The limitation on what escalation of contractor prices may be acceptable is really contingent on the strength of their claim. I am assuming the language you do not want is being submitted for change orders? or is this in a contractor's original proposal/tender?
If on change orders, the original pricing may contain that language, but when you issue the final change order you will likely state that the change reflects "full accord and satisfaction language." You may simply refuse to issue changes absent agreement on this language.
If this is regarding the origial proposal/tender, then it really depends on your form of contract (lump sum, T&M, cost-plus, etc.), type of project (design-build, federal, other public, pivate, etc.) and the legal jurisdiction. Each of these contain the terms of whether there is a) entitlemet to a change for price escalations, and b) the means of measuring the appropriateness of the change.
Covid issues are not resolved yet in most states and courts, so there is little in the way of precedence. Even where there may be plain language regarding "pandemic" in say a Force Majeure (FM) event description, entitlement by the Contractor may be argued under what is known as a "change in law" clause. Here the argument is not FM which would be the pandemic, but instead the fact that government imposed new laws (restrictions) causing the supply chain issues to arise.
As with all changes, the first thing to establish is entitlement (do they have a right to escalation?) and the second thing is then quantum (how much are they entitled to?).
Member for
16 years 1 month
Member for16 years1 month
Submitted by Walter Terry on Wed, 2022-02-16 23:28
The limitation on what escalation of contractor prices may be acceptable is really contingent on the strength of their claim. I am assuming the language you do not want is being submitted for change orders? or is this in a contractor's original proposal/tender?
If on change orders, the original pricing may contain that language, but when you issue the final change order you will likely state that the change reflects "full accord and satisfaction language." You may simply refuse to issue changes absent agreement on this language.
If this is regarding the origial proposal/tender, then it really depends on your form of contract (lump sum, T&M, cost-plus, etc.), type of project (design-build, federal, other public, pivate, etc.) and the legal jurisdiction. Each of these contain the terms of whether there is a) entitlemet to a change for price escalations, and b) the means of measuring the appropriateness of the change.
Covid issues are not resolved yet in most states and courts, so there is little in the way of precedence. Even where there may be plain language regarding "pandemic" in say a Force Majeure (FM) event description, entitlement by the Contractor may be argued under what is known as a "change in law" clause. Here the argument is not FM which would be the pandemic, but instead the fact that government imposed new laws (restrictions) causing the supply chain issues to arise.
As with all changes, the first thing to establish is entitlement (do they have a right to escalation?) and the second thing is then quantum (how much are they entitled to?).
Member for
16 years 1 month
Member for16 years1 month
Submitted by Walter Terry on Wed, 2022-02-16 23:27
The limitation on what escalation of contractor prices may be acceptable is really contingent on the strength of their claim. I am assuming the language you do not want is being submitted for change orders? or is this in a contractor's original proposal/tender?
If on change orders, the original pricing may contain that language, but when you issue the final change order you will likely state that the change reflects "full accord and satisfaction language." You may simply refuse to issue changes absent agreement on this language.
If this is regarding the origial proposal/tender, then it really depends on your form of contract (lump sum, T&M, cost-plus, etc.), type of project (design-build, federal, other public, pivate, etc.) and the legal jurisdiction. Each of these contain the terms of whether there is a) entitlemet to a change for price escalations, and b) the means of measuring the appropriateness of the change.
Covid issues are not resolved yet in most states and courts, so there is little in the way of precedence. Even where there may be plain language regarding "pandemic" in say a Force Majeure (FM) event description, entitlement by the Contractor may be argued under what is known as a "change in law" clause. Here the argument is not FM which would be the pandemic, but instead the fact that government imposed new laws (restrictions) causing the supply chain issues to arise.
As with all changes, the first thing to establish is entitlement (do they have a right to escalation?) and the second thing is then quantum (how much are they entitled to?).
Member for
16 years 3 months
Member for16 years3 months
Submitted by Zoltan Palffy on Wed, 2022-02-16 13:56
Does the following have any legal relevance? Yes I think thats it does
Can an owner force a contractor not to include such language? NO
If not what can an owner do? I think that an owner can request documentation that flows down the supply chain that provides proof in writting that there are delays to materials.
Can you enforce time limitations on something so broad or is below "Reserving your right" for later claims? NO there can be no time limitation the term reserving will capture the overall timeframe of the delay. But what an owner can do is ask the contrator to look for different suppliers and pass any additional costs back to the owner.
Member for
16 years 1 monthThe limitation on what
The limitation on what escalation of contractor prices may be acceptable is really contingent on the strength of their claim. I am assuming the language you do not want is being submitted for change orders? or is this in a contractor's original proposal/tender?
If on change orders, the original pricing may contain that language, but when you issue the final change order you will likely state that the change reflects "full accord and satisfaction language." You may simply refuse to issue changes absent agreement on this language.
If this is regarding the origial proposal/tender, then it really depends on your form of contract (lump sum, T&M, cost-plus, etc.), type of project (design-build, federal, other public, pivate, etc.) and the legal jurisdiction. Each of these contain the terms of whether there is a) entitlemet to a change for price escalations, and b) the means of measuring the appropriateness of the change.
Covid issues are not resolved yet in most states and courts, so there is little in the way of precedence. Even where there may be plain language regarding "pandemic" in say a Force Majeure (FM) event description, entitlement by the Contractor may be argued under what is known as a "change in law" clause. Here the argument is not FM which would be the pandemic, but instead the fact that government imposed new laws (restrictions) causing the supply chain issues to arise.
As with all changes, the first thing to establish is entitlement (do they have a right to escalation?) and the second thing is then quantum (how much are they entitled to?).
Member for
16 years 1 monthThe limitation on what
The limitation on what escalation of contractor prices may be acceptable is really contingent on the strength of their claim. I am assuming the language you do not want is being submitted for change orders? or is this in a contractor's original proposal/tender?
If on change orders, the original pricing may contain that language, but when you issue the final change order you will likely state that the change reflects "full accord and satisfaction language." You may simply refuse to issue changes absent agreement on this language.
If this is regarding the origial proposal/tender, then it really depends on your form of contract (lump sum, T&M, cost-plus, etc.), type of project (design-build, federal, other public, pivate, etc.) and the legal jurisdiction. Each of these contain the terms of whether there is a) entitlemet to a change for price escalations, and b) the means of measuring the appropriateness of the change.
Covid issues are not resolved yet in most states and courts, so there is little in the way of precedence. Even where there may be plain language regarding "pandemic" in say a Force Majeure (FM) event description, entitlement by the Contractor may be argued under what is known as a "change in law" clause. Here the argument is not FM which would be the pandemic, but instead the fact that government imposed new laws (restrictions) causing the supply chain issues to arise.
As with all changes, the first thing to establish is entitlement (do they have a right to escalation?) and the second thing is then quantum (how much are they entitled to?).
Member for
16 years 1 monthThe limitation on what
The limitation on what escalation of contractor prices may be acceptable is really contingent on the strength of their claim. I am assuming the language you do not want is being submitted for change orders? or is this in a contractor's original proposal/tender?
If on change orders, the original pricing may contain that language, but when you issue the final change order you will likely state that the change reflects "full accord and satisfaction language." You may simply refuse to issue changes absent agreement on this language.
If this is regarding the origial proposal/tender, then it really depends on your form of contract (lump sum, T&M, cost-plus, etc.), type of project (design-build, federal, other public, pivate, etc.) and the legal jurisdiction. Each of these contain the terms of whether there is a) entitlemet to a change for price escalations, and b) the means of measuring the appropriateness of the change.
Covid issues are not resolved yet in most states and courts, so there is little in the way of precedence. Even where there may be plain language regarding "pandemic" in say a Force Majeure (FM) event description, entitlement by the Contractor may be argued under what is known as a "change in law" clause. Here the argument is not FM which would be the pandemic, but instead the fact that government imposed new laws (restrictions) causing the supply chain issues to arise.
As with all changes, the first thing to establish is entitlement (do they have a right to escalation?) and the second thing is then quantum (how much are they entitled to?).
Member for
16 years 3 monthsDoes the following have any
Does the following have any legal relevance? Yes I think thats it does
Can an owner force a contractor not to include such language? NO
If not what can an owner do? I think that an owner can request documentation that flows down the supply chain that provides proof in writting that there are delays to materials.
Can you enforce time limitations on something so broad or is below "Reserving your right" for later claims? NO there can be no time limitation the term reserving will capture the overall timeframe of the delay. But what an owner can do is ask the contrator to look for different suppliers and pass any additional costs back to the owner.