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
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
| May 15, 2012
SAGE Electrochromics to become wholly owned subsidiary of Saint-Gobain
This deal will help SAGE expand into international markets, develop new products and complete construction of the company’s new, state-of-the-art manufacturing facility in Faribault, Minn.
| May 14, 2012
Codes harvest rainwater
IAPMO’s Green Plumbing and Mechanical Code Supplement could make rainwater harvesting systems commonplace by clearly outlining safe installation and maintenance practices.
| May 14, 2012
Plumbing research coalition to study drainline transport issue
The effort is aimed at determining if decreasing levels of water flow––caused by increasingly efficient plumbing fixtures––are sufficient to clear debris from plumbing pipes.
| May 14, 2012
SOM to break ground on supertall structure in China
The 1,740-feet (530-meter) tall tower will house offices, 300 service apartments and a 350-room, 5-star hotel beneath an arched top.
| May 14, 2012
Adrian Smith + Gordon Gill Architecture design Seoul’s Dancing Dragons
Supertall two-tower complex located in Seoul’s Yongsan International Business District.
| May 14, 2012
SMPS and Deltek announce alliance
A/E/C industry leaders partner to advance technology’s role in design firm marketing and business development.
| May 14, 2012
ArchiCAD e-Specs integration unveiled
Architects, engineers and construction professionals use InterSpec’s e-SPECS products on thousands of projects annually to maintain synchronization between construction models, drawings, and project specifications.
| May 11, 2012
2012 White Paper: High-Performance Reconstructed Buildings: The 99% Solution
Download the complete White Paper, Chapters 1-10
| May 11, 2012
Chapter 10 Action Plan: 18 Recommendations for Advancing Sustainability in Reconstructed Buildings
We offer the following recommendations in the hope that they will help step up the pace of high-performance building reconstruction in the U.S. and Canada. We consulted many experts for advice, but these recommendations are solely the responsibility of the editors of Building Design+Construction. We welcome your comments. Please send them to Robert Cassidy, Editorial Director: rcassidy@sgcmail.com.
| May 11, 2012
Chapter 9 The Key to Commissioning That Works? It Never Stops
Why commissioning for existing and renovated buildings needs to be continuous to be effective.