Scope of Work – Plans and Specifications
Recent and subsequent posts (Parts 6, 7 and the next few) (will) address scope of work within the overall subject of Construction Claims and Disputes. Disputes and claims regarding scope of work are a highly pervasive problem and represent the most common type of claim or dispute. Perhaps 75 to 90% of all engineering and construction claims and disputes involve contract scope of work.
Virtually all disputes and claims arise as a result of departures from the baseline. These variances (cost, time or other) create the dispute. Therefore, understanding the baseline is essential. In construction claims and disputes, the baseline is (almost) always the contract. The contract is the “deal” or the agreement between the parties. While it must meet several legal tests, the contract is the baseline that will be the focus of this discussion. You must have, know and understand the contract, or at least all portions and provisions that relate to scope of work.
In this discussion, the plans and specifications are the scope of work baseline. Typically, the plans and specifications are augmented by other contract documents (such as terms and conditions, site services, execution plan documents and others). Using the term “design specifications,” let us view these documents as “…the specific requirements for constructing, testing, inspecting, and the materials provided for the project” (Brams and Lerner).
The majority of the discussion will address entitlement to recovery (rather than pricing or quantum).
In Construction Change Order Claims , Callahan presents the following two elaborations:
[A] Work Clause
The typical work clause provides:
The term “Work” means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole or a part of the project.
The work clause stands as a bar to recovery for extra work, unless the contractor can prove that the work performed was outside the contractor’s obligations, as defined by the relevant contract documents.
[B] Scope-of-Work Clause
The typical scope-of-work clause allows the owner and contractor to be as broad or as narrow as they wish in defining what will constitute “the work.” It is critical, however, that both the contractor and owner understand the importance of the scope of work clause and that each party understands as precisely as possible the work to be done for the agreed payment.
The drafter of the scope-of-work clause should carefully examine all the documents related to the project. Among those are the plans and specifications, the instructions provided to the bidders on the project, the bid and bid estimates submitted by the contractor awarded the job, correspondence, shop drawings, and all other provisions of the agreement (even though these documents may not be a part of the contract documents).
Scope of work portions of the contract (imperative that you have all of the documents, not excerpts, lists or opinions by others):
- List of all contract documents
- Entirety of the agreement provisions
- Order of precedence
- Governing or Applicable law
- Industry practices (local normal and customary practices)
- Description of the scope of work, services, facilities, deliverables, supply and other
- Specifications and drawings
Again, in Construction Change Order Claims, Callahan presents list of potential scope of work claims in Chapters 7-11.
Similarly, Construction Claims Deskbook by Brams and Lerner addresses multiple types of scope-of-work related claims. Entire chapters are devoted to various types of scope-related claims.
Look for scope of work, scope of facilities, scope of services, scope of supply and other allocations of required efforts to complete the work / project. Consider what party will provide design, equipment, materials, construction support, site infrastructure, completion and other aspects of a completed project.
Issues to consider regarding Plans (generally considered synonymous with drawings, including the design model):
- What are the precise contract drawings (date, revision, status or purpose – IFD, IFC, etc.)?
- What are the most current drawings in use (date, revision, status or purpose – IFD, IFC, etc.)?
- What are the variations and who is responsible for these variations?
Issues to consider regarding Specifications:
- What are the contract specifications?
- What are the current specifications?
- Who is responsible for variations?
Regarding these and other contract documents, the order of precedence must be reviewed to establish the operative document where conflicts exist.
In the field, a system for handling and disseminating the correct documents is essential. For example, stamp or annotate a set of contract drawings (every drawing) with a clear and prominent label (such as CONTRACT DOCUMENT). Do the same for a set of contract specifications as well as terms and conditions. Keep these documents at the job site and insist on use by all.
Implement a process for incoming drawings and specifications. Once logged, issue a receipt that conforms to the contract notice requirements. Promptly, review the new drawing (or other document) against the Contract Document. If there are any material changes, submit a change request. Include consideration for money, time and other terms and conditions. Avoid proceeding with the changed work until the change order has been approved, thereby adding this new work to the contract scope of work.
In the field, establish a simple process to capture field directives (Field Work Orders – FWO’s) for changed work. Have the directing party sign a simple document (no signature, no work). Accumulate several weeks of FWO’s and insist on a formal change to the contract. With this, the FWO’s can be billed or invoiced once a month. Without the formal change order, stop performing FWO work.
We wish you good luck in your construction claims and disputes regarding scope of work using plans and specifications.
It is important to note that McLaughlin and McLaughlin [M&M] is not a law firm and is not intending to provide legal advice. M&M is a consulting firm providing (among other services) non-legal expertise in construction claims, dispute resolution and litigation support. The Resource Center is for the convenience of blog visitors and M&M does not offer this for commercial purposes. For further information on M&M services, please see www.McLaughlinandMcLaughlin.com.