Avoid a battle of the forms before you start work
A written reply to their order's terms, sent before you start, heads off a battle of the forms over whose terms apply. List what you do not accept, and keep the reply with your quote.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
Why it matters
You quote on your terms. Your main contractor's order comes back on its own terms, often in small print on the back. Nobody replies, and work starts. That is a battle of the forms. If a dispute follows, each side says its terms apply. The answer can turn on which document came last and what was done after it, and that question is for your solicitor. Meanwhile the terms that decide your money are open: payment dates, retention, delay damages and your exclusions. A short reply before you start puts your position on record while it is still cheap to agree.
How to do it
- Read the order's terms the day it arrives, including any printed on the back or named by reference.
- Compare them with your quote on payment dates, retention, delay damages, deductions and your exclusions.
- Write back before you start, naming each of their terms you do not accept and saying your quote applies on those points.
- Ask your main contractor to confirm your reply in writing, or to send a subcontract that reflects it.
- Keep the quote, the order, your reply and any answer together, with the date work started.
Example
Illustrative example. The scenario and figures are invented.
The facts
A roofing subcontractor quotes £145,000 on its own terms. They set payment 30 days after each application, 3 per cent retention and no liability for delay caused by others. The main contractor's order arrives on its own terms: payment at 60 days, 5 per cent retention and delay damages of £1,500 a day.
What happens
- The subcontractor reads the order's terms the day it arrives, and lists the three that differ from its quote.
- Before starting, it writes back. It accepts the order, except on payment, retention and delay damages, where its quote applies.
- The main contractor replies. It agrees payment at 30 days and 3 per cent retention, and caps delay damages at £14,500, 10 per cent of the price.
- The subcontractor files the quote, the order, its reply and the answer together, with its start date.
The outcome
Work starts on terms both sides have put in writing. When the first payment is late, the 30 day term is on record, and nobody argues about whose terms apply.
To have this set up for you, see our Pre-Signing Contract Review service.