No. 1: Identifying the Work
Every construction contract is about building something: the “Work”. You can have a construction contract without many of the other nine things on this top ten list, but you can’t have one without the Work. That’s why identifying the Work tops the list at No.1.
The Work is what the owner pays the prime contractor for, the prime contractor pays their subcontractors for, subcontractors pay their sub-subcontractors for, etc., etc. It’s the most important thing one side wants out of the contract. When the contract doesn’t identify the Work very well, controversy abounds. At best those controversies stress relationships among the those involved in the project. At worst, as Sir Topham Hatt says, they cause “confusion and delay!” And confusion and delay often lead to claims and disputes.
This post is about improving how you identify your Work, saving time and money, and reducing scope of Work claims and disputes.
Traditional Work Identification and Its Problems
Your average construction contract does a fair job of identifying the Work. By fair I mean about “C+”. The average contract usually identifies the Work in one of these two ways:
- General Verbal Description: The contract includes a general verbal description of the end product: an office building, a runway, a movie theater, a refinery, a bridge, a power plant. Maybe it adds a little more detail: square footage, dimensions, strength, production capacity, and the like. But there’s no detailed specifications and no drawings or other graphicsThe general verbal description’s virtues: it’s fast, easy, and cheap. But it doesn’t tell you much about what the Work includes and what it doesn’t. So it’s fertile soil for disappointed expectations and disputes, especially when costs start going up or when something that someone expects to be included in the Work isn’t included
- Design Document Reference: The “legal” documents (the ones lawyers prepare) refer to “design” documents that design professionals prepare (e.g., drawings, specifications, project manual) by some identifying data (e.g., alpha-numeric code, revision numbers, revision dates). Combined, the legal documents and the design documents together compose the “Contract”This is a big improvement over the general verbal description. But design document reference has drawbacks too:
- Are the references from the legal documents to the design documents correct? Design documents get revised so often that it’s easy to refer to a superseded document or leave one out, especially when you’re preparing the Contract in haste. And it seems like we prepare contracts in haste more often than we don’t
- If you want to look at the design documents, you first have to find them. Often they’re separated from the legal documents. So you have to go hunt them down. That’s tedious and time consuming. And you’re usually doing it at the most inopportune time when you really need a quick answer. It’s like having one glove and searching for the other in the airport departure gate as the agent gives the last call to board your flight.You may have to ask lawyers and design professionals to help you find the design document you want. Their help means spending their time. And spending their time means spending your money
Design documents are often scattered in fragments, like shards of broken glass. Assembling them in the right sequence and ensuring you have the right pieces in the right place is no mean feat.- Once you find the design documents you’re looking for, you’re forced to toggle between the references in the legal documents and your stack of design documents, if for no reason other than to audit one against the other. Doing that long enough will make you dizzy
- And even after you’ve located and audited your design documents, there’s still that nagging doubt: do I really have the right documents? Do I really have all of them? Am I sure this was the current edition when we signed? It wasn’t superseded before we signed the Contract, or after we signed that Change Order five Change Orders ago?
