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Delco Automation Inc
2020-06-09 21:42:31

Changing T&Cs When Provided Agreement for Signature

I have received an agreement for execution from a consultant on behalf of the owner. During the tender phase, a link to predetermined terms and conditions was provided. There was no addendum during the tender to change the terms and conditions. Upon receipt of the agreement, the consultant stated in the Articles of Agreement that the T&Cs in the tender are not valid and to use a new set of T&Cs. I advised the consultant that this is a material change from what we bid and their response was that we have worked under these T&Cs on other projects (we have not.) This is in Canada. I've stated we are evaluating impacts but suspect they will push back. Has anyone experienced a consultant doing this and how was it handled?
 •  World Commerce & Contracting  •   2020-06-10 08:07:55
In principle, your response sounds correct. Altering the terms unilaterally after award may indeed represent a material change, though of course you will need to make a prompt assessment of the nature and impact of the changes.

From your post, I get the impression that the Ts&cs are being driven by the consultant - but is that the case? Does the owner mandate the 'standard' and have they made the alterations - perhaps a result of current market conditions and experiences? Understanding the source and rationale behind the changes may be important in determining how and where you push back.

Of course you may want to revert on specific impact - for example, does this affect your price or delivery commitments? You may also want to negotiate some of the altered terms - for example, if risk allocation has shifted. But another response could be to take the position that this opens up more general negotiation and that if there are terms they want to change, you also have some changes you'd like made.

If these alterations were inspired by the consultant, they may back down because they will perhaps not want to explain to their client why this delay is occurring (especially if they made a mistake in the initial terms that were attached). But if the origin is the customer, you may need to be more cautious, especially if you do not have an existing or strong relationship.
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