I’d bet that all of your construction subcontracts contain some language that tries to obligate subcontractors to the prime contractor to the same extent that the prime contractor is obligated to the owner. In other words, if the prime owes certain duties to the owner, then the subcontractor owes those same duties to the prime. Sounds simple, but does it work? Is that enough to make all provisions of the prime contract part of the subcontract?
Typically, simply stating the subcontractor is bound to the prime to the same extent the prime is bound to the owner is insufficient to obligate the subcontractor to duties beyond those that are directly related to the subcontractor’s scope of work. For example, changes in the work are directly related to scope of work. So, changes clauses and related notice provisions in a prime contract would likely be incorporated into a subcontract under such a broad statement.
However, prime contract provisions not directly related to scope of work, such as a disputes clause, would not be incorporated into a subcontract under such a broad statement.
If you want to bind the subcontractor to the prime in every way the same as the prime is bound to the owner, then the incorporation clause of the subcontract should be:
- Specific (listing scope of work and the disputes provision(s)); and
- Repeated (in addition to having a typical incorporation clause, repeat in each provision of the subcontract where you want to incorporate that portion of the prime contract).
Use this diagram for this case.
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Jonathan J. Straw
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