INTRODUCTION
- Report structure
- Background
- Research aims and objectives
- Research methodology
Where appropriate, this report also includes recommendations for mitigating legal and security risks that have been identified. Develop practical recommendations that industry can implement to reduce or eliminate relevant legal and security risks.
THE E-CONTRACTING PROCESS
- General e-contracting process
- General legal principles governing the formation of electronic contracts
- E-contracting security requirements
- Alternate ICT systems for e-contracting
- General legal principles governing the retention of electronic documents
How: The execution of the contract and the business process can be described using XML. This report will consider these uncertainties in the context of the electronic administration of construction projects.
TIME OF CONTRACT FORMATION
- Risk
- Resolution
If an addressee has not designated an information system, the time of receipt is generally considered to be 'when it comes to the attention of the addressee'. It has been suggested that even this clarifying statement is still not sufficient to resolve the question of when an electronic communication 'comes to the attention of the addressee' (Thomson 2003, p27).
PLACE OF CONTRACT FORMATION
- Risk
- Resolution
A wants to enter into a subcontracting contract with company B, whose registered office is in New South Wales. Alternatively, if the acceptance of the offer becomes effective when it is communicated to A, the contract is formed in Queensland.
ATTRIBUTION OF ELECTRONIC COMMUNICATIONS – AUTHORITY
- Risk
- Resolution
The fact that a construction contract can be entered into by electronic communication does not therefore change the applicable laws that determine whether a person is authorized to enter into a contractual relationship on behalf of another person or entity. Regardless of whether a construction contract is entered into in an electronic or paper-based environment, contracting parties must still perform their usual due diligence procedures to establish that the persons purporting to enter into a contract on behalf of another person or organization have actually or apparently authority to enter into the contract.
STATUTORY REQUIREMENTS FOR GUARANTEES TO BE IN
- Resolution
A written requirement: Section 11 of the ETQA can only apply where there is a state law that requires a person to provide information in writing. Consent: For s 11 of ETQA to apply to a warrant, the person to whom the information is required to be given must have consented to the information being given by an electronic communication.
STATUTORY REQUIREMENTS FOR GUARANTEES TO BE SIGNED
- Resolution
Accordingly, it is relatively clear under general law principles that the printed form of an electronic document will be sufficient to meet the requirement of section 56 of the Property Law Act 1974 (Qld) that a warranty be in writing. Reliability and adequacy of the signature method: The reliability of the signature method used is the crucial issue under the ETQA. Accordingly, Article 14 of the ETQA could potentially be relied upon to establish that a guarantee has been signed with an electronic or digital signature.
ELECTRONIC AMENDMENTS TO CONSTRUCTION CONTRACTS . 27
- Resolution
State law: Sections 11 and 12 of the ETQA can only apply if it is a 'state law' that allows or requires information to be provided in writing. If these arguments are valid, ss 11 and 12 of the ETQA would not apply to validating an agreement to vary a contract made by electronic communications. While it appears that Article 14 of the ETQA could potentially be used to establish that an electronic amendment agreement that has been authenticated by a.
ELECTRONIC NOTICES
- Risk
- Resolution
The contracting parties must first decide whether they want any electronic notifications to bind them. If they do not wish to be bound, the contract must clearly exclude electronic communication as a valid form of delivery of notice. The contract should state that those notices and messages for which the contract allows delivery by electronic means are in writing and signed.
AVAILABILITY OF THE PROJECT COLLABORATION SYSTEM
- Risk
- Resolution
A construction contract will invariably contain requirements for notices and other communications to be in writing and signed. With respect to electronic signatures, the contract must identify the exact signature method to be used (for example, typewritten names, scanned handwritten signatures, etc.), the parties must agree to the use of that method and acknowledge that they use the method as both reliable and applicable. To provide for this eventuality, the parties may include a contractual provision outlining alternative communication protocols to be followed in the event that the system becomes unavailable.
COMPATIBILITY OF TECHNOLOGY
- Risk
- Resolution
Company A uses the latest version of a collaboration system and Company B uses an older version of the system. In addition, the record sent by A contained a construction diagram created with a special tool available only on the new version of the system. Following the previous example, A and B now use the same version of the collaboration system.
DISPUTES BETWEEN THE SERVICE PROVIDER AND THE
- Risk
- Resolution
If the collaboration system has backward compatibility with some of the applications in the operating system, it is recommended that all parties use the same operating system in order to make the best use of these features of the operating system. Any right of the service provider to use the project participant's branding and data should be specified. The responsibility for storing data after completion of the project should be assigned to one or more of the parties.
DISPUTES BETWEEN THE CONTRACTING PARTIES
- Risk
- Resolution
- Resolution
The general legal position is that the author of designs and drawings owns the copyright in them (s 35 Copyright Act 1968 (Cth)). B can only bring an action for copyright infringement if he is the owner of the copyright (s 115 Copyright Act 1968 (Cth)). In order to avoid doubt about the ownership of copyright in the project drawings, the agreement between the project participants must specifically address the ownership of the copyright in the project drawings.
CONFIDENTIALITY
- Risk
- Resolution
In the contract between the project participants, it should also be clarified that the provisions on the ownership of the project drawings apply regardless of the extent of the cooperation between the parties in the development of the drawings. The use of authentication mechanisms such as limited access to the systems using Internet Protocol (IP) addresses and username and password mechanisms can also help achieve the confidentiality of the documents. Cryptographic mechanisms such as encryption algorithms can be used to provide this aspect of the document confidentiality function for stored documents.
ADMISSIBILITY AS EVIDENCE
- Risk
- Resolution
Email will not be acceptable unless one of the exceptions to the hearsay rule applies. Computer generated records will be acceptable if the requirements of the appropriate section are met. The sender's identity can be revealed by metadata attached to an email.
EVIDENTIAL WEIGHT
- Risk
- Resolution
When paper data is digitized, the parties must be able to demonstrate the authenticity, integrity and reliability of the electronic data. It is also recommended that digital signatures be applied to digitized data in order to ensure not only a strong form of authenticity and integrity of electronic data, but also cryptographic non-repudiation. The SSL protocol uses Message Authentication Codes (MAC) to ensure the integrity and authentication of data origin of information exchanged over the Internet.
PROOF OF TIME
- Risk
- Resolution
B has produced a copy of the email received, which shows the time of receipt as 17:05 (such time calculated according to the clock on B's computer). The timestamping authority can be either part of the commercial organization that uses the timestamp or a separate trusted third party whose sole role is to issue timestamps. It is the time of the cooperating system synchronized with UTC that determines the time of sending and receiving communication.
AUTHENTICATION OF CONTRACTING PARTIES
- Risk
- Resolution
When contracts and other project documents are communicated over an insecure network such as the Internet, it is essential that the recipient of the documents knows the identity of the sender. The security property that allows the recipient to confirm the identity of the sender of a document is called data origin authentication. It is recommended that when a contract is concluded using email, the electronic communication should include appropriate email authentication mechanisms to guarantee the origin of the email to the recipient of the email.
DISCLOSURE
- Risk
- Resolution
Copies of deleted electronic records on backed-up storage media may also need to be disclosed. The use of an online collaboration system will simplify the disclosure process because it is difficult to delete or destroy electronic records managed by the system. As a result, the electronic records that exist at any point of the project can be easily retrieved.
DUTY TO PRESERVE EVIDENCE
- Risk
- Resolution
STATUTORY OBLIGATIONS TO MAINTAIN RECORDS
- Risk
- Resolution
The Australian Taxation Office has stated that it requires electronic records to be kept 'in such a way that the integrity of the content can be demonstrated at the capture, storage and reproduction stages.' (Argy 2006). Section 288 of the Act states that if records are 'kept in electronic form, they must be convertible into hard copy. The method used for storing information must be reliable for maintaining the integrity of the document; i.e.
ACCESS TO RECORDS AFTER PROJECT COMPLETION
- Risk
- Resolution
At the end of the project, the electronic records of the project were archived by B. In addition, it is important to ensure that only authorized users can access the electronic project documents after the end of the project. The NAA recommends not encrypting the project documents after the project has ended (National Archives of Australia 2004).
RECORD KEEPING OBLIGATIONS OF GOVERNMENT AGENCIES 55
- Resolution
In Queensland, the Public Records Act 1996 (Qld) is relevant where one of the parties to the construction project is a government body. It is expected that no paper records will be created in relation to the administration of the project. However, the agency will have to make an agreement with C about safe storage, correct storage and return of the record.
RECOMMENDED SECURITY FEATURES OF AN E-CONTRACTING
RECOMMENDATIONS AND CONCLUSIONS
The contract with the service provider of the collaboration system should include provisions regarding system outages. The rights and obligations of the ICT service provider used to administer a construction project can be uncertain. The contract between the project participants must contain specific provisions regarding the electronic administration of the project.
