Contract Drafting and Negotiation

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Our firm recognizes that core construction risk is universal regardless of sector, place and size of the project. We therefore apply a strong first-principles approach to drafting and negotiating contracts for our clients. We provide consistency in approach, contract standardization and timely identification and handling of all legal issues.

Baker Botts' lawyers have drafted and negotiated thousands of construction-related agreements for major projects in North America, Latin America, Europe, the Middle East, the CIS, Africa and Asia. We have extensive experience in structuring, drafting and negotiating a wide spectrum of construction-related contracts, including:

  • Engineering, Procurement and Construction (EPC) Contracts
  • Engineering, Procurement and Construction Management (EPCM) Contracts
  • Design-Build Contracts
  • Build-Only Contracts
  • Construction Management Agreements
  • Front-End Engineering Design (FEED) Contracts
  • Equipment Purchase and Lease Agreements
  • Operating and Maintenance (O&M) Agreements
  • Concession Contracts, including Design, Build, Finance, Operate and other Combinations
  • Service Agreements (short-term and long-term)
  • Technology Licensing Agreements
  • Professional Appointments of Designers, Project Managers and Consultants

Our core work is in complex high-value projects in energy and infrastructure, ranging from single fixed price, turnkey EPC contracts to multi-contract arrangements, including cutting-edge structures. Because we are immersed in these contracts as a core practice area, we understand not only the legal issues, but also the current market positions on key contract risks and the best practices for dealing with them.

We have also been active in helping clients to devise new ways to participate in engineering and construction projects, beyond the traditionally separate roles in design, management, construction and finance. Taking lessons learned in the early development of PFI/PPP in the UK and the U.S., we have advised clients -- particularly from Asia -- that are interested in taking equity consortium stakes, as well as construction or equipment supply roles. This type of integrated contract structure allies with the move to Design-Build-Operate and other "whole life" procurement models. The challenges presented by contracting structures -- in project evaluation and delivery -- require close coordination among our teams in Construction and Project Finance.

We work closely with our clients' commercial and technical teams to draft and/or review the commercial and technical exhibits that are critical parts of the contract. These include the scope of work, performance guarantees, completion guarantees and liquidated damages provisions.This ensures that each contract is integrated within itself and with the other project contracts.

Our work also involves bespoke contracts, and has included advising on the use of standard form contracts developed by various industry trade groups, such as FIDIC, IMCA, LOGIC, NEC/ECC and IChemE.