Specification writers frequently describe that a particular subcontractor, such as the electrical subcontractor or the subcontractor performing the work of Section XYZ, is responsible for performing certain work.
One of the problems with this language is that it potentially limits the liability of the contractor who is ultimately responsible for performing all the work of the contract, including being responsible for the work of all subcontractors.
There are two ways to address this concern and ensure that the specifications are clear with respect to the accountability of the contractor for all of the work:
- Ensure that any references to specific subcontractors as being responsible for work are changed to reflect that the contractor is responsible for the work.
- Include a global statement in the contract or General Conditions that states something like the following:
"Any references included in the contract documents that purport to address the responsibilities of work by crafts and specialty or trade contractors or subcontractors, are included only for the convenience in preparing and reading the contract documents, and do not in any way limit the full responsibility of the contractor to provide a complete installation and be responsible for all of the work under the contract."
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2 comments:
Wow, you say frequently and I have never seen that in a specification from a customer telling the contractor that the subcontractor would be held responsible. Specifications deal with what, where, when and how - the who is always the contractor. I would think the contract terms and conditions would override such language in a spec, if a CO ever permitted it to be incorporated, and I would think any court would look at the privity of contract relationship as the customer has direct association with the subcontractor. Have I misunderstood the topic?
I have frequently seen language that states things such as "The Electrical Contractor shall do x." It's actually a fairly common occurrence from my experience. It is obviously meant as a convenience to clarify what trade will probably do the work. My concern is that since the specifications are part of the contract, that it is creating ambiguity in terms of responsibilities. It opens up the door for a contractor, in a dispute, to disclaim any responsibility for work not performed properly. In a dispute, how would a court rule? I don't know, but I think one of the responsibilities of those entrusted with developing contracts for public agencies is to ensure, to the greatest extent possible, that the contract documents are clear and protect the public agency.
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