Common Mistakes by Contractors and Subcontractors in the Pre-Contract Phase and Post-Contract Signing & Pre-Commencement Phase
Executive Summary
Most disputes, cost overruns, and project delays in construction don’t begin on site, these start much earlier. Two critical windows often overlooked are:
1. The Pre-Contract Phase, where rushed reviews and weak negotiations lock Contractors into risky terms.
2. The Post-Signing & Pre-Commencement Phase, where poor notices, weak records, or idle preparation lead to claims being lost before work even begins.
This article explains the most common mistakes Contractors and Subcontractors make in these stages, and how disciplined contract management can prevent costly disputes.
Introduction
Most contractual disputes, cost overruns, and delays in construction projects are not born on site, these are seeded long before the first excavator moves in.
From our experience working on EPC projects across Iraq, Kenya, Liberia, and other challenging markets, we’ve observed that many problems can be traced back to two early stages:
- The Pre-Contract Phase
- The Post-Contract Signing & Pre-Commencement Phase
These are critical windows where careful attention can protect millions of dollars, yet these are often rushed, overlooked, or handled without proper expertise.
In this article, we will highlight common mistakes Contractors and Subcontractors make in these phases, and share practical steps to avoid them.
I. Pre-Contract Phase Mistakes
1. Lack of Thorough Contract Review and Finalization
The Mistake: Many Contractors treat the contract document as a formality once they win the bid.
Risk: Overlooking unfavorable clauses (e.g., unrealistic completion dates, unbalanced liquidated damages, or one-sided termination rights).
How to Avoid:
- Involve contract/legal professionals during tender stage.
- Review Particular Conditions carefully — most hidden risks live here.
- Seek clarifications before signing, not after mobilizing.
2. Lack of Contract Negotiation Support
The Mistake: Entering negotiations without a technical-legal team that understands both commercial and operational impacts.
Risk: Accepting risk allocations or performance obligations that are commercially unviable.
How to Avoid:
- Prepare a negotiation brief with non-negotiables and fallback positions.
- Include scenarios for force majeure, delays, variation valuation, and dispute resolution.
- Use comparative benchmarking from similar contracts in the same region.
3. Failure to Clarify Scope and Interface Points
The Mistake: Assuming everyone has the same understanding of the BOQ, drawings, and responsibilities.
Risk: Disputes later on about “who was responsible” for certain works.
How to Avoid:
- Define scope boundaries clearly in contract appendices.
- Agree on handover points, material sources, and testing requirements before signing.
II. Post-Contract Signing & Pre-Commencement Phase Mistakes
4. No Notice to Employer After Fulfilling Commencement Conditions
The Mistake: Contractors fulfill all commencement conditions (e.g., performance guarantee, insurance, advance payment guarantee) but fail to issue formal notice triggering the start date.
Risk: Losing valuable time or exposing themselves to liquidated damages due to unclear commencement date.
How to Avoid:
- Once conditions precedent are met, send a formal commencement notice immediately.
- Reference the relevant clause (e.g., FIDIC Clause 8.1) and keep proof of delivery.
5. Failure to Substantiate Early Claims
The Mistake: Not collecting evidence for delays, access issues, or design changes that occur before mobilization.
Risk: Employer disputes entitlement later due to lack of contemporaneous records.
How to Avoid:
- Keep a claim diary from Day 1, even before site works begin.
- Take dated photographs, record correspondences, and prepare minutes of meetings.
- Issue early warning notices under the relevant contract clause.
6. Poor Pre-Mobilization Planning
The Mistake: Treating the gap between contract signing and mobilization as idle time.
Risk: Delayed site start, cost overruns in procurement, and missed resource readiness.
How to Avoid:
- Finalize subcontract agreements mirroring main contract clauses.
- Secure key supplier commitments.
- Conduct internal kick-off meetings to align project, commercial, and legal teams.
Conclusion
Small oversights in the pre-contract and pre-commencement phases often grow into million-dollar disputes. The encouraging part is that these mistakes are preventable, with early intervention, structured review, and disciplined administration.
At Conslex Contract Solutions LLC, we help Contractors and Subcontractors identify risks before these turn into claims, ensuring their contractual position is protected from day one. If your next project is entering bidding, signing, or mobilization, this is the right time to seek expert support, not after the problems arise. To avoid these problems, contact us at info@conslex.com.