Securing the value of your business by protecting your IP

It is important to remember that the value of your business is not determined by the years you’ve worked or how much you’ve sacrificed. Unfortunately, business is not about fairness. It is about leverage, profitability, enforceable rights, and controlling access to things of value.

Disappointing valuations

Business owners often don’t have the time to consciously think about what it is that governs the value of their business – aside from profitability, and perhaps trade secrets. Typically, this is because they have their nose firmly to the grindstone keeping it all running. So when it comes to selling their business, this tends to result in:

(1) A painful and messy due diligence process;

(2) A lower than expected valuation;

(3) The buyer requiring the seller to stay on in the business for a protracted period.

The source of the problem

Remember that the business is the network of systems (made up of processes, information, assets, legal rights, employees etc etc) that convert money and information into profit. You must be able to separate these systems from yourself, package them, and sell the right to use them to another party.

With this in mind, the above issues tend to derive from two main problems:

(1) The business owner has not fully externalised the business systems by establishing processes, training and delegating to employees, and documenting their knowledge. Instead, they are the critical element that makes the whole system work.

The purchaser will have to discount from the purchase price the cost of hiring and training employees to perform the roles of the business owner, plus the cost of keeping the former owner on for a protracted period to ensure that all the know-how is transferred.

(2) The business owner has not ensured along the way that the company actually owns, or has the enforceable right to use, all the IP upon which the business relies to operate. For example, contractors will have been used from time to time to help build the business systems (e.g. website, modified or custom IT systems, sales materials, and other documents) but ownership of the IP hasn’t been assigned in writing.

The purchaser will have to walk away, or discount the cost of either clarifying the ownership of these systems or building its own replacement systems.

Addressing these issues will increase the value of your business and finally allow you to take a holiday; not to mention that if the business systems can operate without the owner’s ever-present attention it can scale and grow, and even expand into new and interesting areas.

It is best to deal with these issues before you start negotiating with buyers as it will remove leverage that they can later use to keep changing the deal on you – something that you will be particularly vulnerable to if you agree to negotiate exclusively with one particular purchaser.

Optimising and growing the value of your business 

Separating the business systems from yourself is a matter of wearing the upfront cost in time to delegate, train, and document, in order to reap the long term benefits to your business’ growth and value. As this means sharing confidential information and know-how with employees and contractors, it will place increased emphasis on your intellectual property arrangements in order to protect the value of your business as you grow.

For starters, you will need to address:

  • Ensuring all employment and contractor agreements are in writing, and include clauses addressing:
    • Confidential information;
    • Assignment of IP;
    • IP moral rights;
    • Restraint of trade (for key employees).
  • Reviewing existing IP in your business and shoring up your rights to use it:
    • Getting previous contractors to assign the IP to you in writing;
    • For any licensed third-party IT systems,
      • Clarifying who owns the IP in any modifications you’ve made;
      • Confirming what arrangements are in place should the third-party provider cease to operate (e.g. escrow arrangements and who would have the ability to keep the service running);
      • Clarifying your alternatives should your ability to continue using the third-party systems be affected;
    • Registering business names and trademarks;
    • Ensuring the domain names are registered to the company;
  • Protecting your IP:
    • Consistently enforcing your IP rights against infringers (e.g. other businesses or individuals who are using your copyrighted works without payment or permission, or other parties using deceptively similar branding to market their products and services);
    • Clearly marking any confidential materials used in the course of your business as ‘confidential’ so that everyone involved is conscious of their obligations;
    • Having standardised ready-to-use agreements that are easily adaptable, such as:
      • Employment agreements;
      • Non-disclosure agreements;
      • Assignment of IP agreements;
    • Consider whether any new products under development should be patented.
  • Negotiating an affordable standing arrangement for legal advice and services, to:
    • Resolve disputes with IP infringers and debters early (ongoing disputes are expensive and seriously undermine your valuation);
    • Keep your business’ legal arrangements current, and allow you to take advantage of changes in the law;
    • Ensure that your agreements actually secure the benefits that make them worth signing;
    • Maximise the strength of your position before entering negotiations, and provide tactical advice throughout.

It is common for business owners to view lawyers as a cost, and some lawyers have not done much to rebut this opinion. However, partnering with the right lawyer will maximise the value of your business, reduce the stress and uncertainty involved in running it, and provide you with a trusted adviser who will fight your battles and protect your interests.

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See also:

Lawyers, how to choose them and how to use them to save you money

Employee or Contractor – What’s in a Name?

Fair Dealing – Getting Paid vs. Getting Played

Designing Contracts for Project Success

The problems are well known to anyone who has had the task of rescuing a troubled project or administering a contract. Most projects run into trouble for two core reasons:

(1) Rushing the design or planning (including the contract) phase of the project; and

(2) Ineffective communication between the parties throughout the project.

These factors cause trouble because they lead to parties inadvertently taking on a number of avoidable risks:

(1) Risks to Quality and Schedule:  Customers will often compare tenders on their upfront cost only, rather than their full life cycle cost. The cheapest tender is chosen, often not considering that this involves increased risk of contractor insolvency from paper-thin margins, delays for rectification or selection of replacement contractors, reduced useful life of the project, and high ongoing maintenance costs arising from workmanship issues and cheap substituted materials.

(2) Risks to Performance: A rush to contract signature encourages re-purposing of contracts from previous projects, without assessing their suitability. For example, if quality is a high priority, a contract that incentivises cutting corners to make a profit is unlikely to see the project completed to the standard envisioned. It is not uncommon to find well intentioned incentive clauses that actually incentivise against the factors that will govern the success of the project.

(3) Ineffective Communication: Any reasonably sizable project will require effective communication to stay on course. The unexpected will occur and flexibility will be needed. Contract negotiations will stress-test the ability of the parties to resolve issues and avoid them spiralling into disputes. Far better to find out upfront that you can’t trust the other party, than to find out later when money has been spent and your lawyer tells you that the contract puts all the risk on you.

(4) Litigation Risks: As a good rule of thumb, if there are sizable payments or liabilities attached to contractual clauses, and those clauses are ambiguous or uncertain in their operation, that’s a litigation risk. Once the contract is on foot and money has been spent, you will have a difficult time getting the other party to adopt your understanding of an ambiguous contract clause when they have a strong financial incentive not to.

It is always important to remember that hope is not a strategy. When push comes to shove any pre-contractual verbal assurances and niceties will count for little. Your ability to protect your interests will come down to the terms of the contract, the depth of your pockets, and the degree of commercial leverage you can bring to bear on the interests of the other parties.

It is therefore highly advisable to take full advantage of negotiations to arrive at a contract that is designed to head off disputes and promote the successful delivery of the project.

Effective contract design:

(1) Starts with a sound understanding of what the parties intend to do, how they intend to do it, and what they’ll require to succeed. Good drafting thinks ahead to how the project will actually be carried out in practice;

(2) Works backwards, identifying the interests of the parties, the objectives of the project, and identifying the measures that need to be in place to align those interests with the objectives; and

(3) It treats the contract as a system or machine that takes events as inputs (e.g. milestones, dates, disputes, accidents, defects etc) and produces outputs in the form of rights and rewards (e.g. payments, dispute resolution, indemnities, rectification, liquidated damages etc).

The aim being to ensure that the interests of the parties will be served, and certainly not undermined, by achieving the project objectives.

Ultimately, all projects have problems. Through thorough disciplined planning, most problems can be flushed out and solved before they have the chance to disrupt the project and put the parties to significant expense. The key is having the experience to realise this, the insight to identify professionals who share your values, and the discipline to work backwards from the result you are after to ensure that you have what you need to achieve it before you start.

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See also:

Technical Specifications – Where the Trouble Starts

How lawyers can serve engineers better

Lessons for Millennials Entering the Engineering Industry

With ever increasing competition, it is getting harder and harder for young professionals to get their start in the industry. Just the process of landing that first job can be a soul-destroying experience – especially if you are expecting to land that dream job straight out of university.

A great starting point, for students to get some perspective is to seek out industry leaders for a few minutes of their time. You’ll find that many of those whose careers you admire did not envision themselves ending up where they did. For most, their success has come from simply, at each stage, making the best choices they could with the opportunities available to them at the time; mixing courage with pragmatism.

You should therefore aim to keep an open mind, work hard, and look for opportunities to adapt your skillset and career in the direction of your strengths. Along the way the following pointers should serve you well:

Start out in a small engineering business

Most importantly, if you can, don’t start your career in a large firm. You will be a small cog in a big machine, responsible for a small sliver of the projects you work on, and probably having zero involvement with the customers.

When you are fresh out of university your knowledge is fresh and you are used to being pushed to the limit of your abilities (and your responsibilities at home will generally be minimal). Your focus needs to be on skill acquisition, not money, this is the time when you need to be thrown into the deep end and a keep your learning curve near vertical.

In a small business they will often be short-staffed and you will quickly have responsibility for a substantial part of the projects that you work on. You will have to learn fast how to manage a project throughout its life-cycle and how to communicate with customers. Because of the small number of staff, you will get the opportunity to do advanced tasks years before your colleagues in larger firms.

After a number years of running this gauntlet of anxiety, self-doubt, and many long hours of unpaid overtime, you will emerge with a very bankable skillset.

As an aside, don’t try to progress into management too quickly. Nail your skills first. You can’t manage what you don’t understand, and real understanding requires grinding long hours of hands-on experience.

Find opportunities to regularly apply your engineering knowledge to real world situations

Theoretical knowledge that has not been refined through repeated practical experience is unreliable, and apt to produce odd results (e.g. just because your concept design works in an FEA simulation doesn’t mean that a welder can make it).

Engaging in projects throughout your degree:

(1) Will make your knowledge more valuable to an employer,

(2) Demonstrate to an employer that you will continue to pursue mastery of your skills after they employ you (meaning reduced training costs, and rapid appreciation in the value of your skills),

(3) Indicates an ability to collaborate effectively as a team with other professionals,

(4) May provide opportunity to demonstrate entrepreneurial talents (indicating potential as a ‘rain-maker’ for the firm), and

(5) Will help you to figure out where you fit in your industry (So that you can focus your energies on where your natural talents allow you to deliver the most value).

Such opportunities can be gained with local engineering firms. Don’t hesitate to contact these firms for work experience and employment opportunities. This will give you a serous edge upon graduation and allow you to hit the ground running. Don’t wait until graduation to start engaging with industry, you can’t think your way to clarity when finding your place in the world, this can only be done by practical experience.

Treat the tradies with respect

Always be respectful to the traidies. As a young engineer many of the traidies that you work with will have been working in the industry for about 20 years, early in your career their experience is more reliable than your theoretical knowledge – listen to them.

Respect is currency:

(1) Treat them with respect and they will be a rich source of information, disrespect them and they will let you fail.

(2) Establish good relationships and they will keep you updated on the latest developments on site.

(3) Ask for their opinions on your designs and they will alert you to things that work in theory, but are not practical to fabricate.

(4) Earn their respect for your competence, and they will soon stop hazing you and go out of their way to help you in any way they can (as your competence makes their job easier).

It is faster and less expensive to learn from the mistakes and experience of others. And having many allies will speed the advancement of your career. Treat everyone with respect, regardless of perceived ‘rank’, you never know what you might learn from them or when you might need their help.

Your degree is merely your ticket to the starting line of an engineering degree

Completing an engineering degree is one of the hardest things you’ll ever do. It is therefore common for engineering grads to think that after those hellish four years they have earned their stripes and their right to their dream job.

Unfortunately, the world doesn’t see it that way. The degree is only an assurance to your prospective employer that you have the potential to learn the job of being an engineer. It will take the next several years of focused grinding hard work to start to become an engineer capable of taking on leadership responsibility for projects in your own right.

Don’t make the mistake of feeling cheated when your first job is an uninspiring grind. The repetition, although mind numbing at times, will refine your skills laying the foundation for you to become a safe pair of hands for your firm.

Promotion comes from making the interests of superiors reliant on your advancement

You don’t get promoted by showing up on time, working hard, and being congenial. That is all expected of you as part of your job. People don’t promote you as a reward for good behaviour, they promote you if it furthers their interest to do so.

So, as a young engineer, work hard to make the success of your superiors reliant on your career progression:

(1) Work hard to develop rare and valuable skills, during and outside work hours (e.g. courses, reading textbooks, side projects etc).

(2) Be entrepreneurial and find ways to optimise the value generated by your business unit (you don’t need a title to show leadership). The best opportunities you will have are when your colleagues realise that the current methods or systems will not deliver success. If you can chart the course they will usually follow you.

(3) Pitch new ideas to your boss on anything that will improve the bottom line (employees who can solve problems, not just report them, are a godsend to their managers).

(4) Work hard on your ability to communicate complex ideas to non-technical audiences, showing how your proposals will address their interests and concerns. This will serve you well with customers and senior decision-makers.

(5) Develop your network at all levels of the business, and outside the business. Employees that have their ‘ear to the ground’ often become valued advisers to their managers, and these networks will help you succeed as you progress and implement changes to the systems in your area.

(6) Learn how to market and bring clients in.

Remember that leadership is about service, not status. Your job is to chart the course for the success of your team, and to remove the obstacles in their path to achieving it. Demonstrating your ability to drive project success will lead to advancement – as your managers will allocate you to increasingly high-profile tasks, the tasks on which their advancement depends.

See our services page, or contact us to find out what Australaw can do for you.

Technical Specifications – Where the Trouble Starts

It is no secret that the source of most problems in a technology-centric contract is the specification.

(1) If the specification is vague, or mistakenly relies on the propensity of the reader to fill the gaps with the same assumptions as the writer, then each party will have a different understanding of what is to be delivered. This leads to two potential problems:

(a) The supplier delivers something different to what the purchaser actually requires; or

(b) The purchaser can continually use the ambiguity in the specification to deny payment or insist on endless rework.

Ultimately, each party will rely on its own interpretation and assert that the other party has breached the contract.

(2) If the specification turns out to be unworkable, there will need to be appropriate contractual mechanisms and an effective working relationship to resolve this. Without this:

(a) The purchaser will assert that the supplier is trying to deliver less than what was agreed to, or repudiating the contract; and

(b) The supplier will be burdened with the cost of rework or even abandoning the project.

The end result (if delivered) will likely struggle to fulfil the purchaser’s purposes for the project. Again, this difference in what each side had in mind when entering the contract provides fuel for disputes.

It is little wonder that most disputes come back to the specification, as it provides the baseline on which the major parts of a technology-centric contract rely:

(a) Payment terms rely on acceptance that certain features of the specification have been met;

(b) Warranty terms rely on answering whether the deliverables have failed to perform according to the specification;

(c) Maintenance and service level agreements rely maintaining or returning the deliverables to the requirements of the specification;

(d) Liquidated damages clauses will rely on determined whether certain aspects of the specification have been met by a certain date;

(e) Variation clauses rely on determining the extent to which a change request is a deviation from the agreed scope of work;

(f) Common law rights of termination and damages rely on discerning the disparity between what was delivered and what was required;

(g) The pricing of the contract relies on the interpretation of what is required to satisfy the specifications;

And ultimately, a failure to translate purchaser expectations into a specification, which, if delivered will satisfy them, risks the agreement ending in disputes and project failure.

The trouble with specifications is that they exist at the intersection of three project vulnerabilities:

(1) Specifications are often drafted by engineers, or other technical professionals. These professionals are accustomed to communicating using the jargon and terminology of their respective fields and not for the broader audience that a contract specification must communicate to. They risk drafting the specification in a manner that is riddled with numerous assumptions because in their mind those assumptions ‘go without saying’.

Unfortunately, any audience outside that area will apply their own assumptions to fill those gaps and arrive at a different interpretation of what is required. Furthermore, a non-technical audience (e.g. lawyers, managers and business people etc) will often be unable to traverse those assumption-gaps in the specification and struggle to read the document at all.

(2) The lawyers engaged by the parties to draft and negotiate the contract often lack the technical literacy to address shortcomings in the specification, don’t know the right questions to ask, and won’t want to concede that they don’t understand it. As a result they are likely to gloss over the specification and revert to risk-shifting clauses to pin the cost of eventual project issues on the other party. For those who desire to ‘leave the contract in the draw’ while administering the project, risk-shifting clauses provide little assistance.

(3) The more unique a project is the more difficult it is to predict all the issues that may arise. As the saying goes, ‘no plan survives first contact with the enemy’. The art in drafting specifications, is in providing adequate quality and performance goals, while allowing room to adapt to handle uncertainties as they occur during the life of the project.

For example, there may be known uncertainty at the outset about what exactly will be required, or whether certain performance levels can be guaranteed. Options to deal with this may include the use of a high level specification, with a more detailed specification to later be accepted or rejected against that high level specification once those unknown have been addressed; or the specification might provide room for the supplier to determine the best trade-off within specified tolerances.

The best way to keep a project on track is to avoid disputes from arising at all. The most fertile origin for disputes in a technology-centric contract is the specification. In the worst case, it will be a legally trained mind (i.e. a judge) that will finally determine the ‘proper’ meaning of the contract.

Therefore, the best means to de-risk a technology-centric contract is to engage professionals at the start who have the skills and expertise to critically analyse specifications from both a legal and technical standpoint. Engaging such expertise before signing the contract reduces the risk to all parties and ultimately, makes the project much more likely to succeed.

See also: How lawyers can serve engineers better

See our services page, or contact us to find out what Australaw can do for you.

Lawyers, how to choose them and how to use them to save you money

Business owners can often be apprehensive about engaging lawyers: they charge too much, they take too long, they don’t listen properly to what your priorities are, they don’t speak the language of your industry, they cause disputes to escalate rather than resolve, and signing a costs agreement can feel like writing a blank cheque. But this need not be the case.

If you know how to choose the right lawyer for you, and how to use them in the right way, they can actually save you a lot of money and help you move forward with confidence.

How to choose the right lawyer

Common experience

A great start is to look for a lawyer who has experience in your industry or situation. For example, my father, Peter Kelso, spent 13 years in foster care as a State ward. He now has a significant practice representing former State wards. Why? Because he speaks their language, he understands the challenges they face, and because he relates to them they know that he will go the extra mile for them.

Many excellent lawyers have come to the law having previously trained or worked in other industries. There are lawyers with backgrounds in medicine, psychology, engineering, building, small business, media, and the list goes on.

Lawyers love to fight for a cause, so look for a lawyer who relates to your situation and chances are they will go above and beyond for you.

Systematic methods

When you approach a lawyer about a problem they may not be able to give you a solution off the cuff. This is because legal issues usually involve too many variables – much like the ground conditions on a construction project, you can never know with certainty what you’re going to be up against until you start digging.

However, they should be able to give you an outline of how they will go about designing the strategy, executing it, and the usual milestones along the way. Lawyers who have a methodical, systematic, ‘project management’ approach to their work are far more likely to deliver on time and on budget.

Temperament

Employing the most aggressive or ‘alpha male’ lawyer in town can often work against you. The significant majority of disputes are now resolved by various forms of negotiation or mediation. These methods require a lawyer with emotional intelligence who can change gears and use a range of tactics, from the adversarial to the relational to the courteous diplomatic deal-maker. Using only aggressive tactics will put the other side on the defensive and leave them in no frame of mind to rationally consider the weaknesses of their own case.

A good indicator in choosing a lawyer is how well they engage with you when discussing the work you need them to do. Is the conversation focused on understanding your situation, your priorities, and how to achieve your objectives? If it’s all about them, or you don’t feel listened to, that’s not a good start.

How to use your lawyer

Prevention is cheaper than cure

A significant cause of the cost of engaging lawyers is that people often engage them only after things have gone pear-shaped. When you consider the losses you’ll have to wear, the disruption to your business, and the legal costs involved in litigation, there is significant money to be saved by engaging a lawyer early to help you weed out the risks and resolve disputes before they escalate. Engaging a lawyer in this way will make their fees affordable, and all the more so because you’ll be able to spend more time focused on running your business.

Mitigating the risk of disputes

The terms of the contracts you enter are a major source of disputes. If they are vague, incomplete, too ridged, impractically allocate the risks to parties who can’t control or contain them, rely on shaky assumptions, or are open to a variety of interpretations then this is fertile ground for disputes to arise.

If the contact has not yet been signed, your lawyer can negotiate amendments to mitigate these risks. If the contract has already been entered into, your lawyer can assist you to clarify the operation of the contract with the other party, and may be able to negotiate variations to head off potential issues. Your lawyer can also advise you on the systems, procedures and record-keeping needed to ensure that you are in a strong position should a dispute arise. (Being organised and following the contract procedures will also make a big difference to how much work your lawyer has to do to).

Resolving disputes before they escalate

Getting legal advice early can help see a dispute resolved in just a few emails. Your lawyer can assist you in responding to the other party in a way that leaves them uncertain about the strength of their position and far more willing to resolve the matter in a mutually suitable manner. While the standard threatening letter can cause things to escalate quickly, a skillful and persuasive response can help resolve the dispute and maintain the business relationship.

I recently had a matter where one well-worded email was able to achieve a written apology, the payment of several thousand dollars in previously disputed invoices, and an invitation to discuss further business. Disputes need not escalate to ‘lawyers at twelve paces’.

Appeals are expensive

The recent case of Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 shows just how expensive things can get when disputes escalate. In that case, Shade Systems served a progress payment claim on Probuild for construction work. Probuild served a payment schedule on Shade Systems stating that no amount was payable because the liquidated damages cancelled out the value of the work claimed. The dispute when went to an adjudicator who misinterpreted the contract and awarded about $277,000 to Shade Systems. The matter then went to the Supreme Court who quashed the adjudicator’s decision, and then to the Court of Appeal who set aside the previous order.

Now, imagine the expense that could have been saved had the parties used lawyers who could communicate and resolve the disagreement over the interpretation of the liquidated damages clause without resorting to the adjudicator; or failing that, had Probuild provided persuasive submissions to the adjudicator to guide his/her interpretation of the contract. Sometimes (and perhaps in that case), the other side is determined to litigate, or a decision-maker will inexplicably decide against you anyway. However, on average, a lawyer who can anticipate the sticking points and resolve them with clear communication will save you a lot money.

When to contact your lawyer

Running a problem by your lawyer need not be big deal or a formal occasion. The sooner your lawyer is told about an issue the better the chance they can resolve it. If you’ve picked the right lawyer, you should feel free to email or pick up the phone for a casual conversation about the issue. A good approach can be to email an outline of the issue, and schedule a follow up phone call. This will give your lawyer a chance to think about the problem first, and the conversation should be more productive.

See our services page, or contact us to find out what Australaw can do for you.

Outline of the Building and Construction Industry Security of Payment Act

Regular cash flow is the lifeblood of any business. This is particularly so for those in the construction industry, which has led to the Building and Construction Industry Security of Payment Act 1999 (NSW). Similar legislation exists in most Australian jurisdictions:

  • Building and Construction Industry Payments Act 2004 (QLD)
  • Building and Construction Industry Security of Payment Act 2002 (VIC)
  • Building and Construction Industry Payments Act 2004 (WA)
  • Building and Construction Industry Security of Payment Act 2009 (TAS)
  • Building and Construction Industry Security of Payment Act 2009 (SA)
  • Building and Construction Industry (Security of Payment) Act 2009 (ACT)
  • Construction Contracts (Security of Payments) Act (NT)

The main purpose of these Acts is to ensure that progress payments on construction projects don’t get held up by disputes, which can easily lead to contractors going under. Litigation can quickly become a war of attrition, and meanwhile people have businesses to run and bills to pay.

The graphic below provides a general outline of the process of enforcing progress payments. The process is comparable in most jurisdictions, and the courts generally seek to interpret these Acts consistently with each other.

Due to the very limited scope for challenging an adjudicator’s determination, it is strongly recommended that you have the assistance of a lawyer throughout this process – as the saying goes ‘measure twice, cut once’ prevention is always less expensive than cure.

It is also good practice to seek legal advice on how to comply with the procedural requirements of the Security of Payment process for your particular project. This advice will be a very valuable addition to your contract management plan.

outline-of-building-and-construction-industry-security-of-payment-actNotes:

  • ‘Construction Work’ includes the supply of goods or services related to the completion of construction work.
  • ‘Reference Dates’ are the dates or events (or milestones) in the contract that trigger progress payments. If the contract does not specify these triggers then the reference date is the last day of each month, starting with the last date of the month in which the construction work was first carried out.
  • ‘Respondent’ is the party to the contract with the Claimant who has undertaken to pay for the Construction Work.
  • ‘Payment Claim’ is a claim for payment for Construction Work carried out on or before the Reference Date. (Note: there can only be one Payment Claim served per Reference Date, but you can claim for work that was included in a previous Payment Claim that the Respondent has not yet paid for).
  • ‘Payment Schedule’ sets out the amount that the Respondent considers is due and owing to the Claimant, and the reasons for withholding payment for work claimed by the Claimant in the Payment Claim.

AustraLaw can assist with all payment claim issues, including:

  • Advice on complying with the procedural requirements to enforce or respond to payment claims;
  • Preparation of Payment Claims and Payment Schedules;
  • Preparation of Adjudication Applications and Adjudication Responses;
  • Enforcement or challenging of Adjudicator Determinations.

See our services page, or contact us to find out what Australaw can do for you.

How engineers can get their projects approved

Let’s be frank, communication is a common problem in engineering. Engineers often encounter difficulty in selling their solutions to those with the power and money to make them happen. Were it otherwise we would not have had a number of presentations at the Australian Engineering Conference lamenting the sporadic (rather than integrated) approach to infrastructure projects in this country.

What is needed is to apply some basic principles of advocacy and persuasion:

Step 1: Get their attention

Step 2: Make them want it

Step 3: Help them justify it

Too often the first two steps are skipped to focus on the details. However, the following engineers knew the value of entertaining their audience and speaking to their self-interest. As a result they were successful in getting the political and financial capital they needed for their projects.

Examples of engineers who successfully had their projects approved

(1) Elon Musk built attractive demo models of his Tesla cars for the venture capitalists to test drive; he throws exclusive parties for the media at the Tesla factory to announce new features; and he uses the Tesla mission and aesthetic to win the will of the public.

(2) General Sir John Monash would invite superiors, politicians and royalty to inspect his troops. When they came he put on spectacular demonstrations that entertained them and played to their egos. He would also attend dinners and parties and charm the friends and peers of those whose approval he required to advance his plans.

(3) Nikola Tesla expressly set out to demonstrate his discoveries and inventions in a visually entertaining way. As he stated in his lecture delivered before the IEE in London in 1892 “It has been my chief desire this evening to entertain you with some novel experiments.” This approach earned him media attention and numerous invitations to present his work.

While it is natural for engineers to focus on the elegance and technical superiority of their projects, the above engineers knew to remember their audience. Big projects require the backing of political and financial capital, both of which are often held by those with non-technical backgrounds.

Such an audience has political or financial capital because they have focused on the pursuit of these things. So grab their attention by portraying your ideas in a visually entertaining way and show them how your project will help them further (or avoid harm to) their interests. Visually entertaining demonstrations will also help gain media attention which will amplify the reach of your message and gain the interest of the public.

This leads on to the final point – gaining political and financial capital is greatly assisted by having the support of the public. I can say from experience that politicians are far quicker motivated to action by a critical media, than by the receipt of detailed submissions or proposals. Your careful work will be of little priority, and easily abandoned by politicians, without the support of the public and the media. So feed the media and sell your projects on how they will relieve the frustrations of every-day people.

AustraLaw believes strongly in the importance of engineering projects. The work of engineers provides the physical and electronic infrastructure to drive the economy and improve the lives of everyday people.

See our services page, or contact us to find out what Australaw can do for you.