Masonry Magazine June 1988 Page. 25
Retention
The purpose of retention is not to provide the general contractor with a source of financing to complete the project nor the general contractor's bargaining tool to negotiate a settlement on other projects which it is working with the subcontractor. The purpose of the retention is to maintain the subcontractor's interest in completing the project and tending to the multitude of "loose ends" which have to be tied up on any project in order for the owner to consider the project completed so that final funding, if there is an end lender, can be accomplished. In those states where there are statutory requirements relating to retention, the subcontractor's attorney should be familiar with them.
Conclusion
It is always a battle of the forms between the subcontractor and the general contractor with the subcontractor most often coming out on the losing end. Most subcontractors do not have their own standard form contract and are often compelled to use the contract imposed upon them by the general contractor. When engaged in a battle with the general contractor as to which form to use, it is suggested that the AIA 401 is perhaps the best agreement which is available. The subcontractor's attorney should avoid use of the AGC Subcontract Form 600 which contains most of the provisions which are referred to earlier in this presentation and which are in favor of the general contractor at the expense of the subcontractor. It is further suggested that the subcontractor's counsel should prepare a standard addendum for use in any contract which it signs and should submit its addendum at the time it submits the bid with the statement that "... this bid is expressly contingent upon acceptance of the attached addendum to the contract...." Further, the subcontractor's contract should contain the language, "Notwithstanding anything to the contrary contained in the agreement between the general contractor and the subcontractor, the terms contained herein shall prevail over any such agreement and shall be controlling."
While the foregoing is not an exhaustive analysis of the concerns which the subcontractor will have on any project relating to contract analysis, it does highlight those areas to which every subcontractor and every counsel for subcontractor should be alert. The concern for subcontractors should become increasingly more important as the advent of the construction manager becomes more the general rule than the exception in the construction industry. If this occurs, subcontractors will have to be more astute in protecting their rights and become educated in the manner of construction contract analysis if they wish to continue in business. To paraphrase a philosopher, those who refuse to read and understand the terms of their construction contract are doomed to failure and bankruptcy.
MAYCO
THE #1 SELLING
SMALL LINE
GROUT AND
CONCRETE PUMP
IN THE WORLD
18 Years of
Unprecedented
Acceptance
By the
Construction
Industry
MAYCO C30HD
DON'T LEAVE FOR A
LOAD BEARING MASONRY
JOB WITHOUT IT!
25 cubic yards per hour maximum volume
output using 1½" aggregate.
3-Speed volume selector.
Will pump in excess of 100' vertically or
400′-500' horizontally.
Heavy-duty drive system engineered for
lower maintenance and upkeep.
Versatile... can also be used for pumping
slabs, footings, foundations, lightweight
cellular concrete floors, high lift grouting
and shotcreting.
ASK ABOUT OUR PROGRAM FOR STARTING A CONCRETE
PUMPING SERVICE. A PROFITABLE WAY TO DIVERSIFY.
Over 100 dealers to serve your needs. Name and
location of your distributor furnished on request.
MAYCO PUMP CORP.
4640 Sperry Street/Los Angeles, CA 90039
Phone: (818) 507-3900
MASONRY-MAY/JUNE, 1988 25