Rebecca A. Bowman, PE, Esq.
For some reason, this has been a season in my life during which I have been asked over and over to talk about negotiating contracts. Since all these thoughts are at the forefront of my brain (and, these days, things don’t stay there very long), I’m going to share some of them with you.
Cut-and-paste is a function that should probably be eliminated from contract negotiators’ versions of word processing software. There’s “not reinventing the wheel,” and then there’s “buying used underwear.” Use of boilerplate provisions can be as dangerous and disgusting as buying used underwear.
I run into this problem all the time when clients are in love with AIA, multi-list, or other form documents. Clients, especially small businesses, often think of organizational, pre-printed forms as somehow “pre-approved.” All I need, though, is a couple of good war stories about the hidden dangers of boilerplate at hand to serve as warning.
There are few things more sad or frightening than finding out that you signed up for something for which you did not realize you signed up and now you’re stuck with it.
Don’t Read the Document
In the same vein, even the best negotiator does make the occasional mistake. I’m the daughter of an English professor and a rhetoric professor, so I know all the writing rules, but even I encounter old documents I have prepared and find errors. Thankfully, they are mostly simple typos, but even those can be dangerous.
For example, let’s say that I intended a “neither-nor” construction, but “nor” got typed as “not.” “Neither-nor” would mean that both items in the pair were precluded. However, if “nor” got typed as “not,” then I have built a double-negative and the second item would actually be permitted. That would be exactly the opposite of my intent.
It is imperative that you take the time to review the document, making certain that you understand that contract are machines made of words: properly maintained, these machines work smoothly and cleanly. However, if the “machine” is not properly maintained, chaos and disaster can result.
Many negotiators think in binary, did you know that? There are only two options: “us” and “them.” However, when there are multiple parties, that sorting tool doesn’t work. Each party to a multi-party negotiation has different interests and concerns. A may agree with B on one set of concerns and oppose B on another set of concerns. So is B friend or foe? The answer is “Yes.” Yes, in negotiations, it helps to have an understanding of the “other” parties’ needs and wants, but be extremely wary of trying to or slipping into categorizing as ally or foe. A negotiator needs to work every relationship, no matter how temporary or shifting.
Negotiators represent their principals in negotiations. You are the negotiator because you have demonstrated that you are to maintain a broader, more global perspective than another representative may be able to maintain. No matter how tempting or even how productive it would be in negotiations, never belittle the principal. Use the old, traditional rule: Never say anything that you would not want printed on the side of a bus.
Giving away the store
You’ve done a great job negotiating the agreement. Now, make it work. Everything is going along smoothly. The other party makes a simple request: “It’s Friday at 4:45 p.m. (or whatever other circumstances adds pressure). Just this once, can we make this change on the fly?”
Too many times, clients will invite or execute amendments to thoroughly-negotiated contracts without taking the time to think about the implications. I have had a number of cases that would not have existed had the engineer thought about the inter-relatedness of provisions which the amendment would put into conflict or about the rippling consequences of the amendment, which often go far beyond what is apparent on the fact of the amendment.
Far more often, though, assessing implications isn’t even in the engineer’s thoughts when considering a waiver. That’s a more subtle risk. Although most of us will include in the terms a “single-waiver-is-not-a-permanent-waiver” provision, we often frequently fail to consider that two events can be argued as a pattern and three events form a pattern. Worse, a contemplated waiver rarely posts a sign: engineers in the field often do not even realize that a contemplated action is, in fact, a waiver.
If you negotiate contract or manage projects under the terms of a contract and you let yourself fall into any of these traps, then you are running a Risky Business.
Rebecca A. Bowman, Esq., P.E. is the principal of a woman-owned business in civil engineering, dispute resolution, real estate, and legal services. She is experienced in boundary law issues, engineering design and forensic analysis, construction/project management, dispute resolution, real estate, and small business start-ups. She is a registered professional engineer and a certified arbitrator, mediator, and Christian conciliator. Mrs. Bowman writes a column for the PE Reporter, “Risky Business”. She is frequent CPE lecturer (law and engineering) for a variety of providers. She received her B.S. degree in civil engineering, from the University of North Dakota, her M.B.A. degree from Oklahoma University and her J.D. degree from Duquesne University. Mrs. Bowman is involved with the National Society of Professional Engineers, the American Arbitration Association, the Institute for Christian Conciliation, the Financial Industry Regulatory Authority, and the American Bar Association. She volunteers with Legal Aid, Family Promise, the Pregnancy Resource Center of the South Hills, MATHCOUNTS, and Pennsylvania History Day. She received the 2014 PSPE President’s Distinguished Service Award.