The scope of work section in your construction contract should never be overlooked. In numerous instances, it is overlooked which leads to a dispute as to the precise nature of the scope of work. This dispute could be the result of an ambiguity in the scope of work section. Or it could be the result of an omission. Or it could be the result of a lack of clarification. Or it could be the result of not properly reviewing and vetting the scope of work section. This is a section—whether included in the body of your contract or attached as an exhibit—you absolutely, positively want clarity. Otherwise, you are potentially setting yourself up for a future dispute that could include (i) an additional work / change order dispute, (ii) an incomplete work dispute, or (iii) a failure to properly perform your work dispute. These are all disputes you want to avoid, and many times can avoid, by going through and negotiating the scope of work section to bring clarity to this section. Remember, clarity is a positive. Ambiguity or uncertainty is a negative.
An example of such an avoidable scope of work dispute can be found in All Year Cooling and Heating, Inc. v. Burkett Properties, Inc., 2023 WL 2000991 (Fla. 4th DCA 2023). Here, an air conditioning contractor was hired to install six new split air conditioning systems. The scope of work provided that there were currently “two split systems that are currently existing, working perfectly and are not to be replaced as part of this contract.” The property manager claimed the air conditioning contractor was required to bring these two existing split air conditioning systems up to code as the contract provided that notwithstanding anything to the contrary, the contractor “will certify and shall ensure that all split systems in the building, upon completion of all the work, will be fully compliant with all codes and regulations and shall be responsible for any costs relates to the implementation and/or remediation of same.”
The air conditioning contractor disputed this added scope of work. After a bench trial, the trial court entered a judgment in favor of the property manager and against the air conditioning contractor.
On appeal, the trial court’s judgment was reversed and remanded back to the trial court for entry of a judgment in favor of the air conditioning contractor.
However, we do not read this code compliance provision as encompassing the existing split systems that were excluded from the contract’s scope of work.
Here, the general purpose of the contract as a whole – including pricing – was for the installation of six new split systems and the disposal of the old water tower. And the paragraph addressing the scope of work made it clear that the [two] existing split systems were “working perfectly” and were “not to be replaced as part of this contract.” Despite the use of the word “notwithstanding,” the code compliance provision must be read in a way that is compatible with the contract as a whole.
The contract required the Contractor to ensure that the six split systems it installed were code compliant, and nothing more.
All Year Heating and Cooling, supra, at *2.
If the property manager wanted or expected the existing split air conditioning systems to be brought up to code, it should have ensured this language was included in the scope of work section. It may have warranted additional pricing, but it would have avoided this dispute. And perhaps the contractor could have clearly excluded any work regarding the existing split air conditioning systems, although it did include language that such work was not part of the contract. The objective always remains to bring clarity to the scope of work section.
Please contact David Adelstein at firstname.lastname@example.org or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.