Contractual Liability: Flow Down and Incorporated by Reference Clauses
Having reviewed various contracts for the NYACP Promotion Fund, we wanted to highlight a contracting practice that has become somewhat commonplace. Prime Contractors (GC/CM) are using language in their subcontracts that “incorporate by reference” the terms they have agreed to with the Owner in their contract (the “Prime” contract). The problem is that, in most cases, these Prime contracts are not available for review and the subcontractor overlooks implications that may arise from this reference and just blindly signs off on the contract. The following is language from a specific clause that we reviewed and commented on: