Workshops covering all the important construction contract topics specifically for subcontractors. From understanding critical terms, to negotiations and getting paid.

In my line of work, I run into a significant number of contracts.  Some terms are especially bad for the side that did not draft the contract .    Despite signing on to bad terms, there are steps any contractor or subcontractor can take to enhance their chances of success when faced with a claim or dispute.  Those steps include proper notice, proper notice and proper notice as well as documentation, documentation and documentation.  Proper notice and good documentation are so important that they each deserved being repeated three times!    Let’s get down to the basics:  1.      Proper Notice As a prime contractor, you need to fully understand how quickly you must provide the owner notice that the project is being delayed, or that you are running into problems that are costing you more money.  Likewise, as subcontractor you need to know the time limits for providing notice under your subcontract as well as the prime contract.  More and more contracts are stating that if you do not provide timely notice then regardless of what or who caused the problem (even if it is the owner), you have waived your right to pursue a claim for more time or money. Typical Events Requiring Written Notice (Even if you talk about it at a meeting!) a.     Delays to the approval of submittals; b.    Disagreement with a written interpretation of the contract documents from the Architect, Engineer or Owner; c.     Information received through an RFI that changes or adds to scope or time; d.    Contractor’s receipt of a directive that impacts contract price or contract time;  e.     Order for “minor” changes in the work that are not minor to the contractor; f.      Conditions encountered, observed, or believed to be present by Contractor at the site which differ from those indicated in the contract documents or are not ordinarily found in similar projects or sites.  Most contracts state that the contractor has examined the site and is willing to take all responsibility for conditions that differ. g.    Interference with, damage to, or delay in, the Work regardless of the cause; h.    Suspension of the work; i.       An order by Owner to stop the Work; j.       Emergencies; k.    Force Majeure; l.       Government agencies making changes under their own authority; m. Contractor’s desire to make a change in the work or deviate from the plans whether or not if affects price or time;   n.    Contractor’s belief that overtime or acceleration must be implemented to keep to the project schedule; o.    Subcontractor or supplier request for increase in price or time; p.    Contractor’s use of Owner Allowance items; Contractor’s use of contingency   2.      Get it in Writing Remember – there are no exceptions.  Create a paper trail for everything.  Whether or not to proceed with extra or changed work without a formal written change order or directive has to be decided on a case-by-case basis and most contracts require that you get a directive for extra work in writing – otherwise you waive your right to get paid.  But when a decision is made at a weekly meeting, or you get a verbal directive, confirming in an email that you’ll proceed unless you are told otherwise is sometimes your only choice to avoid delaying the entire project.  Sometimes you’ll not know if the other person gets the email even if you request a “read” receipt from the email server.  So, to verify your “confirming” email was received, “cc” at least one other person and include a question to the person you send it to that will likely prompt them to reply to that specific email.    3.      Keep it Clear  Strive to include only one issue per email and list the specific reason in the subject line.  Do this even if you have more than one item to discuss.  For example, if you are following up on one change order request and two RFI’s, send three different emails to keep the communication string clear for each item.  Keep mindful of the proper chain of command, but “cc” others if an issue is becoming critical and you are not getting the information or direction you need.   4.      Meeting Minutes Keep notes from meetings yourself.  Promptly review minutes if they are prepared by others and distribute changes to all attendees for items that are wrong or missing from the minutes.   5.      Daily Reports Set aside time daily to document the day’s events (daily reports or journal) and make this a habit regardless of whether or not you are required by your contract (or boss) to do so.  Use your tablet, laptop, or good old-fashioned paper and ink! Document everything, all communications, even verbal discussions held on site. Document visitors, owners and inspectors who visit the jobsite, weather conditions, rental equipment, crew sizes, any unusual occurrences, etc.   Finally, the importance of documenting in “real time” cannot be emphasized enough - key details may be forgotten if prepared later - plus, documenting from memory lacks credibility.   Realize that complicated and costly issues can end up going to litigation 2 or 3 years after the work is done and, by then, the individuals on the job will have forgotten most of the details.  You (and your company) will thank you when you have ample and accurate documentation to refer to when testifying later.  Always remember the old legal saying: The one with the best documentation wins!

Proposals are the first chance a subcontractor gets to combat bad contract terms and maximizes its profit goals – after all, no one wants to lose money on a project!    Most subcontractors focus primarily on identifying their scope in the proposal, which includes diligently reviewing the plans and specifications, doing a comprehensive take-off, and then carefully setting forth what’s included for their scope of work, often adding particular clarifications and exclusions.   Unfortunately, many subcontractors don’t take the opportunity to pump up  that proposal with some basic, but important, terms and conditions, leveling out that playing field when it comes time to negotiate the subcontract.   So, what types of terms should you include? There are lots of them but, for now, let’s look at just three (3) very important ones that you should consider when creating the terms for your proposals:   1.    A deadline for progress payments to avoid payment delays when the Owner doesn’t pay. 2.    A deadline for payment for changed or extra work  so you don’t get dragged into a long, drawn-out process waiting for the formal change order to be issued before you can bill for it. 3.    Contractor’s or Owner’s termination for convenience  must allow payment for costs you’ve incurred, especially for cancelling agreements with suppliers and lower tier subs.   1.    Using a Deadline for Progress Payments   As we all know, most subcontractors include provisions that say that the Subcontractor doesn’t get paid until, or even sometimes “ unless ” the Contractor gets paid. While California prohibits “pay-if-paid” provisions, some states don’t. And, either way, you don’t want to fight about this during the course of construction.   By including a term in your proposal that has a payment deadline, the Contractor knows that you’re not going to agree to unfair payment terms. A reasonable provision you can add can look like the following:   Payment to Subcontractor shall be made no later than 90 days after Subcontractor submits its proper payment application to Contractor regardless of whether Contractor has received payment for Subcontractor’s work, except to the extent Contractor is not receiving payment due to Subcontractor’s failure to comply with the terms of the agreement between Contractor and Subcontractor.     2.    Ensuring Timely Payment for Changed and Extra Work. For changed or extra work, the first hurdle is to clarify that you expect to get paid for all changed or extra work that the Contractor directs you to do regardless of how the Owner handles the situation with the Contractor.  The second hurdle is getting around having to wait for a formal change order to be issued so that you can bill for that work.   So, for the first hurdle, you can include language like the following:   Subcontractor shall be paid for all changes and additions/extras to its Work directed by Contractor regardless of whether Contractor receives payment for same.   For the second hurdle, you may want to try a provision like the following:   Contractor shall issue a formal change order for all changed or extra work directed by Contactor no later than 30 days after such work is performed by Subcontractor so that Subcontractor may bill for such work. Otherwise, Subcontractor may bill for such work in its next payment application following the expiration of such 30 days.     3.    Getting Fair Payment for Cancellations. An issue that has been much more prevalent since 2020 is the push to get orders placed for materials and equipment as soon as possible to better manage supply chain concerns and long-lead time items.   But what happens if there is a change in the project requirements? Or worse, what happens if the project is cancelled or your scope is reduced?   Who pays for cancelling those orders?   Almost every subcontract these days have terms that allow the Contractor to cancel without a default by Subcontractor and without any other good cause. These terms are generally known as “termination for convenience” provisions.   If you know you will be subject to cancellation charges from your suppliers once you place an order, it’s important that you put the Contractor on notice of this when you submit your proposal. Adding terms like the following can help:   Materials and equipment cancelled after the purchase orders are placed by Subcontractor are subject to cancellation charges . In the event Contractor cancels or terminates Subcontractor’s work or services for its convenience after direction to proceed or execution of the Subcontract, Contractor shall pay Subcontractor for all work performed, plus cancellation and restocking charges assessed by Subcontractor’s material suppliers, rental companies, and sub-tiers, plus a reasonable amount as determined by Subcontractor as compensation for demobilization to safe-off its work.   It makes sense that you provide a proposal believing that you’ll enter into a subcontract that has fair terms. But that is becoming less and less likely as Contractors continue to present increasingly one-sided subcontracts to their subcontractors.   Remember, the main reason you want to add terms and conditions to your proposal is to have a much stronger leg to stand on when you are negotiating the subcontract. By thinking through terms that are important to have in your subcontract, and including those terms in your proposal, you can legitimately argue that your pricing was based on having these or similar terms in the subcontract. And, most importantly, don’t forget to make sure your proposal terms are included in the Subcontract!

Everyone knows that project delays increase the project build cost for both contractors and owners. Owners may face higher loan carrying costs, loss of revenues associated with not being able to use the building, or holdover costs from extending leases at old facilities. With delays, contractors face extended general conditions costs, protracted equipment rental costs, and depending on the timing of the delay, things like increases in material costs.    Who ends up footing the bill for such costs?  The answer is not so clear cut because it often depends on the terms of your contract and how you manage the project regarding on-site work and your contract terms.   There are three types of project delays related to the acts of the contractor and owner.   Contractor Caused Delays: These are delays caused by the contractor or subcontractor when there have been no acts (or omissions) by the owner or its design team that have hindered the progress of the work, and no other events or conditions delaying the work that are out of the contractor’s or a subcontractor’s control, the most common are  subsurface obstacles, differing site conditions or inaccurate plans. For contractor-caused delays, the contractor will be responsible for increases in the cost of performing its work, as well as actual or liquidated damages suffered by the owner due to the delay.      Owner Caused Delays: These are delays caused by the owner and/or the owner’s design team.   Events causing delays that would commonly be blamed on the owner (or its design team) include failing to get permits issued in a timely manner for a design-bid-build project, making changes after commencement of construction, failing to respond promptly to requests for information (RFI’s), and deficient plans.     Concurrent and Force Majeure Delays: The term “concurrent delay” often refers to two or more independent events that cause a delay to the work over the same period of time, whether over the exact same duration of time or over a partially overlapping period of time.  When an owner-caused delay and a contractor-caused delay are concurrent, while the completion date is often extended usually neither party can make a claim against the other for the costs or damages either one incurs – this makes sense.   There is usually a similar outcome for a force majeure delays. Force majeure delays are delays caused by an event that is not in the contractor’s or owner’s control. Many contracts define what is considered a “force majeure” event, such as acts of God or nature (i.e. flood, fire, earthquake); war, invasion, hostilities, riot or other civil unrest; government order or law; action by any governmental authority; strikes; epidemics and pandemics; and states of emergency; and any similar event beyond the reasonable control of the party claiming a force majeure impact.   As with concurrent delays, most contracts allow an extension of time for force majeure events, but no additional compensation to the contractor for the delay, and the owner cannot assess delay damages (whether actual or liquidated damages) for the delay. Two Contract Terms That Can Transfer the Risk of the Delay:   There are two important contract provisions that can interfere with the common theory that (1) for an owner-caused delay, the contractor would naturally get more time to complete the project as well as receive compensation for extra costs due to the delay, and (2) for a concurrent or force majeure delay, the contractor would at least get more time to complete the project.   The first provision that many contracts include is a “no-damages-for-delay” clause. This is a clause under which a contractor will not be compensated for costs it incurs due to delays to its work caused by the owner or others.  Under this clause, the contractor’s remedy for owner-caused delays is limited to an extension of time to complete the project.  If the contract has a no-damages-for-delay clause, then even when the owner is the direct and sole cause of a delay, the contractor will end up paying for the delay because it will have to absorb the time-related costs that increase because of the delay, such as costs associated with rental equipment, jobsite trailers, temporary fencing, job-site supervision, and even increases in material costs.    The second type of provision causing the risk of delays to shift to the contractor are the notice   provisions in the contract. Notice provisions provide deadlines for a contractor to advise the owner that something is delaying its work. If the contractor does not meet the deadline, then often they waive their right for more time or money. And, failure to provide timely notice of delay may result in the owner asserting delay damages against the contractor.   Let’s look at an example:   Suppose a Contractor enters into a contract that states that “Contractor shall be liable to Owner for liquidated damages in the amount of $1,500 per day for each day past March 1 that the project does not reach substantial completion.”  The contract also includes a provision that says “Contractor must submit a written change order request to Owner for an increase in time or increase in cost within ten (10) days after Contractor first recognizes the condition giving rise to the request, and such request must include an estimate of the impact to the cost of the work and the project schedule.”     As the project progresses, Owner makes various changes that clearly cause a delay in the project and, at one point, work comes to a standstill for three weeks due to a plan recheck because of the changes.  Despite its work obviously being delayed, and despite change orders being issued to increase the cost of the work due to the design change, Contractor never submits a request for a change order for a time extension nor does the Contractor make sure a time extension is included in the issued change orders.  The project reaches substantial completion by April 15.  Owner then sues Contractor for $67,500 because substantial completion was met 45 days later than the substantial completion date stated in the contract.  Contractor’s argument in its defense is that Owner is not allowed to assess LD’s for delays the Owner itself caused.    While the Contractor’s defense seems pretty solid on a practical level, there is a real possibility that the Contractor will lose on this defense.   This is because the Contract’s substantial completion date of March 1 was never changed.  The Contractor never bothered to submit a change order request to try and get the substantial completion date extended.    Under this situation, a Court could make a ruling that, because substantial completion occurred 45 days after the March 1 deadline, the Contractor owed LD’s in the amount of $67,500.  Under these circumstances, the Court would not analyze the cause  of the delay.  Instead, the Court would merely look at the fact that the substantial completion deadline remained as March 1st and then assess as many days of LD’s as the project was delayed past the contractual deadline.  Had the Contractor at least requested a change order for an extension of time, even if the Owner rejected it, the Contractor would have been allowed to defend itself by arguing that the Owner caused the delays and wrongfully denied the Contractor’s request for the change order extending the time.  This is a hard pill to swallow for any Contractor!   The moral of this story is: make sure your contracts do not rob you of the ability to charge extra costs for delays and make sure you understand the notice deadlines so that you don’t end up unexpectedly paying for an owner’s delay

How We Train Our time-tested, dynamic workshop environment keeps your team more engaged, which provides an enjoyable experience. Our minds are way more open to learning when we are enjoying the process! Current industry topics are integrated with established law to provide a deeper understanding of contract terms and pro-active contract management. We provide training two ways: (1) Subcontractor Summits - These are full-day workshops open to any attendees who register; and (2) On Site Workshops - this provides convenience and privacy to your team in a venue that allows optimal understanding for all participants. This also encourages open dialog to target the specific information your team needs most. Select from a wide variety of topics so that your workshops that can be tailored to meet your team's specific needs. Subcontractor Summits SUBCONTRACTOR SUMMITS provide a full day of workshops designed to tackle the unique issues subcontractors face related to negotiating subcontracts, subcontract compliance, and performing their work. Each Summit begins with energetic classroom sessions and progresses to workshop specific hands-on challenges such as redlining subcontract terms or our entertaining “project gone wrong” hypothetical case studies where you put your newfound skills to the test. Who Should Attend? • Company Owners and Management • Project Managers and Project Engineers • Superintendents Click Here for Highlights of Our Recent Summit Why Train? Increase Profits: Projects are bid with tight margins to ensure success of an award. But, those thin margins are soon eaten up by avoidable mistakes that often result from simply being ignorant as to your contractual obligations and how to work the system to your advantage. Focused training by a professional increases your team's ability to properly and confidently manage the contract and assert your rights! Talent Retention and Productivity: According to Indeed.com: "Implementing training programs in the workplace will help employees feel like the company is invested in them. By continuing to teach your employees new skills and abilities, they will not just become better workers, they will feel like more productive members of the organization. This will improve their morale as well as their workplace capabilities." Catch Us at These Events March 27, 2025 AGC 2025 Garden Mixer Scholefield Construction Law is a sponsor for this terrific AGC Member Mixer. This Mixer has an EXPO type atmosphere where you can meet and mingle with other industry professionals to grow your business. More Info April 10, 2025 11th Annual California Construction Law Conference Pam Scholefield will be presenting an information-filled session on Mechanics Liens and Design Professional Liens. The conference is open to all construction industry professionals More Info July 17, 2025 California Glass Association Member Meeting Pam will be giving a lively dinner presentation on best practices when it comes to contracts, including killer contract clauses to negotiate. More details to follow. More Info Our Most Popular On Site Workshops Understanding and Negotiating Contract Terms Learn More The Devil is in the Details - Managing Project Documentation Learn More Changes and Claims - Do it Right or Lose Your Rights Learn More Articles Savvy Subs Pump Up Proposals Pam Scholefield 2 hours ago 4 min read 46 0 comments 0 Post not marked as liked Don’t Get Trapped Paying for Owners’ Delays Pam Scholefield Apr 1 5 min read 53 0 comments 0 Post not marked as liked Do You “Aim to Please” or Just Slink through Your Days? Pam Scholefield Mar 10 4 min read 88 0 comments 0 1 like. Post not marked as liked 1 Cash is King – Tips to Keep it Flowing During Construction Pam Scholefield Feb 24 4 min read 81 0 comments 0 Post not marked as liked "Contract Documents" are More than What You Sign Pam Scholefield Feb 10 4 min read 66 0 comments 0 1 like. Post not marked as liked 1 The 7 Deadly Sins for Contractors Pam Scholefield Dec 3, 2024 4 min read 113 0 comments 0 2 likes. Post not marked as liked 2

What a Summit Does for YOU! Provides you with a premium learning experience with other professionals in our industry. Focused workshops improve your knowledge in the most relevant areas of your career. Improved knowledge increases your confidence. Increased confidence elevates your job satisfaction. Elevated job satisfaction leads to a happier YOU. A happier you leads to a more gratifying LIFE! Click Here for Highlights of Our Recent Summit Check Back Soon for Our Upcoming Winter - Spring Schedule We are already working on more Summit workshops. Based on your feedback, we plan to cover and emphasize the most sought-after material available anywhere. If you haven't already done so, go to the bottom of this page and sign up for our informative e-newsletters.

Popular On Site Workshops Popular Workshops On Site Training: Provides convenience and privacy to your team in a venue that allows optimal understanding for all participants. This also encourages open dialog to target the specific information your team needs most. Tailored Topics: Select from a wide variety of standard topics that can be tailored to meet your specific needs. Current industry topics are integrated with established law to provide a deeper understanding of contract terms and pro-active contract management. Workshop Sessions: Our time-tested workshop environment keeps your team more engaged, which provides an enjoyable experience. Our minds are way more open to learning when we are enjoying the process! Back to Home Understanding and Negotiating Contract Terms This workshop covers the contract terms that pose the most risk and that often provide fertile ground for disputes. Attendees will learn ways to edit and negotiate such terms to level the playing field. This workshop explores terms such as: pay-if-paid/pay-when-paid; retention; integration clauses; incorporation of the prime contract; termination for cause and convenience; indemnity and liability; liquidated damages; notice provisions; no-damage-for-delay clauses; force majeure, and sleeper clauses such venue and choice of law. The workshop includes practical and entertaining exercises such as the "timed" contract term scavenger hunt and a mock negotiation of contract terms. Back to Home The Devil is in the Details - Managing Project Documentation The devil is truly in the details as this workshop works through key contract terms while emphasizing the importance of properly organized and detailed paperwork by exploring the following topics: "Flow charting" techniques to keep track of deadlines; Providing notices; Documenting RFI’s and RFI Logs; Organizing Submittals and Submittals Logs; Meeting minutes; Daily reports – content and purpose; Look Aheads; Documenting changes and requests for change orders; Performing changes before a written change order is issued – private and public work differences; Working under protest; Documenting verbal directives; Professional Emails – don’t write anything that you would not want a judge or jury to see. The participants finish the session with an entertaining case study where they can put their new found skills to the test! Back to Home Contract Terms Devil in Details Changes and Claims - Do it Right or Lose Your Rights Understanding the procedures and deadlines for dispute resolution as dictated by the contract, and understanding the types of damages you can claim, are keys to maximizing your chances of a successful resolution. This workshop focuses on conflicts involving: scope of work; plans and specs; percent of completion; delays; changes in project schedule; withholding payments; causes of delay; T&M directives; and changed or extra work. The course also discusses the appropriateness of demanding dispute resolution prior to the completion of the project. Participants will also gain a deeper understanding of force majeure events, and the effect of various categories of delays, such as excusable, non-excusable, compensable, non-compensable, and concurrent. The workshop also explores disruption and acceleration claims, differing site conditions, and the calculation of damages, including general conditions, field office and home office overhead, and the impact of contractual limitations on mark-ups. The session concludes with the participants rolling up their sleeves and digging into an interesting case study to test their claim-preparation and damage calculation skills! Back to Home Changes and Claims