Chapter 11 - § 11.5 • DUTIES AND LIABILITIES OF CONTRACTOR TO SUBCONTRACTORS AND MATERIALMEN

• Jurisdiction: Colorado

§ 11.5 • DUTIES AND LIABILITIES OF CONTRACTOR TO SUBCONTRACTORS AND MATERIALMEN

§ 11.5.1-Express and Implied Duties of the Contractor

A contractor's express duties to its subcontractors and materialmen will be spelled out in the subcontract or purchase order/delivery order.⁵⁸ In general, the subcontract is almost sure to include the contractor's duty to make payment. As noted in § 11.12.1, the contractor often tries to limit this duty with a pay-when-paid or pay-if-paid clause. In the absence of a valid pay-if-paid clause, a contractor is bound to pay the subcontractor even if the owner does not pay the contractor.⁵⁹ Other express duties depend on what promises and assurances are made by the contractor and what specific obligations he or she agrees to assume.⁶⁰ Subcontractors and materialmen, and those dealing with them, should give consideration to the items outlined below in § 11.14.

Even if they are not spelled out in the subcontract, a contractor owes certain implied duties to its subcontractors. For example, a contractor has implied duties not to hinder or delay a subcontractor's performance.⁶¹ Among other things, the implied duty not to hinder or delay the subcontractor's performance may include an implied duty to provide site access at a definite time.⁶² The duty to provide site access may include a duty to have the site prepared for or ready to accept the subcontractor's work.⁶³ While not necessarily an implied duty, a contractor may not complain of defective work by a subcontractor where the contractor's own defective work is the cause of the supposed defect in the subcontractor's work.⁶⁴

Materialmen are usually bound by the UCC, which permits a great deal of freedom of contract among the parties, but which also creates certain express and implied duties. Where, by agreement, course of dealing, usage of trade, or implication from circumstances, the buyer of materials or supplies is required to specify the particulars of a materialman's performance, there is an express duty by the buyer to cooperate reasonably and in good faith to permit the materialman to perform the contract.⁶⁵ Additionally, the buyer is bound to accept and pay for materials in accordance with the parties' contract.⁶⁶ Proper tender of the materials entitles a materialman to acceptance of and payment for the materials.⁶⁷ In addition to express duties, the UCC imposes certain implied duties, the touchstone of which may be characterized as "commercial reasonableness." For example...