Protecting Your Business

Words: John Swindal

Contracts: Worth the Time!

Words: John Swindal
The Swindal Group (www.swindalgroup.com) is a full-service construction consulting company providing specialty contractors with practical advice on contract formation, contract review, contract revision, contract negotiation, litigation strategy, document review, general business planning, strategic planning, and contract management strategies. John B. Swindal (jbswindal@swindalgroup.com) is the Managing Director of the Swindal Group.
Contracts are a part of the construction business. Large contracts and small contracts. Good contracts and bad contracts. In a perfect and bygone world (confluence of trusted client, cash richand timely-paying owner, unlimited manpower and no cash flow issues) a negotiated contract was not an issue, because a handshake guaranteed fair treatment. In today’s industry, it is vitally important for a mason contractor to review all contracts prior to signing— whether the contract is large, small, good or bad.   We always suggest a thorough review of any contract internally and by a properly licensed attorney, as applicable. There are no perfect contracts. Every contract (unless the mason contractor is the author and the contractor or subcontractor does not revise) needs revision in order to create, effectuate or properly preserve rights of a subcontractor. Once a mason contractor understands the contract, a series of business decisions must be made weighing risk against client, client relationship, project, owner, backlog, manpower availability and cashflow projections (to name a few). Ideally, the masonry contractor submits a well-constructed list of suggested contractual revisions to the contractor well in advance of project commencement that is discussed, negotiated and properly amended. The amendments include requested changes to payment clauses, indemnity provisions, no damage for delay clauses, termination clauses, forum selection clauses and many other problem clauses that as business owners and your trusted attorneys are well versed to identify. However, oftentimes-extenuating business circumstances force a mason contractor to veto the advice of counsel and simply execute a contract hurriedly in order to facilitate manpower placement, cash flow or backlog. In this situation, it is perhaps even more important to understand all of the contents of the signed contract. It is paramount to closely examine payment clauses, schedule clauses, no damage for delay clauses, and notice provisions in these contracts in order to preserve any rights the masonry contractor may be afforded. After studying these clauses, it is instructive to create documents and/or spreadsheets for internal use detailing the rights and available remedies of the contractor, documentation procedures and timing mechanisms that create a contract management plan. A well-assembled contract management plan will not replace a negotiated contract, but it can certainly lessen potentially catastrophic problems when a project goes sideways. A mason contractor may blindly sign a contract in tough times, but they need to keep their eyes wide open when managing the contract once the project is underway. Over the coming months, this column will examine particular contract clauses and suggest contract management language for each one.

(Nothing contained in this article is intended to convey, constitute or be construed as legal advice.)

Chairman’s Message: When Things Don’t Go as Planned
June 2026

Not every day in this business goes the way we planned. Some days, everything lines up. The crew is moving well. Materials are on time. The job is flowing the way you hoped it would. And then there are the other days. The ones where something breaks. T

Kent Huntley
Chairman’s Message
Read More
Fechino Files: Trust Your Subs, Just Document!
June 2026

When I was working for a large masonry contractor, we typically performed masonry work with our own employees. When we would construct large Segmental Retaining Walls, often we would require a subcontractor who had larger equipment for different portions

Steve Fechino
Fechino Files
Read More
Marvelous Masonry: Borobudur
June 2026

For masonry contractors and suppliers, few structures offer as much practical insight as Borobudur. Built in the 9th century in Central Java, this massive stone monument remains as one of the most advanced examples of large-scale masonry construction ever

Cassandra Stern
Marvelous Masonry
Read More
Wrapping Up Our Year And A Look Ahead
June 2026

It is amazing another year has gone by and what a year it has been. We have seen a lot of progress on so many fronts. All of this happens specifically due to the support of our members. Your support this past year is positioning our industry to make huge

Jeff B
President's Message
Read More