DRAFT 2 Brief on the merits - Supreme Court of Texas

In the past, the master builder was responsible for both design and construction.
By the nineteenth century, the rising complexity of construction eventually led to design
professionals becoming responsible for the design aspect of the construction process. Id.
§ 1:2, at 14. General contractors, at that time, self-performed most of the actual
construction using their own forces. As the complexity of construction continued to
increase, it became cheaper and more effective for subcontractors to perform most of the
specialized work that was outside of the general contractor’s expertise. The increasing
involvement of the subcontracting industry in the construction process has evolved over a
long time, eventually to the current situation where subcontractors perform eighty to
ninety percent, and many times one hundred percent, of the construction work on
projects. See generally CURRIE, ET AL, supra n. 22, § 1.2, at 1; Owens-Corning Fiberglas
Corp. v. United States, 419 F2d 439, 455 (Ct. Cl. 1969) (maximizing subcontracting of
Government contracts is encouraged as a matter of national policy.)
Subcontractors, then, put much at risk when they agree to provide labor and
material to a project. Subcontractors provide most of the materials, skilled trade workers,
and payroll, and bear the primary responsibility of meeting scheduled completion
deadlines. KEISHA RUTLEDGE, SUBCONTRACTORS BUILDING RECOGNITION ON THE JOB,
TAMPA BAY BUS. J. (Mar. 12, 2001). 2 Subcontractors typically still have to pay their
material suppliers, workers, overhead, and other direct project costs.
Permitting an owner to file a lawsuit and then indefinitely stay the proceedings,
while taking no action to diligently pursue its claims, prejudices subcontractors by
2 Available at http://tampabay.bizjournals.com/tampabay/stories/2001/03/12/focus6.html.
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