MCABC members have likely heard that our Onerous Contract Clauses Program is now online. We encourage all our members to have a look at this membership asset HERE and see how it may benefit your business.
Mechanical contractors and other trades have long been burdened with unknown costs and all kinds of legal liability due to terms and conditions being slipped into contracts without involved parties fully understanding the risks. While construction associations including MCABC have promoted the use of standard form agreements, these are usually issued with amendments and added conditions that pass on risk, responsibility, liability and costs to the trades.
Over the past 25 years, MCAs across the country have been collecting an archive of onerous contracts and troublesome clauses with the intent to share awareness of perpetrators and contract contents. Ideally, this would lead to sharing of ideas on how to respond to such clauses. However, a few difficulties became apparent: 1. Examples were not easily available or accessible. 2. Many contractors became aware of clauses too late to make a change. 3. The advice available was merely anecdotal – it held no legal authority.
Because electrical contractors face the same problem, the Electrical Contractors Association of BC started a Subcontract Program in 2011 to help educate electrical contractors about entering into subcontracts with general contractors. In 2016, MCABC joined forces with ECABC to contribute resources to the project and share its benefits among our members.
Davidson Bros Mechanical Contractors Ltd. vice-president Wayne Davidson described the program in the 2017 Western Journal cover story, Mitigating the Risks Inherent in Subcontracting, as, “a concerted effort to read all clauses line by line and ensure there is nothing onerous in the contract.” He also underscores the importance of dealing with the contract, “…up front and not wait until the job has begun.” Knowing and pointing out what’s unfair, through use of this program, re-establishes fairness, recognizing that, “it’s in everyone’s best interest to draft a contract that is fair to all involved parties.”
Ability to push back
The program is not a silver bullet – the advice offered will not address all your contracting problems. But it will enable you to push back on some of the more punishing contract terms and mitigate the risks inherent in contracting. Use the program with regularity and your company will survive to contract another day.
If you have questions or log-in information, please contact MCABC’s Vicky Noble.