On occasion, owners or general contractors will terminate a construction contract, alleging the lower-tiered contractor has failed to meet its contractual obligations on a project. The basis for termination will range from failure to perform or arrange to have performed any duties under the contract to the refusal to make any payments to subcontractors or materialmen. Sufficient justification of the termination of a construction contract must exist or the terminating party may be liable for damages arising out of the wrongful termination.
The damages may vary, depending on the contractual language regarding termination and the subcontractor’s ability to prove the existence of lost profits as a result of the termination. Here, the qualified employment law and construction attorneys at Bowie & Jensen discuss remedies for wrongful termination of a construction contract.
Termination for Cause v. Termination for Convenience
Typically, construction contracts contain provisions dealing with the termination of a construction project. Typically referenced as Termination for Cause and Termination for Convenience, these provisions provide guidance in the event that a construction contract has been terminated. The Termination for Cause clause provides concrete guidance to the contracting parties on why a contract can be terminated for cause; when a contract can be terminated by cause; and how much, if any, amount should be paid to a party when it has been terminated for cause. Conversely, Termination for Convenience allows a party to terminate a contract without actually breaching the contract itself, but requiring that the non-terminating party be properly compensated for the work performed and materials furnished to date, which normally excludes compensation for profits and overhead for work not yet performed and materials not yet furnished.
Contracts containing both provisions will frequently convert any wrongful termination for cause into a termination for convenience. Thus, the exclusive remedies for wrongful termination would be the same remedies for termination for convenience.
When the Contract Does Not Address Termination
When the contract does not address termination, the remedy must be fashioned from existing law and cases related to the same. In Maryland, a subcontractor may be entitled to the costs expended prior to the termination, as well as, anticipated profits the contractor would have earned on the entire project. In order to be entitled to anticipated profits arising out of the termination of a construction project in Maryland, the terminated party must be able to prove that the loss was a result of the termination, the party had foreseen that a loss of profits would be a probable result of a breach, and the lost profits can be proved with certainty.
In summary, the construction contract usually provides guidance on the available remedies for a termination. In the event, however, that the contract is silent, Maryland allows the payment of costs and potentially the payment of lost profits for a terminated contract. For more information and consultation with a qualified construction and employment attorney, contact our office today.