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
| Oct 13, 2014
The mindful workplace: How employees can manage stress at the office
I have spent the last several months writing about healthy workplaces. My research lately has focused on stress—how we get stressed and ways to manage it through meditation and other mindful practices, writes HOK's Leigh Stringer.
| Oct 13, 2014
Debunking the 5 myths of health data and sustainable design
The path to more extensive use of health data in green building is blocked by certain myths that have to be debunked before such data can be successfully incorporated into the project delivery process.
| Oct 13, 2014
Department of Agriculture launches Tall Wood Building Competition
The competition invites U.S. developers, institutions, organizations, and design teams willing to undertake an alternative solution approach to designing and building taller wood structures to submit entries for a prize of $2 million.
| Oct 12, 2014
AIA 2030 commitment: Five years on, are we any closer to net-zero?
This year marks the fifth anniversary of the American Institute of Architects’ effort to have architecture firms voluntarily pledge net-zero energy design for all their buildings by 2030.
| Oct 10, 2014
A new memorial by Zaha Hadid in Cambodia departs from the expected
The project sees a departure from Hadid’s well-known use of concrete, fiberglass, and resin. Instead, the primary material will be timber, curved and symmetrical like the Angkor Wat and other Cambodian landmarks.
| Oct 9, 2014
Regulations, demand will accelerate revenue from zero energy buildings, according to study
A new study by Navigant Research projects that public- and private-sector efforts to lower the carbon footprint of new and renovated commercial and residential structures will boost the annual revenue generated by commercial and residential zero energy buildings over the next 20 years by 122.5%, to $1.4 trillion.
| Oct 9, 2014
More recession-postponed design projects are being resurrected, says AIA
About three quarters of the estimated 700 firms that serve as panelists on AIA’s Architectural Billings Index (ABI) had delayed or canceled major design projects in response to recessionary pressures. Nearly one-third of those firms now say they have since restarted stalled projects.
| Oct 9, 2014
Steven Holl's 'intersecting spheres' scheme for Taipei necropolis gets green light
The schematic design has been approved for the 50 000-sm Arrival Hall and Oceanic Pavilion for the Taiwan ChinPaoSan Necropolis.
| Oct 9, 2014
Beyond the bench: Meet the modern laboratory facility
Like office workers escaping from the perceived confines of cubicles, today’s scientists have been freed from the trappings of the typical lab bench, writes Perkins+Will's Bill Harris.
| Oct 8, 2014
New tools for community feedback and action
Too often, members of a community are put into a reactive position, asked for their input only when a major project is proposed. But examples of proactive civic engagement are beginning to emerge, write James Miner and Jessie Bauters.