A lawyer adds value to a project by applying his or her unique
knowledge of legal principles and industry experience to the
particular circumstances of a client’s business.
In the construction industry, the substance of an agreement
between an owner and its contractor is often found in the technical
specifications and detailed scopes of work that are attached to
standard form terms and conditions. In practice, technical
specifications and detailed scopes of work are developed by
engineering and design professionals who intend that their work
will be read and clearly understood by their counterparts. However,
in circumstances where disagreements arise (particularly where a
contractor’s right to a change order is disputed) and the
parties are motivated to question the underlying (sometimes
unwritten) assumptions on which the technical specifications and
detailed scopes of work are based, both parties can find themselves
in a tenuous legal position.
An experienced construction lawyer can assist owners and
contractors in developing technical specifications and detailed
scopes of work in the following respects:
the process of working with a lawyer to develop technical
specifications and detailed scopes of work will require the design
or engineering professional to “go back to basics” and
critically examine how effectively these documents tell a story
with a clear beginning, middle and end. Often, these documents
focus on the most complicated aspects of the project, which are not
necessarily the most critical. Therefore, technical specifications
and detailed scopes of work are sometimes left with gaps that might
have been identified by the design or engineering professional
while working with a lawyer to distill the essential nature of a
by identifying legal issues related to the description of the
work and providing advice for resolving these issues. A common
example is: “contractor shall deliver the materials to
owner’s lay down yard”. Legal issues would include: (a)
responsibility for customs clearance and liability for duties and
other taxes, (b) selecting an appropriate INCOTERM (ex. DDP, FOB,
etc.), (c) terms for delivery of the materials into temporary
storage, (d) transfer of title (regardless of whether the purchase
price has been paid at the time of delivery) and (e) liquidated
damages for delay (particularly where the delivered materials are
required for out of scope work). Although many of these concepts
may be generally addressed in the standard form terms and
conditions of the construction contract, the devil is in the
details which may not reflect a party’s intentions or even
contradict language found in the technical specifications or
detailed scopes of work.
Working together, lawyers and design and engineering
professionals can develop technical specifications and scopes of
work that are clear, comprehensive and legally sound.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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