2.11.19 – CI – Josh Srago,
AV contractors should take note of discrepancies between equipment lists and the narrative listed in AV service contracts.
That infamous phrase that every AV contractor has encountered in their careers at least once while working a design-bid-build project: “AV contractor is responsible for a complete system.” But those building AV service contracts need to be aware of the fact that this is entirely unenforceable.
This kind of vague, catch-all type phrase is what the legal community calls an illusory clause. It’s specifically the point that it is vague and undefined that makes it completely unenforceable.
The “Illusory Clauses” AV Contractors Face
Let’s say that a consultant produces a specification that includes the above clause but then provides a specification that leaves out some minor rack accessories (fans, power distribution, etc.).
Most contractors would look at this as an instance of good will where they can establish themselves as someone that goes above and beyond in order to get recurring opportunities from the consultant.
These are low cost items that can easily be built into the cost of the job that won’t hurt the bottom line that much. We reason ourselves into the benefit of just letting it slide for the future benefits of possible business.
While protecting our business relationships is vital, from a legal perspective, this might be a mistake.
Let’s say that the consultant was under a time crunch and not only left out the rack accessories, but also major components like a pan-tilt-zoom camera, a USB bridge, and a touch panel interface in the equipment list.
Yes, the narrative descriptions of the room state that this equipment will be necessary for the defined functionality of the room, but the consultant failed to update the equipment list to include these items.
Attempting to use the nondescript clause in this instance would be entirely unreasonable.
What we often forget is that section 274116 operates as a contract document. It is the operative portion of the contract that defines what the work is, what will be used to execute the work, and the quality requirements the work must meet.
Failure to include something in the specification means that it is not actually part of AV service contracts. This is what brings us back to the illusory clause. An illusory clause is one that appears to be binding but is not so.
Using the statement, “Contractor is responsible for providing a complete system,” carries with it no definite terms of what a “complete” system actually entails.
- Who is to be the judge of what is complete or not – particularly when the person that created the documents has a vested interest in ensuring that any mistakes or missing terms were their responsibility?
- What is complete when the narrative description of what the system is per room is does not match the equipment list?
- Is it complete according to the defined quantities and devices or is it complete based on the narrative description?
This long-used catch all phrase that has been relied on by some consultants for decades as a way to cover themselves in the event that they missed something in the specification is not enforceable.
Contract documents require that the terms be disclosed, defined, and understood by both parties. “Complete” is an undefined term that’s subjective to the party interpreting it, which therefore makes it unenforceable in your AV service contracts.
So the next time that you see this clause, be sure to take note of anything that may be missing from the equipment list or any discrepancy between the equipment list and the narrative and fill out your requests for information to ensure that the requirements of the project are clearly defined.
About the Author
Josh Srago, an award winning AV professional with experience as a consultant, integrator, manufacturer, and end user, is currently attending law school at Santa Clara University with plans to return to the audiovisual industry and aid with the quickly changing legal and regulatory landscape of technology. Any article written by Josh that includes statutory or legal analysis does not constitute legal advice.