Jim Klinger, concrete construction specialist, The Voice Newsletter March 2022

Full disclosure: Over the past year, the intrepid ASCC Technical Division research staff has been assigned to cover a wide range of stories that directly affect the ASCC membership at large. In some cases, the background sources for these articles did not come from the concrete construction business per se. For example, we relied on the sensational, crisp legal writing of attorneys Loulakis and McLaughlin over at ASCE's Civil Engineering Magazine to explain the intricacies of the Spearin warranty decision as a basis for our Feb. 2021 VOICE. We again turned to our ASCE colleagues for assistance with our COVID claims cost recovery story that ran in March. When we needed a touch of wry humor to kick off our VOICE series on concrete estimating in November 2021, we found inspiration courtesy of Vince Bailey, a seasoned drywall guy who writes the "Estimator's Edge" column for "Construction Dimensions", the AWCI (Association of the Wall and Ceiling Industry) monthly magazine. This month's source comes to us in a roundabout way, discovered while researching related topics for future ASCC Position Statements. As you read into it, you'll quickly see the source as clear as glass.

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What follows is adapted from a presentation prepared by attorney Courtney Little, president of the American Subcontractors Association (ASA) titled “The Top Ten Clauses When Negotiating Contracts”. This presentation lays out typical situations we all encounter when administering our subcontracts with GCs and Owners, and typical work-arounds and carve-outs we might use during the back-and-forth of subcontract negotiations. Unfortunately, the ASA presentation is a bit too long to reprint verbatim in The Voice, but it is readily available in the public domain. We encourage ASCC members to study the ASA presentation in its entirety at the link provided below.

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When the GC says “This Owner is very demanding and doesn’t always know what it wants. We need you to stay flexible when considering these new documents.”

The ASCC sub can say “Like you, we are committed to giving the Owner the best job possible. But the documents currently contain many added cost items that we didn’t know about when we bid to you. We can either work out our pricing with you on those items or go back to the earlier requirements."

When the GC says “We both know what your trade involves. I don’t think we need to define every dot and tittle now."

The ASCC sub can say “You’ll see that our bid submission was very specific about what it covered. We either need to incorporate the description of work in my submission and the price into the subcontract, or, we need to delete from the subcontract those items that were added."

When the GC says “We can address these concerns later as the job progresses."

The ASCC sub can say “I know we’re both committed to making this project go as smoothly as possible. It’s best to address these potential problems now, instead of waiting for problems to arise."

When the GC says “You are going to have to be flexible and adjust your schedule as necessary."

The ASCC sub can say “I understand that you may have to make subcontract schedule changes, but I can’t agree in advance to adapt and adjust my work to suit your needs without the right to more money and an extension of time for me to finish my work."

When the GC says “Don’t worry. We’re going to have everything ready for you."

The ASCC sub can say “I can’t make the schedule unless your jobsite utilities are ready on time and my submittals are approved and returned promptly."

When the GC says “We don’t pay for acceleration. You just have to be flexible."

The ASCC sub can say “If my work doesn’t start on time because of project delays, I’ll need to be paid for my acceleration costs or be allowed more time to finish.”

When the GC says “Time is of the essence on this project. There’s never an excuse for not getting the job done on time. You’ll be held fully responsible."

The ASCC sub can say “We agree to make a good-faith effort to help you meet your completion date, but we can’t give up any delay claim rights if we incur more cost for reasons outside our control."

When the GC says “I need your subcontract price to be firm. Neither I nor the Owner want to worry about price increases that are out of our control."

The ASCC sub can say “My bid proposal included a price escalation clause. One of the reasons I could give you such a low bid is because I didn’t have to build contingencies into my price."

When the GC says “We’re going to get this project done quickly. I don’t expect any delays."

The ASCC sub can say “Then the escalation clause really shouldn’t be a factor. We’ll be in and out before we get any surprise price increases."

When the GC says “We can always address unexpected price increases later if they arise."

The ASCC sub can say “You and I both know that leaving issues like this unresolved can lead to disputes later. Let’s address this now so we can focus our energies on building the best project possible."

Reference: https://www.glass.org/sites/default/files/2019-11/Top%2010%20Contract%20Clauses%20-%20TT07.2018.pdf