Have you noticed how few construction cases come out of the courts? There are sporadic legal decisions, but because construction contracts and general contracting are bifurcated by these agreements, there is a surprising dearth of case law related to construction agreements. It is interesting, but not surprising, that there are a few articles on the preconstruction agreement out there, but very few if any people seem to know about or have taken the time to read them. This article is an effort to raise the level of understanding associated with those preconstruction agreements by giving them the type of planning and execution that is normally reserved for the scientific method.
The scientific method basically includes the following steps: Identify a problem, or question; form a hypothesis; design an experiment around the problem, or question; perform the experiment; analyze the data; and prepare your discovery for others to build upon. The reason that the scientific method was so successful was that each of these steps demands precision. There is no room for guessing at a solution. In the scientific method, you are either right or wrong. Maybe right and wrong should never be associated with human endeavors, but in science, it is indeed all that matters. Why can’t we as people have the same type of precision in the contracts, laws, and preconstruction agreements that govern our activities?
There is a series of sequential steps that are normally utilized when you are implementing a research method to answer a question. The important thing to understand is that this is a process. Some of those essential steps include: These steps in an overall venture make sense because the more you plan, and the more information you have, the better equipped you will be to handle the unexpected when it occurs.
What is fascinating is that when you look at everything, the cultural similarities between the scientific method and the average construction contract offer a revealing insight into preconstruction relationships. These cultural similarities basically can be seen in research proposals, reports, and the overall methodology underlying every construction contract used in the real world today. The following are just a few examples of how the scientific method parallels the preconstruction agreement construction methodology: It is fascinating that the construction precontract, the preconstruction agreement, and the “add new name to contract” agreements are constructed in the same way as a research proposal. The most fascinating similarities that show up between the scientific method and the construction preconstruction agreements are these: When you look at the connections and the parallels between the scientific method and the construction agreement preplanning, you realize the following: And what that tells scientists and construction people alike is that the more time and energy that you put into planning the project, the more successful the project will be. The final decision will be in a matter of seconds. So the issue of how successful you are in that final decision will depend on the amount of planning you have done beforehand.
But when you look at the legal side of preconstruction agreements and the construction contract, this scientific study of contracts may not make sense, because the courts rarely look at the preconstruction agreement. This is part of the reason we created a resource that addresses everything a builder, developer, attorney, or construction executive could want to know about preconstruction agreements, from all levels: questions, agreements, and forms.
The practical side of science is helping society evolve and adapt to new challenges, solve repeated issues, expand knowledge, and create a better quality of life. The preconstruction agreement will never see court time, and careful preplanning will be an essential element to what contracts are negotiated and agreed upon in the preconstruction contract. If I am correct, the implications of the construction preconstruction agreement making it more difficult to hold parties on the outside of the agreement responsible for performance for the terms of the contract are staggering.
What basically is a preconstruction agreement and how does it affect the construction contract in general? In short, a preconstruction agreement is an agreement entered into before a contract is executed that establishes the terms for how the parties will communicate and manage the project prior to the execution of the overall contract. While the preconstruction agreement is not actually an agreement to perform work, and actually may have nothing to do with the work itself, it establishes a framework of how the parties will communicate and plan for the project in general. When parties are entering into a contract to perform work, they should consider their relationships, how to best establish contract terms, and how to depict those answers contractually. When entering into a preconstruction agreement, there are numerous issues that will be addressed. The following is an outline of the issues that would likely come up in a preconstruction agreement (Although there would no doubt be other issues, this is a starter list).