TERMS OF ABUSE


By Laurence P. Lubka
Lubka & White LLP
February 2019


I review a lot of construction contracts and often draft construction contracts. A good contract has clear definitions, so that the parties can get a handle on the risk they are taking on. Over the years I have seen “strict compliance”, “coordination”, “cooperation” and “intent” over and over, but they are rarely if ever defined. When they are undefined, they are often abused by making those terms the basis for vague claims. I’ll explain some of my heartburn with each of the terms.

STRICT COMPLIANCE
The goal is that a contractor will comply with the plans and specifications. You know they haven’t complied when the item they constructed does not look like the thing shown in the design. There are always tolerances, so it is not likely you strictly comply with dimensions. There are means and methods, which is intended to provide some flexibility to the contractor. Sometimes building an item strictly to plans and specifications won’t work, but with means and methods you jigger the thing until it does work. Does an owner still want strict compliance if strict compliance won’t work?

I’m entirely uncertain what the difference is between compliance with plans and specifications and strict compliance with plans and specifications. If the tiles look like the plans and specifications in general, the tiles are well set, grouted perfectly and there are no gaps, but the pattern of dark tiles and light tiles is not exactly what is shown in the plan, are you going to have to tear them out, since you are not “strictly” compliant. Doubtful.

As with the next two items, it seems to me the addition of “strict” is simply a stick with which to beat a contractor if the owner or general contractor is unhappy with the performing party. Let me suggest “strict compliance” is useful for nit pickers and the vengeful. Otherwise, let me suggest you remove the “strict” from compliance.

If there is a real problem, failure to comply should work.

COOPERATION AND COORDINATION
These two may be the grandmother and grandfather of vague terms used to
bludgeon the performing contractor. I’ve seen the term thousands of times. I’ve not seen it defined once. Please, somebody, define what you mean by “coordination”.

First, let me tell you there is an implied duty of cooperation. All parties of the contract are to cooperate to make it work.

Second, most contractors work near other subcontractors and must demonstrate some cooperation and coordination to get their work done, whether the terms are in the contract. At the very least, when your work will not properly install with adjacent work, you will hear the general contractor or owner tell you that you need to show cooperation and coordination to get your work done.

My very old construction dictionary has no definition for “cooperation” or “coordination”. What does that suggest? I’ve never seen anyone take the position that cooperation and coordination only exist if required in a contract.

One web dictionary defines cooperation as “an act or instance of working or acting together for a common purpose or benefit; joint action”. Coordination is “the process of organizing people or groups so that they work together properly and well.” Those definitions seem to largely overlap. I think those two concepts are fundamental to any contract, particularly any construction contract.

Where a claimant owner or contractor cannot identify a specific claim, you will see one of the parties allege a breach of the obligation to cooperate and coordinate. The definitions in the contract are almost always lacking in detail, but generally the terms are not defined as all. They are merely asserted as obligations for the tier below.

The party best able to coordinate and obtain cooperation is the general contractor. When I draft a contract for an owner, I state that the duty of coordination is not delegable, meaning you can’t shift it to subcontractors who are less able to coordinate and obtain cooperation. I don’t state what it is, but whatever those duties are, they belong to the general contractor.

If you think it important to list “coordination” and “cooperation”, please take the time to explain what extraordinary definition you have for those terms that warrant using those terms. Otherwise, you are assuring yourself an expensive battle to establish what that definition should have been.

INTENT OF THE CONTRACT
More and more often I see contract terms compelling a contractor to meet the “intent of the plans and specifications”, “intent of the design” or the grossly vague “intent of the contract.”

First, people have intent – plans and specifications don’t. That said, the closest definition I can find for the use that I have seen in contracts is “an anticipated outcome that is intended or that guides your planned actions.” Wait. The plans and specifications set forth what is intended. That is the entire purpose of the plans and specifications. What is this special “intent” that is not directly stated in the plans and specifications? I don’t know. You probably don’t either.

This is another case where I recommend that you don’t use the vague term “intent of the plans and specifications”. If you know the intent, please describe it in a drawing or with a detailed explanation of what your intent is. Otherwise, I urge that you leave that term out of your contract. That is my intent.

CONCLUSION
If you use “strict compliance”, “coordination”, “cooperation” or “intent” in your contract, define them. Otherwise those terms can only be the basis for abuse and eventually a dispute where no one can prove that there was strict compliance with the intent of cooperating or coordinating the work.

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