AN OVERVIEW OF CONSTRUCTION CLAIMS: - Clark Wilson LLP

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p. 14 clauses, an owner should ensure it does what is necessary to investigate the site conditions properly. (g) (h) (i) An owner should realize that where the contractor is required to undertake its own investigations but such investigations are limited by cost or other factors, the contractor may be entitled to rely on the information provided by the owner notwithstanding the inclusion of a “disclaimer clause” or “liability limiting clause”. An owner employing a “liability limiting clause” should realize that including such a clause may cause the contractors to increase the contract price or include excessive contingency amounts in their bids or both. Such clauses should therefore not be used, unless circumstances indicate that differing site conditions may be present. Ensure fair and complete disclosure of information at an early stage of the construction project. VII. CLAIMS A. INSUFFICIENT PLANS AND SPECIFICATIONS Having adequate plans and specifications is a fundamental requirement for construction project. Insufficient plans and specifications result in uncertainties in the work which generally lead to remedial work prior to completion and an increase in the number of changes in the work. Increased changes in a construction project generally reduce productivity and efficiency, and increase the chances of construction claims, especially delay claims. As such, parties should do what they can at the outset to ensure that there are proper and adequate plans and specifications for constructing a project. 1. What Are Plans And Specifications Please refer to the document entitled “Referenced General Conditions” which is attached as Appendix “A” to this paper. GC 1.1.6 defines specifications as “that portion of the Contract Documents, wherever located and whenever issued, consisting of the written requirements and standards for Products, systems, workmanship, and the services necessary for the performance of the Work”. In essence, specifications describe, in words, the project being built. Plans, on the other hand, form a part of the “drawings” and are defined by GC 1.1.7 as “the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location, and dimensions of the Work, generally including plans, © 2005 Clark Wilson LLP www.cwilson.com Samantha Ip, T. 604.643.3172
p. 15 elevations, sections, details, schedules, and diagrams”. Plans are thus the graphic and pictorial descriptions of how the project should be built. Plans and specifications form a part of the “contract documents” 19 forming the contract between the contractor and the owner, and are important not only to specify and define the project to be built, but are also important in any claim for breach of contract when the building built is not built in accordance with the specifications. 2. Disputes Over Plans And Specifications GC 2.2.6 specifies that should there be a dispute over the interpretation of plans and specifications or, for that matter, any of the “contract documents” as defined by GC 1.1.9, the consultant will be the interpreter of the requirements of these documents in the first instance 20 . The consultant is supposed to remain neutral, fair and unbiased as between the owner and the contractor. 3. Shop Drawings GC 3.11.1 states that shop drawings are “drawings, diagrams, illustrations, schedules, performance charts, brochures, Product, and other data which the Contractor provides to illustrate details of a portion of the Work”. Shop drawings form a part of the “Contract Documents” as defined by GC 1.1.9. The contractor is obliged, pursuant to GC 3.11.2, to provide shop drawings which are consistent with the work specified by the other “contract documents”. Once submitted, the consultant has the obligation under GC 3.11.3 to review the shop drawings for design concept and for general arrangement. The contractor remains responsible for any errors or omissions in the shop drawings and for meeting all of the requirements of the “contract documents”, unless the consultant expressly provides acceptance of a deviation on the shop drawings 21 . 4. Architects And Engineers Duty The preparation of plans, drawings and specifications is one of the principal duties of an architect or engineer. The basic duty of architects or engineers in all their work is to use the reasonable care and skill of such persons of ordinary competence, measured by the professional standard of the time. If they fail to do so, they may be found negligent and liable to pay damages to the project owner. Additionally, if the error renders the design useless, the owner may not be obliged to pay their fee 22 . 19 20 21 22 See GC 1.1.9, the definition of “contract documents”. With the one exception of financial information required by the owner, as per GC 2.2.6. GC 3.11.5. The Canadian Law of Architecture And Engineering, 2nd Ed., McLachlin, Wallace, Grant, 1994, Butterworths, at p.111. © 2005 Clark Wilson LLP www.cwilson.com Samantha Ip, T. 604.643.3172
Page 1 and 2: AN OVERVIEW OF CONSTRUCTION CLAIMS:
Page 3 and 4: p. ii VIII. CLAIMS.................
Page 5 and 6: p. 2 • Failure of parties to coop
Page 7 and 8: V. CLAIMS ARISING OUT OF DELAY A. D
Page 9 and 10: p. 3 • Excusable delays may be fu
Page 11 and 12: p. 5 5. What Is Required For A Succ
Page 13 and 14: p. 7 PRODUCTIVITY • Productivity
Page 15 and 16: p. 9 • The presence of subsurface
Page 17 and 18: p. 11 2. Withholding Contract Monie
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Page 23 and 24: p. 17 compensable delay for the con
Page 25 and 26: p. 19 3. The General Conditions - S
Page 27 and 28: p. 21 Finally, schedules serve as a
Page 29 and 30: p. 23 that the coordination of cons
Page 31 and 32: p. 25 3. The Standard of Care - Rea
Page 33 and 34: p. 27 8. Other General Conditions T
Page 35 and 36: p. 29 (b) (c) What is noticeably ex
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