We discuss contracts often here at Construction Law Musings. Why? Because in most states, and particularly in my home state of Virginia, the contract creates the “law” that will govern your interaction on a construction project. In construction, every word of the contract will be read carefully in the event of a dispute. You need to know exactly what you are bargaining for.
One very important part of any contract, whether between and owner and general contractor or a general contractor and a subcontractor, is the so called “scope of work.” The scope of work defines the who, what and how any work is to be done. It can, and often does, include references to architectural and engineering drawings, specifications, and other items specific to a particular part of the work to be performed. Making sure that you are clear on the scope of work is key to a smoothly run and, importantly, quickly paid, project.
You would think that both sides of the contract would want a clear and well drafted set of items in this scope of work. The party paying the money wants the job finished on time and how they would like it built. The party doing the work wants to know that when it does its work, the work will meet the other party’s expectations and that it will be paid for it. For that, you would think that the parties would put all of the right things in writing on the face of the actual papers being signed.
Unfortunately, this is often not the case. Particularly as a subcontractor or other “down stream” trade, your scope of work will likely be affected by several documents that may or may not be easily accessible at the time you are ready to sign. First and foremost, a majority of subcontracts that I see in my construction law practice expressly incorporate the terms, conditions, and scope items found in the prime contract between the owner and general contractor. As a subcontractor, you must look at the prime contract to see what, if any, items in the prime contract’s scope of work apply to your particular portions of the project.
Additionally, state or federal statutes and regulations may govern the method of performance. Where a loan or grant is involved, certain benchmarks may need to be met. Finally, many form contract documents from the ConsensusDOCS to the AIA contract documents, have general conditions that are almost always incorporated.
In short, even the most diligent general contractor may not be able to fully list all of the variables that can affect the scope of work for a project. Because of this, the answer to what should be a simple question: “What am I doing on this project?” is not so simple. To answer the question you need to know what every document affecting your trade on the job says regarding how you are to perform. While educating yourself on these various items seems a burden, it can only be more of a burden if a claim arises and you are left having to fight over payment.
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