Global supply-chain delays and shortages have had an impact on construction contracts in terms of enforceability and risk, and have increased the likelihood of litigation to settle differences between parties, as well as the need to negotiate contracts that anticipate and minimize potential disputes.
“The allocation of risk is paramount to [achieving] the best possible outcome,” stated David Vanderhider, a Partner in the San Antonio office of Dykema Gossett, a Detroit-based national law firm with a substantial construction litigation practice.
During an October 26 webinar that explored the legal considerations of supply-chain impacts on contracts, Vanderhider was joined by two Partners from Dykema Gossett’s Chicago office: Steven Mroczkowski, who is Co-leader of the firm’s Construction Group; and Melanie Chico, Asset Practice Group Leader.
Chico predicted that supply-chain problems, including those related to costs and labor, are likely to spill into 2023. To which Vanderhider followed that earlier attention to planning will be needed to prepare for delays and cost overruns. Mroczkowksi added that collaboration is the key to allocating risk fairly, and he’s been seeing fewer take-it-or-leave-it clauses on contracts. But he also noted that “there’s no one-size-fits-all” solution.
Contractual risk and reward
The bulk of the webinar was taken up with the partners discussing different contract clauses. For example, Mroczkowski has seen an uptick in litigation over the applicability of force majeure, which is intended to excuse nonperformance following a particular event. (This is commonly known as the “Act of God” provision.) Such clauses are enforceable when the event is beyond the reasonable control of the party. And what is often being litigated, he said, is whether the affected party took sufficient steps to reduce its risk.
Mroczkowski cautioned that force majeure can vary by jurisdiction and how a project’s financing is structured, which is why he advises clients to customize the language of their contracts to the realities of the given project. “Sometimes, risk allocation boils down to an amendment in a contract,” observed Chico.
Another growing area of dispute, the partners said, is a contract’s Notice requirement, which spells out when a party is entitled to additional compensation or time. Chico said that too many notice clauses are loosely drawn up, and lack specificity when it comes to who, what, when, and why.
Indeed, the partners agreed that the precision of a particular clause’s language usually determines each party’s level of protection in a contract, especially at a time when outside forces that affect contractual agreements are in flux.
Litigate or arbitrate
![Contracts are still being written too loosely](/sites/default/files/inline-images/construction_contract_agreement_template1_1.jpg)
During the webinar, the partners touched on suspension and termination provisions, limitation of liability clauses, waivers for consequential damages (which owners are generally interested in), safety requirements, and insurance requirements. (Vanderhider said that insurance policies covering errors and omissions/professional liability “are trending,” and revolve around notice provisions.)
He said he’s been seeing contracts with more provisions that allow owners to withhold payments, with a notorious change in emphasis from “pay when paid” to “pay if paid,” which shifts more risk onto subcontractors. Chico added there are options “to be creative here,” such as payment clauses that kick in or are capped at certain thresholds, are limited to certain building materials, are tied to index pricing, or offer early payment for supply and storage actions.
The partners also took some time to debate how best to resolve disputes in general.
Vanderhider typically favors litigation, claiming that arbitration doesn’t always save time or money, and can place limits on the presentation of evidence and witnesses. “Many of the more common contract forms don’t reflect the reality of today’s economic climate,” he asserted. But Vanderhider also conceded that arbitration makes it easier for parties to keep evidence private
Chico, on the other hand, prefers arbitration, “mostly because it’s faster” than letting a lawsuit play out. She and Vanderhider agreed that dispute clauses in contracts are most effective when they are consistent throughout the construction chain. Mroczkowski recommended, too, that contracts include a provision mandating some level of arbitration so as not to halt the project while the parties try to resolve differences.
In conclusion, Mroczkowski cited four takeaways for contractual risk mitigation:
•Focus on your priorities
•Be proactive anticipating supply-chain impacts
•Ensure consistency in certain key contract terms
•Ensure compliance with local laws.
Related Stories
Giants 400 | Aug 7, 2015
RECONSTRUCTION AEC GIANTS: Restorations breathe new life into valuable older buildings
AEC Giants discuss opportunities and complications associated with renovation, restoration, and adaptive reuse construction work.
Giants 400 | Aug 6, 2015
BIM GIANTS: Robotic reality capture, gaming systems, virtual reality—AEC Giants continue tech frenzy
Given their size, AEC Giants possess the resources and scale to research and test the bevy of software and hardware solutions on the market. Some have created internal innovation labs and fabrication shops to tinker with emerging technologies and create custom software tools. Others have formed R&D teams to test tech tools on the job site.
Giants 400 | Aug 6, 2015
GIANTS 300 REPORT: Top 75 Healthcare Construction Firms
Turner, McCarthy, and Skanska top Building Design+Construction's 2015 ranking of the largest healthcare contractors and construction management firms in the U.S.
Giants 400 | Aug 6, 2015
HEALTHCARE AEC GIANTS: Hospital and medical office construction facing a slow but steady recovery
Construction of hospitals and medical offices is expected to shake off its lethargy in 2015 and recover modestly over the next several years, according to BD+C's 2015 Giants 300 report.
Giants 400 | Aug 6, 2015
GIANTS 300 REPORT: Top 75 Construction Management Firms
Jacobs, AECOM, and Hill International head Building Design+Construction's 2015 ranking of the largest construction management and project management firms in the United States.
Giants 400 | Aug 6, 2015
GIANTS 300 REPORT: Top 100 Contractors
Turner Construction and Whiting-Turner Contracting top Building Design+Construction's 2015 ranking of the largest contractors in the United States.
Giants 400 | Aug 5, 2015
CONSTRUCTION GIANTS: Economists hedge their bets on prospects for nonresidential construction
Leading economists expect spending for nonresidential construction to rise in 2015 by somewhere in the 6.4–7.7% range, and remain strong in 2016, according to BD+C's 2015 Giants 300 report.
Giants 400 | Aug 5, 2015
GIANTS 300 REPORT: Top 85 Office Sector Construction Firms
Turner, Structure Tone, and Gilbane top BD+C's ranking of the nation's largest office sector contractors and construction management firms.
Giants 400 | Aug 5, 2015
OFFICE SECTOR GIANTS: Today’s workplace design must appeal to Millennials’ ‘activity-based’ lifestyle
Office market AEC Giants discuss the latest trends workplace design, and the state of the office construction sector.
Contractors | Jul 31, 2015
Nonresidential fixed investment falls in second quarter
In the first half of 2015, both the broader economy and nonresidential investment lost the momentum they had coming into the year, said Associated Builders and Contractors Chief Economist Anirban Basu.