Concrete Pavement Progress 22 www.acpa.org C O N S T R U C T I O N L A W legal questions relevant to your particular situation. When we review our client’s contracts, what we are most looking for is fairness. So much in contracting has gotten to be, how can we completely shift liability no matter who is at fault? With that being said, below are a small sampling of contract clauses the we typically seek to adjust to get a fairer outcome. Incorporation of Bid Proposal As a subcontractor, when you submit your pricing, you may have various inclusions, exclusions, or other stipulations in your proposal. Subcontracts typically have sections outlining what exactly is included in the subcontract documents. The majority of the time, the subcontractor’s proposal is not included in the recitation of documents. When representing subcontractors, we always seek to have this added. If there is pushback, we often tell our clients to say something along the lines of the following: “Our proposal to you was expressly based on the terms in our quote. If you are now saying those terms do not apply, please let me know and I can provide updated pricing for you based on these new terms.” Most of the » continued from page 21 time, the proposal is incorporated. If there is still pushback, you need to carefully review your proposal and see what will be impacted without it incorporated. Specifically call these items out and ask that they be included in the subcontract if the entire proposal will not be incorporated. Scheduling The typical subcontract does not include any duration, allow any input from the subcontractor on timing or sequencing, and requires the subcontractor to start work, usually within 3–5 days of notice, and adjust its work to match any subsequent schedule revisions. This allows general contractors to ostensibly schedule the work as necessary in order to complete the overall project on time. However, this clause can easily be abused, and a recent example from a client demonstrates just how badly it can impact you. Our client was a paving subcontractor, and was not anticipated to be on the job until towards the end of the project. There were severe project delays before our client was even supposed to be on the job, caused in large part by the general. Before our client was set to begin work, the general issued an updated schedule cutting our client’s paving duration by more than half. As a result, per the contract, our client had to choose between accelerating or facing liquidated damages. While we were able to help our client come to an acceptable resolution and not incur out of pocket costs, had the scheduling clause been negotiated at the front end, we likely would not have been needed. As a subcontractor, you should demand that your as-planned durations cannot be shortened without acceleration compensation. We always recommend that schedules must be “mutually agreeable.” This does not allow either party to unilaterally make changes that will impact the other. Damage for Delay A good follow-up to scheduling is a no damage for delay clause. Typically, subcontracts include language that states subcontractors are only entitled to compensation for delay if the general contractor receives compensation from the owner. On the flip side, the general contractor is entitled to compensation for any damages the subcontractor causes by its delay. In other words, a general contractor is not liable for any delays caused by itself (the general obviously VISIT 2022MEETING.ACPA.ORG FOR MORE
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