I generally follow a "put it writing" rule, which means that if something is in writing it is more than likely to be achieved.  Whether you are a list-maker or a goal-setter, your efforts will be rewarded if you put those lists and goals in writing.


In this first part of a four-part series, I will share some of the contract issues for contractors and subcontractors to review before signing a construction contract.  The top five include:

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  • Site Conditions Clause: Make sure that the Contractor is not taking responsibility for unforeseen or differing site conditions, and that costs for such site conditions are compensable.  You should also make sure that additional time is also a remedy.
  • Surveys and Geotechnical/Subsurface Conditions Reports: Whose responsibility is it to do the report? Does the contract provide that Contractor can rely on the report? If not, understand that the Contractor is assuming the risk. If Owner procured the report, do not permit the Owner to disclaim responsibility. If Contractor procured the report, make sure that site conditions reported serve as the baseline for what is a “foreseen condition” in relation to the site conditions clause.
  • No Damages for Delay Clause: This provision states that the Contractor is not entitled to recovery any damages for delays caused on the project.  It is in the Contractor’s best interest to delete this provision.  If the Owner won’t budge, suggest that Contractor be entitled to recover actual, documented costs for Owner-caused delays. Contractor should not have to absorb Owner-caused delays or delays caused by others.
  • Owner’s Other Contractors: Does the contract put the Contractor at the mercy of Owner’s other contractors in terms of schedule and compensation? Who is required to coordinate? Do not let the Owner disclaim responsibility for its other contractors.  Remember that in most states the Contractor has no recourse directly against the other contractors.
  • Ownership of Drawings: Make sure ownership of any drawings does not transfer to the Owner until payment by the Owner.

Stayed tuned for the next post, covering termination and change orders.  What recommendations do you have regarding contract issues?