Every construction agreement, whether based upon industry-standard forms, such as ConcensusDocs©, AIA©, or other standard form agreement, or upon a client-customized agreement form, must be adapted to the specific project. Not every “boilerplate” provision should be employed with every contract. Our construction lawyers have the experience necessary to analyze these “standard” forms of agreement and adapt them to the specific project and to the state in which the project is located. Our experience is that great savings can result from careful review and negotiation of construction agreements at the onset of a project.
For general contractors, coordination of the provisions of the general contract with provisions of subcontracts and material purchase orders can be essential to avoid disputes later during the project. Where subcontracts are mixed with purchase order agreements, the inconsistency of rights and remedies can result in unnecessary expense and delay. We review not only the general contract, but all applicable subcontracts and purchase orders to achieve maximum consistency.
Licensing of architects, engineers, and contractors is now universal. The failure of a contractor to hold all professional licenses required by the state in which the project is situated can result in the inability of the contractor to enforce its agreement in the courts of that state. Failure of licensing can also serve as an objection to payment in arbitration. We work with our clients to confirm required licensure in each state required for its performance under its agreement. This analysis is critical because some states do not permit the lack of proper licensing on the date of the contract to be subsequently corrected.
Before any construction project of material size begins, it is necessary to confirm ownership and proper zoning of the jobsite. Identification of existing liens against the jobsite is also critical to understanding the value of our client’s lien rights and other remedies in the event of an owner default. Typically, a review of these issues may be conducted through on-line searches at minimal cost to our clients. This fundamental pre-construction “homework” can help resolve issues before they become substantial problems during construction, and can have a bearing on recommended provisions for the construction agreement.
Most “standard” construction contracts contain clauses requiring that all disputes be settled through arbitration. Our experience, however, is that not all contracts are suited for arbitration, and that, rather than expediting the dispute-resolution process, arbitration can result in a slower processing of claims at greater costs. Arbitration clauses are not “one size fits all” provisions and must be thoughtfully adapted to each situation.
A frequently overlooked aspect of construction agreements are those requiring bid, performance, or payment bonds. Boiler-plate contract provisions and boiler-plate bonds frequently overlook such issues as the impact of Change Orders and other subsequent contract amendments upon the obligations of bonding companies. Attention to such issues at the time of contract preparation can avoid later disputes on issues of coverage. While Stone & Baxter’s construction lawyers have represented bonding companies, our primary focus is upon representing those contracting with them, and the “care and feeding” of the bonding company during contract performance and contract disputes.
Our construction lawyers are trial lawyers with decades of experience working side by side with construction principals and resolving all manner of construction disputes. Thus, there are few construction issues, if any, that we haven’t encountered. As a result, we’re able to identify potential issues on the front-end of a project and, more often than not, negotiate and contract around those issues in lieu of costly litigation and a failed project in the future.