGD$ 6bn (approximately USD 4.4bn).
- Project counsel for a Singaporean listed developer of a resort in the Republic of Maldives, in an arbitration bought by its contractor for disputes arising from their building contract concerning valuation, time analysis and defects.
- Leading international architectural firm, advising on and resolving a dispute arising from a resort project in Montenegro, owned by joint venture between entities in Azerbaijan and Montenegro.
- A Malaysian M&E contractor in an ad hoc arbitration in Singapore against a Korean M&E contractor involving the design and installation of piping and ducting works in a Rolls-Royce manufacturing facility for engines used in the Airbus A380 fleet, and its associated enforcement proceedings in Singapore and Korean.
- Amendments to the SIA, REDAS, PSSCOC and FIDIC forms for real estate developers, which includes Capitaland, Marina Bay Sands, National Library Board, Frasers Centrepoint and INSEAD business school;
- Fought legal proceedings concerning SIA, REDAS and PSSCOC, including the SIA Hangar for A380, hangar for an American aviation specialist, the Suntec City refurbishment, various Town Councils, just to name a few.
In Singapore, he represents clients in large-scale, landmark development matters. He also advises parties with projects in China, India, Indonesia, Cambodia, Vietnam, Malaysia, Myanmar, and the Middle East.
Kelvin is particularly active in statutory adjudications under Singapore’s Building and Construction Industry Security of Payment Act (Cap. 30B), and delivers consistently with an impressive track record.
Kelvin is consistently ranked as a leading individual for construction by the Chambers Asia-Pacific: Leading Lawyers for Business and The Legal 500 since 2016, and has made it to the ranks of The Best Lawyers for construction in 2019. He has also been recommended as a Dispute Resolution Star for construction and international arbitration by Benchmark Litigation since 2018.
He is also a Senior Accredited Specialist for Building and Construction recognised by the Singapore Academy of Law. He is a fellow of the Singapore and Chartered Institutes of Arbitrators, and an accredited Senior Adjudicator with the Singapore Mediation Centre. In addition, he has served on the Council of the Singapore Institute of Arbitrators and has taught construction law modules at the National University of Singapore.
- Lynette Chew, Director, CMS Holborn Asia
- Adrian Wong, Partner – Energy, Project and Infrastructure, CMS
Legal Regime of Public Procurements – Global, Singapore and ASEAN
- Agreement on Government Procurement (GPA) under the World Trade Organization (WTO)
- Government Procurement Act and Exemptions
- Contract law underlying Public Procurement
- Building and Construction Industry Security of Payment Act
- Domestic and Cross-Border Public Procurement
- Impact of Competition Act
- Prevention of Corruption Act & the Penal Code
- Official Secrets Act
Public Procurement Life Cycle
- Processes of Public Procurement in Singapore
- Checklist for Consultants participating in Public Tender
- Checklist for Contractors participating in Public Tender
- Public Sector’s Expectations and Oversight
- Determining financial thresholds for individual contract coverage
- Aggregation and/or anti-avoidance rules
- Frameworks agreements in public procurement contracts
- Audit of public grants
Strategies of Successful Tenders
- Understanding Public Sector pre-qualification and short-listing
- Public Sector evaluation criteria
- Meeting Tender expectations
- Issues and Structures in Consortium bidding
- Trade-offs in decision-making
- Considerations on Award Procedures of Open, Selective and Limited Tendering
- Abnormal Tenders, Changes and Alternative Tenders
- Scope for negotiations in Tender
Contract Formation in Public Procurement Tenders
- Amendments to Standard Form Contracts
- Move towards Collaborative Contracting and the NEC suite
- Post Award contract formation
- Risk Allocation amongst sub-tiers
- Electronic Tools
- Documents management
- Case Studies: Standard Form Contracts adopted in Public Sector (PSSCOC) compared with Private Sectors (SIA, REDAS) and international forms (FIDIC)
Contract Execution Issues Affecting Tender and Negotiations
- Risks associated with Engineering, Procurement and Construction works
- Risks associated with changes and variations
- Risks associated with time and delay issues
- Risks associated with costs and pricing issues
- Issue of Causation in attributing blame in defects
- Managing and containing claims and disputes
- Singapore Infrastructure Dispute-Management Protocol
- Impact on Tender and negotiation strategies
Tendering in Consortium
- Legal aspects in Consortium tendering in public procurement
- Structures of Consortia
- Changes to Consortium during public procurement
- Apportionment of risk and rewards in Consortium
- Transfer of Contract entity
- Structures in PPP/PFI Tenders
- Legal and Financial issues in PPP/PFI Tenders
Case Study – Cross-Border Public Sector Tenders
- Understanding the foreign regulatory framework
- Attracting Foreign Investment
- Infrastructure Contractual Framework
- Cross Border Contractual Issues
- Risk analysis
- Typical Public Sector Concession Terms
- Project Financing considerations
Subcontracting Issues in Public Procurement
- Subcontracting requirements in Public Sector contracts
- Subcontractor approval process
- Sharing Responsibility between prime and subcontractors
- Standard Form Subcontract agreements
- Risks associated with design and construction by Subcontractors
- Risks associated with time issues amongst Subcontractors
- Risks associated with payment and cash flow amongst Subcontractors
Procurement Disputes – Process and Case Law Updates
- Disputes and Claims arising in Public Procurement
- Dealing with Unsuccessful Tenderers
- Government Procurement Adjudication Tribunal
- Anti-Corruption Measures
- Case law updates
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