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New ASFE Practice Alert
June 18, 2008

Did you know that the Associated General Contractors of America (AGC) has developed a model agreement for its members to use when retaining construction materials engineering and testing (CoMET) consultants? Thanks to the input of two ASFE members, the document is not bad and, with just a wee bit of tweaking, can be a useful “how-about-this-instead?” tool when a contractor wants to use its own agreement or purchase order, and you want to use a contract that makes sense.

Known as AGC 630, Standard Form of Agreement between Contractor and Testing Laboratory, the document is the subject of the all-new ASFE Practice Alert 41, developed by our intrepid Construction Materials Engineering and Testing Committee, with assistance from the Legal Affairs Committee. The new Practice Alert points out some changes you and your attorney might want to make to the agreement, possibly through use of a “standard” addendum you develop. One of the AGC document’s general deficiencies is its failure to include a limitation-of-liability provision. Another is its failure to note any of the inherent limitations of observation and testing (the Practice Alert includes a sample provision for your consideration).

Some of the model agreement’s specific problems include a seemingly innocuous “feel-good” provision that could create unforeseen obligations, a somewhat entangled mutual waiver of consequential damages (the Practice Alert provides an alternative), failure to include language about late payments and related issues, and a “jointly drafted” provision that could be patently untrue.

Download ASFE Practice Alert 41: Dealing with AGC 630, Standard Form of Agreement between Contractor and Testing Laboratory from the ASFE website (remember to log in as a member) or obtain a hard copy from ASFE Resources Manager Alpha Moore or 301/565-2733, ext. 225. ASFE Practice Alerts are available solely to members.

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