A lot of subs make this mistake.
It goes something like this: you, the subcontractor (or, as I like to call you, “My next client”) want a big job. The job. The one that will rocket you onto The Next Level. And we’re not talking about a video game, here. We’re talking adding another zero or two to the left of the decimal point in your yearly statement.
So what do you do? You get the bid info. You copy the bid set plans and specs. You carefully check what needs to be done against what you can actually do. You furnish a proposal to the Contractor, which you have had your People check and recheck and then recheck their rechecks.
It’s precise.
It’s prudent.
It’s… it’s… profitable.
The Contractor calls back and says, with a smile, “We’d love for you to have this subcontract. We’re drawing up the paperwork for you to sign.” The contractor sends the subcontract. It’s not too long: only about 6000 pages.
All this to add 500 lineal feet of pipe? you think to yourself. But hey! I got “The Job.” I’m going to “The Next Level.” I will “Be Successful.”
And you’re about to do something that will mark you as “A Chump.”
Still thinking about The Next Level (where you will bathe in Perrier and never eat anywhere that has a menu in anything but French), you look over the subcontract. Everything seems in order. You put your name on it. Next Level, here I come!
You start work, the still-smiling Contractor watching your every move because, as he says, “We’re all a team here, ol’ buddy ol’ pal, and I’ve got your back.”
And then suddenly, halfway into the job, you start to get NASTY letters from your buddy, the grinning Contractor, the guy who’s got your back. The guy who is now giving you 48- and 24-hour notices to complete something you explicitly excluded in your proposal.
Something big.
Something expensive.
Something that, if you were to do it, would not only keep you from The Next Level but would probably mean Game Over.
The Contractor is still grinning, but now the grin looks like the smile of a laborer who just found his co-worker’s bag of sunflower seeds lying unattended.
You go through your subcontract. You check it against the proposal.
And it looks like you missed something. One teeny, tiny exclusion that never made it to the signed subcontract. Just a teeny, tiny, eentsy, weentsy thing that will only cost about a bizillion dollars to do.
OH, CRAP! you think (actually, you probably think something else, but my mother reads these articles, so I’m gonna go with “OH CRAP”).
You immediately call me. Because not only am I handsome and dashing , I’m also your lawyer. Unlike the Contractor, I do NOT grin. Lawyers don’t grin. We aren’t interesting enough to grin. Instead, I shake my head in a sad manner, which is wasted because this is a phone call and you can’t see me. So I tell you, “I’m shaking my head, man.”
“Why?”
“Because you’ve signed the subcontract. The subcontract is ultimately the thing that is binding. You are on the hook for this work, including the ‘exclusion’ you didn’t get added into the final subcontract.”
You hire me to get you out of this fix. And I do, because not only am I handsome and dashing, I’m also an incredibly good lawyer. You breathe a sigh of relief.
And then you get my bill, and your sigh of relief turns into a death rattle. Everyone is very sad that you died. Even I, the heartless lawyer, show up to the funeral. Mostly to try and get your spouse to pay the bill.
You getting the picture here?
Moral: ALWAYS get your proposal “incorporated” into the final signed subcontract. A lot of times, the subcontract just doesn’t get all the info you put into your bid proposal. And why should it? The contractor’s desires don’t necessarily mirror your own. He wants you to sign on to ALL of the work for NONE of the money. So if he slips in an extra word here, or omits an exclusion there, it ain’t gonna hurt HIM. Getting your proposal incorporated into the contract will help keep this from happening. It will give you at the very least an argument that you never planned on doing that particular work, and that the Contractor knew it, because he signed the subcontract.
Of course, this won’t always happen. Sometimes the contractor will not be willing to include the words “The proposal is incorporated herein by this reference” under the Scope of Work in the subcontract. Sometimes the contractor is willing, but the owner won’t allow that kind of thing. Sometimes you just plain don’t think you have time to haggle because this job is such a gift from God.
Always haggle. Try to get your proposal incorporated. If you’re not sure how to do that, call me. I’m always here to help, what with being dashing and handsome and all. And asking me (or someone like me but less handsome) for help before the problem is always going to be a lot cheaper than asking me to respond to a crisis.
Protect yourself. Protect your company. Protect your proposal.
Here endeth the lesson.
It goes something like this: you, the subcontractor (or, as I like to call you, “My next client”) want a big job. The job. The one that will rocket you onto The Next Level. And we’re not talking about a video game, here. We’re talking adding another zero or two to the left of the decimal point in your yearly statement.
So what do you do? You get the bid info. You copy the bid set plans and specs. You carefully check what needs to be done against what you can actually do. You furnish a proposal to the Contractor, which you have had your People check and recheck and then recheck their rechecks.
It’s precise.
It’s prudent.
It’s… it’s… profitable.
The Contractor calls back and says, with a smile, “We’d love for you to have this subcontract. We’re drawing up the paperwork for you to sign.” The contractor sends the subcontract. It’s not too long: only about 6000 pages.
All this to add 500 lineal feet of pipe? you think to yourself. But hey! I got “The Job.” I’m going to “The Next Level.” I will “Be Successful.”
And you’re about to do something that will mark you as “A Chump.”
Still thinking about The Next Level (where you will bathe in Perrier and never eat anywhere that has a menu in anything but French), you look over the subcontract. Everything seems in order. You put your name on it. Next Level, here I come!
You start work, the still-smiling Contractor watching your every move because, as he says, “We’re all a team here, ol’ buddy ol’ pal, and I’ve got your back.”
And then suddenly, halfway into the job, you start to get NASTY letters from your buddy, the grinning Contractor, the guy who’s got your back. The guy who is now giving you 48- and 24-hour notices to complete something you explicitly excluded in your proposal.
Something big.
Something expensive.
Something that, if you were to do it, would not only keep you from The Next Level but would probably mean Game Over.
The Contractor is still grinning, but now the grin looks like the smile of a laborer who just found his co-worker’s bag of sunflower seeds lying unattended.
You go through your subcontract. You check it against the proposal.
And it looks like you missed something. One teeny, tiny exclusion that never made it to the signed subcontract. Just a teeny, tiny, eentsy, weentsy thing that will only cost about a bizillion dollars to do.
OH, CRAP! you think (actually, you probably think something else, but my mother reads these articles, so I’m gonna go with “OH CRAP”).
You immediately call me. Because not only am I handsome and dashing , I’m also your lawyer. Unlike the Contractor, I do NOT grin. Lawyers don’t grin. We aren’t interesting enough to grin. Instead, I shake my head in a sad manner, which is wasted because this is a phone call and you can’t see me. So I tell you, “I’m shaking my head, man.”
“Why?”
“Because you’ve signed the subcontract. The subcontract is ultimately the thing that is binding. You are on the hook for this work, including the ‘exclusion’ you didn’t get added into the final subcontract.”
You hire me to get you out of this fix. And I do, because not only am I handsome and dashing, I’m also an incredibly good lawyer. You breathe a sigh of relief.
And then you get my bill, and your sigh of relief turns into a death rattle. Everyone is very sad that you died. Even I, the heartless lawyer, show up to the funeral. Mostly to try and get your spouse to pay the bill.
You getting the picture here?
Moral: ALWAYS get your proposal “incorporated” into the final signed subcontract. A lot of times, the subcontract just doesn’t get all the info you put into your bid proposal. And why should it? The contractor’s desires don’t necessarily mirror your own. He wants you to sign on to ALL of the work for NONE of the money. So if he slips in an extra word here, or omits an exclusion there, it ain’t gonna hurt HIM. Getting your proposal incorporated into the contract will help keep this from happening. It will give you at the very least an argument that you never planned on doing that particular work, and that the Contractor knew it, because he signed the subcontract.
Of course, this won’t always happen. Sometimes the contractor will not be willing to include the words “The proposal is incorporated herein by this reference” under the Scope of Work in the subcontract. Sometimes the contractor is willing, but the owner won’t allow that kind of thing. Sometimes you just plain don’t think you have time to haggle because this job is such a gift from God.
Always haggle. Try to get your proposal incorporated. If you’re not sure how to do that, call me. I’m always here to help, what with being dashing and handsome and all. And asking me (or someone like me but less handsome) for help before the problem is always going to be a lot cheaper than asking me to respond to a crisis.
Protect yourself. Protect your company. Protect your proposal.
Here endeth the lesson.
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