“The best laid plans of mice and men go oft awry.” – Robert Burns
The above quoted line from Robert Burns’ poem “To A Mouse” is often quoted. A translation of this famous passage for modern day contractors would be: no matter how carefully and thoroughly a project is planned, something may still go wrong. Even in the best planned projects, often unanticipated things go wrong before a project can be completed. Suddenly, the unpredictable occurs. One day your project manager calls you and says that while excavating the site, a fully intact Tyrannosaurus Rex skeleton is uncovered. Or, a pandemic sweeps across the globe forcing your workforce to quarantine and placing the entire project on hold. Undoubtedly, these occurrences, which could not have been predicted, impact a contractor’s bottom line, potentially converting an otherwise profitable project into potential financial disaster. “But surely the owner will agree to pay my company additional compensation for this,” you may say to yourself. But, when you submit your claim notice and/or change order request, the owner says, “Oh, no, no, no.”
When traumatic, disruptive things happen, like the current COVID-19 pandemic, they create many obvious and foreseeable impacts; but they also create many not-so-obvious or foreseeable impacts. When these events occur, they not only cause financial issues but also a host of related legal issues.
Most contractors hope their projects will proceed efficiently, within budget, on time, and, most importantly, without needing to file a claim against any of the other parties working on the job. Unfortunately, the reality often proves otherwise. Claims come in all kinds of forms – delay, extra work, acceleration, inefficiency – but essentially involve recovering any type of entitled cost or time impact. Claims can possibly risk jeopardizing the cooperation and good relationships among project stakeholders necessary to get the job done successfully. Sometimes, however, that necessary cooperation cannot overcome losing money undeservedly, making the claim a business necessity. Also, pursuing a claim under a construction contract often involves a process that can seem overwhelming.
Most contractors and subcontractors use a standard purchase order – or P.O. – form for their limited-scope projects. Attorneys often recommend supplementing the P.O. by attaching a form of general terms and conditions. Although general terms and conditions are designed to incorporate broad legal provisions that protect a contractor’s or subcontractor’s rights during a project, they can be time-consuming to prepare. Consider these five tips for quickly supplementing your P.O. forms in situations where general terms and conditions are unavailable:
It is true that attorneys don’t physically build anything. And we don’t dig, paint, or install any materials (although I did put in a slightly uneven
BBQ patio this summer). Still, we are a career in the construction industry. My goal is the same as any other player on the project — whether it be an engineer, architect, estimator, or project manager — I seek to help the project move smoothly and without conflict. The most satisfying part of my career is when I’m able to help a construction company move forward with their projects and business decisions. Sometimes that involves guiding the company through disputes and litigation, but more often than not, the focus of my job is problem-solving and identifying and addressing risk.
Since March, all contractors and subcontractors have been addressing the impact of COVID-19 on the industry. Contractors/subcontractors have prepared COVID-19 protocols, revised their employment practices to address the Families First Coronavirus Response Act (FFCRA), evaluated financing options under various stimulus and loan packages, and handled multiple issues arising from government orders.
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