Horrible contract provision on intent

Six months ago I wrote about a pending claim we have. https://planetcommercialconstruction.wordpress.com/2012/05/07/cliffhanger/  Our core contention there was that if nothing in the plans indicated a specific joint alignment then we were not obligated to provide such alignment. It’s still unresolved (rarely is there a rush to pay a subcontractor). Last week I had a nice sit-down with the GC. They needed convincing that the claim is worth pursuing, that we had a decent case, since the owner had already rejected the claim.  The GC seemed convinced we had a good case and eventually we’ll learn the outcome.  It primed me for thinking about architectural intent.

Today while reviewing a contract before signing it, I was struck by the severity of a clause related to intent and interpretation of plans and specifications.   I am now coining what may be a new phrase in this context, “discernible intent”.  If the architect does not provide a reasonably obvious clue (as opposed to explicitly indicating something), how can a subcontractor be reasonably expected to discern intent and be held accountable for meeting that intent?

Here is the contract provision. imho, it is outrageous.  (I will sign the contract since this clause offers virtually no risk in this instance – we are installing stair treads in a train station and all subtleties are easily addressed in the shop drawing). I have added emphasis below.

The work to be performed in this agreement is a portion of the work to be provided by Contractor to Owner under the General Contract and is to be performed and furnished to the satisfaction of the Contractor, Architect, and Owner. The decision of the owner or of the Owner’s designated representative as to the true construction, meaning, and intent of the Plans and Specifications shall be final and binding upon the parties hereto.  Contractor shall furnish to Subcontractor such additional information and Plans as may be prepared by Architect to further describe the work to be performed and furnished by Subcontractor, and Subcontractor shall conform to and abide by same.

To me the simplest and most obvious interpretation is that there is no need for discernible intent, subs are to be mind readers, and you agree to be bound by whatever an owner decides.   Even the most onerous change order clauses (the ones that require you to proceed and then later accept the owner-determined reasonable pricing) require reasonability, which can be disputed.  Here you seem to waive the ability to dispute the owner’s interpretation.  Is this provision horrible? Absolutely!  Is it actually enforceable? I’ll let the lawyers tell us. Personally, I will try to get it struck from any contract with even moderate architectural complexity. “Discernible intent” is a more reasonable standard than “imaginable intent”.  (You know, just use your imagination a little and you can see how the intent included all sorts of things….)


About Leo Schlosberg

Graybeard with experience in commercial construction and IT, and an interest in information flow and process. Aware and respectful of the enormous complexity, technical, legal, and other, embedded in every structure that is part of the built environment.
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