By Bruce Jervis
Construction contracts commonly recite that all work must be performed in accordance with acceptable industry standards. But what are these standards, and how are they determined? Does a recitation of this nature really add anything to a construction contract? Two recent cases addressed these issues head on.
In the first case, the contract included objective specifications for material testing. The material initially failed this test. The contractor later introduced expert testimony that reasonable construction standards would have allowed a modification of the test, resulting in acceptance of the material. A court ruled, however, that industry standards could not be used to alter unambiguous contract specifications.
The second case involved a very different contract. It lacked any specification whatsoever regarding a key aspect of the work. The court was forced to rely on expert testimony regarding construction industry standards when ruling that the contractor had breached the contract and when determining the cost of replacing the defective work with work that met those standards.
It is obviously preferable to objectively specify and otherwise define the work. But industry standards can be used to flesh out vague specifications or fill inadvertent gaps. Should this language be included in construction contracts as a matter of course? Or does it merely muddy the water and create work for argumentative experts? I welcome your comments.
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