January 02, 2014
Author: , Esq.

The contract for construction, whether it is between owner and contractor, contractor and subcontractor or subcontractor and supplier, requires performance of the scope of work in exchange for payment of the contractual fee. It is the rare construction project that does not include at some point during the course of construction an issue regarding whether or not particular work falls within the contracted scope of work. The scope of work may be identified by way of incorporation by reference of detailed plans and specifications. At the lower contract levels, it may be identified by limited incorporation of plans and specifications (i.e., only the specifications associated with supply and installation of cabinetry and casework), it may be identified by incorporation of plans and specifications with a list of exceptions or it may be identified by the supplier/subcontractor’s stated proposal. Regardless of the manner in which the scope of work is identified, for the benefit of all parties to the contract, it must clearly identify the full and comprehensive work responsibilities of the contractor or subcontractor. It must identify whether it is simply on a lump sum basis or whether there are unit price components. In renovation projects, it must identify the extent to which hidden work is in or out of the base scope of work.

On public projects the owner/prime contractor contracts are relatively clear with respect to the scope of work. The contractor is responsible for performance of the work identified in the plans and specifications. Issues still arise where multiple prime bidding is called for and/or with the general provisions in the specifications that call for all “reasonably inferable” work. On a multiple prime project, each contractor will have certain identified specification sections for which they are responsible. They will typically be responsible for all work associated with those specifications as further identified within the plans. Unfortunately, a contractor for general construction may have work identified not only on the architectural plans but also on structural plans, electrical plans, mechanical plans and others. The specifications typically require each contractor to carefully review all plan sheets whether or not they would historically or typically fall within that contractor’s trade. This is not always done and results in problems during the course of the project where a particular framing detail that would be the responsibility of the general construction contractor is located on a structural steel plan. The general contractor claims that that detail, therefore, was a responsibility of the structural steel contractor who, of course, denies all responsibility for it does not deal with structural steel.

The other typical problem arising in the scope of work for contractors on public projects deals with the “reasonably inferable” obligations. Although plans may be extremely detailed and comprehensive, it is not unusual for design professionals to include “typical details” and/or to miss certain components. An example is where two rooms have different ceiling elevations resulting in the need for installation of a dry wall soffit at a given location. That soffit may or may not show specifically on the plans and the contractor may raise the claim that this additional dry-walling is beyond his scope. The owner will counter with the position that an extended wall exists, by having two different ceiling heights such extended wall height is inevitable and since it can’t be left open, installation of a drywall soffit at that location was “reasonably inferable.”

On downstream contracting, the scope of work becomes more problematic. Private projects do not always include the level of detail and comprehensive plans and specifications that may be found on a publicly bid project. The obligation on the part of the contractor to clearly identify the limits of its scope of work by way of specific affirmative statement of what its scope of work includes as well as identifying exceptions to the scope of work is required. This may also be addressed by way of building in “allowances” and/or “unit prices.” If the latter is used, a base quantity of the particular work needs to be identified (i.e., any fill material in excess of X cubic yards shall be compensated at a stated rate per cubic yard).

Subcontractors, suppliers and other downstream parties to the project face even greater difficulties in establishing the scope of work. They are typically asked to provide a quote to perform certain work that may be identified within one or two plan sheets or a limited section of the specifications. After that quote is provided and the prime contractor enters into a contract with the owner, a subcontract will be issued to the subcontractor that may significantly expand the work that the subcontract felt it was quoting. This may be accomplished by including other items and/or by incorporating by reference all terms of the owner/prime contractor contract and the plans and specifications. If the subcontractor has not seen those documents prior to executing the subcontract, it may be surprised to later discover that additional work was required on other plan sheets or specification sections. It is incumbent upon the subcontractor/supplier prior to executing any subcontract (preferably prior to issuing a quote) to obtain access to and to review the proposed owner/contractor agreement and the full set of plans and specifications. It is further incumbent on the subcontractor/supplier to include in its quote all exceptions and limits upon which it is quoting.