Contract Documents Defects: Ensuring Contract Drafters Know What They Want and Say It Clearly

Abstract

Construction contract documents describe the scope of the intended work and serve to legally bind the parties to their defined or implied responsibilities, obligations, rights, duties, and liabilities with respect to the executed contract. It is common that contract documents are found to be defective, often leading to change orders, delays, and increased cost, which in turn lead to disagreements and disputes between the parties to the construction contract. Recent literature revealed a set of recommendations for improving the quality of contract documents. These call on project owners to know what they want, describe it very clearly, not assume the other party knows what the owners want, tell them what the owners want, and not change their mind. The objective of this paper is to assess the validity of these guiding principles through a case law review. The methodology involved analyzing 50 disputes that evolved from deficiencies encountered in contract documents. The scrutiny of the adopted cases allowed the mapping of the underlying categories of defects to the literature-encountered theorized principles, thereby verifying their propositions. The study revealed the following six general categories of impacted documents that, when drafted properly and proactively, will help owners and their contract drafters in minimizing defects in their contract documents: (1) drafting of specifications, (2) drafting of drawings, (3) drafting of conditions of contracts, (4) correctness of rendered design, (5) coordination between specifications and drawings, and (6) coordination of several contracts. These findings call on owners and contract drafters to look for ways and means to identify the measures that should be taken to avoid practices that may lead to defective documentation and thus minimize the possibilities of encountering such defects.