Pass-Through Subcontractor Claims, Liquidating Agreements, and Avoiding a Two-Front War

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To avoid a two-front war, a general contractor should always consider whether a subcontractor’s claim is appropriate for pass-through to the owner and via a liquidating agreement or by relying on the subcontract’s “liquidating language.”

April 26, 2021
Bradley Sands, Jones Walker LLP - ConsensusDocs

Subcontractor claims happen. When those subcontractor claims are prompted by owner actions or responsibilities, the general contractor must always be vigilant to plan for and work to avoid a two-front war in which the general contractor is pushing the owner for recovery while at the same time disputing the subcontractor’s entitlement.

Cooperation between the general contractor and the subcontractor and avoiding that two-front war can be accomplished through pass-through claims and ideally liquidating agreements. A pass-through claim is a claim by the subcontractor who has suffered damages by the owner with whom it has no contract, presented by the general contractor. A liquidating agreement or subcontract “liquidating language” goes a step further than simply a pass-through claim by “liquidating” the general contractor’s liability for the subcontractor’s claim and limiting the general contractor’s liability to the value recovered against the owner. The distinction between pass-through claims generally and use of liquidating agreements or language is described in greater detail below.

Pass-through subcontractor claims are routine in construction and an important, common sense approach to deal with ever-present changes and the unexpected that can have cost and time implications. Despite the common sense basis for subcontractor pass-through claims, there are important legal considerations that must be addressed, and critical planning required, starting with the subcontract clauses.

Mr. Sands may be contacted at bsands@joneswalker.com



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