Infrastructure projects can be stressful experiences at the best of times. When there are multiple contractors involved, trying to balance your risk against a principal's expectations can make things even more difficult. To help keep things under control, here are 5 top tips to bear in mind in negotiating your next infrastructure contract which are in addition to your usual suspect clauses:

  1. Warranties: Building contracts often include warranties relating to the buildability of your designs. Unless you are producing a design that is intended to be built (or partially built) by a third party, you should think twice about agreeing to these types of warranties.
  2. Step in rights: If you fail to deliver part of an agreed scope of work under a contract, a principal will usually request a right to step in and take over your operations. This could take the form of an explicit right to take over your personnel and equipment, or the ability to step into your subcontracts and use your subcontractors to finish the work. Before negotiating this right, it's worth considering not only how much access you want to give a party to your physical assets, but also to your supply chain.
  3. Intellectual property: All projects involve a certain amount of IP (whether it be pre­existing or project­specific) so your contract should clearly set out the IP rights of each party, particularly in relation to ownership, licensing and assignment. Think about who will be the ultimate end user and how far assignment rights should extend.
  4. Interface works: Consider the extent to which your goods or services will interact with any work performed by others. If your goods or services run independently of work performed by others, then agreeing to interface warranties will be relatively low risk where they can't be negotiated away.
  5. Linked disputes: When a principal is dealing with multiple contractors on site, it is often in its best interests to link any dispute arising under its contracts. This however often works to limit your rights on how and how much you can claim. Serious thought should be given to the impact of agreeing to this regime and what control you should retain if you do so.

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