AIA Document A401

[sparky 134]

So I received a Contract today from a GC for a project. They are using the AIA A401 Standard Form of Agreement between Contractor and Subcontractor.

There are more paragraphs lined-out and replaced with their own verbiage. So far I've just done a quick review and the funniest line I've read is, "Work that is performed on overtime shall be performed at the Subcontractor's cost."

Nothing like being told you cannot make a profit.

Another funny line is, "If the Subcontractor fails to mobilize and begin work in force when directed or fail or neglects to carry out the Work in accordance with the Subcontract Documents and fails within 24 hours of written notice to commence, the Contractor may terminate the Subcontract, take possession of all materials and equipment on site and finish Subcontractor's work by any means necessary."

"take possession of all materials and equipment on site..." Now that is comical.....

 

[480sparky]

Supply them with your own contract. There's sounds far too one-sided.

Suppose the GC or another sub causes something to force you to work OT?

 

[nakulak]

these friends of yours ?, or some comedians that you haven't worked for yet ?

 

[brantmacga]

run forrest, run!

 

[sparky 134]

Ok, I just finished reviewing the entire contract. The AIA A401 as it's originally written is a neutral contract. This GC has pretty much stripped all of the neutrality.

I have written up three pages of modifications. I've already told myself I won't be doing the project. Any GC that goes to such lengths to create a contract that is so one-sided is destined to be trouble.

Too bad, it could have been a nice job.

There was another section that stated the Contractor may require the Subcontractor to enter into agreements with sub-subcontractors to perform portions of the Work. I could go on and on with this comedy....

 

[480sparky]

....I have written up three pages of modifications. I've already told myself I won't be doing the project. Any GC that goes to such lengths to create a contract that is so one-sided is destined to be trouble.

Too bad, it could have been a nice job. ....

Don't write it off yet.... you may be the only one who responds. Others may have simply seen the nonequitable verbage and dismissed it totally.

 

[forman400b]

"take possession of all materials and equipment on site..." Now that is comical.....

Comical or criminal?!?!

 

[ITO]

… "Work that is performed on overtime shall be performed at the Subcontractor's cost."

This is pretty common, but the verbage here concerns me a bit. The intent here is for the premium time to be paid for by the sub, but that is not what the sentence says, it says “work performed on overtime”. You can counter this by specifically excluding OT from your written scope of work which should be attached as an “exhibit” to your contract.

For work performed on OT to make up the schedule that is the fault of others, the GC should pick up the premium time, while work performed to make up the schedule that is your fault, you get to eat. Good project management, documentation and attaching your scope should be enough to get you paid for this if it is justified.

"If the Subcontractor fails to mobilize and begin work in force when directed or fail or neglects to carry out the Work in accordance with the Subcontract Documents and fails within 24 hours of written notice to commence, the Contractor may terminate the Subcontract, take possession of all materials and equipment on site and finish Subcontractor's work by any means necessary."

This is pretty common too, but if you have not mobilized yet there may not be any material on site. Strike out the word “equipment”. Also keep in mind once you deliver material to the job it belongs to the owner and even if they “take possession” of it they still have to pay for it and you still have lien rights.

Ok, I just finished reviewing the entire contract. The AIA A401 as it's originally written is a neutral contract. This GC has pretty much stripped all of the neutrality.

I have reviewed and singed many a contact, and have yet to see a fair one from a GC, they just don’t exist.

I have written up three pages of modifications. I've already told myself I won't be doing the project. Any GC that goes to such lengths to create a contract that is so one-sided is destined to be trouble.

With all due respect you wont get much work with that attitude. The key is to read through the contract and find the “gotchas” then either modify them, strike them, cover the with your scope letter which should be attached as an exhibit, or form a strategy to deal with them. Good project management, and documentation will address most of the concerns you listed here.

There was another section that stated the Contractor may require the Subcontractor to enter into agreements with sub-subcontractors to perform portions of the Work. I could go on and on with this comedy....

I have seen this before too, where the GC wanted you to carry a sub of their choice under your contract. It happen…

Here is a short list of some of the real “gotchas”:

1) Binding arbitration where you lose your right to sue.
2) Arbitration in a place of their choosing, like in another state.
3) Agree to pay their legal cost for disputes.
4) Agree to insure them, indemnify them, hold them harmless and defend them at your cost.
5) Weekly composite clean up crews.
6) Provide your own dumpsters and toilets.
7) Mandated nighttime, and OT.
8) Mandated mark-up for CO.
9) Mandated manpower.
10) Bad indemnity clauses.
11) Undoable schedules.
12) Liquidated damages.
13) Parking.


Note: I am not a lawyer, and sometimes I don't even follow my own advice. However I have signed contracts with a lot worse stuff in it than you have listed and made good money on the projects too. If you want the work, you may have to sign a contract you don't like.