This year, every other blog post will address common construction contract clauses. My hope is that my readers will either find the content a good refresher or provide a new understanding of common construction clauses. Today, I’ll address the Scope of Work provision.
Some contractors and construction attorneys would argue that the Scope of Work provision in the contract is the most important section because it defines what a contractor has agreed to provide in exchange for the amount of money the owner has agreed to pay. Ideally, it will detail the materials, equipment and services to be provided. Unfortunately, this section is often overlooked because the parties may be relying on the bid documents, which may not be incorporated into the contract.
Scope of Work Clauses
Here are some typical Scope of Work Clauses:
Owner hereby engaged Contractor to the Work (defined below) at (location), upon the terms and conditions set forth herein. The work includes providing all design, civil, mechanical, structural, electrical labor, supervision, tools, equipment, and consumables for a turnkey design/build project.
Constructor contracts with Subcontractor as an independent contractor to provide all labor, materials, equipment, and services necessary to complete the Subcontract Work in accordance with, and reasonably inferable from, the Subcontract Documents, and consistent with the Progress Schedule, as may change from time to time. Subcontractor shall perform the Subcontract Work under Constructors general direction and in accordance with the Subcontract Documents.
Things to Consider
Regardless of how the Scope of Work is described in your contract or subcontract, here are some key items to consider when reviewing your contract:
- Carefully compare your bid to the scope of work;
- Make sure the scope precisely sets forth what you are going to do;
- Look for defined (capitalized) terms and make sure they are consistent with your understanding of the work to be performed;
- Avoid broadening language like, “all items fairly inferable from the contract documents” or “all work incidental thereto”.
If you come across a troubling or incomprehensible Scope of Work provision, make sure you discuss it with an experienced construction attorney.