As a contractor, you’ve undoubtedly encountered the phrase “workmanlike manner” in your construction contracts. It’s an admittedly vague term used to describe completed work that meets the standard recognized in your industry – work that could only be completed by a skilled workman in your trade. However, industry standards aren’t always uniform, and clients may even claim that work doesn’t meet their subjective standards. So, how do you know if the work was done in a “workmanlike manner?”
Today, we’ll look at how the term “workmanlike manner” is defined, how it’s interpreted in construction contracts, and what problems you might face if it’s not met.
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The Definition of Workmanlike Manner
As discussed, to do work in a “workmanlike manner” means to do it skillfully, adequately, and following community standards. In a nutshell, it means that the work must be of good and acceptable quality.
In the construction industry, saying that work will be done in a workmanlike manner means that it will be done with “the efficiency and knowledge of those with ordinary skill, competency, and standing in the trade or business the contractor is employed in.” This means that if you are a contractor employed by a client or another professional, you are expected to have the necessary skills and competency that any contractor would have in your field and community.
Examples of Workmanlike Manner Clauses
The phrase “workmanlike manner” may be phrased differently depending on the contract. However, not all construction contracts use this term. Nonetheless, it is already expected and legally presumed that every contractor providing their services must perform the work in a workmanlike manner.
The phrase may appear in construction contracts as:
- First-class workmanship
- Good workmanship
- Best workmanship like manner
- Skilled workmanship
- Workmanship like manner
Take note that the words are similar to “workmanlike manner.” Whatever the wording, the meaning stays the same.
In construction clauses, the phrase could appear as:
“The Contractor shall perform all work in a good workmanlike manner, and in accordance with the plans and specifications and any supplements thereto, and according to any directions or orders given by the Owner.”
“Workmanlike Manner. All Property Inspection Services and Property Preservation Services pursuant to the terms of this Agreement will be performed in a thorough and workmanlike manner in compliance with applicable FHA standards and applicable federal, state, and local law.”
“The contractor shall execute the whole and every part of the work in the most substantial and workmanlike manner both as regards materials and otherwise in every respect in strict accordance with the specifications.”
“Workmanlike Manner. CONTRACTOR warrants that CONTRACTOR shall perform all the work in a good and workmanlike manner meeting the standards of quality prevailing in Hillsborough County, New Hampshire, for work of the kind contemplated in the AGREEMENT. Further, CONTRACTOR shall perform all of the work using trained and skilled persons having substantial experience performing the work required under the AGREEMENT.”
Since the words “efficiency,” “knowledge,” “skill,” and “competency” are used to describe the term, determining when work is done in a workmanlike manner is technically difficult. It is open to interpretation, subjective, and difficult to judge using fewer criteria.
Why “Workmanlike Manner” Is Vague and Has Sparked Interpretation Challenges
For many years, “workmanlike manner” has been used as the standard for performance in construction contracts. Over time, its broad definition has been combined with other requirements that, as a whole, have been adopted by courts as a covenant that is implied in every construction contract.
This issue is that it requires the contractor not to perform work inferior to other contractors while not requiring the contractor to guarantee a specific result. How can they tell if a contractor has met these requirements? Who can say that the contractor has sufficient knowledge and skill? A person in the same field, such as another contractor, architect, or engineer, could answer such questions, but the client could argue otherwise – and it is the client who pays. Even with its updated definition, it is still open to subjective interpretation.
However, criteria or specifications can help reduce ambiguity. The key is to make it as distinct as possible so the term can be explained technically.
For example, to consider construction as done in a workmanlike manner:
- The contractor must have sufficient experience
- The contractor must know the construction standards and must apply such accordingly
- The contractor must have followed the plan
- If specific issues arise, the contractor must have been able to identify and address them
If the client is unhappy with the work, they may invoke the “workmanlike manner clause” against the contractor. However, it is ultimately up to the court to decide whether the work is “adequate” or “acceptable” in terms of quality.
What Happens If Work Is Not Completed in a Workmanlike Manner?
Using the above criteria, a breach of contract could include a contractor failing to apply construction standards, failing to follow the plan, and failing to disclose risks or potential issues to the client. Perhaps the construction materials used were substandard even though the client provided a sufficient budget, or perhaps the contractor did not achieve substantial completion. In any case, if the work is not determined as done efficiently, skillfully, and competently, contractors may be in violation of the workmanlike manner clause.
There are three possible scenarios if the client doesn’t believe the work was done in a workmanlike manner:
- In the best-case scenario, the client will allow the contractor to correct the work on which it has failed.
- The client will hire another contractor to repair the previous contractor’s error.
- The third and most serious possibility is that the client or owner will sue the original contractor, which could result in liquidated damages if there is a liquidated damages clause present in your contract. As explored in our Construction Contracts blog, “Liquidated damages are an amount of money, agreed upon by whomever signs the contract, that can be recovered if one of the parties breaches it. They can usually be calculated using a formula, with variables like the total contract price, the cost per day, and any factor related to the contract breach.”
All of these scenarios will almost certainly cost the contractor money. The most expensive is a lawsuit, which will incur additional expert fees and costs from a construction law attorney and may cost the company’s reputation and future clients.
If a Client Sues the Contractor for Breaching the Workmanlike Manner Clause
If a client finds that the work was not done in a workmanlike manner and sues the contractor, the court will decide whether or not this is true. Litigants in the case rely on experts to prepare a report stating whether or not the contractor met the standards. But, in the end, it’s up to the jury to make a decision.
If there was a breach, the client’s party should prove the following:
- The contractor has sold his services to the client
- The services include repairs, modifications, or construction of the client’s goods or property
- The contractor did not perform such services in a good and workmanlike manner
- The client suffered an injury
The contractor’s failure to comply with the workmanlike manner clause focuses on how the contractor did the work rather than the work results. Uncompleted work may result in defects such as a faulty slab, foundation, plumbing, or wiring, caused by how the contractors performed the work.
Pro Tip: If you as the subcontractor are able to document your construction process, that may aid in your defense, particularly because the focus is more so on “how” you completed the work, as opposed to what work was completed. Some contractors take progress photos every day and upload them to Fieldwire, not only so they know what can be billed and when, but to protect themselves against workmanlike manner clauses or incidents where subs in other trades cause damage. While uploading daily progress pictures for extremely large projects may be a bit excessive, it’s best to establish a regular cadence for documenting your progress. It also helps to have transparent conversations with the GC as it relates to materials and installation techniques; this will help reduce ambiguity down the road with regards to workmanlike manner expectations.
With a mindful, methodical approach, you can complete work that surpasses contractual expectations, while safeguarding yourself from legal troubles around this vague but important contractual term.