Can we consider minutes of meeting part of the contract document??

6 days ago

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Raja Waqas Ahmed, Essameldin Zahran, PMP,LEED GA. and 1 other like this
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Follow Karsten

Karsten Kuske Hi, could you be a bit more precise? Are you talking about the tender phase, when minutes could become part of a contract, or are you talking about the execution phase? Im not aware of any provisions (FIDIC, laws, ...) that allow minutes to be automatically part of the contract document. But, for example, if minutes are taken during the tender phase and "the contract" (later on) refers to and list these, then these minutes are part of the contract document. If minutes are taken during execution phase and if theres no specific clause in the existing contract, like "minutes will become part of this contract" (or the like), then these minutes are no part of the contract document. But an intersting question... K.K.
6 days ago Like

Follow Peter

Peter Foreman Yes, you can incorporate Minutes, but a more interesting question is whether you should. The Minutes will now become contractual documents. All of them, including the non-contractual stuff, the issues that were not resolved until later meetings, the bits in non-legal language etc. You are buying yourself a dispute as the Minutes will often be in conflict with other contractual documents. If something is agreed that is important, put it in the Contract as a properly drafted clause.
5 days ago Like

Follow Scott

Scott Chalmers From a legal perspective, the logical answer is 'No' if you mean minutes of meetings taking place AFTER the contract is executed. A 'Contract Document' to most transactional people means a document forming part of the contract, and that logically _requires_ it to exist at the time of execution. In respect of pre-contract negotiation minutes, the question would be 'What does the Contract say about it?' For post-contract meeting minutes, don't confuse administrative documents with the contract itself. They could have contractual force, but I agree with Peter F above - why should they? IMHO to do so seems sloppy - anything arising out of the minutes should be dealt with properly - by a variation, extension of time, notice of default or other proper administrative document.
5 days ago Like

Follow Daniel

Daniel Alcon Agree with Peter. On the assumption you are referring to pre-contract minutes of meeting, the particular issue must be written into the contract before execution. Otherwise you are asking for trouble during the construction period. Minutes of meeting as contract documents are an accident waiting to happen. The same goes for tender documents too in my opinion.
5 days ago Like

Follow Clarence Elmer

Clarence Elmer Quismundo I agree with Peter, Daniel and Scott that they could be, and it is indeed correct to ask why? If everything is documented (and at times even recorded on electronic equipment), even those things mentioned in passing such as ("this is a very good cup of tea", well you get the idea) would be included. So does that mean a selective or subjective application should be adopted? As the word "subjective" connotes, there will be chaos as some items considered important by some will be considered trivial by others. They do serve as good administrative documents because those matters discussed and subsequently agreed by the parties are officially recorded. As such they serve a good purpose in addressing Claims, effecting variations in cost and in time, issuing and following up instructions, sorting out site problems, and having personal chit-chat with the Client (a very important social function, mind you!). Best regards.
5 days ago Like

Follow Ruben

Ruben Salgado I agree that Minutes of Meeting executed by parties during the the tender stage and explicitly was made part of the Contract Document comprising the contract is binding as part of the executed Contract Agreement. If however, that Minutes of Meeting was executed during contract execution, it cannot be part of the signed contract governing the contract execution UNLESS and until it was translated to a Contract Variation/Amendment. Basic in contracts that the only way to vary an existing contract is by way of a contract variation/amendment which is agreed and signed by both parties and maybe valid as part of the existing contract so long as it will not affect the rights and obligations of a third party who may have been affected by the change in the contract. Although the contracting parties has every right to vary the contract, this is not absolute if a third party's right will be affected. If a third party would be affected by the contract amendment, if ever, then that third party has to be given the opportunity to be heard on such variation/amendment. If there is no third party affected, then that executed contract amendment is valid and would be part of the existing contract.
5 days ago Like

Follow Peter

Peter Foreman Ruben, your statement that third parties have a right to be consulted is not true in all legal systems. Under English Law the Contracts (Rights of Third Parties) Act, 1999, for example, allows the Parties to the contract to state specifically that they have no right to be consulted, and it is common drafting in parent company guarantees to exclude such a right.
5 days ago Like

Follow Clarence Elmer

Clarence Elmer Quismundo Dear Peter, I am positive that Ruben is speaking from a civil law perspective. I know that for a fact because he is a compatriot. This would be sidetracking from our main topic, but I believe it is an important aspect, since we were discussing the potential use of the Minutes to amend the contract. Do we have a common ground as far as the effect of a contract amendment to parties outside the contract is concerned? In our local Civil Code, any contract provision, and amendments for that matter is valid unless it is

against public policy, order, safety or otherwise against an existing law. Does English Law provide for something similar?
5 days ago Like

Follow Ruben

Ruben Salgado Hi Peter, maybe you are right my premise is when there is a third party involved and would be affected and its right is violated. I raised this point because I was once involved in a similar case. There is one big reputable supplier from Europe and the Client is a big Power Plant Corporation from a country. This is ADB funded. The third party is ADB. For them to accommodate a change order for expediency, the contract was executed and signed already and they agreed by way of a certain agreement that they will reconstruct the contract and modify the contract reckoning to cover the period of the change order. In fact the contract was already sign by both parties and needs ADB NO -Objection. it so happened, that this was passed on to me for a quick review but only after so many required signatories/initial were already in placedt and i saw the implications. Normally they can do that if ONLY the two contracting parties are involve since contract is consensual, and so long as the contracting parties agreed. However, ADB approval was already there and those contract details and subsequent transactions were already on record with ADB. This is a classic case of what I am saying, although a very rare case and this could be a simple oversight. Still if a third party is to be affected and will prejudice its right to that contract, if any, then that third party if not informed could file a restraining order with the courts to stop such action. I am more referring in the civil courts in the Philippines. However, basic is the fact that rights of any party which is one way or another has an interest in a contract should also be protected not just the contracting parties. One more case, if a sub-contract is part of the contract from day one and an approved subcontract, the prime contract cannot just remove the subcontract even with Client approval without that subcontract being informed. Yes, they may technically since they agreed, but, they cannot do this with ease since the subcontract will drag them to court. This is what i am saying that it is not an absolute right since all contracts are supposed to be not contrary to law, public order, morals, customs and public policy as a rule.
4 days ago Like

Follow Ruben

Ruben Salgado Sorry I am referring to Prime Contractor and subcontractor..my fault..to register my corrections.
4 days ago Like

Follow Peter

Peter Foreman Clarence/Ruben, Firstly Clarence is right, I was only intending to say the position is not the same in all jurisdictions, and on Ruben's point, clearly if ADB approval was needed, then this would be a requirement in any country, as it is a contractual obligation on the Contractor. However, merely because a change has an adverse impact on someone who is not a party to the contract does not necessarily mean they have to be consulted.
4 days ago Like

Follow Hussein

Hussein El Bakry The contract documents are those documents that the parties agree upon when executing the contract.Such documents could be of any matter, including MoM, MoUs, correspondence. After executing the contract, further documents could be added to the contract documents; only through contract amendment(s), with the mutual agreement of the parties. During the lifespan of the contract, correspondence, daily, weekly & monthly reports and minutes of progress meetings, when agreed by the parties to be true records, are formal records but do not form part of the contract documents.
4 days ago Like

Follow Ruben

Ruben Salgado The magic term in my piece is the word ABSOLUTE right. I may agree this is more of an exception than a rule, but, the fact remains that interest of a third party to the contract is also protected by law. As to whether there is a valid ground or justifications for the parties to do it is another matter. The issue is the third party has to be informed...
4 days ago Like

Follow Peter

Peter Foreman Ruben, and I accept that this may be correct in many, indeed possibly most, countries. Just not all.
4 days ago Like

Follow Ruben

Ruben Salgado Yes, Peter, I absolutely agree that this may not be true in all jurisdiction.
4 days ago Like

Follow Hussein

Hussein El Bakry Third parties are usually parties with separate contractual relations to a party. That party should review its commitments to others prior to accepting an amendment to the contract. Third parties whose interests might be affected by a contract amendment should pursue their interests from the party who has commitments with them. A contract amendment is validated when the parties agree thereto, and shall not be suspended or outlawed due to third party interests affected by the amendment.
4 days ago Like

Follow Ruben

Ruben Salgado Hi Hussein, I am not saying that the matter of informing the third party be made prior to concluding the contract amendment. What I am saying is the third party should be informed by the contracting party who has a commitment with the third party. To me if that is complied that satisfies the issue. True the contract amendment is validated when the parties agree thereto. But, it can be assailed by the third party in interest whose rights is violated and could file a case in a court of competent jurisdiction and pray for an issuance of an immediate remedy of a restraining order citing legal grounds and offering prima facie evidence that its right will be violated and it will suffer as a consequence thereof. So in effect if this prayer for this remedy will be granted, then the contract amendment maybe set aside and rendered unenforceable for a certain period. Of course this is not outright be considered as unlawful just because a third party's right is prima facie violated. This requires determination by the court. I am talking of two situations here. The immediate remedy available which is setting aside the contract amendment, and then if granted, the permanent remedy if determined unlawful would render the amendment invalid. What I am saying is, if the document is found contrary to law, public policy, public order, morals and customs, then, this contract amendment would be considered invalid and unlawful and has no force and effect.
4 days ago Like

Follow Clarence Elmer

Clarence Elmer Quismundo @Hussein In most cases, prior notice or information is all that they (the third parties) need. Call it a courtesy call or such things that prevent you from being accused as "disrespectful" for bypassing them. To cite an example. most insurers and banks include a provision in their policies for Performance Bonds/Securities that the contracting parties (particularly the Principal) shall inform them of any changes or amendments to the Contract. Take note of the word "SHALL" which denotes a compulsory requirement. Further, they require the Employers to inform them of the Contractor's default (especially if the Employer intends to make a demand against the bond), if the validity date needs extension, or if the Employer intends to carry out repairs on areas which the original Contractor is responsible but which they are not addressing despite repeated instructions. It does not say that they will file a case in court to stop your actions. Most of the time, they do not resort to that. However, your actions without giving them information within a reasonable time might lead to the security becoming null and void. In this case, the Employer's agreement with or action against the Contractor remains valid but that will not be the case with the bond or security. It was a lesson that I Iearned about 17 years ago which I do not forget to this day. It was during my younger years obviously, where due to my impatience with the subcontractor (and my lack of experience) I ordered the direct repair of a certain defective work without informing the insurer. It resulted to the warranty being waived. Oh boy, did I hear a word from my Japanese boss! I hope the above will help to elaborate Ruben's point further. So perhaps we can let the other esteemed colleagues to revert to the original topic. I'm out of here (I hope). Best regards.
4 days ago Like

Follow Flvio R. Naval

Flvio R. Naval Machado Hi folks. Very good arguments above. But going back to the main stream in this discussion, I'd like to add something: 1) I agree with most everybody above in the sense that pre-contractual meetings minutes, to the extent possible, should have the information/"dispositions"in it sorted, filtered and transcribed in legal terms in the contract. Nonetheless, I do recommend they are kept so, if necessary, the parties can demonstrate to one another (preferably) or to a neutral third party how and in what basis they come to reach the agreement about certain aspects, if the discussion ever comes to discuss interpretation of a given clause. So my answer would be "preferably not, but keep them". 2) As regard meetings held after the contract has been executed, the answer would be "no" for two reasons (1) in most cases, the persons that sign the minutes of the meetings do not have legal powers to amend the contract, and (2)

even if they have such powers, in most cases, they are not aiming nor willing to amend the contract, so that the minutes of the meetings have to be interpreted in light of the contract. 3) But, I would dare say that not few of us have seen minutes of meeting that simply ignore and contradict the contract? Or have we not? All I can say is that, at the end of the day, such professionals are taking personal responsbility (I really believe "liability"would be more appropriate in this case) before their respective employer's. If anything like this happen, they parties should work fast to review it or to amend the contract. 4) But, still, there is some "magic" left here. It seems that longer term contracts, such as it is the case of construction contracts, no matter how much the parties, their engineers and lawyers try to make them complete and exhaustive, there is always something or a part of the contract left to be detailed/written... And, although I agree that after the contract is executed (signed), the minutes of meetings helded then are not supponsed to change/modify/amend the contract, the truth is that in the way I described in this item (4), they do "modify/complete" the contract, sort of "writing between the lines", if you allow me to use this expression in this way. So my advice is "beware of what you write or let someone else write" in such meeting minutes. Not seldom, they "re-interpret" the constract.... Take care and keep them! 5) Third parties are not a party to the agreement, but, yes, they can be affected by the contents of, decisions recoeded in such minutes of meetings, specially when such decisions made in the meeting contradict the contract and such contradictions affect directly the scope of work being performed by such third parties. With all due respect, despite the great importance of this comments (and they are important indeed), I am of the opinion that this is a problem of a different nature of initial discussion (although very relevant and important). Cheers.
3 days ago Like

Follow Vic

Vic Sto. Domingo Minutes of meetings held after Contract signing are definitely not part of the Contract Documents. Minutes of Pre-Bid Meetings should not be made part of the Contract Documents. Some contract drafters may be including the Minutes of Pre-Bid Meetings as part of the Contract Documents, but it is submitted that such a practice is not correct and is not in accordance with established procurement procedures. Pre-bid meetings are held for the purpose of clarifying the Bid Documents; not for the purpose of changing them. If the Bid Documents need to be changed resulting from any matter discussed during a pre-bid meeting (or raised in the written Questions submitted by prospective bidders during the bidding process), that change should be effected through the issuance of an appropriate Addendum; not through the Minutes of Pre-Bid Meeting. See for example ITB Clause 7.6 (ADB SBD 2006) which states in part that Any modification to the Bidding Document that may become necessary as a result of the pre-bid meeting shall be made by the Employer exclusively through the issue of an addendum pursuant to ITB 8 and not through the minutes of the pre-bid meeting.
3 days ago Like

Follow Mohammed

Mohammed Azad Hossain Dear Friends: It has been overstated by some honorable members that Minutes of Meeting (MM) after contract signing should not be part of the Contract Documents. Obviously not. Contract Documents are the Documents, which are prepared after Tender submittal, Evaluation and before award of the Contract. The question of inclusion of MM as part of the Contract document after contract signed does not arise. There is no Contract Documents after contract award, if requires to be incorporated, it will be a supplementary contract document. I agree with Ruben that Pre-tender MM could be part of the Contract Documents. We have included this MM in many of our Contracts as a part of the Contract Documents and included in the Addenda. Each and every documents of the contract must be accommodated in its proper place within the ambit of the contract documents. The Tender and Contract Documents are generally identified by Documents Numbers, like Doc I-Tendering Procedure, Doc II- Conditions of Contract and so on. Addenda is also a part of the Contract Documents and are issued during tendering period, clarifying bidders' queries including any revised tender documents like drawings, specs and BOQ etc. It is not a mandatory requirement that MM should be part of the Contract. It depends on the gravity and weightage (importance) of the MM, Tender/Contract procedures and Construction practices, which may vary from country to country.
2 days ago Like

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Follow Tudor

Tudor Trocin No, minutes of meeting is not contractual document.

1 day ago Like

Follow Jesus

Jesus Bisares MoM can never be a part of the conract during execution phase, however, since such will form part of true project documents, it can also be used as legal basis to determine violations to the content of a contract when disputes arise.
1 day ago Like

Follow L.H.

L.H. Chin Always ask yourself the 1st rule of Claims Management. What does your contract say ? I believe 90% of all contracts will have a provision stating what the contract documents consists of. And 99.99% of them will not have any provision stating that minutes of meetings are part of the contract documents. So always keep it simple and follow the 1st rule when looking for answers - Ask yourself i.e. What does your contract say ? Is it that simple. No complicated rhetoric or lengthy dissertation required.
1 day ago Like

Follow Kevan

Kevan Da'Bell,Dip Law, LLM, CIOB. I have to concur with previous comments; for minutes for meets to become a Contract Document such must be agreed within the Contract from the outset (previously noted). It is evident, that such a document could be an advantage as well as a disadvantage. In most meetings delays and the cause of is usually discussed and recorded within the minutes, thus an employer, consultant, architect or whoever acts on behalf of the employer can be made aware of existing and upcoming problems. This is some instances such may/could be conceived as good notice (making the employer aware) being issued in a timely manner. Therefore if minutes of meeting are agreed as a contract document such may help at a later date when human error hits and a notice is forgotten.
19 hours ago Like

Follow Awni

Awni Masri Minutes of meeting is a documentation of oral discussions .If it includes changes , variations ,instructions, notices ,request or the like,it should be followed by written notices as may the contract requires. Minutes of meeting is not written notices or instructions , it may form oral notice or instruction only.
18 hours ago Like

Follow Awni

Awni Masri i am talking about the construction phase. I agreed with the comments during the pre-agreement phase when such minutes are considered part of the documents of the contract.
17 hours ago Like

Follow Kevan

Kevan Da'Bell,Dip Law, LLM, CIOB. Gentlemen, see; John L. Harley Ltd v Dumfries & Galloway Regional Council (1988). Following the Scottish decision, it was found that the majority of the standard forms, the site meeting minutes will not constitute good notice unless the parties specifically amend the contract in this respect. The parties often agree at the outset ( agreement within the contract) that the obligation(s) to submit a written notice will be waived since delays will be recorded in the site meeting minutes instead. Where such a practice is put into action; the employer would be stopped from denying the contractor an entitlement to an extension of time through the lack of a written notice.
6 hours ago Like

Follow L.H.

L.H. Chin @Kevan, I believe you forgot to mention an important point. Contracts can only be amended provided there is mutual agreement between the parties to do so. Please take note that parties here does not include employees of the parties but only those who are authorised by the parties to act on their behalf. And authority can only be given through the execution of legal instruments such as company director's resolution or board resolutions. The people who attend meetings normally do not have these authorisations. So your suggestion that the parties could at the onset agree to waive notices could be misleading as even project directors form both parties would most probably not given the said authority to vary the contract at all !!!! So the danger is the parties would be under the false impression that the terms have been varied when the procedure to do so remains to be legally carried out. Minutes of Meetings do not have the legal weight to amend any contract. Also at best it can only be used as secondary evidence. i.e. to support or substantiate a cause of action not the action itself.
6 hours ago Like

Follow Mohammed

Mohammed Azad Hossain Dear Chin: It seems to me from your statement that you have some sorts of misundrstanding of the question asked. Please look at the question, "whether MoM could be part of the Contract Documents"? In any Construction Contract, the Contract Document is the Contract. So, before preparing the Contract/Contract documents, during tendering period, the Owner has the right to amend anything through addenda. Once the Contract is signed then it cannot be amended without mutual agreement. In most part of the world the Construction Contract comprises of two parts; Legal and Technical. Technical comprises specifications, drawings, BOQ, addenda, analysis of prices etc.(in a traditional contract). When a tender is invited, then the bidders ask many queries, clarifications etc., which is replied by the Engineer/Consultant through Addenda. Pre-tender meetings taken place with Bidders attendance and question asked and some important issues discussed, which is summarized in a Minutes of Meeting. This MoM is then issued with the Addenda. We have instances in one of our Project (Value $500 Mil), we issued 6 Addenda with about 500 queries replies including a MoM, which have been incorporated in the Contract Documents.

The reply is big YES.

6 hours ago Like

Follow L.H.

L.H. Chin @Mohd. Please note that I was replying to Kevan and his comments and not to the question in particular. If you have read Kevan's comment, he was making comments on post contractual situations and not pre award/tender situations. On another note, you could be more precise by adding "provided an official addenda has been issued" after your big YES.
5 hours ago Like

Follow Ruben

Ruben Salgado Gentlemen, we all agree that during contract execution, there will be meetings on which Minutes as a matter of record be put in placed. Now will the Minutes of Meeting be part of the contract document as a rule? NO. Basic in contract that any amendment to the contract requires contract variation and MoM included. Question? do we need as always include the MoM as part of Contract document. The answer is obvious...NO. unless as

correctly pointed out by Mohammed, would depend on the gravity/weight of the document in terms of need, that would require substantial changes or deviation from the original scope, purpose, intentions and results to SUIT ACTUAL FIELD CONDITIONS (the accepted phrase in construction contracts). If such gravity arise under the circumstances mentioned, it is imperative and warranted that such MoM be made part of the contract document(by way of contract variation) so long as that document in its content will expressly stipulate that "this MoM will have the force and effects of a contract variation and is considered as such for purposes of the contract execution", and signed by both parties. Of course this will be signed by both parties presumed to have the full authority to sign and commit the parties, respectively. Question? who are these supposed signatories? Under FIDIC the Contractor's Representative on behalf of the Contractor. Under FIDIC Cl 4.3, on the part of the Contractor, he should be clothed with ALL authority to act on Contractor's behalf under the contract. On the part of the Employer, Engineer is NOT authorized to amend the contract (Cl.3.1, 2nd para, unless such authority would be specified in Particular Conditions of Contract). So this requires the signature of the Employer (whoever is authorized) for the MoM to be valid as such. Assuming this will be validly signed by the Employer, will the phrase, "this MoM will have the force and effect of a contract variation...." as described above sufficient? Yes, for all intent and purposes, unless there is a REQUIRED formality as to legal form and MANDATORY to be followed as such on this document to be considered valid and effective. If none, then there is no more legal impediment to consider the MoM LEGALLY and contractually valid and be part of the contract documents. Hope this clarifies the issue.
5 hours ago Like

Follow Clarence Elmer

Clarence Elmer Quismundo Yes Ruben. And for good measure, I will proceed subsequently to execute a formal Variation Order after the effect on cost and time resulting (or will result) from the specific items agreed in the Minutes, in the prescribed VO Form officially used in the project, and signed by all properly authorized signatories representing all parties (Employer, Engineer, Contractor, and if needed to be signed as well by key witnesses). If it s a pre-tender Minutes, then it should be attached to an official tender addendum. So the simple answer to the original query is yes but to be covered by an official contractual document. And prior to that, it must clearly answer the question WHY should it (the items contained in such Minutes) be included. Can we agree that the above will satisfy the opinions of Kevan, Mohammed, Ruben and Mr. Chin? Or is there something else still missing? Best regards to everyone.
4 hours ago Like

Follow Ruben

Ruben Salgado Yes, Clarence agree! It seems to me that all concerns/issues are satisfied. The issue of WHY to me was clearly clarified by Mohammed... depending on the gravity, importance and weight of the issues and concerns agreed by the parties on the meeting "to suit actual field conditions".
4 hours ago Like

Follow Mohammed

Mohammed Azad Hossain Dear Chin: Obviously all Addenda were issued officially. We have a process in Public/Govt Tenders that all Addenda shall be issued through Central Tender Committee (CTC) who is the Govt watchdog to deal with all public tenders. All Addenda (including MoM if any in it) incorporated in the Contract Documents before signing.
3 hours ago Like

Follow Daniel

Daniel Alcon "All Addenda (including MoM if any in it) incorporated in the Contract Documents before signing." Really somebody should stand up and say this is bad practice. The only tender document that should find its way into a contract document is the Appendix to Tender. Indeed FIDIC Forms issued more recently, e.g., the 2006 Dreging Contract call it simply, "the Appendix" so that word "Tender" has disappeared altogether from the Contract. The content of the Addenda should be incorporated into the contract as revisions in the appropriate contract drawings and specifications prior to execution of the Contract, but the Tender Docs and the Tender Addenda should be left in the filing cabinet.
2 hours ago Like

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Daniel Alcon Apologies if this has been mentioned above, but "the right to vary" under Sub-Clause 13.1 is a right to vary the Works, not the Contract. If the latter is required, it has to be the subject of a Contract amendment outside the provisions of the Contract and would presumably have to be agreed and signed by the persons that signed the original contract.
2 hours ago Like

Follow Mohammed

Mohammed Azad Hossain Daniel: I do not agree with you that the Addenda incorporated in the Contract Documents is bad practice. However, I tend to agree with you that all addenda should be incorporated in the main tender documents to convert it to a consolidated contract document. In Kuwait each of our Tender/Contract Documents are assigned with a Document Number as I said earlier Doc I, II, III-1, III-2, III-3, II-4, III-5, III-6 etc.The Addenda has assigned a number i.e. III-6 Addenda. We incorporate addenda in original documents, but we keep all those Addenda in Doc III-6 in tact as was issued to the Bidders during tendering period. This is the Construction Practices in Kuwait. I don't know what do you do in UAE Contracts? I would like to nudge your attention that FIDIC is not used in all over Middle East/GCC. Most of the GCC countries, especially in Govt. Sector have their own form of contract, which resembles FIDIC but not the exact FIDIC. However, the main point and concern is tender documents issued to the Bidders during Bidding should be well-coordinated, consistent and complementary to each other and those tender documents along with the amendment/addenda should be converted to Contract Documents whether you put or name those in Appendix or else.
1 hour ago Like