Construction contracts generally consist of the following documents:
- The plans
- The specifications
- The contract: Agreement, General Conditions and Special Conditions
The plans and specifications focus on the specific technical requirements and quality of the end product. These technical requirements specify the nature of the materials, allowable tolerances and acceptable criteria for contract compliance. The plans (which provide the basis for quantity takeoffs) and the technical specifications typically form the baseline of a contractor’s bid. The all too often ignored General Conditions (GC’s) are frequently considered incidental to the work and, therefore, not given serious consideration. But the GC’s set forth the duties, responsibilities and risk allocations associated with the work.
Theoretically, the aim of a written contract is to define with certainty the obligation of each party, avoid ambiguities and preclude ultimate controversy. The GC’s define specific duties, obligations and responsibilities of each party. Construction contracts, and specifically the GC’s, seek to identify risk and then, allocate the risk of specific contingent events to one of the parties. This is accomplished by including a clause in the GC’s that states the type of contingent event, the risk that is allocated, the conditions under which the risk is allocated and party to whom the risk is allocated. If the contingent event occurs, the party that bears the risk absorbs the cost associated with the event.
Furthermore, supplemental conditions and/or special conditions may supplement or amend what is written in the GC’s, so it is important to also review and understand these documents and their relationship to the GC’s.
In today’s construction marketplace, most general contractors function as brokers of construction services. The vast majority of construction is performed by subcontractors. Most subcontract agreements contain flow-through clauses that bind the subcontractor to the terms of the owner-contractor agreement, such as:
“To the extent the terms of the prime contract between the Owner and Contractor apply to the work of the Subcontractor, then the Contractor hereby assumes toward the Subcontractor all the obligations, rights, duties, and redress that the Owner under the prime contract assumes toward the Contractor. In an identical way, the Subcontractor hereby assumes toward the Contractor all the same obligations, rights, duties, and redress that the Contractor assumes toward the Owner and Architect under the prime contract.”
Therefore, the subcontractor has the additional burden of reviewing not only its subcontract agreement and GC’s but also the owner-contractor contract and GC’s to fully understand its risks, obligations and rights.
What are these risks? Although not complete, the following represents specific risks confronting general contractors and subcontractors:
- Major project changes
- Failure to obtain access
- Delays in owner-furnished materials
- Interference by owner or other contractors
- Defective owner-furnished materials
- Project funding problems
- Delays in granting/issuing change orders
- Exculpatory clauses
- Inadequate tolerances in construction
- Unusually severe or harsh inspection
- Errors and omissions in plans and specifications
- Slow shop drawing turnaround
- Late release of construction drawings
- Failure to cooperate and/or to coordinate
- Ambiguous and/or conflicting plans and specifications
- Labor strikes
- Unusually severe weather, fires, floods
- Differing site conditions
- Government interference
- Third party intervention and delays
This broad listing can be further consolidated by assessing the frequency by which each is contested in a dispute. In perhaps a subjective assessment, the following risks would appear to be most frequently contested:
- Requests for time extensions and/or constructive acceleration
- Following the “Changes” clause
- Proceeding with disputed “Changed” or “Extra” work
- Tight interpretation of plans and specifications
- Exculpatory clauses
- Site coordination
- Getting timely answers
Focusing on Risks
While these items above identify risks, the GC’s provide the additional step of their respective allocation. In a similar fashion, the most frequently sought after questions to “ask” of the GC’s are:
- What does the contract allow for recovery of damages?
- What are the notice requirements?
- What form does a claim have to be in?
- What are the scheduling requirements?
- Does the contract contain a “no damages for delay” clause?
- How are differing site conditions handled?
- Is turnaround time for shop drawings addressed?
- Is the project a performance or design specification?
- What about variations in quantities?
With this background of generalized risk identification, a review of currently used clauses places these concerns in context.
Limitation of Recovery
While most construction contracts provide an equitable provision for contract adjustments, some contracts are not so lenient:
“In determining the amount of any adjustment to the Contract price under this Article 49, the Contractor agrees that the following items shall not be included in its claim and that in any court, arbitration or other proceeding, the award or verdict shall not include payment for the following items:
- Loss of Profit;
- Labor Inefficiencies;
- Cost of Idle Equipment;
- Project Overhead;
- Home Office Overhead; including but not limited to costs of any kind of home office personnel;”
While this language is heavily one-sided against the contractor, most contracts address limitations on a contractor’s potential financial recovery. The contractor’s financial recovery may barred for certain contingent events or recovery may be limited by other contract provisions such as predetermined unit prices or stipulated wage rates, equipment rates, overhead percentage and profit percentage to be used in pricing change orders.
Many clauses in the GC’s require the contractor to provide notice to the owner to perfect the contractor’s rights of recovery. The requirements for a contractor to provide timely notification extends to a variety of conditions – notification of claims, changes, time extensions, differing site conditions, etc. Failure to comply may waive the contractor’s rights to future recovery:
“It is an express condition of Contractor’s right to make a claim or to receive any recovery or relief under or in connection with the Contract, that Contractor submit a written Notice of Intent to Claim in accordance with the provisions hereof of this Article. Failure to comply with the provisions hereof shall constitute a waiver by the Contractor of any right, equitable or otherwise, to bring any such claim. The Notice provided above shall be given within ten (10) days after the happening of the event or occurrence giving rise to the potential claim . . . .”
Notice requirements vary widely from contract to contract and a contract may contain multiple notice clauses:
If Contractor is delayed in the progress of the work . . . Contractor shall, within twenty-four (24) hours after the commencement of such delay, file with AGENCY a written notice of delay . . .
The Contractor shall within five (5) days notify AGENCY in writing when the Contractor has received direction, instruction, interpretation or determination from any source which the Contractor believes may cause any change in cost or time required for the performance of the Work . . .
Contractor shall promptly, and before the conditions are disturbed, give a written notice to AGENCY of (1) subsurface or latent physical conditions at the Work Site which differ materially from those indicated in this Contract, or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided in the Contract.”
The contract should be read carefully to determine the proper notice provision for each clause. This is a relatively simple process but experienced contractors continually fail to issue timely, contract compliant notice, and thereby jeopardize otherwise meritorious claims.
Notice clauses are often interpreted by contractors as obstructive and punitive. However, when a change, delay or impact event occurs, the owner must be given the opportunity to investigate and provide a suitable response. The owner’s right to respond to and mitigate a potentially adverse and costly problem is the primary reason that notice provisions are included in construction contracts. Therefore, a contractor who fails to provide notice is deemed to have denied the owner the opportunity to mitigate and may not prevail in its claim.
An owner’s first line of defense may be to reject the contractor’s claim for failure to provide timely notice, but lack of strict compliance with timely notice provision need not be fatal to the contractor’s position. Two real defenses are available:
Constructive Notice: Demonstrate that the owner had the opportunity to mitigate its costs because it already knew, or should have known about the problem via meeting minutes, schedule updates, progress reports or other project documentation.
No Harm: Demonstrate that the lack of timely notice did not prejudice the owner’s rights to mitigate its costs, because the contractor took the most effective course of mitigation and no possible action by the owner could have further reduced the incurred costs.
Despite these available defenses, a contractor’s claim always stands on firmer ground when notice was provided in accordance with the contract GC’s.
Considerable attention is typically given to the plans and specifications when a contractor prepares its bid. Equally important to the financial bottom line of the project are the risks, duties, obligations and responsibilities defined by the GC’s. Contractors should take care to understand the GC’s of their contracts. When project issue arise, timely notice, in accordance with the contract requirements, is crucial for the contractor’s perseveration of rights to pursue additional compensation.
In Part 2, we will discuss inclement weather clauses, scheduling clauses, change clauses and multi-prime contractor coordination.