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
School Construction | May 11, 2022
New Digital Learning Commons at Rutgers supports doctoral programs in over 16 disciplines
The new Digital Learning Commons at the Rutgers University Archibald S. Alexander Library provides students in over 16 courses of study and four professional schools with spacious collaborative and study space.
Esports Arenas | May 11, 2022
Design firm Populous partners with esports company on digital art NFT collection
Design firm Populous and multidiscipline esports organization Kansas City Pioneers have partnered on a five-part NFT collection.
Multifamily Housing | May 11, 2022
Kitchen+Bath AMENITIES – Take the survey for a chance at a $50 gift card
MULTIFAMILY DESIGN + CONSTRUCTION is conducting a research study on the use of kitchen and bath products in the $106 billion multifamily construction sector.
Building Team | May 11, 2022
Miami to get its first supertall building
After completing its first supertall building, 111 W 57th Street in New York, developer PMG is now preparing for the groundbreaking of the first supertall in Miami: Waldorf Astoria Miami.
Sponsored | BD+C University Course | May 10, 2022
Design guide for parapets: Safety, continuity, and the building code
This course covers design considerations for parapets. The modern parapet must provide fire protection, serve as a fall-protective guard, transition and protect the roof/facade interface, conceal rooftop equipment, and contribute to the aesthetic character of the building.
Sponsored | BD+C University Course | May 10, 2022
Designing smarter places of learning
This course explains the how structural steel building systems are suited to construction of education facilities.
Contractors | May 10, 2022
W.E. O’Neil Construction acquires Austin-based DCA Construction
W.E. O’Neil Construction announces it has acquired DCA Construction, a prominent general contracting firm based in Austin, Texas. The acquisition marks an exciting opportunity to formally expand W.E. O’Neil’s operations into the Texas market, where they have completed several projects for long-time clients over the last two decades.
Market Data | May 10, 2022
Hybrid work could result in 20% less demand for office space
Global office demand could drop by between 10% and 20% as companies continue to develop policies around hybrid work arrangements, a Barclays analyst recently stated on CNBC.
Multifamily Housing | May 10, 2022
Multifamily rents up 14.3% in 2022
The average U.S. asking rent for multifamily housing increased $15 in April to an all-time high of $1,659, according to Yardi Matrix.
Headquarters | May 10, 2022
JPMorgan Chase’s new all-electric headquarters to have net-zero operational emissions
JPMorgan Chase’s recently unveiled plans for its new global headquarters building in New York City that is rife with impressive sustainability credentials.