Public Construction Contracts And Claims, Including Pay-To-Play Limitations In New Jersey
Public construction contracts in New Jersey, whether they be contracts for public construction for municipalities and other entities operating under the Local Public Contracts Law, school boards operating under N.J.S.A. 18A:18A-1, et seq., the New Jersey Schools Development Authority or the State, tend to be extremely voluminous and, in many local and school board situations, a patchwork of standard form provisions, statutorily required provisions and favored provisions from the architect’s or attorney’s respective form files. The one common denominator with contract documents on public construction projects is that the document is being prepared by and presented by the owner on essentially a non-negotiable basis. This is a two-edged sword. On the one side, the public owner gets to insert whatever provision it feels is appropriate (with certain exceptions) and any contractor who wishes to perform the work is required to accept those provisions and the risk allocations associated with those provisions. On the other edge, if the provisions are inconsistent, vague or otherwise subject to some level of interpretation, the courts have told us that such interpretations are to go against the “drafter” of the contract language. Accordingly, in a situation where a voluminous contract has provisions ofthe AIA and inconsistent provisions that have been included in other segments provided by the architect or the attorney, the owner may have a difficult time in getting the court to rule in its favor on what it had sought as very favorable terms.