by Mark A. Cobb
We always enjoy sharing great blog articles with you. Sometimes, the topics just happen by themselves, sometimes they are based upon a real-life experience with a client or opposing counsel, other times they are more deliberate such as series of articles on a particular construction topic. Regardless of the source, our attorneys strive to offer something well-written that is informative, practical, or, occasionally, funny.
Looking through our archives of articles, there are many articles about contracts including how to improve your contracts, the different types of construction contracts, specific provisions within contracts, and case-law interpreting contracts. Although all of this information is very useful to our readers, there was a glaring omission from the archives: no article discussed the “art” behind writing a meaningful contract. That started my mind thinking about what to say and how to best convey the concept of contract as “art”.
When I was a child visiting a modern art museum on a school field-trip, I remember a guide pointing out that when a viewer studies certain pieces of art, it is incumbent to realize what is missing from the canvas as meaning can form from the absent. Perhaps this isn’t as provocative, but drafting construction contracts are similar–it’s important to recognize that what they are not; then, what remains on the canvas likely has a greater importance.
Every Construction Project is Unique:
Despite our desire for convenience and ease, construction contracts cannot be the same. Every project and every party to a project is different; thus, there is “no one-size fits all”. It doesn’t matter whether you are always in the role of a general contractor or you sometimes act as a general contractor and other times you are a subcontractor, no single contract will serve you well in every project.
Furthermore, every project has is own set of needs and requirements. Isn’t is easy to spot the different needs between a contract for the construction of a health care facility, a federal military base, a church, a jail, a restaurant, and a house? Are the project owners an entity, an individual, a committee, a board? Regardless, these obvious changes–as well as the more nuanced differences–should be reflected in every construction contract which you sign.
You Cannot Simply Fill-In-The-Blank:
Construction contracts are not forms to be “filled-in”. Many construction professionals believe that with the proliferation with the AIA documents, ConsensusDocs, and other construction document banks, that creating a contract is nothing more than completing a form. This is not true for the forms banks nor is it true for an attorney-drafted contract. Admittedly, the form banks can be useful starting points for contract negotiation; however, they are intended to be modified and virtually every responsible owner or GC we know regularly modifies the documents offered through these services. In addition, these banks have preferences and legal theories that may not reflect your business’ values and, in fact, may be prejudiced against it. (Can you guess which party is the “preferred” party in the American Institute of Architect’s–the AIA–documents?)
The Personality of the Contract:
Form sites offer only one personality which probably doesn’t fit for you or your job. Personality in contracts can be difficult to articulate. Recently, I used the following examples for a client who required a written contract between an owner and the GC. Contracts can be difficult to read (arrogant), they can be easy to read (friendly), they can be boring (too academic), they can be one-sided (bullying), they can be simple (dumb), they can be inappropriate (immature), they can be a hodge-podge of cut-and-paste provisions from other sources (sloppy). In short, contracts can assume any shape or “personality” the parties want. And, it should be pointed out, this personality does not impact the strength of its particular provisions nor the enforceability of the contract!
Another significant component is the “fairness” of the contract. True, there may be certain provisions for which a particular party may not have room for negotiation; however, that is not true for most of the contract. Thus, parties (and the attorneys who draft the contracts) must decide how forceful the contract will be. We have seen contracts which give one party a seemingly limitless supply of rights which denying the other party virtually every right. Other contracts try to mimic the old-fashioned “hand-shake” where parties pledge to do their best and, in the event of a problem, they continue to resolution in good-faith. A party requesting a contact needs to ask themselves what they want their (legal) reputation to be. Are they going to be hard-nosed about every term and condition or are they going to look at each term and condition from each side’s perspective? Is there a chance that the parties will work together on other projects? Are the parties more concerned about successful completion of a project or are they more interested in smashing those downstream?
Yes, Contracts Mirror Your Values:
There are personal values and corporate values which should be incorporated into every artfully drawn construction contract. Values run the gamut from legal compliance to employee cursing on the jobsite, from a Christian’s implementation of the Golden Rule to dress codes, from work ethic to dispute resolution. It is vital to think about what is written down and how it is written before giving another party something to sign.
Although most individuals are complex and our individual personalities may slide between highs and lows, there is no reason for a well-drafted construction contract to be anything other than a fluid, consistent document. But, this may take some time and effort on your part, but we have found that clients who invest in well-written contract can use those documents for more than just protecting themselves legally. They are furthering their reputations, they building business, and they are reflecting on the types of business values they actually possess. And, most importantly, they are the most successful in performing their work.
The Cobb Law Group makes every effort to get its readers informed about changes in the law, but occasionally, we offer basic guides to improve the foundations of business. Thus, beginning with this blog entry, we embark on a multi-blog article on Georgia contracts and, specifically, Georgia contracting in Georgia.
Thus, the following is Georgia Contracts Skeleton Outline which we intend to use as a framework for building this on-going series of useful articles:
a. Common law (contracts for services and property sales) – all essential terms required
b. UCC (contracts for the sale of goods) – “gap fill” missing elements
b. Construction revocation
e. Offeror’s death
f. Reasonable time passes3. Irrevocable
b. UCC firm offer
c. Performance of unilateral offer
d. Detrimental reliance
a. Follow rules of offer
b. Mailbox rule – accepted when sent
2. By silence
a. Unilateral rewards or offers
b. Unilateral offer geographically close
c. Past history of silent acceptance
d. Offer requires and offeree intends
1. Common law – mirror image requirement
a. No mirror image requirement
b. Knock-out rule
c. Battle of the forms
d. New terms associated if:
• Both parties merchants
• No material change
• Offeror didn’t limit to original terms
• No objection in reasonable time
1. Under seal
2. Bargained for detriment or benefit
ii. Consideration substitute
1. Promissory estoppel
iii. If contract modified
1. Common law – pre-existing duty plus (1) change of performance, (2) third party agreement to pay, or (3) unforeseen difficulties
2. UCC – no consideration needed for good faith modification
1. Infancy (with exceptions)
2. Mentally ill
3. Intoxication (with exceptions)
1. Mutual (not enforceable in Georgia)
iv. Fraud – plus offer to restore
D. Statute of Frauds
i. Applies to:
1. Contracts for marriage
3. Contracts that cannot be performed in under one year
4. UCC contracts for over $500
5. Real property interest transfer
6. Promise by executor, administrator, guardian, or trustee to pay for damages from their estate (in Georgia)
7. Revive debt barred by Statute of Limitations (in Georgia)
8. Money lending (in Georgia)
1. Common law
a. Service contract – full performance or signed contract
b. Real estate contract
• Signed contract
• Partial performance plus two: (1) possession, (2) payment, (3) improvement made
a. Signed writing with quantity of goods
b. Performance (for delivered and accepted units)
iii. Modified contract – must be in writing if the new contract would qualify for Statute of Frauds
II. Contract Performed or Excused
A. Parole Evidence Rule
i. Complete integration of agreement in writing
ii. Applies to evidence from before writing
iii. Not applicable if prior evidence is to show:
1. Contract formation defense
2. Separate deal
3. Clarify ambiguous term
B. Warranties (UCC only)
i. Express (not opinion)
ii. Implied merchantability (if seller is merchant)
iii. Implied fitness for a particular purpose (in Georgia – only applies to immediate seller and buyer/buyer’s family/household guests)
i. Express – objective standard of satisfaction
1. Common law
a. IF substantial performance and no material breach
b. THEN recover cost of completion or diminution in market value
a. Perfect tender required for goods and delivery (except for installment contract)
b. Risk of loss: (1) determined by contract, (2) breaching party, (3) buyer if shipment contract, seller if destination contract, (4) merchant until buyer obtains goods, (5) buyer when goods tendered
D. Excuses to performance
i. Impracticability – requires statute or contract provision allowing in Georgia
ii. Impossibility – unless promisor’s proper prudence could have avoided in Georgia
iii. Death of required specific performer
iv. Frustration of purpose
v. Cancel contract if performance remains on both sides
vi. Accord and satisfaction
viii. Recission for fraud or nonperformance
1. Common law – writing and consideration
2. UCC – writing
x. Destruction of identified goods
III. Remedies for Breach
A. Anticipatory repudiation
B. Money damages
1. Put non-breaching party in economic position as if contract performed
a. Reasonable certainty
b. No unforeseen consequential damages
c. Mitigation efforts made
3. Special circumstances
a. Lost volume profits
b. Incomplete performance
c. Economic waist and diminution of market value
ii. Consequential – only if solely traced to breach or exact compensation in Georgia
v. Liquidated – if allowed for in contract, injury hard to estimate, damages intended (not penalty), reasonable pre-estimate of loss
vi. Punitive – willful, malicious, fraud, wantonness, oppression, or entire want of care that raises a presumption of conscious indifference
vii. Nominal – to cover the cost of action in Georgia
viii. Collateral source rule – admissible to show actual loss in Georgia
ix. Litigation expenses – if (1) bad faith in underlying behavior, (2) stubbornly litigious, or (3) caused unnecessary trouble and expense
C. Equitable Relief
i. Specific performance – for real estate (in Georgia must show tendered money) or unique goods
iii. Seller’s right of reclamation – UCC
1. Buyer insolvent at purchase
2. Demanded within 10 days receipt, AND
3. Buyer still has goods
iv. Buyer’s replevin for identified goods – UCC
1. Seller insolvent within 10 days, or
2. Seller failed delivery of family goods, or
3. Specifically identified goods that buyer can’t cover
IV. Third Parties
i. Intended vs. incidental
ii. Promissory estoppel – third party aware and reasonably relied
iii. Vests if
1. Reasonable detrimental reliance
2. Manifestation of assent
3. Suit filed
i. Transfer of rights
ii. In Georgia – once a party performs, that party may assign rights without consent of the other party and even if the contract says no assignment allowed (except for personal services or special skills contracts)
iii. Multiple assignments
1. If no consideration, last assignment has priority
2. If consideration given, first with consideration has priority
i. If contract allows and no special/individual performance interest
ii. Delegating party still liable under the contract
As our long-time readers know, Mark Cobb is adjunct faculty at Thomas University. Currently, he is leading a class on construction law and business, and one of his students, Travis Williams, Jr., is our guest blogger. In addition to being a student, Travis is a co-owner of Thomasville Glass and Exteriors, where he specializes in estimation and sales for commercial projects. Thomasville Glass is a full service family owned glass company that was founded in 1961. In 2008 Thomasville Glass was recognized by Glass Magazine as a Top 50 glazing contractor in the U.S.
by James Travis Williams, Jr.
Much of the work that is done at a company in the construction or development field is done before any manual labor begins. Having people in place to successfully bid and or negotiate contracts is extremely vital to construction companies in today’s market. As the economy changed so to has the margins in the construction field, one mistake could make a potentially profitable job very costly. It is important to know what type of contract you are agreeing to before you sign the dotted line.
There are many different types of contracts, but the two most common in construction are the single contract and the multiple prime contract. The single contract is the more simple of the two and it is an agreement for a specific project between an owner and a contractor. Multiple prime contracts are more complicated. A multiple prime contract usually covers construction that will be completed in phases, consisting of different construction contracts for different phases, as well as including multiple contractors at once. Multiple prime contracts are typically seen on larger projects such as hospitals, large industrial structures and resorts.
In order to be execute a construction contract you must first find a project that is a good opportunity for your company. Secondly, you will need to check the pre-qualification section of the specifications in order to make sure your company is eligible to bid on the project. Next, you need to estimate the project in order to find the exact costs of materials and labor. It is very important to read the specifications very carefully when bidding a project, a lot of money is lost by people who do not know what they should be supplying. After these costs are considered you will need to cover your overhead expenses as well as add in profit. Once you have completed the estimating process you will be able to submit a bid to either an owner or general contractor, depending on your line of work. Once a bid has been accepted you will begin the contract execution process.
Once you have agreed upon price and terms with the owner or general contractor they will send you an agreement detailing what is to be included in the project. These documents must be signed and returned to the general contractor / owner. This is a very important time in the contract process, and is when many mistakes are made. Every contract needs to be read carefully before signing, even though you may have had verbal commitment for something that does not mean it will hold up in court if that were ever necessary, but what is written on that contract most likely will. Therefore, do not assume anything when signing a contract, always take your time and read the small print, or you could be making a costly mistake.
Next, you will need to provide insurance certificates and bonding capacity in order for them to be verified by the appropriate party. One thing to consider is that items such as additional insurance or additional bonding capacity will increase the costs of a project. Usually these items will be seen in the pre-qualification section of a project.
Your company will need to have a submittal package (samples of the materials as well as color charts etc.) approved by the owner before ordering material. Remember, the subcontractor is obligated to supply the project with materials that were specified on the plans, or have an approved equal vendor that has been approved by the architect and or owner. Depending on your trade, mainly subcontractors, you will be asked to supply the appropriate party with shop drawings. Shop drawings are a set of elevations detailing the size, location and type of material to be used.
Georgia’s Right to Repair Act: Homeowner’s Pre-litigation Requirements for Construction Defect Claims
The Georgia Legislature enabled the Right to Repair Act (O.C.G.A. § 8-2-35, et seq.) in 2004 to reduce construction-related litigation by providing resolution alternatives for legitimate construction disputes. Although the stated purpose of the Act is to protect the rights of homeowners, it actually heightens their burden by requiring precise pre-litigation procedures: the notice of claim process. Any suit filed before compliance with this process will be stayed on application by a party until these requirements are met (except for personal injury or death cause of actions included in the claim). However, if the statute of limitations period for a claim undergoing this process will expire during the process, the owner may file suit to preserve their claim. That action must be immediately stayed until this notice of claim process is complete. The homeowner and the contractor may alter this statutory notice of claim process by written mutual agreement. Without such agreement, the statutory process applies.
Pre-construction Notice to Homeowner
When entering into a contract, contractors are required to notify would-be homeowners of the contractor’s right to resolve alleged defects before initiating litigation. The notice, which may be in the contract, must be conspicuous, substantially match the following language:
GEORGIA LAW CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A LAWSUIT OR OTHER ACTION FOR DEFECTIVE CONSTRUCTION AGAINST THE CONTRACTOR WHO CONSTRUCTED, IMPROVED, OR REPAIRED YOUR HOME. NINETY DAYS BEFORE YOU FILE YOUR LAWSUIT OR OTHER ACTION, YOU MUST SERVE ON THE CONTRACTOR A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE. UNDER THE LAW, A CONTRACTOR HAS THE OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS OR BOTH. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY A CONTRACTOR. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER STATE LAW, AND FAILURE TO FOLLOW THEM MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT OR OTHER ACTION.
Notice of Claim
The homeowner must give written notice of the claim to the builder at least 90 days before filing suit. The notice must indicate that it is intended to meet the statutory requirements and state that the homeowner asserting a construction defect claim. This notice must describe all claims and provide any evidence of the nature and cause of the defects.
Contractor’s Response to Claim
After receiving the notice, the contractor must provide a written response within 30 days that either offers to settle the claim or proposes an inspection of the area subject to the claim. If the contractor rejects the owner’s claim and refuses to remedy the defect or settle, or does not respond timely to the notice, then the owner may bring suit. Contractors should be aware that they are still required to respond timely to the notice, even if the notice was not accompanied by all the required documents.
The owner may reject the settlement offer in writing to the contractor.
If the contractor proposes an inspection (instead of offering a settlement), the owner must provide prompt and reasonable access to the property within 30 days. This inspection may be done by the contractor, its subcontractors, agents, experts, or consultants. Once on site, the inspectors may document the alleged defects; perform tests to fully evaluate their nature, extent, and cause; and determine the necessary remedies. Destructive testing is allowed, but the contractor must provide advance notice and return the area to its pretesting condition.
If these inspections or tests are insufficient to allow the contractor to fully evaluate the defect, the contractor must again notify the owner in writing of the need for additional testing. Then, the owner must again provide prompt and reasonable access for the second round of inspections. These must be diligently pursued and, to the extent reasonable, completed within the original 30 day inspection period.
Contractor’s Post-Inspection Offer or Rejection
Once the necessary inspections are complete, the contractor has 14 days to serve on the homeowner one of the following:
– A written offer to fully or partially remedy the defect at no cost to the owner
– A written offer settle monetarily
– A written offer combining repairs and monetary payment
– A written rejection of the claim and supporting reasoning.
If the contractor rejects the claim or fails to serve any response, the owner may file suit for the claim in the original notice.
Owner’s Response to Post-Inspection Offer
If the homeowner accepts any of the first three offers above, the contractor must follow through within the agreed timeframe. If the contractor fails to make good on the accepted offer, the owner may file suit for the claim in the original notice. Contractors should be aware that their offer and the owner’s acceptance may be filed with the lawsuit to create a rebuttable presumption of a valid settlement agreement that should be enforced by the court.
If the contractor offers to remedy the defect, the owner must respond in writing within 30 days otherwise the offer is deemed accepted. Once the offer to repair is accepted, the owner must provide prompt and unfettered access to the area to complete the repairs.
If the owner rejects the offer to remedy or settle monetarily, the owner must provide written notice to the contractor. The contractor may make a supplemental offer within 15 days of receiving the rejection. If the owner rejects the supplemental offer, the owner must provide written notice.
If the owner rejects a reasonable offer or reasonable supplemental offer, their recovery is limited to the fair market value of the settlement offer or actual cost of repairs made, or the monetary settlement offer amount. The homeowner is precluded from recovering costs or attorneys’ fees incurred after the unreasonable rejection.
If the owner accepts the offer and the contractor completes the work or payment required by the offer, the owner is precluded from filing suit for the claim in the original notice.
The contractor’s performance does not affect the parties’ rights and obligations under a liability insurance policy and should not be considered a payment of an insured lost. Subrogation of insurance is also provided for statutorily.
Additional procedures for an association to bring suit against a contractor for defects in the common area of a common interest community are also provided. In addition to the notice of claim process, these additional requirements involve the association vote, prior good faith efforts to resolve the claim, notice to owners, and permissible destructive tests.
The Act does not affect the contractor’s right to seek recovery from subcontractors or other professionals.
These requirements apply to contractors required to be licensed under Chapter 41 of Title 43.
Clear your schedule and mark your calendars, Georgia Construction Contract Attorney, Mark Cobb, will be leading a Webinar on Better Customer Contracts: 15Free Things You Can Do To Create Better Sales Contracts.
When: Wednesday, January 28, 2015 at 3:00 EST
Sponsor: Cabinet Makers Association
For more information, please click on the links below . . .
To see the announcement on FDMCDigital, please click here > >
To register as a participant for the CMA’s webinar, please click here > >
This low-cost seminar is focused towards the needs of owners and credit managers and small to mid-sized contractors, subcontractors and building material suppliers; at CMA’s request, Mark will discuss tips and strategies which the participants can implement immediately after the webinar! Although the title is Better Customer Contracts: 15 Free Things You Can Do To Create Better Sales Contracts, Mark hopes to have time to offer even more tips. So register today to listen to the live Webinar presented by our own construction lawyer, Mark Cobb.
In a case decided on November 17, Inland Atlantic Old National Phase I, LLC et. al. v. 6425 Old National, LLC, the Fourth Division Court of Appeals of Georgia ruled on fiduciary duties owed under joint venture agreements, applied rules of contract construction, and briefly addressed substantial versus strict compliance.
Background: The parties – Inland Atlantic and Old National – entered a joint venture LLC and made other necessary agreements to develop a shopping center. During Phase I (of II), issues arose with the quality of an on-site contractor, which Old National failed to properly supervise. Due to complications in Phase I, Inland Atlantic did not hire Old National for Phase II. Old National brought suit and Inland Atlantic counterclaimed. After the trial court ruling granting and denying various parts of motions of summary judgment, both parties cross-appealed. In this consolidated appeal, the Court of Appeals addresses these claims and the trial court’s treatment of summary judgment.
A court may grant summary judgment, alleviating the need for a full trial, for the party requesting it – the movant – if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
Fiduciary Duty as Managing Member of LLC:
According to Georgia statutes (OCGA § 23), a fiduciary duty exists “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith.” Breach of such a fiduciary duty requires (1) the existence of a fiduciary duty, (2) the breach of which (3) proximately causes damage.
Additionally, a member of a limited liability company only owes statutory duties to that LLC if the member is managing an aspect of the LLC’s business affairs. That duty owed is one of good faith and the care an ordinarily prudent person. (OCGA § 14-11-305) If a member of an LLC is not managing as aspect of LLC business, this duty does not apply (unless otherwise provided for by agreement). Therefore, a member of an LLC without managerial responsibilities has no duty to the company by just performing its duties as a member.
In this week’s Inland Atlantic decision, a joint venture agreement between Inland Atlantic and Old National delegated some managerial duties to Old National. Inland Atlantic argued that that the trial court should not have granted summary judgment to Old National on Inland Atlantic’s breach of fiduciary duty claim with regard to the parties’ joint venture agreement. The appellate court agreed, ruling that Old National might have had a fiduciary duty to Inland Atlantic under their joint venture agreement. This is a remaining question of fact as to whether Old National was managing some of the LLC’s affairs; therefore, summary judgment was inappropriate.
Fraud and Fiduciary Duty to Disclose Material Facts:
A fiduciary relationship includes the duty to disclose material facts. Therefore, suppression of a material fact by a fiduciary party constitutes fraud.
Fraud requires the defendant, having both (1) scienter (knowledge of one’s wrongdoing) and (2) the intention to induce the plaintiff to act (or refrain from acting), to (3) make a false representation to the plaintiff, (4) on which the plaintiff justifiably relies and which (5) causes damage to plaintiff.
Here, Inland Atlantic claimed Old National committed fraud and negligently misrepresented the abilities of site-work contractor “Lewis,” whom Old National insisted on hiring and who was having “financial difficulties” before being retained. Old National insisted on using Lewis and may have known of their financial trouble, but represented that Lewis would be able to finish the project.
Inland Atlantic contended that granting summary judgment to Old National on Inland Atlantic’s claims for fraud and misrepresentation was inappropriate. The appellate court agreed, as there was a material question of fact as to whether Old National was managing some of the LLC’s business affairs (as examined above) and therefore owed a fiduciary duty to Inland Atlantic under their joint venture agreement. If such a fiduciary duty existed, then Old National had the duty to disclose material information regarding Lewis’s ability to complete the project. Since a question of fact remains, this court reversed the grant of summary judgment on the fraud and negligent misrepresentation claims.
Rules of Contract Construction – Examining Breach of Contract and Indemnification Claims:
When a court evaluates a contract claim, the court looks at the plain meaning of the contract terms. If these terms are ambiguous, making the contract unclear, the court must apply rules of contract construction. First, the court will ascertain the intent of the parties at the time the contract was executed. If the intent cannot be determined, then the terms of the contract are material questions of fact for a jury to answer.
The rules of contract construction also provide that indemnification terms should be construed strictly against the indemnitee. Furthermore, ambiguity should be construed against the drafter.
In Inland Atlantic, Old National argues that the trial court erred in not granting them summary judgment on Inland Atlantic’s breach of contract claim. However, the plain and unambiguous terms of the contract provide that Inland Atlantic’s actions do not waive their right to a breach of contract claim. Furthermore, there were two remaining questions of fact based on the evidence of record: (1) Did Inland Atlantic waive their right to a breach of contract claim by making final payment without notifying Old National of its deficiencies? And (2) Did Old National breach the contract by failing to properly supervise and manage the project? With these questions of fact unanswered, summary judgment on the breach of contract claim was appropriately denied.
Old National also contends that the lower court erred in denying their motion for summary judgment on Inland Atlantic’s indemnification claim. The indemnification provisions say that both parties indemnify each other, making both parties indemnitees and indemnitors. This is an ambiguous term. So, who is the proper indemnitee is a remaining question of fact for the jury to answer since the rules of contract construction fail to solve the issue here.
Substantial Compliance Required:
A party to a contract must only substantially comply with the contract termination clause. Strict compliance is not required. (See Rome Healthcare LLC v. Peach Healthcare System, 264 Ga. App. 265, 272 (5) (590 SE2d 235) (2003).)
Here, Old National contends that the trial court erred in not finding that a contract was not terminated. Inland Atlantic was not required to strictly comply with the contract term stating that either party could terminate with 30 days written notice. Inland Atlantic’s repeated notifications to Old National regarding Old National’s deficiencies may be considered substantial compliance. Again, this is question of material fact for a jury to decide.
Conclusion: This case is another reminder of the importance of contract drafting on construction projects; specifically, here are some practical tips which we can take away from this decision:
1. Joint Ventures between contractors may include fiduciary responsibilities between the parties.
2. Fiduciary relationship includes the duty to disclose material facts. Therefore, suppression of a material fact–such as the possibly inability of a subcontractor to fully perform its contract– by a fiduciary party constitutes fraud.
3. Construction contract terms need to be unambiguous.
4. Read your contract to understand (and follow) the termination provisions.
by Mark A. Cobb
If you are a Georgia contractor or subcontractor who uses written contracts (and if you are not using written contracts, you should!), then this blog might save you some legal costs and or headaches. To improve your contracts, just follow the eight simple tips below!
What this blog article is not: Previously, we have written about the best contract terms and the vital contract terms that every construction contract should include. This is not a repeat of that material. This article is not full of legal jargon and nuanced technicalities rather, we are providing your with eight simple–but sound–contract improvements which you are able to apply to your contracts today!
Why we are writing this blog article (in other words, The Problem With Your Contracts)? Regardless whether you are a general contractor or a specialty trade subcontractor, you want to have a successful, problem-free project. A properly written contract can provide great strides to clarifying the project scope and the parties expectations. The construction contract lawyers at the Cobb Law Group regularly review, draft, and negotiate various types of Georgia construction contracts on behalf of their clients. Needless to say, our clients have varying personalities and goals, but we have noticed that a significant number use a “boilerplate” contract that they highjacked several years ago from another contractor or subcontractor. To this template, from time-to-time, they have added other terms which they thought useful and borrowed from other contracts they ran across. Through time, an original boilerplate which may have had some practical use has been cobbled into a hodgepodge of redundancies and contradictions, and these problems can make your contract unenforceable. Thus, we are giving you some very basic tips which you can put into use today and improve, at least a little, your contracts without hiring a lawyer.
Disclaimer About the Use of Any Forms: Although there are some very good and very useful form banks created expressly for the construction industry (such as the AIA Contracts, the EJCDC contracts, the DBIA contracts, and ConsensusDOCS), there really isn’t any “form” that can provide for all of the unique complexities of any specific construction project without substantial modification; thus, we strongly recommend that forms should be viewed only as a starting point, and they must be carefully reviewed and amended to meet the unique needs of the project and the parties. In other words, there is no such thing as a “boilerplate” contract which will work in every situation.
A Word on Readability: Your contracts should be easy to read and easy to understand; if they are not, then you probably need to start-over from scratch. You will see that many of the tips covered in this article suggest making your contract easy to read. Something which is easier to read is more likely to be read and understood which encourages better performance. So, make it a goal to make your contracts more readable.
1. Read Your Contract and Check for Redundancies. Redundancies are repetitions; let me repeat that: redundancies are repetitions. A quality contract should not have redundancies as they take up space and time; and, needless to say, they are unprofessional. More importantly, however, redundancies may open the door for ambiguity or even inconsistencies. Saying more than once that “The Subcontractor acknowledges that he has read the General Contract, all plans and specification, and is familiar therewith” more than once does not make the covenant any truer. If you contract also says “The Subcontractor acknowledges that he has has access to review a copy of the General Contract”), then it may cause some confusion which could be detrimental to your goal of passing the risk to the subcontractor.
2. Read Your Contract for Inconsistencies. Inconsistencies in a construction document also show an unprofessionalism, and they, too, can make your contract meaningless. Consider the following example: Parties to a contract may consent to a a method of resolution in the event of a dispute. If one section of the contract refers to “mediation” whereas another section refers to “arbitration”, then if a dispute occurs, it may be unclear in which forum the resolution should be handled–this might land you in court for resolution!
3. Group Similar Provisions Together. Nobody wants to read a contract (much less interpret a contract) where provisions on the same topic are spread throughout the document. For example, do not have provisions regarding “Payment” at the beginning of the contract, the deadlines regarding the due date for payment applications in the middle of the contract, and a paid-when-paid provision at the end of the contract. Move these provisions closer to each other then, it will be easier to read the contract, in general, and it will be easier to spot redundancies or inconsistencies as well.
4. Use Effective Headings for Each Contract Provision. Headings are a terrific and easy way to make your contract easier to read and, perhaps, increase its enforceability:
First, good heading it makes it easier to locate pertinent provisions (deadlines for giving notice, for example) and it make the contract easier to read as headings are usually either bold or underlined which breaks up the monotony of a standard type.
Second, headings may help the enforceability of a provision. In a recent blog post, we wrote about a subcontract which contained a Signature Provision which attempted to make the signatory to the contract personally liable for its performance. The Georgia Court of Appeals, when rationalizing the terms enforceability stated that the contract included the heading “Signing Individual” in boldface type which further enhanced the term’s clarity and the parties’ intention. Thus, the court continued, that the President of the company “must be charged with knowledge of the Signature Provision, even if he did not read it, and he is therefore bound, individually, to the terms of the Agreement.”
Third, in the event that a contract terms because an issue in a trial, your attorney may consider enlarging the term on a large board as a trial exhibit for the judge or jury to read. Without a heading, this exhibit may be nothing more than a large poster with long sentences filled with legal-ease. A pertinent heading (e.g., “Individual Indemnification”) might resonate more easily with the judge or jury and they may be more easily persuaded to interpret the contract as you intended.
5. Spaces! Just like this article, we tend to suggest that contracts use double-spaces between paragraphs. The other day we were asked to review a contract which did not separate the paragraphs. Page-after-page of unending contract terms quickly became very difficult to read much less make sense of. Thus, it took much-longer to read (time is money), and it required greater concentration. If your contracts look like that one, change them today and save yourself some headaches!
6. Check Your References. When someone cobbles together a contract from different sources, it is important to pay close attendtion that you don’t lose your references. Thus, if your contract says, “then parties shall agree to be bound by arbitration as provided in Article 10. . .” please make certain that Article 10 of your hodged-podged contract is the section dealing with arbitration. Otherwise, it may to used against you if the need arises to interpret the provision.
7. Eliminate Useless Provisions. Longer is not always better–don’t have extraneous provisions. If your contract includes a terms which doesn’t make sense to you; then, it probably doesn’t make sense to the other party and it will likely not make sense to a jury or a judge. You may want to ask your construction contracting lawyer to explain it, but if no one understands it, then it should probably be omitted.
8. Grammar and Spelling Count. You run a success business, and you know proper grammar and how to spell. When a contract is created over time, sentences get cut-and-pasted and letters get cuts off or added accidentally. Unfortunately, a substantive mistake can invalidate the terms of your contract so read it carefully often and correct as necessary. One example we see particularly often is a paragraph that is supposed to end with list of items but fails to include the list. Thus, the paragraph ends, “All subcontractors will adhere to the following policy on all jobsites:” and the policy is not expressed (and, at a minimum) not a part of the contract. Those missing policies are certainly not enforceable and may limit your rights including a right to terminate.
As we stated above, using the same template or form for your Georgia construction project is dangerous; instead, use them as a starting point for negotiations. Having a qualified construction attorney help you draft your “master” documents and assist you with specific provisions as each contract is negotiated may be vital to having a clear, understandable contract. In fact, we encourage our clients to review their master contract at least once a year. Laws changes, courts write decisions, and policies need amendment. If you are looking for a construction contracting attorney to help you review and improve your contracts, please feel free to contact us today!
by Mark A. Cobb
The Court of Appeals of Georgia recently issued their holding in Progressive Electrical Services, Inc. v. Task Force Construction, Inc., and this case interprets some construction contract terms which impact Georgia subcontractors. Specifically, this case gives subcontractors a reason to be concerned about every contract into which they enter unless they have taken the time to thoroughly read and understand every contract provision; in addition, this decision gives general contractors the ability to enforce some contract provisions which may, otherwise, seem onerous to others.
Background and Facts: The basic facts of this case present the all-too-common scenario of a subcontractor not paying its supplier, and, then, a general contractor seeking payment from the subcontractor of the amounts it had to spend resolving the supplier’s claim. Specifically, Task Force Construction was hired as a general contractor to build a public works project in Swainsboro, Georgia; Task Force, in turn, subcontracted the electrical portion of the project to Progressive Electrical. Progressive Electrical purchased their electrical supplies from a supply company. Because this was a public works project, the general contractor posted a payment bond which, essentially, promised that subcontractors and suppliers would receive payment. Unfortunately, Progressive Electrical did not pay its supplier; thus, the supplier made a timely claim for payment under the project’s payment bond. The surety which issued the bond settled the supplier’s claim for over $118,000. The surety, then sought indemnification from the general contractor which, the GC paid. After the general contractor reimbursed the surety, it sought to recover the amount which it paid to surety from its subcontractor, Progressive Electrical.
Although the background and facts may be similar to many other cases, specific provisions in the subcontract executed between the GC and subcontractor resulted in some disastrous consequences for the subcontractor and, probably more importantly, its principal.
Important Legal Issues Addressed by the Georgia Court of Appeals: Although much of the Court’s holding is significant for Georgia’s construction lawyer, today’s blog post, however, will discuss two particular contract terms addressed in Progressive v. Task Force; specifically, we’ll look at how the case addresses the difference between a guaranty and an indemnification and we’ll look at some contract language which, according to the court, binds an owner, officer (or perhaps, an employee) of a company to be personally liable for the company’s performance under the construction contract. Taken together, these two provisions make the officer of the subcontractor personally liable for reimbursing the GC.
CONTRACT PROVISION NUMBER 1:
(Making the Signatory of the Contract Jointly and Severally Liable)
Personal Liability Under the Contract: None of the parties denied that Progressive Electrical had executed its subcontract agreement with Task Force; however, Task Force attempted to recover under its indemnification from Progressive Electrical and its owner. Task Force made this attempt based upon a particular term in the contract between Task Force and Progressive Electrical:
Signing Individual. Each and every individual who signs this [agreement] or any Attachment or exhibit thereto on behalf of [Progressive Electrical] hereby warrants and agrees that such individual is duly authorized 1) to act on behalf of [Progressive Electrical]; 2) to enter this [agreement] on behalf of [Progressive Electrical]; and 3) to bind [Progressive Electrical] to the terms of [the Agreement]. Each and every individual signing on behalf of [Progressive Electrical] also further agrees that, notwithstanding anything contained herein or on any signature line to the contrary, each such individual signing on behalf of [Progressive Electrical], in addition to signing in a representative capacity, is also signing [the agreement] in his or her personal and individual capacity and each such individual signing on behalf of [Progressive Electrical], by signing below, hereby individually and personally agrees to be bound by all of the obligations of [Progressive Electrical] in [the agreement] (including, but not limited to, the Attachments hereto). (Emphasis Supplied in Court’s Decision)
Contract Term Enforceable Against Principal of Subcontractor: When the Court of Appeals read the Signature Provision which purported to bind the signatory individually, the Court held that it was a clear and easily understood contract term. Thus, when the President of Progressive Electrical signed the subcontract agreement, he agreed to be bound by this provision; and, consequently, he personally assumed liability for his company’s obligations under the subcontract.
The Court’s Rational: Neither party disputed the established law in Georgia which holds that, “an agent who, acting within the scope of his authority, enters into contractual relations for a disclosed principal does not bind himself, in the absence of an express agreement to do so.” (Citation and punctuation omitted.) Instead, the Court looked at the Signature Provision, and acknowledged that it contains such an express agreement to bind the subcontractor’s principal individually; thus, when the President executed the agreement, he was signing on behalf of Progressive Electrical and also “individually and personally” he agreed “to be bound by all of the obligations of [Progressive Electrical]” under the parties’ contract, “notwithstanding anything contained [in the agreement] or any signature line to the contrary.” Accordingly, the Court found the language of the Signature Provision to be unambiguous language, and, therefore, the president’s single signature bound him in his individual capacity, along with Progressive Electrical, under the Agreement.
Isn’t This Too Extreme? Both Progressive Electrical and its president argued to the Court that enforcement of this contract term was too extreme. They argued that such a Signature Provision created a trap which allows “unbridled liability to be unleashed on unsuspecting victims.” Unfortunately for the subcontractor and its officer, the Court disagreed with this argument, pointing out the following:
a party to a contract has the duty to read a contract before signing it and by signing, the party is bound by its terms “unless [he] can show that an emergency existed at the time of signing that would excuse [his] failure to read it, or that the opposite party misled [him] by an artifice or device which prevented [him] from reading it, or that a fiduciary or confidential relationship existed between the parties upon which [he] relied in not reading the contract.
Furthermore, the Court pointed out that the Signature Provision included the heading “Signing Individual” in boldface type which further enhanced the term’s clarity and the parties’ intention. Thus, the court continued, that the President of the company “must be charged with knowledge of the Signature Provision, even if he did not read it, and he is therefore bound, individually, to the terms of the Agreement.” (Emphasis supplied.)
CONTRACT PROVISION NUMBER 2:
(Personal Guaranty v. Indemnification)
Indemnification Under the Subcontract: Since the general contractor paid out money to settle the dispute with the unpaid material supplier, the GC sought reimbursement from its subcontractor. The subcontract agreement which Progressive Electrical entered into with Task Force contained the following indemnification provision which was the subject to the court’s interpretation:
[Progressive Electrical agrees in indemnify Task Force] from all claims, losses, fines, penalties, assessments and damages (including but not limited to reasonable attorney’s fees) arising out of [inter alia, Progressive Electrical’s] breach of any term [of the agreement], including costs, investigation expenses, expert expenses and attorney’s fees incurred by [Task Force] in the investigation and defense of such claims or allegations.
Georgia Statutes: An “Indemnity Contract” is defined as an agreement between two parties, whereby the one party, the indemnitor, either agrees to indemnify and save harmless the other party, the indemnitee, from loss or damage, or binds the indemnitor to do some particular act or thing, or to protect the indemnitee against liability to, or the claim of, a third party. “Indemnity” means reimbursement, restitution, or compensation. National Bank v. Wright, 77 Ga. App. 272, 48 S.E.2d 306 (1948); in Progressive v. Task Force, the Court of Appeals reminds us that O.C.G.A.§ 10-7-1 states the following:
The contract of suretyship or guaranty is one whereby a person obligates himself to pay the debt of another in consideration of a benefit flowing to the surety or in consideration of credit or indulgence or other benefit given to his principal, the principal in either instance remaining bound therefore. Sureties, including those formerly called guarantors, are jointly and severally liable with their principal unless the contract provides otherwise. There shall be no distinction between contracts of suretyship and guaranty.
Consequently, the Court affirmed that, “An indemnity contract differs from a guaranty in that the former is an original rather than a collateral undertaking and generally undertakes to make good the promisee’s loss resulting from his liability to another rather than from another’s liability to him.” (Citations and punctuation omitted.) Thus, the court held that the subcontract agreement’s indemnity provision was enforceable.
Since this ruling just came down, the parties may be able to appeal the decision; if they do, we will do our best to update this blog article; in the meantime, the holding in Progressive v. Task Force is a stern reminder that before signing any contract, and in particular any construction contract, (i) read the contract thoroughly and (ii) understand the terms–and the potential consequences–of the contract. Otherwise, you might find yourself individually liable for a debt you are not willing to undertake.
After two years of hard work, we are pleased to announce that Construction Subcontracting: A Comprehensive Practical and Legal Guide has been published by the American Bar Association (“ABA”), and Mark Cobb is pleased to have been one of the contributors to this amazing new resource (and the only participating attorney from Georgia!)
Although this publication could be useful to many people including construction and credit professionals, it is a book written by subcontractor law attorneys primarily for other attorneys who need to know more about the subject. In some ways, it is intended to begin codifying and identifying those issues unique to specialty trade subcontractors and material suppliers as the new concept of SUBCONTRACTOR LAW becomes more and more recognized by legal professionals, educators, and construction industry professionals.
Construction Subcontracting: A Comprehensive Practical and Legal Guide was the brain-child of Division 9 of the ABA’s Forum on the Construction Industry. Founded in 1976, the Forum has grown to become the largest organization of construction lawyers in the world. It fulfills its mission of “Building the Best Construction Lawyers” and Forum members represent all segments of the industry, including owners, design professionals, contractors, construction managers, integrated design-builders, subcontractors, suppliers, insurers, and sureties. Division 9 is a sub-group of Forum member attorneys who represent and focus on the unique needs of specialty trade contractors and suppliers. The attorneys who are active in Division 9 recognized the lack of a national publication and guide in this burgeoning area of practice. This book remedies this in fulfilling its mission to be “comprehensive”, “practical” and “legal”. The three editors, each of whom are at the top of their profession, chose to divided the text into the following six parts:
- The Subcontract Document
- Subcontract Performance
- Insurance, Bonding, and Licensure
- Special Project Issues
- Other Contracting Arrangements
As you can imagine with a book of this caliber, each section is filled with multiple chapters dedicated to explaining the fundamentals of Subcontractor Law including contractual rights and obligations, Federal and state statutory provisions impacting subcontractors as well as common law issues and remedies affecting construction professionals.
Part One of the book discusses “The Subcontract Document” which includes an examination into subcontract terms commonly used in standard contract templates (such as AIA contracts, ConsensusDocs and others frequently used construction forms) as well as their advantages and disadvantages; this section tears apart the common subcontract terms including flow-down provisions, change orders, insurance, warranties, terminations, and lien waivers. In addition to these (and other) express contract provisions, the section also discusses implied subcontract terms such as covenant of good faith and fair dealing. This important section also addresses the formation of subcontracts from the bid process through final negotiations and includes topics such as Bid Shopping, Bid Padding, Promissory Estoppel Doctrine, Negotiation Strategies and Preparing Fall-Back Provisions.
Part Two discusses “Subcontract Performance” which looks at such diverse subjects as construction scheduling, excusable and non-excusable delays, acceleration and damages as well as tips regarding calculation of damages. This section of the book also includes chapters on payment issues, mechanics and construction liens, change orders and extras as well as issues related to differing site claims, asserting and proving the claims of subcontractors, as well as contract terminations. This lengthy section of the book concludes with the topics of Warranties in Construction Subcontracts (expressed and implied), an analysis of the Spearin Doctrine (i.e., the owner’s implied warranty), Indemnity and Federal Prevailing Wage Law and Project Labor Agreements including the Davis-Bacon Act, Contract Work Hours and Safety Standards Act, and The Copeland Anti-Kickback Act. (Stay tuned for a future blog post in which Mark will provide a detailed summary regarding his contributions to the chapter on Subcontractor payments.)
Part Three addresses the vital topic of “Insurance, Bonding, and Licensure” and includes a detailed analysis of the different types of insurance generally required of subcontractors including General Liability Insurance, Professional Liability Insurance, Builders Risk Insurance, Workers’ Compensation Insurance, Automobile Coverage as well as related issues such as waivers, endorsements and subrogation. This section also provides chapters on surety bond issues, Miller Act and “Little Miller Act”, payment bonds, performance bonds, and mechanics lien discharge bonds. Regarding subcontractor licensure, the book discusses the need for a licenses, the various governing boards and non-compliance with licensure requirements as well as the payment rights for unlicensed subcontractors.
Part Four attacks the difficult topic of “Disputes” including an analysis of typical subcontract provisions such as the Duty to Continue Work Pending a Dispute, Direct Discussion and Escalation; this part also looks at litigation pass-through claims discussing such vital topics as case management, discovery and joint defense agreements; in addition, it looks at alternate dispute resolution methods including mediation, arbitration and dispute avoidance.
Part Five’s “Special Project Issues” takes a look into several interesting and often-overlooked subjects including an analysis of Federal, State and Local Contracting (including discussion on competitive bidding, preference and incentive programs and bid protects); Alternative Project Delivery (such as design-build, Tri-Party Agreements, and Public-Private Partnerships); Green Building issues (including the LEEDS rating systems as well as others rating systems such as Earth Advantage, The Living Building Challenge, DGNB and others as well as the additional project risks associated with green building techniques); finally, this section addresses Globalization and International Projects whether led by foreign contractors working on projects in the United States or US contractors working abroad.
Section Six, the final section, addresses the cutting-edge topic of “Other Contracting Arrangements”, and it includes discussion on “newer” arrangements such as Subconsulting Design Contracts, Design Issues, Supply Contracts and Equipment Leases (including equipment rentals on construction projects), Teaming Arrangements such as joint-venture agreements along with their management, advantages and disadvantages including their role in the federal procurement context.
As you can see, this comprehensive publication is a long-overdue resource for those of us practicing in the field of subcontractor law. It is an amazing “first-step” as this new legal field is accepted and defined by the legal profession, legal educators and construction professionals. Mark Cobb was honoured and thrilled to have been a part of this seminal text in his field, and he greatly enjoyed the ability to work with some of the leading subcontractor law practitioners in the country.
If you are interested in more information regarding this subject or if you would like to obtain your own copy of Construction Subcontracting: A Comprehensive Practical and Legal Guide, then please contact us today. If you would like to purchase your own copy of this useful tool directly from the publisher, please click here > >
by Mark A. Cobb
Last week, the Georgia Court of Appeals decided Western Surety Company v. Department of Transportation holding that a construction contract’s claim notice provisions were enforceable which, in turn, invalidated the prime contractor’s request for additional funds due to increased material costs. This holding underscores every contractor and subcontractor’s need to be aware of their contractual deadlines for providing notices on construction projects.
Background and Facts: This construction contract dispute involved the Georgia Department of Transportation (“DOT”), a government contractor, and two sureties. The DOT contracted with the GC to make road improvements in Georgia, and as a part of the contract the Sureties issued a payment bond and a performance bond to the DOT, as obligee. After the project was started, the GC experienced increased material costs (for the asphalt and other petroleum-related products) and suffered financial difficulties. The GC advised the Surety that it could not continue to perform under the contract and planned to voluntarily abandon the project. Consequently, the surety stepped in to complete the project pursuant to the terms of the performance bond.
The Issue: The surety ended up suing the DOT for, among other things, the additional material costs. The sureties, however, acknowledge that neither the original GC nor the Sureties themselves “strictly followed the claim notice requirements set forth under the contract.”
What Did the Contract Provision Require for Notice? The construction contract in dispute required written notice of any potential claims; it further specified that failure to provide timely notice was a waiver of the claim. Thus, if notice was not properly given, then the claim would automatically be denied. Specifically, the contract’s provision stated as follows:
NOTICE OF POTENTIAL CLAIM: In any case in which the Contractor believes that it will be entitled to additional compensation, the Contractor shall notify the Engineer in writing of its intent to claim such additional compensation. Such notice shall be given in order that the [DOT] can assess the situation, make an initial determination as to who is responsible, and institute appropriate changes or procedures to resolve the matter.
a. Claims for Delay — The [DOT] shall have no liability for any delay which occurred more than one week prior to the filing of such written notice. Failure of the Contractor to give such written notice in a timely fashion will be grounds for denial of the claim.
b. All Other Claims Except Acceleration and Delay — If the Contractor does not file such written notice before beginning the work out of which such claim arises, then the Contractor hereby agrees that it shall have waived any additional compensation for that work and the Contractor shall have no claim thereto.
The Sureties Argument: The Sureties claimed that the claim notice requirements were not applicable to the specific case because, among other things, the DOT waived strict compliance with the notice requirements, the GC and the Sureties substantially complied with the notice and claim procedures, and the DOT had actual notice of the claim.
The Holding: As the court pointed out, the parties had agreed (in their construction contract) that any additional material costs would require specific notice from the GC or Surety under the Contract and that compliance of this requirement would be “an essential condition precedent to any recovery of damages by the Contractor.” The Georgia Court further reminded the parties that “As a rule, ‘”[a]ny notice requirement must be reasonably construed.’ And substantial compliance with a notice provision may present an issue for the jury if ‘[t]he evidence … appears to be ‘in the spirit’ of the contract provision.’ [citations omitted]. Then, as the Court applies the facts in the trial court record, it concluded that none of the communications by the GC or the Sureties reasonably or substantially complied with the requirement that timely notice of a claim be given to the DOT. Thus, the Georgia Court of Appeals ruled that deadlines and notice provisions on construction contracts may be enforceable and, if proper notice isn’t given, it may preclude a party from seeking (much less recovering) additional money for its damages including increased material costs.
Practical Lesson: Regardless whether you are a prime contractor, specialty subcontractor or a sub-subcontractor working in Georgia, it is vital that you understand each term of your contract. When we review construction contracts for our clients, we create a list of deadlines and notice requirements and suggest that the client post it conspicuously on the project file, the project manager’s desk or other pertinent place as a reminder to strictly comply with the notice obligations; failure to meet each and every deadline may result in the loss of your claim, the inability to file a materialmen’s lien, or to seek additional compensation.