CONTRACT: WHAT IS “PERFORMANCE IN A GOOD AND WORKMANLIKE MANNER”?

You are preparing to bid a job. You are reviewing the form of contract you will be called upon to execute if you are successful. You read – “contractor will perform its work in a good and workmanlike manner.” You’ve read this or similar language many times. You’ve signed many contracts requiring a “workmanlike” performance. Did you know, on those occasions, what a “workmanlike performance” was. Were you sure you could perform in a “workmanlike manner”? Or, did you simply ignore the language as some “legalese” inserted by “the lawyers” that had no practical application to your work and assume that whatever the term meant you could surely comply?

If you didn’t know or weren’t sure, if you ever wondered and even if you haven’t, it is important to a contractor’s proper assessment of contract risk to understand the significance of the terms used in its contracts. This is especially true when the terms define the standard of performance the contractor will be called upon to meet. In this article we will tackle one of those terms – “performance in a workmanlike manner”.

Construction contracts frequently include terms that require performance in a “workmanlike manner”. Seldom, however, do those contracts define what performance “in a workmanlike manner” means. In Oklahoma, and in other states, the courts that have given meaning to the term. In other states the term is defined by statute. As we will see, whether the contract expressly includes the term or whether it does not, contractors would do well to understand its meaning because either way, it is the standard against which the contractor’s performance will be judged.

“Workmanlike manner” has been routinely used as the standard for performance in construction contracts for well over fifty years. Throughout that time the term has come to loosely mean the way work is customarily done by contractors in the community. As the law progressed, however, this rather loose definition has been refined and coupled with certain other requirements that, as a unit, have been adopted by courts as a covenant that is implied in every contract for construction (whether written therein or not). This implied covenant goes something like this: “By agreeing to perform work in a contract, a contractor promises (a) to use reasonable skill, care and diligence, (b) that the work will be performed in a workmanlike manner, and (c) that the work, when completed, will be reasonably fit for its intended use.” In the evolution of “workmanlike manner”, the term has gone from “work as customarily done by other contractors in the community”, to “that degree of skill, efficiency and knowledge which is possessed by those of ordinary skill, competency and standing in the particular trade or business for which the contractor is employed”. Though this “refined” standard leaves out the “in the community” piece, courts have traditionally included that parameter in the analysis without saying so in some cases, and without defining how the “community” is or should be determined in others.

In either case, it is not the “in the community” component that determines whether a contractor has performed in a “workmanlike manner”. Rather, it is the “degree of skill” component that is the most significant. A contractor can no longer simply measure its “degree of skill” against other contractors in the community because standards of performance “in the community” may very well be below the “ordinary skill, competency and standing in the particular trade or business for which the contractor is employed” standard that establishes the minimum for performance in a “workmanlike manner”. It is important to the success of all contractors to continually evaluate the quality of their performance. In that process, it is critical that the contractor understand the standard against which that evaluation must be made to comply with the requirements of the contract and the law.

Steven K. Metcalf