Construction Law/Contract Exclusions


I am a G.C. in the state of GA I have an A.I.A contract with a subcontractor his quote is part of the contract and in that quote he has excluded a portion of the work.  However his contract also states that he will perform the work with strict adherence to the plans and specification.  The specification and plans in his contract clearly state and clearly show that the excluded work is part of a system and this work must be done.  Being as the specification are contract documents and his quote adds ambiguity to the contract is there a case to be made that he is responsible to provide a system as specified in  the contract documents?

Dear Paul,

Thank you for your question.

Your explanation gives the feel that, your subcontractor is understood to have quoted based on the whole work described in the specifications and drawings but in the actual sense, what you have found out is that, a specific work item has been excluded.

There are few issues to be noted here:

1. It depends on the wordings of the contract you have with the subcontractor. If you have wordings that qualifies the subcontract to be "LUMP SUM" and has been properly worded to reflect such; it then means, that, the Subcontractor have undertaken that the PRICE #quote# submitted for the whole works has covered every item of the works described or shown or mentioned in the specifications and drawings for the subcontract.

2. If the subcontract has not been properly worded to reflect "LUMP SUM" subcontract and has not been worded likewise, then, there is tendency for the Subcontractor to turn and claimed that; he has either erroneously or deliberately ignored that item and has not considered the price in the quote he submitted and therefore would treat is as an additional works which the cost should be added to his quote if to be executed.
The legal interpretation of this would therefore mean that; both parties were aware that the item is not among what was priced or quoted for and as such would not form part of the subcontract even though it is stated in the specification and drawings. And the subcontractor argument could be that; his quote, which comes after the specifications and plans handed over to him supercedes the details sent to him by "limitation in quote"

3.Another thing you could look out for in the subcontract is whether the subcontractor's covering letter #if any# that was used to convey the quote to you indicate in anywhere that; the quote covers for the "whole works or for works that was described in specifications and plans" or that the quote is based upon the specification and plans issued to him. If this is there; then; you could hold on to this as evidence that; the excluded works are not excluded in real fact, but are deemed to have been priced "somewhere" or deemed to have been "allowed for somewhere" in the price whether lumped with other rates or prices for other items which forms part of the whole works.

Finally, could you check if the documents making up the contract documents are mentioned as including the specifications and the plans and the quote and that; each of these document complements each other and that; any item mentioned in one is deemed to have been mentioned in all????

Hope this helps?


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Femi Alofe


I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts


Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

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