“What’s in Your Contract?”
This article was first published as a guest post on Gentry Locke’s Virginia Construction Law Update blog.
“Except in the middle of the battlefield, nowhere must men coordinate movement of other men and all materials in the midst of such chaos and with such limited certainty of present facts and future occurrences as in a huge construction project . . .”
— Blake Construction Co. v. C.J. Coakley Co., 431 A.2d 569, 575 (D. C. Ct. App. 1981)
How true. Anyone who has stepped foot onto the site of a large construction project understands it is little more than bedlam with a dash of pandemonium thrown in for good measure. Mud, dust, and large equipment pose only a portion of the unpleasantness and risks. Add to this cocktail contractors, picky engineers, overzealous government inspectors, frugal owners, and half-broke subcontractors and you have the makings of a one heck of a mess.
Knowing this, many years ago someone had the bright idea to get all of the parties involved in a construction project to write down their respective responsibilities on pieces of paper. These documents became known as contracts. Hence, we have the word contractor. What a great idea; if everyone writes down his or her responsibilities for the construction project and signs off on them, what can go wrong? Right?
As a construction lawyer, I get a lot of calls from people standing on a construction site. The lucky ones are in a jobsite trailer, maybe with a pot of fresh coffee brewing. Many of the other are calling from the cramped seat of their pick-up truck in the pouring down rain wondering whether the bad weather is going to buy them more time to get their work done. Regardless, when they call, my first question to them is almost every single time is, “What does your contract say?” To this, responses range from a simple “Huh?” to “What contract?” or “I’m pretty sure I saw a contract, but don’t know if I signed it.” Others just cuss and mutter under their breath. You get the point. In spite of being contractors, many contractors just don’t take the time to read their contracts.Like a magician banished from his trade for revealing the secrets behind his tricks, I am about to risk exile by the members of my profession by telling you a little secret about what we do.
When we get a call from that contractor wanting to know how to address a problem on a construction project, we go get the contract and we read it. Yep. That is it. More times than not, if someone calls with a question about a construction project, the answer is usually right there…in the contract. It is like baking a cake. You leave out the sugar or the eggs and the cake won’t taste good. You have to follow the recipe.
“Do I get extra time to finish due to this rain?” Well, your contract says, “The project scheduled will be extended for the abnormal number of days of inclement weather in a particular month as determined by NOAA.” The NOAA website says there are normally 12 days of inclement weather in January, and this January there have been 15.” So yes, you get three extra days…here is my bill. (This is akin to the doc telling you to take two and call him in the morning.)
The point for contractors is two-fold. One, it is important to read your contracts. Two, reading and understanding your contracts can keep you from spending money on lawyers to read to you what your contract says. Let the exile begin.