For Industry Professionals, Managers, Trades & Suppliers
J. NORMAN STARK, ATTORNEY and REGISTERED ARCHITECT
JURIS DOCTOR, B. ARCHITECTURE, B.F.A.
17000 St. Clair Avenue . Cleveland, Ohio 44110-2535
Tel.: (216) 531-5310 . Fax: (888) 833-5860 . E-Mail: www.Normstark@aol.com
In Florida . 6500 Midnight Pass Rd. #105 . Sarasota, FL 34242 . (941) 349-2061.
Construction Controversies - Backcharges and Extras
With greater frequency, controversy, disagreements and claims arising between parties to construction contracts, have
given way to increased litigation in the state and Federal Court systems.
Claims between General Contractors ("GC's") and Subcontractors ("Subs"), are based on work actually required of
subcontractors, but which may have been actually performed by the GC, and for which the Sub is held liable. For
example, the cleanup and removal of packaging or protective materials, crates and pallets, etc., in or upon which
certain materials are delivered to the site, are customarily the responsibility of the generating trade, subtrade, or
supplier, depending upon the construction contract terms and agreement of the parties. Where the required cleanup is
not done, the prime contractor may perform such work or services, and then backcharge the sub by deducting the amount of
the cleanup costs from the sub's progress payments. Serious disagreements may result, especially where there is
inadequate documentation to support the contentions of each party as to such responsibility, and the calculation of such
Still other claims may arise regarding other areas of subcontractor responsibility or benefit, including: acceleration,
delay, use of "float time", completion of work, "timely performance", final touch-up of punch-listed items, and
beneficial occupancy by the Owner or lessee/tenant.
Project disputes and claims can and should be avoided; they rarely result in the complete satisfaction of all parties
and almost never engender future trust and confidence. Good business practices require careful preservation of facts
by letters, faxes and E-mails confirming (even) telephone conversations, where essential items have been discussed and
agreed to by the parties. Verbal agreements, without written confirmation may not be accurately recalled later.
Carefully drafted construction agreements, confirming written proposals or bids, should detail complete aspects of the
contractual agreement, even providing for the "what-if's" in the event of such occurrences. Particularly where serious
questions of money and timely payment for performance are involved, project disputes can be avoided by proper agreements
and project documentation in the form of RFI's (Requests for Information) and other written, project-documented
While "Extras" have been (humorously) defined as: ".any work, materials, or methods, whether necessary, desired,
required, requested, performed or supplied, and not included, defined, or even implied anywhere in the contract
documents.", these items are generally invoiced as "Additional Work" or "Verbal Order", or "Field Necessity". The only
truly important question is, who pays for it? Clearly, the person or entity authorizing or requiring extra work must
pay for it.
When a valid claim does arise, all of the parties concerned must be willing to meet and to resolve all disputes
immediately, fairly, and without defamation of any party, to preclude delaying or jeopardizing proper, timely completion
of a project in which all of the construction community may, and should, take great pride.
AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered
Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of
Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme
Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with
additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness
(Forensic Architect). His office is in Cleveland, Ohio.