How subcontractors can mitigate risk in their contracts
At a risk management seminar in Ottawa in late February, Dan Leduc, a partner at the law firm Norton Rose Fulbright LLP outlined several different ways in which trade contractors might simply use the contracts imposed on them as potential “push backs” or claims for change orders as provided for by the CCA 1 2008 form of subcontract.
The seminar took place at the Ottawa Construction Association’s inaugural construction symposium and trade show.
In his presentation, Leduc was able to demonstrate how the wording in that standard form of subcontract can be grounds for a request for a change when there are schedule adjustments, given that the typical wording for a change order speaks to an adjustment in Contract Time, how there is often no express provision for a deficiency holdback to be taken and that the process of certifying progress draws does not lend itself to such a holdback over and above the statutory lien holdback, and how Issued for Construction (IFC) Drawings cannot form part of the definition of Subcontract Documents without a change order.
“I’m not giving you legal advice,” said Leduc, a member of the association’s board of directors who has been practising construction law for 27 years.
“I want to talk to you about these issues from my perspective if I were an electrical contractor, working at the fictional company, Leduc Electric.”