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Minimizing litigation risks
Precise contract specifications that are well-defined in every material respect combined with detailed contract administration can help narrow overly broad scope clauses and, thereby, reduce the likelihood of costly litigation over the scope of the work performed. Some suggestions:
- Incorporate a separate and clearly defined Scope of Work with remaining contract documents such as plans, specifications, general and supplemental conditions and minutes from kick-off meetings.
- Define the deliverables in each phase and project objective; make them clearly measurable.
- Clearly identify exclusions, retained services, unforeseen conditions, and trades outside the contractor’s control or under the owner’s control.
- Predict the unpredictable: raise potential problems, even if highlighting them early in the project seems counterintuitive, to avoid bigger headaches later.
- In design/build arrangements, identify milestone points at which to revisit the scope of the work as plans develop.
- Rank contract administration as paramount, particularly when bids are based on preliminary or incomplete plans and specifications and in design/build arrangements.
- Identify administration milestones in the project planning schedule to document and verify changes in scope.
- Vote early/vote often: scope problems tend to follow a project from its early stages, magnifying along the way. Address them early in the project and document the issues, negotiations and resolutions in a careful, detailed manner.
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