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date. Change orders are guaranteed – and disputes over scope
of work are quite likely.
In particular, it is risky if a stipulated price contract pro-vides
no clear baseline for determining what constitutes a
change in scope. If the contract does not specify what scope
the contract price is based on, how are the parties to agree
what constitutes a change when the construction drawings
and specifications are issued?
Careful what you incorporate
Incorporating bid documents to define the scope of work is
not uncommon. But in our experience, it is an imprudent
shortcut. Bid documents may include information that is
out of date by the time of contracting. They may contain bid
clarifications that pertain to other bidders. They may contain
qualifications that are at odds with other express contract
terms. Disputes over scope of work are much less frequent
when the contract restates the scope of work and supersedes
the bid documents, rather than incorporating them.
Use industry standards and best practices
Use of standard trade definitions (e.g., www.tradedefinitions.
com) and standard construction specifications (e.g., National
Master Construction Specification) represents the best prac-tice
for clearly defining scope of work. Trade definitions spec-ify
which trade is responsible for what; they are a complete
list of inclusions and exclusions pertaining to scopes of work.
Standard construction specifications provide templates to
consistently organize, format and write project specifications.
Keep out of court
Of course, many construction owners and contractors do an
excellent job of properly defining the scope of work. Those
contracts don’t cross our desk (as construction litigators)
too often, because disagreements are less frequent. Lawyers
don’t usually get involved in writing construction specifica-tions;
there are professionals specifically (better) trained for
this (e.g., www.csc-dcc.ca). But some of us are frequently
involved in resolving disputes when specifications are not
clear. We tend to see a disproportionate number of contracts
with poorly defined scopes of work, because the ensuing dis-putes
come to us for litigation or arbitration.
Some gaps or ambiguities in the scope of work are inevi-table
given the complex and changing nature of construc-tion
work. On the other hand, many gaps or ambiguities are
avoidable with careful attention to setting out the scope of
work in detail at the outset.
Ensure the contract includes a clear and complete scope of
work to avoid dispute as to what constitutes a change. Or, if
appropriate, ensure that the right form of contract is used to
address the fact that design is incomplete when the contract
is made. n
This article was originally published on the Alberta Construction
Law Blog and is republished here with permission from the
author. Corbin Devlin is a partner at McLennan Ross LLP.
ALBERTA HEAVY Quarter 2 2020 37