The Legal Perspective on Technical Documents in the Construction Industry

Written By Jason A. Banack

A lawyer adds value to a project by applying his or her unique knowledge of legal principles and industry experience to the particular circumstances of a client's business.

In the construction industry, the substance of an agreement between an owner and its contractor is often found in the technical specifications and detailed scopes of work that are attached to standard form terms and conditions. In practice, technical specifications and detailed scopes of work are developed by engineering and design professionals who intend that their work will be read and clearly understood by their counterparts. However, in circumstances where disagreements arise (particularly where a contractor's right to a change order is disputed) and the parties are motivated to question the underlying (sometimes unwritten) assumptions on which the technical specifications and detailed scopes of work are based, both parties can find themselves in a tenuous legal position.

An experienced construction lawyer can assist owners and contractors in developing technical specifications and detailed scopes of work in the following respects:

1. the process of working with a lawyer to develop technical specifications and detailed scopes of work will require the design or engineering professional to "go back to basics" and critically examine how effectively these documents tell a story with a clear beginning, middle and end. Often, these documents focus on the most complicated aspects of the project, which are not necessarily the most critical. Therefore, technical specifications and detailed scopes of work are sometimes left with gaps that might have been identified by the design or engineering professional while working with a lawyer to distill the essential nature of a project.
2. by identifying legal issues related to the description of the work and providing advice for resolving these issues. A common example is: "contractor shall deliver the materials to owner's lay down yard". Legal issues would include: (a) responsibility for customs clearance and liability for duties and other taxes, (b) selecting an appropriate INCOTERM (ex. DDP, FOB, etc.), (c) terms for delivery of the materials into temporary storage, (d) transfer of title (regardless of whether the purchase price has been paid at the time of delivery) and (e) liquidated damages for delay (particularly where the delivered materials are required for out of scope work). Although many of these concepts may be generally addressed in the standard form terms and conditions of the construction contract, the devil is in the details which may not reflect a party's intentions or even contradict language found in the technical specifications or detailed scopes of work.

Working together, lawyers and design and engineering professionals can develop technical specifications and scopes of work that are clear, comprehensive and legally sound.

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