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Incorporate By Reference At Your Own Risks Here Are 2 Of Them

Monday, January 18, 2010 06:59 am



Rather than a single, self-contained document, a construction contract is often an amalgam of documents relating to project work and related responsibilities. The glue that binds is the "incorporation by reference" clause. But because the clause is a form of shorthand, it easily leads to disputes. 

Beware conflicting flow-down provisions 

Commonly, general contractors want to pass down the terms to which they?ve agreed with project owners, so signing a subcontract can mean also agreeing to the prime contract?s terms. Specific subcontract provisions turn the subcontractor-contractor relationship into one that?s analogous to the contractor-owner relationship. But blanket incorporation that binds a sub to all of the prime contract provisions can cause trouble if those provisions directly conflict with subcontract terms.

 In Waldner Consulting, Inc. v. Miller Contracting, Inc., 2009 Wash. App. Lexis 2351 (Sept. 15, 2009), the parties? subcontract incorporated by reference the entire prime contract (see CCM, Vol. 31 No. 12, p. 93). But the prime contract stipulated different dispute resolution requirements than the subcontract d [...]

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