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
| Dec 17, 2010
Vietnam business center will combine office and residential space
The 300,000-sm VietinBank Business Center in Hanoi, Vietnam, designed by Foster + Partners, will have two commercial towers: the first, a 68-story, 362-meter office tower for the international headquarters of VietinBank; the second, a five-star hotel, spa, and serviced apartments. A seven-story podium with conference facilities, retail space, restaurants, and rooftop garden will connect the two towers. Eco-friendly features include using recycled heat from the center’s power plant to provide hot water, and installing water features and plants to improve indoor air quality. Turner Construction Co. is the general contractor.
| Dec 17, 2010
Toronto church converted for condos and shopping
Reserve Properties is transforming a 20th-century church into Bellefair Kew Beach Residences, a residential/retail complex in The Beach neighborhood of Toronto. Local architecture firm RAWdesign adapted the late Gothic-style church into a five-story condominium with 23 one- and two-bedroom units, including two-story penthouse suites. Six three-story townhouses also will be incorporated. The project will afford residents views of nearby Kew Gardens and Lake Ontario. One façade of the church was updated for retail shops.
| Dec 17, 2010
ARRA-funded Navy hospital aims for LEED Gold
The team of Clark/McCarthy, HKS Architects, and Wingler & Sharp are collaborating on the design of a new naval hospital at Camp Pendleton in Southern California. The $451 million project is the largest so far awarded by the U.S. Navy under the American Recovery and Reinvestment Act. The 500,000-sf, 67-bed hospital, to be located on a 70-acre site, will include facilities for emergency and primary care, specialty care clinics, surgery, and intensive care. The Building Team is targeting LEED Gold.
| Dec 17, 2010
Arizona outpatient cancer center to light a ‘lantern of hope’
Construction of the Banner MD Anderson Cancer Center in Gilbert, Ariz., is under way. Located on the Banner Gateway Medical Center campus near Phoenix, the three-story, 131,000-sf outpatient facility will house radiation oncology, outpatient imaging, multi-specialty clinics, infusion therapy, and various support services. Cannon Design incorporated a signature architectural feature called the “lantern of hope” for the $90 million facility.
| Dec 17, 2010
Cladding Do’s and Don’ts
A veteran structural engineer offers expert advice on how to avoid problems with stone cladding and glass/aluminum cladding systems.
| Dec 17, 2010
5 Tips on Building with SIPs
Structural insulated panels are gaining the attention of Building Teams interested in achieving high-performance building envelopes in commercial, industrial, and institutional projects.
| Dec 17, 2010
How to Win More University Projects
University architects representing four prominent institutions of higher learning tell how your firm can get the inside track on major projects.
| Dec 13, 2010
Energy efficiency No. 1 priority for commercial office tenants
Green building initiatives are a key influencer when tenants decide to sign a commercial real estate lease, according to a survey by GE Capital Real Estate. The survey, which was conducted over the past year and included more than 2,220 office tenants in the U.S., Canada, France, Germany, Sweden, the UK, Spain, and Japan, shows that energy efficiency remains the No. 1 priority in most countries. Also ranking near the top: waste reduction programs and indoor air.
| Dec 7, 2010
Are green building RFPs more important than contracts?
The Request for Proposal (RFP) process is key to managing a successful LEED project, according to Green Building Law Update. While most people think a contract is the key element to a successful construction project, successfully managing a LEED project requires a clear RFP that addresses many of the problems that can lead to litigation.