Specify scope of work in contracts

By Robert Kennaley

Many clients come to me because they want to bulletproof their contracts with legalese. Yet it is the clients themselves who have, perhaps, the biggest role to play in creating good contracts. This is because the majority of disputes which arise in relation to construction, design or maintenance contracts arise over the scope of work.

Spell it out

The scope of work is the work you agree to perform for your money. It determines what is, and is not, an “extra” to your contract. If an item of work is part of your scope of work, you will have to perform it as part of your contract price, without additional compensation. If, on the other hand, the items are outside the scope of work, you may be entitled to additional compensation, depending on what the contract says.

The scope of work includes what is expressly referenced in the contract, drawings and/or specifications. Work which is necessary or incidental to your contract work will also be included. Thus, for example, you will not be entitled to claim an extra to excavate where you have contracted to install a pavestone driveway.

Also generally included in the scope of work is work which is “custom of the trade.” Establishing custom of the trade, however, can be difficult — the custom must be so well known that both you and your client would know and understand, prior to entering into the contract, that it would apply.

The scope of work will also depend on whether or not you have assumed the obligation to build, or to design, or both. The contractor’s obligation is to build to drawings andspecifications provided by the client or its representative. The designer must create a design which will perform as intended. The design-build contractor must, of course, do both.

Account for all costs

A contractor is expected to satisfy himself in providing a price to perform a certain scope of work. Accordingly, unless the contract or circumstances suggest otherwise, the contractor is required to anticipate and include for all of his costs of performing the work he is pricing. The contractor should take care to ensure that anything which is excluded is dealt with expressly in the contract.

Never assume

Unanticipated subsurface conditions, for example, can be significant to those who work in the landscape industry. If your price presumes no subsurface obstructions or the presence of a suitable sub-base, the contract should say so. If it does not, the client may take the position that you will have to correct the base at your own cost. Similarly, for example, if your price presumes that you will have clear and uninterrupted access to the back yard, you should ensure the contract expressly says so. This is because a fence or air-conditioning unit might be put in your way after the contract is signed.

A picture is worth a thousand words

An excellent way to detail what is excluded from your contract price is to place qualifications in that regard on the contract drawings, as opposed to in the contract itself. This will allow you to develop exclusions on ajob-by-job basis without having to create, or add to, a lengthy contract. You should be sure, however, to incorporate the drawings, by reference, into the written contract.

Communication is key

The goal is to avoid disputes by clearly describing what is, and is not, included in the work. Further examples might assist us to understand why. Consider the contractor who is retained to install, among other things, a pre-cast stone walkway and driveway. The drawings include curved walkways which tie into the driveway. Towards the end of the job one of the workers is cutting in the soldier-course, when the client arrives and objects to the gaps in the soldier-course where the walkways and driveways are curved. The client wants the pavers cut so that they are as tight as the pavers in the middle of the driveway. You now have a dispute, and your efforts to convince the client that the gaps are standard in the industry may, or may not, be successful.

Consider also the common example of the client who complains that she did not get the fully planted garden she was expecting. Your efforts to explain to the client, after the fact, that it is not possible to make the perennials and shrubs look full at the installation stage. Similar issues abound in the landscape industry. This is particularly so when we are talking about natural products, such as plant material, trees, natural stones and rockery.
Taking care to describe the scope of work, in as much detail as possible, will go a long way towards avoiding disputes. Avoiding disputes, in turn, can be very important. In the end, whether you are right or wrong might be beside the point. The fact that you are in a dispute might mean you don’t get paid in full and have to incur legal costs.

Are your residential contracts Consumer Protection Act compliant? Robert Kennaley is a former landscape design build contractor and an honorary member of Landscape Ontario, who now practices construction law in Toronto. He can be reached at (416) 368-2522.