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What are you working to? – Legal Desk, September 2022

September 20, 2022 | By Dan Leduc

September 20, 2022 – Some construction documents (e.g. minutes of meetings, transmittals, or timesheets) are not contract documents, and it is important to remember this distinction when reviewing your own contract documents as an electrical contractor.

Consider this relatively standard subcontract wording:

1.2 The Subcontractor shall perform the Subcontract Work as required by the Subcontract Documents.

Then, the equally standard expanded definition of subcontract documents:

The following are the Subcontract Documents referred to in Article […]
• Prime Contract Agreement between Owner and Contractor
• Definitions of the Prime Contract
• The General Conditions of the Prime Contract
• Subcontract Agreement between Contractor and Subcontractor
• Definitions of the Subcontract
• The Subcontract Conditions of the Subcontract

Then, more words providing further Subcontract Documents:

• CCA I 2008 Supplemental Conditions Rev-November 5, 2012
• Letter of Intent, dated May 5, 2014
• Minutes of Bid Review Meeting, dated March 17, 2014
• Completed Post-Tender Amendment Form, dated March 27, 2014
• Completed Bid Form, dated March 7, 2014
• Completed MBII Supplemental Bid Form, dated March 7, 2014
• Bulletin TP2-01 dated, February 21, 2014; Bulletin TP-02 dated February 27, 2014 […]
• Instructions to Bidders, dated February 10, 2014
• Appendix “A” Scope of Work, dated February 10, 2014
• Appendix “B” List of Drawings, Package #03, dated February 10, 2014
• Appendix “C” List of Specifications, Package #03, dated February 10, 2014
— Construction Schedule E.01, dated July 29, 2014

We can see that this particular subcontractor is to perform work pursuant to the Subcontract Documents listed above, yet there is no reference to Issued for Construction (IFC) Drawings, which come as standard practice after the close of tenders or (sometimes) the formal Subcontract.

Here’s the risk: if you work to the IFC Drawings, you may be working to a different scope of work. (The saving grace is that IFC Drawings are not usually too dissimilar to the Tender set but, in some cases, there can be material or significant changes that impact your execution plan.)

We need to get those IFC Drawings added the list of Subcontract Documents so that there’s no confusion over your scope of work. Typically, a Change Order is requisitioned (and agreed upon) to have the IFC Drawings added.

If the scope changes (including any addenda) are not significant, then you may end up with a zero-value Change Order. Still, the IFC Drawings are now incorporated into the Subcontract Documents, and your scope of work is clear and agreed-upon.

Dan Leduc is a partner in the law firm of Norton Rose Fulbright LLP, and practices exclusively in the area of construction law. He is always happy to take on new clients from anywhere in Canada. Contact Dan at dan.leduc@nortonrosefulbright.com.

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