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
University Buildings | Feb 7, 2023
Kansas City University's Center for Medical Education Innovation can adapt to changes in medical curriculum
The Center for Medical Education Innovation (CMEI) at Kansas City University was designed to adapt to changes in medical curriculum and pedagogy. The project program supported the mission of training leaders in osteopathic medicine with a state-of-the-art facility that leverages active-learning and simulation-based training.
Giants 400 | Feb 6, 2023
2022 Reconstruction Sector Giants: Top architecture, engineering, and construction firms in the U.S. building reconstruction and renovation sector
Gensler, Stantec, IPS, Alfa Tech, STO Building Group, and Turner Construction top BD+C's rankings of the nation's largest reconstruction sector architecture, engineering, and construction firms, as reported in the 2022 Giants 400 Report.
Giants 400 | Feb 6, 2023
2022 Transit Facility Giants: Top architecture, engineering, and construction firms in the U.S. transit facility sector
Walsh Group, Skanska USA, HDR, Perkins and Will, and AECOM top BD+C's rankings of the nation's largest transit facility sector architecture, engineering, and construction firms, as reported in the 2022 Giants 400 Report.
Giants 400 | Feb 6, 2023
2022 Telecommunications Facility Sector Giants: Top architecture, engineering, and construction firms in the U.S. telecommunications facility sector
AECOM, Alfa Tech, Kraus-Anderson, and Stantec head BD+C's rankings of the nation's largest telecommunications facility sector architecture, engineering, and construction firms, as reported in the 2022 Giants 400 Report.
Giants 400 | Feb 6, 2023
2022 Religious Sector Giants: Top architecture, engineering, and construction firms in the U.S. religious facility construction sector
HOK, Parkhill, KPFF, Shawmut Design and Construction, and Wiss, Janney, Elstner head BD+C's rankings of the nation's largest religious facility sector architecture, engineering, and construction firms, as reported in the 2022 Giants 400 Report.
Giants 400 | Feb 6, 2023
2022 Justice Facility Sector Giants: Top architecture, engineering, and construction firms in the U.S. justice facility/public safety sector
Stantec, DLR Group, Turner Construction, STO Building Group, AECOM, and Dewberry top BD+C's rankings of the nation's largest architecture, engineering, and construction firms for justice facility/public safety buildings work, including correctional facilities, fire stations, jails, police stations, and prisons, as reported in the 2022 Giants 400 Report.
Giants 400 | Feb 6, 2023
2022 Parking Structure Giants: Top architecture, engineering, and construction firms in the U.S. parking structure sector
Choate Parking Consultants, Walker Consultants, Kimley-Horn, PCL, and Balfour Beatty top BD+C's rankings of the nation's largest parking structure sector architecture, engineering, and construction firms, as reported in the 2022 Giants 400 Report.
Market Data | Feb 6, 2023
Nonresidential construction spending dips 0.5% in December 2022
National nonresidential construction spending decreased by 0.5% in December, according to an Associated Builders and Contractors analysis of data published today by the U.S. Census Bureau. On a seasonally adjusted annualized basis, nonresidential spending totaled $943.5 billion for the month.
Giants 400 | Feb 3, 2023
Top Workplace/Interior Fitout Architecture, Engineering, and Construction Firms for 2022
Gensler, Interior Architects, AECOM, STO Building Group, and CBRE top the ranking of the nation's largest workplace/interior fitout architecture, engineering, and construction firms, as reported in Building Design+Construction's 2022 Giants 400 Report.
Multifamily Housing | Feb 3, 2023
HUD unveils report to help multifamily housing developers overcome barriers to offsite construction
The U.S. Department of Housing and Urban Development, in partnership with the National Institute of Building Sciences and MOD X, has released the Offsite Construction for Housing: Research Roadmap, a strategic report that presents the key knowledge gaps and research needs to overcome the barriers and challenges to offsite construction.