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Can we have a co-contract in effect with Master Agreement?

We are a concrete construction subcontractor, and find some items in Master Agreements from General Contractors unfavorable to our working agreement. Is it possible and binding to have a co-agreement in effect which outlines our terms (e.g. payment, change orders, termination of contract, etc.)? We put our terms and conditions on each of our project estimates. Is that enough to be binding if we get the estimates signed by General Contractor? I was thinking of creating our own Master Subcontractor Agreement stating our terms and getting that signed each time we are presented with a Contract from a General. In other words, putting our terms from our estimates in one Master document.

1 reply

Feb 17, 2020

Generally, a customer's separate agreements - like a GC's master agreement - should have little impact on a supplier's contract with their customer. That is, unless the customer has included a binding flow down provision in the contract for work. In that case, the flow down provision would also incorporate the terms of the customer's agreement with their customer. But, if an agreement with a customer doesn't reference that customer's own contracts at all, then their own obligations or rights to payment shouldn't impact their supplier. Of course, the inclusion of a pay if paid or pay when paid provision may have the same practical effect as a flow-down provision - so those should typically be avoided when possible, too. And, in that case, a supplier is free to create their own terms for their contracts - though, they'll need to be relatively agreeable for customers if the supplier wants to regularly secure work. I hope this was helpful! For more info on construction contracts, this resource should be valuable: Common Contract Provisions to Avoid and Prepare for Collections.

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