Holloway Consulting as a leading provider of Construction Claims Consultant services. In our experience, both general and specialty contractors on a wide variety of projects are needlessly assuming increasing risks in their contracts. This series of posts are designed to provide subcontractors with a better understanding of hidden job risks, along with examples of how Holloway Consulting has helped clients avoid and manage such risks.
Construction Claims Consulting
BID PHASE RISKS
Contract Document Analysis
Most contractors review the pertinent contract documents and forms prior to computing a bid price, but the process should go much deeper. Many owners and general contractors retain attorneys or experts to prepare the General Conditions portion of their contracts. Because of this, the subcontractor should make a review specifically to:
- Point out any unusual or restrictive language,
- Assess his interpretation regarding the intent and impact of this language, and,
- Outline ways of coping with problems which may result from the language.
Examples of such language would include stringent notice requirements, lack of a changes clause, absence of a consequential damages waiver, etc.
No Damages for Delay
In some jurisdictions, clauses such as No Damages for Delay and Owner’s Representative Acting as an Impartial Arbitrator of Disputes have been struck down by the courts as being unenforceable. It is not prudent, however, to rely on the possibility that a clause is unenforceable. If possible, No Damages for Delay clauses and others like it should be negotiated out of subcontracts and the prime contractor should be encouraged to do likewise with the owner.
Bidders have an obligation to point out patent errors and ambiguities that they discover during the bidding process. However, they do not have an obligation to ferret out all hidden defects in the contract documents. If an error is found or a question develops, it should be pointed out to the owner or prime contractor and his response recorded in writing as protection against a changed ruling after bid. In addition, an error or discrepancy noted in the contract documents, which increases the price for the work and which is called to the attention of the owner, should maintain competitiveness between the bidders.
Contact Steve Holloway – Toll Free – at 888-545-0666 about your requirements
Construction Claims Consultants
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International Toll Free: (888) 545-0666
Fax: (303) 716-0432
Selected Pages at hcgexperts.com, 12-20-11
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