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
| Nov 18, 2014
Grimshaw releases newest designs for world’s largest airport
The airport is expected to serve 90 million passengers a year on the opening of the first phase, and more than 150 million annually after project completion in 2018.
| Nov 17, 2014
Nearly two years after Sandy Hook, the bloodshed continues
It’s been almost two years since 20 first-graders were shot and killed at Sandy Hook Elementary School in Newtown, Conn., but these incidents, both planned and random, keep occurring, writes BD+C's Robert Cassidy.
| Nov 17, 2014
Hospitality at the workplace: 5 ways hotels are transforming the office
During the past five years, the worlds of hospitality and corporate real estate have undergone an incredible transformation. The traditional approach toward real estate asset management has shifted to a focus on offerings that accommodate mobility, changing demographics, and technology, writes HOK's Eva Garza.
| Nov 17, 2014
Developments in 3D printing can assist architecture in the smallest details
Researchers at the Department of Energy’s Oak Ridge National Laboratory (ORNL) have developed a way for 3D printed metals to be produced with an unprecedented degree of precision.
| Nov 17, 2014
A new BSL-3 public-safety lab debuts in Vermont
The laboratory will be used to perform a wide range of analyses to detect biological, toxicological, chemical, and radiological threats to the health of the population, from testing for rabies, West Nile, pertussis and salmonella to water and food contaminants.
| Nov 17, 2014
Workplace pilot programs: A new tool for creating workspaces employees love
In a recent article for Fast Company, CannonDesign's Meg Osman details how insurance giant Zurich used a workplace pilot program to empower its employees in the creation of its new North American headquarters.
| Nov 17, 2014
Mastering natural ventilation: 5 crucial lessons from design experts
By harnessing natural ventilation, Building Teams can achieve a tremendous reduction in energy use and increase in occupant comfort. Engineers from SOM offer lessons from the firm’s recent work.
| Nov 14, 2014
Bjarke Ingels unveils master plan for Smithsonian's south mall campus
The centerpiece of the proposed plan is the revitalization of the iconic Smithsonian castle.
| Nov 14, 2014
What college students want in their living spaces
In a recent workshop with 62 college students, architects from Little explored the changing habits and preferences of today's students, and how those changes affect their living spaces.
Sponsored | | Nov 12, 2014
Eye-popping façade highlights renovation, addition at Chaffin Junior High School
The new distinctive main entrance accentuates the public face of the school with an aluminum tube “baguette” system.