Contract documents

March 31, 2023

As a client, you want to be able to rely on the work that you hire your contractor to perform. Warranties help you do that. While there are different types of warranties, your contract should include language regarding the express warranties associated with the work performed by your contractor. This article breaks down and explains the express warranties for you to consider incorporating in your next facilities maintenance contract.

Quality of Material, Supplies, and Equipment

Consider including language that requires the contractor to warrant that the furnished materials, supplies and equipment will be new and of good quality unless otherwise required or permitted by the contract.

Just because it is a new project, it does not necessarily mean you will always use new materials or equipment. For example, the equipment you need for the project may be an older model that is no longer manufactured. The lead time for new equipment may be significantly longer, and not fit within your completion schedule. Price may also be a factor when considering what kind of equipment your contractor will install. Sometimes, it may even make sense for you to furnish equipment to your contractor for the project. If you do negotiate with your contractor to install used, refurbished, or client-furnished items, you should specify that in your contract. You should also consult with an attorney as to whether such a specification may limit this portion of the express warranty your contractor would otherwise be obligated to provide.

Importantly, the contractor’s express warranty for materials, supplies and equipment is different from a manufacturer’s warranty. To the extent that your contractor receives any material or equipment warranties from a manufacturer, this you may want to incorporate language that requires that such warranties will commence upon the completion of the work, and the contractor shall ensure that such warranties are issued in your name or become transferable to you upon completion of the work. This requirement will allow you to enforce the material or equipment warranties after the work is complete. Warranty coverage will vary depending on the specific terms and conditions outlined in the warranty documents. So, read them carefully.

Free From Defects

Second, consider including language in your maintenance contract that requires the contractor to warrant that the maintenance work will be free from defects. This part of the warranty language covers any defects or problems that arise from the contractor’s workmanship, or the quality of the materials used. You may also want to include a caveat that the warranty covers defects that are not inherent in the quality required or permitted by the contract. It is common for materials to include variations that do not render them unsuitable for their intended use. For example, if your contractor installs wood flooring that contains a dark color variation inherently found in that type of wood, the darker color would not be a defect.

Compliance with the Contract

Third, consider including language that requires the contractor to warrant that the work will conform with the contract’s requirements. It may seem obvious, but this portion of the warranty is only as good as the contract you negotiated with your contractor. It is important for you to consider the elements of your contract that are important to you (e.g., scope, schedule, etc.), and ensure they are included in the final maintenance contract executed between you and your contractor.

AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.