Discussion

The baseline MISMA provisions assume a relatively straightforward due diligence activity which in simple terms means that on the basis of available information made available and access provided to sites it is reasonable to expect the Contractor to adequately understand any risks associated with delivering services employing the relevant assets, operating environment etc. Where this is not the case and/or where consequent the risk/uncertainty being carried by the Contractor becomes significant in terms of overall pricing, additional due diligence provisions may be required.

Provisions to consider

Provision and reference

Considerations

Operating environment

Reference: Model Agreement Clauses 2.2 and 2.3

Where specific Operating Environment due diligence concerns are apparent, it may be prudent to revert to the Model Agreement drafting. This does not materially change either the risk allocation or effect of the baseline MISMA drafting but does set the Operating Environment in higher relief.

Price variation

See also embedded guidance at Model Agreement Clause 2.

Users should read Section 2 of "A negotiating guide for the public sector", published by OGC in March 2010 with support from Partnerships UK and Intellect.