The odds are NO. 

The contract includes an entireties provision, (article 1, section 1 of the AIA), stating “This is the contract” and then it will list things that include what is within the contract. So it is possible that you have listed your bid as a part of the contract, but the odds are most people don’t do that. 

If there was something mentioned in your bid that you want to makes sure is followed, be sure to get it listed directly into the contract because the contract is always the overriding document that will be followed. Meaning, if your bid included an exclusion to install in a particular space, but your contract does not include that exclusion, you are now responsible for installing in all spaces. 

Here’s the bottom line: 

If you want something honored that was mentioned in your bid and you want it to have priority regardless of what anything else says, make sure it is listed in the contract.

I see this a lot. For example, you have a contract that states time is of the essence. And maybe you even have the possibility of delayed or liquidated damages. Then the GC comes along and states that you are responsible for doing X,  Y, and Z to finish the project. But the problem is the contract says you will not be paid for any additional change orders, items, etc., unless you have a fully signed change order secured by the GC.

That makes sense. But because of scheduling realities it makes it a challenge to get a signed change order approved in time to maintain and keep to your assigned schedule. It makes waiting for the signed change order a burden. So what do you do?

A lot of subcontractors feel they don’t have the luxury of waiting on the signed change order. But they also don’t want to waive the right to get paid for this extra work because they know it is beyond their base contract.

If you end up in type of bind I recommend Plan B. Correspond with the GC in the assigned way outlined in your existing contract (note: it may include a hand delivered notice via courier, so pay attention) to confirm that you are moving forward with this work as of { date and time } and this is work that is an extra to your contract. We are confirming that you are reviewing the change order and will negotiate this promptly. This notice is to imply that we will not waive our right to payment for the additional scope of work stated in the change order.

Then close your correspondence with a simple message like, “If this is not correct please let me know immediately. If I do not hear from you by {date and time}, we will proceed as scheduled.

You give the GC a deadline and make them understand the consequences of their silence. This confirms your actions and helps to keep your company protected and properly compensated.

It’s not uncommon to see it listed in the contract, but it is incredibly uncommon for the subcontract to agree to a personal guarantee. Sometimes a GC will try to hold the subcontractor personally responsible in a very general term like, “the person signing is personally responsible.” If you see the in your contract, cross that out before signing. This is the whole reason you have a company established - to limit your personal liability, so do not agree to be personally responsible.

For me, if the GC was not able to get past have a personal guarantee listed in the contract, that would signify a dealbreaker (an excessive risk by which I choose not to sign a contract).

The second instance where I see this come up is in professional courtesies. Example: A design build contract in which the person designing or drawing up the contracts is personally liable. Maybe according to state law that would be the case and you have the opportunity to file suit against the person personally – you can’t change state law - however, I would still cross it out before agreeing to this contract.

Put the burden on your company, not on you. Your company stands behind the terms of the contract, stands behind your work. You can assure the GC that they are protected as your company has met the insurance and bonding requirements of the contract, and there is no need to personally subject yourself or your people to liability for this project.

There are two aspects to any contract:  Time and Money. 

The purposed of the change order will make sure your business is paid extra with an adjusted amount to the original contract for your new scope of work. But it does not automatically add in an extension of time to complete this additional work. You need to build that time extension into your change request by stating how many additional days are necessary and state the new completion date.

As a reminder, if you want something acknowledged or protected, you need to state it in your contract (or in this case, change order). Never assume that just because you know that extra work takes extra time, that all other involved parties will recognize that. Get it documented in a signed agreement to protect your business.

It’s not uncommon to have sequencing issues. And this is an example of one of those cases that arises that you wish you had done something about before signing the contract.

If this has become a problem for you will want to negotiate for this in future contracts. For the current project you are going to have to play the cards you have been dealt. So during the course of the contract you have to give notice after notice that the sequencing is going to put you beyond the completion date on the schedule. But as you draft that put the emphasis on the GC. Something like, “Your instruction is putting us beyond the date.  We will comply with your instruction but you’re putting us beyond this deadline.”

Then you add up each notice and build a record of the changes imposed on you. So if the cases ends up in litigation or arbitration, you have a record of proof to help make your case.

One primary thing you should always do before you sign a contract, is stop to consider, “What would make me want to get out of this contract?”

Come up with a list of reasons that would have you squirming and feeling miserable if you were locked into a contract dealing with these conditions. Examples include:

• The schedule is not getting updated
• You are not getting paid
• You are not receiving timely responses for your request for information
• Any reason that led you to near disaster in the past

Talk it over with your team and brainstorm additional reasons to make sure you have covered your bases. And then go about getting these issues resolved by building in provisions to cover these concerns in your contract.

First let’s consider the typical reasons a GC would without payment on an invoice.

1. The work was done incorrectly
2. An outstanding claim
3. If a vendor has remained unpaid

Looking at this sample list, you can begin to the see the validity of the GC’s perspective. The GC would not want to waive the right to withhold payment of an invoice given these type of circumstances. That is why the contract is written to protect them (the GC) in these instances.

Just like you would want to withhold payment from your own subcontractors until the issue was resolved.

This is the means by which the GC can legally hold you accountable to the work performed.

So knowing the GC, is not going to remove this from the contract, how can you make sure he doesn’t without payment on invoices for work performed properly and on time. Consider adding in something like, “You don’t have a right to withhold or be a slow pay on undisputed invoices and payments.”

This addendum in your contract will state a date by which the GC must contest any invoices or else be responsible to pay in a timely manner.

“If it is undisputed by XYZ date and our due date for the invoice is up, we have the right to walk from the project and we get a day-for-day extension for any period of suspension (while awaiting payment).

This addition to your contract deals with both the money and the time consideration. Don’t forget to always address both to keep yourself properly protected.

Most contracts state that you send in your invoice and request for payment, along with a lien release. The intent of the lien release is to release your right to any claim on this invoice.

But if the GC fails to pay your invoice it waives you from being held liable to your right to waive your right to claim.

You have the right to dispute resolution by sending in a notice according to the dispute resolution provisions stated in the contract. You comply with the dispute to get your payment and protect your rights.

Refer to The Commercial Subcontractor’s Contract Masterclass.

Here are some general differences:

• Arbitration can sometimes be less expensive than litigation. Often times it turns out to be, but that is no guarantee.
• Arbitration can take place anywhere. Litigation only takes place in a courtroom.
• Litigation is settled by a judge, who may or may not have any knowledge / background in construction.
• The arbitrator on the other hand you get to pick from a list of available arbitrators and see their resume so you can pick someone who has knowledge of your field.
• Arbitration can be more binding than a court decision. It is final no matter what in almost every case. But there are a lot of reasons you can appeal a judge’s decision in litigation.
• An arbitrator has to take in all evidence. Whereas he judge in litigation will limit what can be reviewed as evidence. (for a host of reasons).

No, a lawyer is not required in order to make changes to a contract.

But often, I talk with people who think they either hire a lawyer or else they have to sign a contract that they don’t understand or try to rewrite in a language they don’t understand (legalese). 

But those are not your only options. I started WagonheimU to teach you your options.

Instead of trying to write like a lawyer, write in your own voice as clearly as you can.

Write in active voice in a way that is clear and unambiguous.

Join The Commercial Subcontractor’s Contract Masterclass and follow along as I help you write so you’re not misunderstood when you make changes to your contracts.