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Posted by: Chris Young | 09/17/2009 at 01:23 PM
Sorry; Gotta agree that including documents by reference can be carried too far but gotta disagree that documents by reference as a whole are a confusion to be avoided. Project Drawings and manuals (including the specifications) are obvious examples of documents that are critically part of the contract but cannot be contained within the four corners of the contract. Building and relying on Mr. Jervis comment...it would seem that emptying the garbage can by reference, (the path of least resistance) into the contract 4 corners is a real problem.
Posted by: Leonard H. McMullin | 09/17/2009 at 01:46 PM
It seems that there must be a reasonable medium. On many projects it would be impractical to include every document or provision within the four corners of the contract. But it invites misunderstanding and disputes to, as the commenter states, "empty the garbage can by reference." Would it be fair to say that the best practice is to limit incorporation by reference to the greatest reasonable extent, while making referenced documents readily available to all parties?
Posted by: Bruce Jervis, Editor, Construction Claims Advisor | 09/18/2009 at 04:39 AM
We recently had a Contractor declare that the Geotechnical Report was not part of the Contract Docs. Although specifications did spell out that the soil DATA wasn't part of the CD's, no mention was given to the recommendations given, which were in fact referenced to in the structural CD's. What a bunch of hooey that was - a GC trying to wiggle out of performing proper subsoil prep. The upshot is that we will now included notation to included the Geotechnical recommendations as part of the CD's. So, in this case what was thought to be external docs will now be considered integral to the CD's.
Posted by: E A Firm | 09/18/2009 at 07:15 AM
Our premise has always been the Contract stands alone at time of signing. Anything generated after the contract is signed can only be included by Change Order. The fabrication sub in the example should not be terminated by default and will probably get a boat-load of money for wrongful termination.
Posted by: Construction_Mgr | 09/18/2009 at 07:49 AM
Did the contract require the development of the schedule and the agreement of both parties to follow the schedule? There had to be some contract basics for the default.
Posted by: Dominick DeSalvo | 09/18/2009 at 02:25 PM
The facts of the fabrication subcontract case were somewhat unusual. The original subcontract contained a specific schedule for delivery and installation. The project owner then suspended the work for a lengthy period of time. The original schedule dates had passed by the time the subcontract was revived by change order, but the change order failed to establish a new schedule. The parties then started to conduct themselves in accordance with the laydown schedule.
Responding to a couple of the other comments: The soil data "recommendation" would not be part of the contract documents in the absence of express incorporation by reference. And I agree that an after-generated document can become part of the contract documents only via a change order. But as with the fabrication subcontract, the parties can adopt a document through their mutual course of conduct.
Posted by: Bruce Jervis, Editor, Construction Claims Advisor | 09/19/2009 at 08:15 AM
Please, advise me of a good source to obtain a list of mandatory required documents to support litigations of construction cases.
Posted by: Luis Manuel Carrillo | 02/27/2010 at 01:56 PM