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Don’t skimp on scope-of-work details

5/3/2017 at 11:22 am by

Most disputes we get involved with as construction lawyers generally revolve around a construction contract’s scope of work. It’s usually a misunderstanding where one party believes something was included in the contract and the other party believes it was not.

The scope of work provision addresses these issues.

Specify what you will do

For contractors doing the work, it’s critical to specifically define in your contract the services and materials you will provide. Pay special attention to the language that is being used. Is any of the verbiage vague or misleading? Could anything in the scope of work be interpreted in a different way? Be as detailed as possible.

Clarify what you won’t do

In addition to delineating what you will do, it’s just as important to clearly state what you won’t be doing. Include an exclusion provision in the contract specifically for work you know will not be part of the quoted price. This provides added clarification to your scope of work and can save you a tremendous amount of headaches in the long run.

Avoid common issues

Certain scope of work issues are common subjects of dispute. They require even greater clarification during the contract process. These include, but are not limited to:

  • Sealing pipe penetrations
  • Fire safing and stopping
  • Temporary electric, water, and other utilities
  • Onsite storage
  • Parking
  • Hoisting of men or materials
  • Clean up and trash removal
  • Lighting
  • Security of tools or materials, stored or installed
  • Patching and painting to correct the work 

Watch for words that undermine

Even with a tightly written scope of work, and other language in the contract, can erode the work covered by your price. Here are three common examples of the type of provisions to watch out for:

  • “The furnishing and performance of any and all labor and materials by the subcontractor which is within the scope of the contract documents or which can be reasonably inferred from the general scope of the contract documents.”

The last portion of this sentence is critical as it places upon the contractor a heightened obligation to perform work that may not be specifically articulated in the contract documents, but which could be reasonably inferred from those documents. You can limit this definition by adding another sentence that states: “Only those items specifically listed within the proposed scope of work shall be included in the work.”

  • “In the event that portions of the contract documents are inconsistent, the provision imposing the most stringent standard (e.g. the highest quality, the greatest quantity) shall control.”

This provision places the risk upon the subcontractor when additional work is needed due to inconsistencies in the contract documents. You can limit your exposure by making it clear that you are only responsible for your stated scope of work. Add that you “are not responsible for missing or conflicting information or for the constructability, performance, or use of the project.”

  • “Subcontractor represents and agrees that it has examined and understands the contract documents including the schedule, has investigated the nature and condition of the project site and locality, has familiarized itself with the conditions affecting the difficulty of the work, and has entered into this subcontract based upon its own examination, investigation, and evaluation and not in reliance upon representations or information from the contractor.

This is a common sentence that verifies in writing you have inspected the site and are capable of performing the work. A statement such as this, however, will obligate you to all aspects of the project including the schedule. The statement will also minimize any of your complaints that you were unaware or surprised by the occurrence of, for example, excessive rain or sub-surface conditions. To counter this type of statement, you will want to “disclaim responsibility for conditions which are hidden or otherwise not reasonably discoverable by you as the contractor doing the work.”

Summary

A well-written scope of work within a contract prevents disputes by making it easier to determine whether a particular item is part of the base contract work or requires a change order. Done right, your scope of work can set the stage for a more successful project and can help protect you in case of litigation.

About the Author

Alexander Barthet is a board certified construction attorney in Florida and holds a B.S. in mechanical engineering. He manages The Barthet Firm, an eleven lawyer construction law firm in Miami, and maintains a construction law blog at www.TheLienZone.com. He can be reached at 305-347-5295 or alex@barthet.com

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