Contractor Representation
Contractors carry the cost of the work before anyone pays for it, and take on most of the risk in the documents they are handed.
A contractor finances the project. Labor and materials go in first and payment arrives later, subject to inspection, retainage, and whoever above them has been paid. On top of that, the contract is frequently the owner's or the general contractor's form, drafted to move risk downward.
The firm represents general contractors, subcontractors, suppliers and trades on contract terms, payment and lien claims, defect and delay allegations, and disputes with owners and with the parties above and below them on a project.
Clauses worth negotiating out
| Clause | What it does to you |
|---|---|
| Pay when paid | Attempts to make payment to you conditional on the owner paying above. The wording determines whether it is timing or a true condition. |
| No damages for delay | Bars recovery for delay even where someone else caused it, leaving you with extended overhead and no route to it. |
| Broad indemnity | Can require you to cover claims arising from conduct that was not yours. Scope should be limited to your own work and negligence. |
| Flow down | Binds you to terms in a prime contract you may never have been shown. Ask for it before signing. |
| Unlimited retainage | Withholds a percentage indefinitely. Release conditions and a reduction at substantial completion are both negotiable. |
| Broad scope language | Phrases such as all work necessary to complete expand obligations without expanding price. |
| Lien waiver on signing | Attempts to waive lien rights in advance. Waivers should be exchanged for payment actually received, not given up at the start. |
| Liquidated damages | Fixes a daily amount for late completion. It should be paired with a real right to extensions for delays you did not cause. |
Your strongest collection tool expires on a fixed schedule measured from your last day of actual work on the project. Warranty visits and punch list returns generally do not restart it. See construction liens.
Habits that decide disputes
- Written change orders, priced and approved before the work is performed, every time
- Daily reports with manpower, weather and site conditions, kept contemporaneously
- Written notice of delay when it happens, in the form the contract requires
- Photographs at the start, during and at completion of your scope
- Accurate sworn statements, since a false one carries exposure well beyond the invoice
- Waivers given only for payments actually received
- Confirmation in writing after any significant site conversation
- A calendar entry for the lien deadline on every job, set from the last day of work
How this work runs
- Deadlines firstWhere money is owed, the lien date is identified before anything else, because it cannot be recovered once passed.
- The contract read against the claimPay when paid, no damages for delay, notice requirements and indemnity, since these determine what is realistically available.
- The record assembledContract, change orders, payment applications, daily reports, photographs and correspondence.
- Demand, lien or defenseClaims pursued together rather than sequentially, or a defense built where you are the party being blamed.
Questions from contractors
The general contractor says they cannot pay me until the owner pays them.
Whether that holds depends on the exact wording of your subcontract, and many such clauses only govern timing rather than creating a true condition. Separately, your lien rights against the property generally run on their own clock and should be protected now regardless of how that argument resolves.
I am being blamed for defective work I do not think is mine.
Establish the scope boundary first, then the sequence. Defects at interfaces between trades are frequently attributed to whoever is easiest to reach. Your own records, photographs and the inspection history usually resolve it faster than argument.
Should I sign a lien waiver before I get paid?
Waivers should be exchanged for payment actually received, not given in advance. Signing a waiver for money you have not been paid can leave you without either the payment or the lien right. Conditional waiver forms exist for exactly this reason.
The owner wants me off the job. Where do I stand?
Whether the termination was for cause or convenience, and whether they followed the contract's notice and cure procedure, largely determines what you are owed. Document the work as left immediately and check your lien deadline, which continues running from your last day of work.
Know your lien date on every job.
[PHONE]Matters with a lien deadline, a filing deadline or a hearing already on the calendar are handled by phone.