Tag Archives: scope

Expect the Unexpected (your design contracts in a post-COVID world)

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Have you adapted your post-COVID practice to better plan for the “unexpected” ?  In particular, have you looked at–and revised– your professional services contracts to give yourself a little more breathing room for unaccounted issues that may arise?  If not, no time like the present.

Don’t like that saying?  How about ” a stitch in time saves nine?”  No?  Still nothing?  What about a picture of something so completely unexpected it shocks you– say, a fireman commuting home, in fire-fighting regalia, on a tricycle?  Okay, here you go…

Fireman-bikerNow that I have your attention– you should make it a practice to regularly review and update your professional services agreements, and you should consider issues such as:

  1.  Does your agreement provide for extra compensation if you have to spend more time or a longer period providing construction administration services for material delays or labor shortages?  If not, it should.
  2. Does your agreement have a well-written “act of God” provision– one that includes pandemic/epidemics as part of the “act of God” conditions in which a term may become void?  If not, add it now!
  3. Have you considered whether you want arbitration instead of litigation if a lawsuit does arise?  And if you want to arbitrate, does your contract give specifics, like how many arbitrators will decide the case?  These things can be added now with little effort, or you can pay your lawyer to negotiate them down the line.  Guess which is cheaper?

You *do* have a good, solid contract to begin with, correct?  If not, I’ve previously given examples of how to craft helpful scopes of services and how to add the protection of a well-crafted exclusion to your scope of services.   Check them out, and be ready for the next biker-fireman surprise in your future.

Photo (c) MelissaBrumbackCreative Commons License

Can You Change the Scope of Work? Not in a bidding situation! (reader comment)

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biddingSetting the Right Expectations for Owner Clients is a must, as I recently wrote in my post discussing Scope of Work clauses.

According to construction consultant Tony Frisby,* scope of work issues are more important than general conditions in the management of a project.

Tony notes, however, that it is not always possible to change Scope of Work clauses in every situation:

“For example, if bidding on advertised procurement, any modifications in the bid may very well be a basis of rejection as non-responsive; the subcontractor is bound the same rule as to the scope of work in the general contract.  In negotiated contracts, two step and design build, of course, the contractor can delineate modifications or exclusions.

In subcontract agreements, we recommend that a Scope Letter do exactly what you have indicated, with emphasis on duties by others, such as hoisting and services provided by others.  Obviously, we recommend the deletion of ridiculous clauses such as No Damages for Delay.”

Tony’s point is a valid one– those dealing with a Bidding situation cannot change the Scope of Work.  Most architects & engineers enjoy more flexibility here than contractors, and can work on scope of work as part of an Request for Proposal response.  Tony’s point about subcontractor agreements is equally applicable to agreements with subconsultants as well.

* Tony Frisby specializes in prevention and non-judicial resolution of construction disputes.  He also assists companies in organizational improvements.

Agree? Disagree?  Share your thoughts with Tony and me, below.

Photo credit: Financial Times via Creative Commons license.

Setting the Right Expectations for your Owner Client– Craft your Scope of Work well (law note)

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belt & suspendersRegular readers of this blog know that you absolutely should have a written contract, and not rely on “gentlemen’s agreements.”  But what is the most important part of your agreement to provide professional services?  The dispute resolution provision? Payment terms? Change Order requirements?  All of those are important.  I’d argue, however, that the Scope of Work provision is, if not the most important term, one of the key terms.  Face it– once you  have a good set of standard contract terms, they rarely need to be drastically rewritten for each individual project.  But each and every time you start a new project, whether for a long-time client or a new owner, you are defining the Scope of Work.

This is where paying attention up front can save you headaches down the road.  I often refer to the belt & suspenders approach— you want to both be very clear in describing the scope of work, and equally clear in describing exclusions to your services.  That way, everyone knows what is expected up front, and you can hopefully avoid litigation pitfalls down the road.

Bill Beardslee of Davis Martin Powell has coined a nice mnemonic for Scope that is very apt:

S C O P E

Sufficiently

Control

Other

Peoples

Expectations

 

Your turn. Do you carefully craft your Scope of Work for each new Project?  You should.  If you need help in crafting your Scopes of Work, drop me a line. 

 

 

What is not in your construction contract can be just as important as what is in the contract

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excludedEver wonder why lawyers like to write contracts that seem to go on, and on, and on? By nature, lawyers are doomsayers. We try to minimize risk, and sometimes that takes the form of a contract that “only a lawyer could love”.

We will cover important contract terms in future blog posts, but for now, did you know that what is not in your construction contract is just as important as what is in there? Many times the heart of a construction dispute stems from confusion or mistaken assumptions about what, exactly, was agreed upon.

In addition to having a very detailed “Scope of Services,” in which you specify exactly what you will be doing on a project, you should also develop a standard “Exclusions from Services” list, and that list should be a part of every contract.

Such an exclusion list should include:
— anything you were specifically asked not to perform
— anything the owner indicated was to be provided by others
— anything which involves specific contractor coordination (unless
you are providing this service)
— a listing of anything above and beyond normal conditions (for
example, “attendance at more than X meetings a month”)
— a general “catch all” statement that anything not specifically
specified in the Scope of Services is not covered

Of course, what specific things should be listed in your Exclusions list depends on what field of construction you are in. Design professionals need to focus on coordination issues, duties with respect to other design professionals on a large project, duties relating to oversight of contractor work, and related issues. Contractors should focus on their responsibility to work with and/or around other trades as well as related work that the owner does not intend to pay for which can result in scope creep.

While it might seem like wearing belts and suspenders at the same time to write out a Scope of Services and also include an Exclusion from Services list, the minimal extra effort in developing such an Exclusion list will pay you back in volumes should a dispute on the project ever arise.

Photo (c) Markus Spiske.