Trent Cotney, CEO, Cotney Attorneys & Consultants
We understand how a contract is formed but opposing parties love to confuse roofers by incorporating other contract documents into their agreement. If you have ever reviewed a commercial contract, most of them incorporate at least one other document. The classic example is the AIA form documents. AIA A101 or A111 incorporate A201 by reference. A201 is a 40-page document that has numerous terms that may impact a contractor’s ability to get paid including terminations for convenience, waiver of consequential damages and notice provisions on claims. Most contractors gloss over the reference and never bother to obtain,
let alone read, A201.
Similarly, most roofing subcontracts incorporate the prime contract, the plans, the specifications and a variety of other documents. A roofing contractor should review all of the contract documents before the contract is signed, because if the term “incorporated
by reference” is used, the verbiage in those documents is as much a part of the subcontract as the subcontract itself.
In most contracts, there is a section of the contract entitled “Contract Documents” that identifies the documents that should be considered part of the contract. Have you obtained and reviewed all of those documents? The review of these documents is critical
because it may dictate your ability to assert claims or defenses in the event of a problem on a project. Often, as someone who is reviewing contracts, you may request copies of these documents but never receive them prior to the time you have to sign the contract. In that case, we recommend sending an email to the opposing party stating “I have not received the following
documents despite request: _______. If we don’t receive them by end of business tomorrow, we will assume they are not part of the contract documents.” If the additional contract documents are not provided to you in that time frame, then at least you have an argument that they are not part of the contract.
What happens if there is a conflict among documents? Normally, there is what is known as an order of precedence clause or a “who’s on first clause.” This clause states: “In the event of a conflict, the following documents control and govern in the order listed: subcontract, prime contract, plans, specifications.” In this instance, if there were a conflict between the subcontract and the incorporated by reference prime contract, the subcontract would control and govern the agreement.
Roofing contractors should understand how the documents work with each other in advance of signing the contract. It may be
possible to slip in certain favorable terms, such as price acceleration provisions, by incorporating by reference your scope of work which includes the provision. This tactic is especially useful when dealing with owners or general contractors that are unwilling to modify the terms of their contract.
Editors note: FRSA Members can access more of Trent’s legal language by logging on to the “Members Only” section of FRSA’s website, www.floridaroof.com.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney is Board Certified in Construction Law by the Florida Bar, an advocate for the roofing industry and FRSA General Counsel. For more information, contact the author at 866-303-5868 or go to www.cotneycl.com.
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