APPLICATION OF TWO CONSTRUCTION CONTRACT PROVISIONS: NO-DAMAGES-FOR-DELAY AND LIQUIDATED DAMAGES

Posted on February 5, 2022February 5, 2022 by Edward Garber

A recent Florida opinion between a prime contractor and a Florida public body touches upon two important issues: (1) the application of a no-damage-for-delay provision; and (2) the application of a liquidated damages provision. Both provisions find there way into many construction contracts. Unfortunately, the opinion is sparse on facts. Nevertheless, the application of these provisions is worthy of consideration.

In this opinion, Sarasota County v. Southern Underground Industries, Inc., 2022 WL 162977 (Fla. 2d DCA 2022), a county hired a contractor to install sanitary and water piping underneath a waterway. During construction, a nearby homeowner complained that vibration from the drilling caused damage to his home. As a result, the county stopped the contractor’s work to address a potential safety issue, as it was contractually entitled to do. The contractor hired a structural engineer to inspect the house and the engineer issued a report determining that any alleged damage was cosmetic and that there was sufficient monitoring of the vibrations to prevent future damage. The contractor also had an insurance policy to cover any homeowner claim for damage. However, upon receipt of the engineer’s report, the county did not lift its stop work order. Rather, the stop work order remained in place for an additional 71 days.

NO-DAMAGES-FOR-DELAY

The contractor sued the county to recover its costs during the additional 71 days the project was stopped. The county relied on its no-damages-for-delay provision in its contract. The trial court, as affirmed by the appellate court, found that the county’s work stoppage for an additional 71 days amounted to active interference and bad faith.

“Although ‘no damages for delay’ clauses are recognized in law, they will not be enforced in the face of governmental ‘fraud, bad faith, or active interference’ with the performance under the contract.” Sarasota County, 2022 WL at *2 (citation omitted). There was no reason to keep the stop work order in place after it was found it was safe to resume the construction activities.

LIQUIDATED DAMAGES

However, the trial court did assess liquidated damages against the contractor because the matter with the complaining homeowner had not been resolved by the contractual date for final acceptance.

For a liquidated damages clause to be enforceable, “the damages consequent upon a breach must not be readily ascertainable,” and “the sum stipulated to be forfeited must not be so grossly disproportionate to any damages that might reasonably be expected to follow from a breach.” “[L]iquidated damages clauses can exist only when they provide for ’damages’ (something to be given by one party who breaches the contract to the other party to compensate the other party for his loss which is a consequence of that breach).”

Sarasota County, 2022 WL at *2 (citations omitted).

The appellate court reversed the trial court’s assessment of liquidated damages because the county did not sustain any loss due to any delay to final acceptance. The contractor had completed all of its work by the contractual date except for resolving the complaining homeowner’s claim. “Thus, because the County had the full use for the completed construction project for over two years before final acceptance, ‘the sum stipulated to be forfeited,” was “grossly disproportionate to any damages that might [have been] expected to follow from a breach.’” Sarasota County, 2022 WL at *3 (citation omitted).

COMMENTS

The limited facts do not do this opinion any justice. However, it’s important to appreciate that a no-damages-for-delay provision is not the be-all-and-end-all of a delay claim. It just isn’t! As this court found, the work stoppage beyond the point it should have been stopped was active interference and bad faith.

As for the liquidated damages argument, that’s a head scratcher unless the court’s point is that once the government got beneficial use of the project, any delay in its final acceptance of the contract constituted a penalty even though sophisticated parties agreed to this provision. (Not how the court worded it though!). Also, this opinion could have the affect of opening up Pandora’s box by allowing a party to take discovery on financial information or otherwise relative to actual damages when, frankly, this defeats the purpose of the liquidated damages provision.

Liquidated damages provisions on private jobs are negotiated by sophisticated parties. On public jobs, you know what the liquidated damages are and how the provision is generally worded and can factor that into your pricing, no different than any other risk included in the contract.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

DISPUTE RESOLUTION IN YOUR CONSTRUCTION CONTRACT

Posted on January 29, 2022January 29, 2022 by Edward Garber

There are important provisions in your construction contract that are geared towards dispute resolution. These are provisions you want to understand – not when a dispute arises, but BEFORE the dispute ever occurs.

Many times, dispute resolution provisions are cast aside or not appreciated until a dispute rears its ugly head. This can put you in a reactive stance versus a proactive stance, which you want to be in, because you want to proactively make sure all rights are preserved relative to the dispute. You want to proactively make strategic decisions based on the dispute resolution provisions and process in your contract.

Before your contract even gets signed, you may want to negotiate aspects of the dispute resolution process for many reasons. The process could be one-sided. It could be onerous. It could be complex. It could be unfavorable or costly with respect to how you want to progress a dispute. If you appreciate the dispute resolution process from the get-go, you will be in a more effective position to navigate the process while ensuring you are preserving your rights moving forward

Here are considerations when negotiating and entering a construction contract when it comes to dispute resolution that should not be overlooked:

(i) How does the contract address the submission and resolution of claims for additional money and/or time?

(ii) Is their an initial decision maker or dispute resolution board serving as the person/board that resolves claims, and who is this person/board?

(iii) Is there a time period to submit claims; if so, what is that time period and is it reasonable?

(iv) What happens if a claim is denied and/or the initial decision maker/board denies the claim?

(v) Does the contract require mediation as a condition precedent to litigation or arbitration?

(vi) Does the contract require anything prior to mediation as an initial step in the dispute resolution process, such as a meeting with principals to occur within a set time period?

(vii) Does the contract require litigation or binding arbitration (and if arbitration, is there a body to administer the arbitration such as the American Arbitration Association)?

(viii) If litigation, does the contract specify an exclusive venue to file the dispute?

(ix) If litigation, does the contract include a waiver of jury trial?

(x) If binding arbitration, does the contract specify the number of arbitrators and/or the expected qualifications of the arbitrator(s)?

(xi) If binding arbitration, does the contract specify whether the arbitrator(s) can decide the arbitrability of any dispute?

(xii) Does the contract include a prevailing party attorney’s fees provision?

(xiii) Does the contract include a provision that would promote a stay of a dispute pending the outcome of another dispute or claim with another party?

(xiv) Is there a choice of law provision in the contract to reflect the law that governs the contract (and the dispute)?

(xv) Does the contract include a joinder provision that would allow you to be joined in disputes with others, regardless of the venue or the forum for the dispute?

There is no one-size-fits-all model when it comes to dispute resolution and a dispute resolution process. The goal is to understand the process and negotiate those aspects of the process that are not in your interests and/or, at a minimum, factor that process into your strategic decisions moving forward in case you encounter a dispute.

Please make sure to work with experienced construction counsel if you need assistance with your construction contract, whether it is understanding the dispute resolution process, negotiating the dispute resolution process, or simply working on an equitable contract for your project or business.

DRAFTING OR NEGOTIATING A SUBCONTRACT–QUESTIONS TO CONSIDER

Posted on May 22, 2021May 23, 2021 by Edward Garber

When it comes to drafting and negotiating a subcontract, there are provisions that should be important to you from a risk assessment standpoint. From the subcontractor’s standpoint, below are questions you should ask, or issues you should consider, as you go through the subcontract. These are the same questions and issues that are also important to a contractor as the contractor will want to ensure these issues are included in the subcontract. By asking yourself these questions, you can check to see how the subcontract addresses these issues, and how the risk should be negotiated. Hopefully, you are working with counsel to make sure you understand what risk you are assuming and those provisions you want to try to push back on. Asking yourself these questions, or considering these questions, will help you go through the subcontract with a purpose based on the risk profile of the project and certain risk you don’t want to assume.

Prime Contract –> Does the subcontract incorporate the prime contract? Make sure to request the prime contract since the subcontract will identify the prime contract as part of the Subcontract Documents and will require you to assume towards the contractor the same obligations the contractor is required to assume towards the owner.

Scope of Work –> What is the scope of work? Is it clear. Make sure the scope is clear and you understand the scope.

Drawings –> What are the drawings incorporated into the subcontract? Are these the most up-to-date drawings? These are the drawings the subcontract amount will be predicated on so revisions to the drawings may result in change orders.

Schedule –> Is the contractor’s schedule attached? Regardless, what does the subcontract say regarding revisions and updates to the schedule? Does it require you to provide scheduling input? Does it include a no-damage-for-delay provision that gives the contractor an argument to preclude paying any delay, acceleration, or lost productivity claim?

Claims Procedure –> What is the required claims procedure? How many days do you have to submit a claim after the occurrence of the event giving rise to the claim?

Change Order Procedure –> What is the change order procedure? What steps should be taken if a change order request is denied?

Construction Change Directives –> Can the contractor issue construction change directives if there is a dispute as to time or money with the construction change directive?

Insurance –> What are the insurance requirements? Do you maintain this insurance or can you obtain the required coverages?

Design-Assist –> Are there any delegated-design or design-assist requirements? If so, do you have insurance to cover this risk (which goes with the insurance requirements)?

Indemnity –> What are the indemnity requirements? Do you have insurance to cover the indemnity obligation(s)? Does it comply with the law if you are required to indemnify the contractor for the negligence of the contractor?

Substitutions –> What is the procedure for getting substitutions or deviations with the Subcontract Documents approved?

Dispute Resolution –> What is the dispute resolution procedure? Does it require arbitration or litigation? Is mediation a condition precedent? Are there other conditions precedent?

Conditions Precedent to Payment –> What are the conditions precedent to payment? Is there a release form attached to the subcontract? Does it allow you to carve-out items for pending change orders or claims, i.e., items you are not prepared to release?

Delay Damages –> Does it include a liquidated damages provision or allow the contractor to flow-down liquidated damages? What about the contractor’s own delay damages? How are delay damages handled?

Hazardous Substances –> Is there a provision dealing with hazardous substances?

Site/Unforeseeable Conditions –> Is there a provision discussing unforeseeable site conditions? Or, if it is an existing structure, is there a provision dealing with hidden conditions?

Attorney’s Fees –> Is there an attorney’s fees provision?

Consequential Damages –> Does it include a waiver of consequential damages and, if so, does it specify the type of waived damages?

Force Majeure –> Is there a force majeure clause and how is it worded? Does it address items like pandemics, hurricanes, etc., or is there another provision that addresses these items?

Escalations and Supply Chain Impacts –> How are material escalations and supply chain impacts addressed?

Fabricated or Modular Items –> How are prefabricated items addressed from a risk allocation standpoint including delivery, shipment, storage, and integration issues?

Building Information Modeling or Digital Drawings –> Is there a protocol regarding digital drawings or building information modeling?

Bonding Requirements –> What are the bonding requirements? What does the bond form look like? Make sure it is not an unfavorable form, particularly when it comes to the performance bond.

Default and Termination –> What is the default procedure? Is there a reasonable cure period? What forms the basis of a default and then a termination for default? Is there a termination for convenience provision and, if so, is there a termination for convenience fee?

Warranty Period –> When does the warranty period begin? Is there a specific warranty procedure?

Retainage –> What is the percentage of withheld retainage and does the percentage reduce after 50% completion? When is retainage released?

Lien/Payment Bond Rights –> Do you have construction lien rights or rights against the contractor’s payment bond? Do you need information, such as the notice of commencement, to make sure you timely preserve your rights?

Pay-When-Paid –> Does the subcontract include a pay-when-paid provision? It probably does which reinforces why you need to know on the frontend whether you have construction lien or payment bond rights.

HOW ARE YOU DEALING WITH MATERIAL DELAYS / SUPPLY CHAIN IMPACTS?

Posted on May 8, 2021May 8, 2021 by Edward Garber

In a prior article I discussed a material escalation provision in your construction contract to account for the volatility of the material price market. While including such a provision may not have been much of a forethought before, it is now!

What about concerns with the actual supply chain that impacts the availability of and the lead time of materials? How are you addressing this concern in your construction contract?

The pandemic has raised awareness to this issue as certain material availability has been impacted by the pandemic. As a result, parties in construction have tried to forecast those materials where delivery issues may occur including those materials with longer than expected lead times. But equally important is how this issue is being addressed in your construction contract including how you want to negotiate this risk in future construction contracts.

Start with the force majeure provision. Does this force majeure provision address supply chain impacts? It may touch upon it but you may want more clarification dealing with delivery delays that impact a project’s schedule and identifying that this includes a supply chain impact attributable to a specific occurrence, such as the pandemic. Generally touching upon an issue is not the same as specifically addressing an issue for practical purposes to avoid any dispute down the road.

One way is to include or address certain supply chain impacts caused by the COVID-19 pandemic, any future pandemic, and other potential factors based on the current economic climate. If one thing COVID-19 taught us is that we need to fully address the risk of pandemics moving forward, both from a time standpoint and a cost standpoint. Another thing COVID-19 taught is to precisely word force majeure and other provisions so that parties are on the same page when it comes to a foreseeable risk.

The provision can be broad enough to include any supply chain impacts caused by the pandemic and any future pandemic and/or can include specificity based on certain materials that are known as of the date of the contract that have anticipated supply chain concerns and long lead times. While a contractor does its best to account for materials with long lead times, there are factors that can come into play associated with when that material is procured including the construction documents, the approval of shop drawings, deposits for fabricated items, transportation including where the material is being shipped from, and storage and staging issues. In other words, there are factors that can lead to delays in deliveries that simply occur regardless of the planning.

When preparing and negotiating your construction contract, consider the issues associated with material escalation and supply chain impacts.

MATERIAL PRICES CLIMB…AND CLIMB…ARE YOU CONSIDERING A MATERIAL ESCALATION PROVISION?

Posted on May 1, 2021May 1, 2021 by Edward Garber

As you may know, material prices have been climbing. And they continue to climb based on the volatility of the material market. On top of that, there are lead times in getting material due to supply chain and other related concerns. The question is, how are you addressing these risks? These are risks that need to be addressed in your contract.

As it relates to climbing material prices, one consideration is a material escalation provision. The objective of this provision is to address the volatility of the material market in economic climates, such as today’s climate, where the price of material continues to climb. Locking down a material price today will be different than locking down the same price months from today. This volatility and risk impacts pricing and budgets. Naturally, an owner and contractor would like to be in a position to lock down supplier prices as soon as possible—both to secure pricing and to account for items with long lead times or that recent data forecasts a long lead time due to supply chain concerns. However, this is not always possible or practical and can depend on numerous issues such as when the owner contracts with the contractor, when the owner issues the notice to proceed (and permits are issued), final construction documents and revisions to the construction documents, the type of material, whether there is staging or storage available for the materials, and the current status including climitazation of the project.

With a material escalation provision, you are negotiating the risk of material escalations based on how this risk is addressed in your construction contract. This allows parties to be on the same page when a material escalation claim or price adjustment is submitted. Please make sure you work with construction counsel to draft, negotiate, and explain the material escalation provision to you.

If you entered into a fixed sum contract, the reality is that within that fixed sum the contractor should be factoring in this risk into the fixed sum. Under a fix sum contract, the sentiment is an owner is paying “X” for its project and whether the contractor can deliver the project for well under “X” or well over “X” is of no moment because the owner agreed to pay the fixed sum of “X” for the project. As a result, the contractor should bear the risk in a traditional fixed sum contract. However, contractors are trying to address this risk with allowance items by identifying in the contract certain items that constitute an allowance. If a contractor does this, they need to understand that they need to demonstrate the costs for the allowance items because if the cost is less than the allowance item, that amount is credited to the owner. If the cost is greater than the allowance item, than that overage would increase the fixed sum.

A cost-plus contract, on the other hand, is different because there is more transparency in costs than a traditional fixed sum contract. In a cost-plus arrangement, an owner is paying the cost of the work (inclusive of a contractor’s overhead-related items) plus a mark-up for profit. If the cost-plus contract does not contain a cap, known as the guaranteed maximum price, than the owner is going to pay the actual costs so that if there are demonstrated material escalations, that will be a cost passed on to the owner. A prudent owner however shall still require the contractor to demonstrate actual escalation costs (from time of contract to time of procurement) because the escalations should impact the contractor’s control estimate that forms the basis of the cost-plus without a guaranteed maximum price contract.

If there is guaranteed maximum price, then a material escalation provision is a must. (In my opinion, it is good to address this risk even without a guaranteed maximum price.)

There are numerous ways a material escalation clause can be addressed because it involves a negotiation on the frontend as to how the parties will address this risk. Here are some considerations:

Do you want to address the specific materials / items subject to material escalations (e.g., lumber, PVC, steel, aluminum, copper, etc.)? This way the parties understand those materials / items where the provision can apply. In other words, how specific do you want to be in the material escalation provision?
Do you want to consider certain pricing for materials? For instance, this contract is based on the specific pricing set forth in Exhibit “A,” and pricing that increases “Y”% from this pricing shall support the basis of a change order. The specified pricing is the budgeted pricing that forms that basis of the contract but any increase over that pricing over a certain percentage will result in a change order.
Similar to the above bullet point, do you want to include an exhibit for certain material pricing and identify that this pricing is secured through a set date. Any material price increase beyond this date (or above a certain percentage) shall result in a change order.
Similar to the above bullet points, if you are identifying certain pricing for materials for which the contract is based, what if the material prices decrease? Is the owner entitled to a credit?
Is there a contingency in the contract and are buy-out savings rolled into the contingency? If so, does the contractor have full discretion to use the contingency to fund material escalations up to the balance of the contingency? Or, is there a separate contingency solely for purposes of material escalations that reverts 100% to the owner if there are no escalations?
Does the contractor include allowances for certain materials such that there will be a decrease or increase in the contract amount based on the allowance items?
Is the material escalations provision tied to delay?

A material escalation provision is grounded in fairness and allocating risk in an equitable manner. Do not neglect this discussion and including a material escalation provision in the construction contract.

WORKING WITH CONSTRUCTION COUNSEL ON YOUR CONSTRUCTION CONTRACT IS VALUE-ADDED

Posted on February 7, 2021February 7, 2021 by Edward Garber

It is always good practice to have construction counsel assist you with your construction contract. This may mean drafting your contract. This may mean negotiating your contract. This may mean advising you as to provisions in your contract that shift risk to you. This may mean providing red-lined suggestions to the contract. Or, this may mean all of the above, or a combination. The point is having construction counsel work with you will allow you to appreciate risk you are assuming and risk you are allocating to the other party. It will also allow you to consider provisions or language to provisions you should consider. I cannot emphasize the importance of working with construction counsel when it comes to your construction contracts. This is a value-added service.

One consideration is the forum selection provision. This is the provision in the construction contract that may dictate the exclusive venue for disputes. The forum selection provision is not a provision that should be cast aside because if there is a dispute it will be one of the first provisions your attorney will want to review. Dismissing this provision could result in you being required to litigate your dispute or portions thereof in a non-preferred destination, as seen in this non-construction case, that may be more costly or disadvantageous to you for a variety of reasons. A forum selection provision and the provisions in your contract dealing with dispute resolution are important provisions as these provisions advise you how to navigate disputes that may occur during the performance of the construction contract.

PREFABRICATION CONTRACT CONSIDERATIONS

Posted on January 23, 2021June 15, 2021 by Edward Garber

Prefabrication (also referred to as modular construction in instances), is a form of offsite construction where certain construction activities occur at an offsite manufacturing facility or location. Construction components or units are preassembled (prefabricated) at this offsite location prior to being delivered to the project site and then integrated into the project.

When preparing a prefabrication contract (including a prefabrication subcontract), there are a number of complex considerations that need to be weighed, and these considerations are bullet-pointed below. The purpose of these bullet-points is to give you considerations to discuss and vet when preparing, negotiating, and agreeing to a prefabrication contract or subcontract.

UCC or Common Law. Article II of the Uniform Commercial Code applies to the sale of goods where common law applies to the sale of services. As mentioned here, hybrid contracts involving both the sale of goods and services deal with the predominant test to see if the Uniform Commercial Code or common law applies. Oftentimes, prefabricators are considered subcontractors, particularly if they are installing the prefabricated units, where the common law would apply because of the predominant services component involved in their subcontracts.
Responsibility for Integration of Prefabricated Units into Project. There needs to be consideration for how prefabricated units get installed or integrated to work-in-place at the project. Of importance is how to build or integrate allowable tolerances with the prefabricated units and the substrate or work-in-place. This would require an understanding of any allowable tolerances associated with the substrate or work-in-place to ensure there is not an issue with integration.
Insurance. There needs to be strong consideration as to what insurance applies to the prefabricated units during the offsite fabrication process, transport, storage, integration into the project, and for defects. (This involves an understanding of builder’s risk property insurance coverage, commercial general liability coverage, professional liability coverage, the master’s policy that covers property and liability at the manufacturing facility/location, inland marine insurance, etc., in order to maximize insurance coverage in the event of a loss.)
Risk of Transportation. There needs to be consideration how the prefabricated units get transported from the offsite manufacturing location to the project. Transportation is significant risk from a cost standpoint, loss standpoint, and logistics standpoint when transporting loads (e.g., will escorts be required with the transportation), particularly if they are being transported from out of the state where the project is located. Understanding the transportation of the loads including jurisdictional requirements and travel routes–anticipated highways / roads, etc. used to deliver the units–will be important from a cost and timing standpoint. This would also include an understanding of the vendors used to transport or deliver the prefabricated units since you will want a quality / reputable company doing the transportation and handling.
Risk of Loss Post-Delivery to Project. There should be a protocol or plan for inspection or survey procedures when prefabricated components arrive to the project site and get signed-off, or otherwise accepted in writing (not orally), prior to installation. This includes consideration for damage that may occur post-delivery at the project site and may depend on whether the prefabricator is also serving as the contractor that installs the prefabricated units at the project.
Storage. There needs to be consideration as to storage of prefabricated units if they cannot be stored at the project site or the manufacturing location needs offsite storage to store prefabricated units to achieve a production schedule.
Quality Control and Quality Assurance. There needs be a protocol that discusses quality control and assurance, particularly during the offsite fabrication process. This should include input from the prefabricator and an understanding as to whether any third-party testing will be required. This includes the consideration of access to the offsite manufacturing location so units can be inspected during the fabrication process. This also includes the consideration of preservation of certain trade secrets that may be involved in the offsite fabrication process. And, there should be a system that labels or marks the prefabricated units to allow for efficient storage and installation/integration of these units into the project. Further, the protocol should establish the quality control and assurance procedure before prefabricated units are provided to a transporter for delivery to the project site (i.e., a pre-transportation sign-off).
Warranties. There needs to be consideration for warranties provided by the prefabricator and when those warranties commence.
Scope Issues. There needs to be consideration for any scope of work issues and gaps to ensure the full scope of work of the prefabricator is clearly delineated in the contract. This also involves scope issues involving the integration of the prefabricated units into the project to ensure that scope is appropriately detailed. Further, this would involve any lead time associated with the prefabrication, allowable tolerances that need to be factored in, and any requirements associated with commissioning or third-party testing.
Legal Issues. There needs to be consideration if there are any licensing issues, OSHA issues, or state law issues that may come into play (such as a state law issue that impacts any statute of limitations or statute of repose associated with construction defects). You want to make sure all necessary licenses are current and the safety protocols being used at the prefabrication facility (and you make want the safety protocols to be greater than required).
Flow Down Provisions. There needs to be a contractual responsibility that the prefabricated units comport with the contract documents (plans and specifications) so appropriate language, whether flow down provisions in the prime contract or otherwise (such as specific warranty language), needs to be incorporated.
Liquidated Damages and Consequential Damages. Exposure to damage needs to be considered in the event there are delays in delivery or production. Exposure to damage needs to be considered if there are defects or quality control issues with the prefabricated units. In this manner, consideration should involve whether the contract includes a waiver of consequential damages which may depend on whether the prime contractor is exposed to consequential damages with the owner and the type of insurance available to cover consequential damages (i.e., a party may want to limit recovery of such damages to the extent covered by insurance so as not to deprive itself of otherwise available insurance).
Bond Requirements. There needs to be consideration as to whether the prefabricator will be required to be bonded with a payment and performance bond. If not, is there subcontractor default insurance the prefabricator will be enrolled in to cover more catastrophic losses.
Crane Operations. Oftentimes, prefabricated units are incorporated through the utilization of a crane so there should be consideration for any complex crane operations that may be utilized for purposes of offloading or integration in the project. This would include understanding the companies furnishing the crane (again, you want a quality / reputable company) to ensure there are proper crane inspections, certifications, and safety requirements. This would also include an understanding of the crane path for ingress to the project site and where the crane will be situated to determine whether any geotechnical or other testing may need to be conducted.
Hoisting or Loading Platforms. If a loading platform or a hoisting platform will be used, there needs to be an understanding so that the appropriate engineering can be performed for the platform and there is the appropriate inspections for the platform.
Technology. There needs to be consideration for using building information modeling (BIM) and any protocols associated with using BIM. Certain considerations include who is going to take ownership of the model (to ensure there is uniformity in the model and parties are operating under same model) and the level of modeling (details in the modeling).
Governing Building Department. Finally, there should be an initial understanding as to any requirement from the governing building department so that any concerns they may have with prefabricated assemblies / units are determined on the front-end. This way any required inspections or code requirements that are raised can be appropriately addressed and this is known before the prefabrication, not after.

These are some of the main considerations that should be touched upon in any prefabrication contract or subcontract. There are many positives to prefabrication but those positives also come with risk factors that need to be assessed and considered.

QUICK NOTE: ARTICLE ON CONSTRUCTION CLAIMS AND MANAGING RISK

Posted on November 24, 2020November 24, 2020 by Edward Garber

Recently, I shared an article with LevelSet about common construction claims and how to manage the risk with construction claims. Check out the article here. The article touches upon issues regarding: i) knowing your scope of work; ii) understanding the contract documents; iii) knowing your payment rights; iv) how to mitigate construction claims; v) pursing your construction claim; vi) resolving your construction claim; and vii) common construction claims you may deal with on a construction project. This is a valuable high level article that gives you important topics to consider as you move forward with your construction project. If you have questions or concerns regarding construction claims, please make sure to consult with construction counsel. The objective is to manage and mitigate risk and counsel can best assist you regarding preserving and perfecting rights moving forward.

SUBCONTRACT SHOULD FLOW DOWN DELAY CAUSED BY SUBCONTRACTORS

Posted on November 21, 2020November 21, 2020 by Edward Garber

A general contractor’s subcontract with its subcontractor should include a provision that entitles it to flow down liquidated damages assessed by the owner stemming from delays caused by the subcontractor. Such a provision does not mean the general contractor does not have to prove delays caused by the subcontractor or can arbitrarily allocate the amount or days it claims the subcontractor is liable. The general contractor still will need to reasonably establish the delays the subcontractor caused the critical path of the schedule, i.e., delayed the job. In addition to the right to flow down liquidated damages, the subcontract should also entitle the general contractor to recover its actual extended general conditions caused by the subcontractor’s delays (regardless of whether the owner assesses liquidated damages). The objective is that if the subcontractor delays the job, the subcontractor is liable for liquidated damages the general contractor is liable to the owner for in addition to the general contractor’s own delay damages. This is an important subcontractual provision so that the risk of delay caused by subcontractors is clearly flowed down to them in the subcontract.

In a 1987 case, Hall Construction Co., Inc. v. Beynon, 507 So.2d 1225 (Fla. 5^th DCA 1987), the subcontract at-issue contained language that stated, “The parties hereto agree that a supplier who delays performance beyond the time agreed upon in this Purchase Order shall have caused [general contractor] liquidated damages in the amount required of [general contractor] by their contract per day for each day such delay continues which sum the supplier hereby agrees to pay.”

The general contractor was liable to the owner for liquidated damages in the amount of $1,000/day and settled the liquidated damages assessment with the owner for the amount of $20,000 (which was a reduction from a $60,000+ exposure for 60+ days of delay). The general contractor looked to apportion the liquidated damages to subcontractors it claimed was liable for the delay. The subcontractor at-issue disputed its apportionment; therefore, the general contractor sought ALL of its delay damages caused by the subcontractor for the full amount of the 60+ day delay period. The appellate court held that while the subcontract could be clearer, it was still unambiguous that the general contractor could ONLY recover liquidated damages because that is all that contract afforded:

Liquidated damages is a fictitious contractual amount which the parties agree will be paid for breach if damages are not readily ascertainable at the time the contract is drawn. Although the [general contractor] maintains that it is entitled to liquidated damages as well as actual damages suffered as a result of the delay, we find that the parol evidence rule precludes such a finding.

***

Had the general contractor been aware of the parol evidence rule, a different contract may have been provided. For example, a contract with one paragraph for indemnification of all liquidated, or other, damages paid by the general to the owner and another paragraph for payment of other actual, consequential damages suffered by the general as a result of the delay caused by the sub.

Hall Construction Co., 507 So.2d at 1226-27.

DON’T SIGN A CONTRACT THAT DOESN’T ADDRESS COVID-19 (OR PANDEMICS AND EPIDEMICS)

Posted on November 15, 2020November 15, 2020 by Edward Garber

Do yourself a favor: Don’t sign a construction contract that doesn’t address COVID-19 or any pandemic or epidemic from this point forward!

As the number of COVID-19 numbers rise, it would be reasonable to think this could have an impact on ongoing or future construction projects. For this reason, I want to revisit the subject of addressing COVID-19 (and any pandemic or epidemic) in your construction contract.

The potential impact caused by COVID-19 could result from governmental regulations that impact construction of the project, shutdowns due to affected workers, owners’ decisions to suspend performance or adjust the way the project is being constructed, increased deep cleaning requirements, and increased measures associated with social distancing and re-sequencing of shifts. This all plays into the timeliness of performance and the productivity of manpower and equipment usage. When submitting a price, a lot of these considerations may not be factored in because doing so could lead to a price that will never get accepted.

The question then becomes, how do you deal with this?

The answer is easy.

Be prudent when entering into a contract to make sure you address this risk. Now that we know about COVID-19 and the ramifications, the last thing you want to do is not address it at all and create the argument that you have assumed all of the risk for COVID-19. The best thing is to specifically address this in the contract, whether in the force majeure provision or another provision along with what specifically requires a contractor to equitable adjustment of the contract sum and contract time due to COVID-19. I am not suggesting that this contractual provision is used as a tool to avoid proof of the impact caused by COVID-19. Demonstrating the impact absolutely needs to occur, but pretending that COVID-19 will never result in an impact (or increased direct costs to keep the site sanitized) and, thus, does not need to be addressed in the contract is naïve.

Contingency language in the contract could be included with a specified amount to cover certain direct costs (e.g., masks, temperature screening, having a dedicated safety person ensuring masks are being worn, hand washing stations, frequent deep cleaning) and delays or inefficiencies caused by COVID-19. This way this money is not necessarily built into the price, but can be utilized to cover the “contingency.”

Language in the contract could be included to demonstrate the type of proof a party must submit to demonstrate the COVID-19 impact or the lost productivity / inefficiency caused by COVID-19.

Language in the contract could also specify what, in particular, about COVID-19 constitutes a force majeure issue (e.g., shutdown) and whether a party is entitled to money if there is a COVID-19 issue, or just time.

Language in the contract could further address how long a job can be suspended before a party may terminate the contract.

Regardless of the specific negotiated language, the key is simply to be PROACTIVE and address the risk in the contract. As mentioned, with rising numbers, do NOT neglect this consideration. Indeed, this consideration should be broader than just COVID-19 and cover any pandemic or epidemic as this concern becomes more prevalent in contract drafting from this point forward. Prior to COVID-19, addressing pandemics or epidemics in most contracts was an afterthought. That should not be the case anymore!

If you need assistance drafting or negotiating contractual language regarding COVID-19, work with construction counsel that has experience factoring in this risk. I have dealt with a variety of language in the last few months that accounts for this risk where the parties understand the language, have accepted any risk allocation, and have made the business decision associated with the risk.