Free CIPS L4M3 Practice Exam with Questions & Answers | Set: 4

The “battle of the forms” arises when each party seeks to have its own terms and conditions govern the contract.

Under common law, the terms last sent and accepted (expressly or by conduct) usually apply.

Consideration refers to the exchange of something of value between the contracting parties and is a fundamental requirement for a valid contract. It can be in the form of goods, services, money, or a promise. Without consideration, there is no enforceable contract even if other elements like offer and acceptance are present.

A cost reimbursable contract (sometimes called a cost plus contract) is one in which the contractor is reimbursed the actual costs they incur in carrying out the works, plus an additional fee. Option Eof the NEC3 Engineering and Construction Contract (ECC) is an example of a cost reimbursable contract.

Early market engagement is encouraged in procurement best practices. It helps procurement teams understand new technologies, identify capable suppliers, and inform the development of effective specifications and contract terms. However, it must be non-binding and conducted fairly to ensure no supplier gains an unfair advantage.

Framework agreements allow for pre-approved suppliers to be used over a contract period with simplified ordering processes. A key benefit is the use of mini-competitions among these suppliers to secure value and innovation without repeating the full tender process. This approach is highly effective in dynamic sectors like telecommunications.

An SLA typically specifies:

Service frequency (1) – how often services are delivered.

Staff qualifications (3) – competence and skill standards.

Stock levels (4) – inventory of parts or materials the subcontractor must maintain.

Dispute resolution procedures (2) are more appropriately included in the main contract terms, not the SLA itself.

Indexation and price adjustment clauses are appropriate when future costs are uncertain or likely to change, such as regulatory-driven wage increases (B) or fluctuating material costs (E). These clauses allow adjustments based on objective indices while preserving the integrity of the contract.

Capacity means the legal ability to form a contract. A party lacks capacity if they are:

Of unsound mind or mental incapacity (1), or

A company acting beyond its powers (ultra vires) (4).

A failure to concentrate or being 19 years old does not affect legal capacity.

Consideration only appears in common law countries. Below are some examples of what is and what is not consideration:

- Past consideration is something that has already been done or given. This cannot act as consideration

- Implied consideration: if the detail of a promise to pay is expressed after the provision of goods or services, but there is an implication that such promise would be forthcoming, this may (depending on the facts) be valid consideration.

- A promise given to a third party: this is not normally consideration, and is based on a concept known as privity of contract. Anyone who is not a party to the contract, even if they are beneficiary of it, cannot sue if the terms of the contract are breached.

- A promise to perform over and above an existing obligation: This is always consideration

A previously used specification must always be robustly challenged to see how well it fits the proposed circumstances. Aspects which appear not to fit should be analysed to understand why they were included in the sample specification and whether this changes the view on whether or not they should be omitted or changed.