How to Master Writing a Scope of Work, Explained by a Lawyer

When a contractor comes into our office with a dispute, it’s often due to different expectations between the parties.  

When we sit down with the contractor and review the contract, we typically find scopes of work that are general in its terms. These generalities lead to disputes.  

Most of our contractors incorrectly believe that drafting a general scope of work gives them flexibility. But drafting a detailed scope of work actually protects the contractor.  

Here’s how.

Write Materials into Scope of Work

One section where specificity helps avoid delays and potential disputes is in the materials provision.  

While it may seem easier to provide a general description of the item, going back to the owner to clarify specific items eats up time and causes disputes.

For example, if a new home contract calls for a door handle, the contract’s scope of work might simply state “door handle to be provided.”  

What type of door handle? What color door handle? The door handle that the contractor envisions might be different from the one the owner envisions. Yes, this is a silly example, however, the point is that the lack of specificity can lead to a dispute that will cost the contractor more in legal fees fighting over what is the appropriate door handle.  

RELATED:

How to Write a Successful Construction Warranty Provision, Explained by a Lawyer

How the Yelp v. Google Lawsuit Could Impact Online Reviews, A Lawyer Explains

Writing in Site Considerations

While much of the focus in a new home contract is on the building itself, other practical considerations of the lot can be forgotten.  

For example, if the project is located on a wooded lot, what happens if a tree is damaged? What if more trees need to be removed than initially anticipated? Does the contract specifically address these scenarios?  

When we draft home builder contracts, we address this situation by stating that the contractor will make every reasonable effort to preserve existing trees while making sure to state that preservation is not always possible.  

To build the home, some trees might be removed and others can become damaged during that process. Should any trees need to be removed, the contractor will inform the owner prior to the removal.  

Planning out these potential scenarios in detail helps keep the project running smoothly.  

Write in Unexpected Changes

Detail is important when dealing with surface testing and site conditions.  

It's common to encounter conditions that were not anticipated prior to starting excavation. Does the contract state how to deal with underground rock? What if the underground conditions cause drilling refusal or if hard rock prevents the contractor from performing the work as expected?  

Write in Salvage Material

Does the contract speak to what happens to any salvage material encountered during the demolition process?  

We are currently working with a contractor on a large new home where the salvage material in the existing home is worth over $1 million. A large part of negotiating the contract involved the salvage material.  

If it was not initially negotiated, a dispute could have arisen regarding who owns the salvage material. Even in a modest house, there are a significant number of salvageable materials.  

The following are some questions you could consider addressing in your contract: does the owner have the right to keep those materials or does that now belong to the contractor? If the contractor gets to keep the salvaged materials, does the contractor have to pay the owner for the materials? If the owner could have donated the materials and received a donation receipt, must the contractor reimburse the owner to the extent that the materials could have been donated? Does the contractor have to perform the demolition to preserve the material to be donated?  

The unknown can be known by specifically addressing these situations.

Protect yourself by going into detail and thinking through the specifics of different scenarios at the beginning of the contract stage. 

Thomas Croessmann is the managing partner of Croessmann & Westberg, P.C., a construction law firm that focuses on representing residential and commercial contractors with all aspects of their business. Thomas Croessmann can be reached at [email protected] or by phone at (703) 483-3550.