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
Contractors | Nov 14, 2022
U.S. construction firms lean on technology to manage growth and weather the pandemic
In 2021, Gilbane Building Company and Nextera Robotics partnered in a joint venture to develop an artificial intelligence platform utilizing a fleet of autonomous mobile robots. The platform, dubbed Didge, is designed to automate construction management, maximize reliability and safety, and minimize operational costs. This was just one of myriad examples over the past 18 months of contractor giants turning to construction technology (ConTech) to gather jobsite data, manage workers and equipment, and smooth the construction process.
University Buildings | Nov 13, 2022
University of Washington opens mass timber business school building
Founders Hall at the University of Washington Foster School of Business, the first mass timber building at Seattle campus of Univ. of Washington, was recently completed. The 84,800-sf building creates a new hub for community, entrepreneurship, and innovation, according the project’s design architect LMN Architects.
Giants 400 | Nov 9, 2022
Top 50 Data Center Contractors + CM Firms for 2022
Holder, Turner, DPR, and HITT Contracting head the ranking of the nation's largest data center contractors and construction management (CM) firms for 2022, as reported in Building Design+Construction's 2022 Giants 400 Report.
Giants 400 | Nov 8, 2022
Top 110 Sports Facility Architecture and AE Firms for 2022
Populous, HOK, Gensler, and Perkins and Will top the ranking of the nation's largest sports facility architecture and architecture/engineering (AE) firms for 2022, as reported in Building Design+Construction's 2022 Giants 400 Report.
Giants 400 | Nov 8, 2022
Top 60 Sports Facility Contractors and CM Firms for 2022
AECOM, Mortenson, Clark Group, and Turner Construction top the ranking of the nation's largest sports facility contractors and construction management (CM) firms for 2022, as reported in Building Design+Construction's 2022 Giants 400 Report.
Industry Research | Nov 8, 2022
U.S. metros take the lead in decarbonizing their built environments
A new JLL report evaluates the goals and actions of 18 cities.
Hotel Facilities | Nov 8, 2022
6 hotel design trends for 2022-2023
Personalization of the hotel guest experience shapes new construction and renovation, say architects and construction experts in this sector.
Green | Nov 8, 2022
USGBC and IWBI will develop dual certification pathways for LEED and WELL
The U.S. Green Building Council (USGBC) and the International WELL Building Institute (IWBI) will expand their strategic partnership to develop dual certification pathways for LEED and WELL.
Reconstruction & Renovation | Nov 8, 2022
Renovation work outpaces new construction for first time in two decades
Renovations of older buildings in U.S. cities recently hit a record high as reflected in architecture firm billings, according to the American Institute of Architects (AIA).
Sponsored | Steel Buildings | Nov 7, 2022
Steel structures offer faster path to climate benefits
Faster delivery of buildings isn’t always associated with sustainability benefits or long-term value, but things are changing. An instructive case is in the development of steel structures that not only allow speedier erection times, but also can reduce embodied carbon and create durable, highly resilient building approaches.