I’m a construction attorney and proud to be one. Over the past couple of years, my expertise (and that of my fellow members of the Virginia construction bar) has been challenged by everything from COVID-related shutdowns to supply chain issues to unanticipated price increases. With each of these obstacles placed in front of my clients and friends in the Virginia construction industry, I have gotten calls and questions as to how to best handle the various issues facing the construction world.
Needless to say, changes in price or material availability occurring between the date of a contract’s signing and the (likely delayed) start or completion of the contractual scope of work have caused some consternation and claims. Many of these claims did not come forward or reach my, or others, desk until after the world reopened post-COVID and construction began to speed up and money started to be owed. While one “easy” answer, particularly for those “upstream” in the payment chain, is “tough luck, you gave me a fixed price, signed a contract, and we expect you to honor it,” this may not be the best and most practical way to get the job done.
Why? 1. Such a response could lead to litigation or mechanic’s liens that would delay the project and cost everyone cash, 2. Such a response could at best hurt what is hoped to be a good construction relationship and at worst put a subcontractor out of business or at least off your project, and 3. Such a response may not help because the supplier could be digging in its heels or be unable to procure the materials necessary because of the business and supply chain issues caused by today’s economic climate. In short, in the vast majority of cases where the delays and cost increases are beyond the control of those seeking to complete a project, “suck it up” is simply not a helpful response.
Now, back to the introductory paragraph. How can a construction attorney help? Being a team member that helps you work toward a practical and productive solution to the problem. While I have and continue to be a construction litigator, I much prefer to help my clients and those with whom they work anticipate and productively solve potential and real problems before they get to the money-losing proposition of litigation. I also know, after quite a few years of doing this, that a construction claim is expensive and time-consuming with somewhat of a mind of its own once the claim is made.
My hope is always that my clients and others will get an experienced construction lawyer involved so that the “temperature in the room” can be lowered a bit and a solution can be found short of litigation. Sometimes litigation is inevitable, but it should be a last resort. Luckily, the construction bar here in Virginia generally shares this attitude.
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