Corven & Ashby, cost and risk advisory

Signing a GMP under time pressure, and what it costs later

GMP fundamentals

Signing a GMP under time pressure does not remove the reading. It moves it to a point where every finding costs money instead of saving it. The document does not get better because you signed it quickly, and the questions you skipped arrive anyway.

Why the pressure is real

Nobody signs in a hurry for no reason. The rate lock expires. The board meeting is on the fourteenth. The contractor has crews scheduled and will release them. The equity closing is conditioned on an executed contract. Escalation is running and every month of delay is quoted as a cost.

All of those are genuine. The cost of waiting is easy to state in dollars and lands on a specific date, which is why it wins the argument in the room.

The cost of not reading is harder to state. It is a probability distribution across twenty four months, it has no date attached, and nobody in the room owns it yet. A pressure that is specific always beats an exposure that is general.

That asymmetry is the whole problem. It is not that developers are careless. It is that one side of the trade is a number on a calendar and the other side is a paragraph on page eleven of a qualifications list.

The honest comparison is not signing now against signing in six weeks. It is signing now against signing in five working days with three positions closed.

What signing a GMP under time pressure actually changes

The document is identical either way. What changes is your position relative to it.

Before signature you have competition. The contractor wants the job. An exclusion you challenge is a commercial conversation between two parties who both want to reach agreement. The cost of moving it is a negotiation.

After signature you have a contract. The same exclusion is now a term. Moving it requires the other party to agree to give something up for nothing, and there is no longer any competitive reason to do so. The cost of moving it is a change order.

Before signature an ambiguity is a question. After signature it is a dispute waiting for a trigger, and the party that drafted the language is usually the party it favors.

Before signature a missing document is a condition. You can make execution conditional on receiving the procurement log or the allowance schedule. After signature it is a request, and requests have no deadline.

None of this is about bad faith. A general contractor that priced an exclusion in good faith is entitled to the benefit of it once you sign. The exclusion did not become unfair. You simply agreed to it.

There is one more shift, and it is the least discussed. Before signature you are one of two parties deciding whether to proceed. After signature you are a party to a contract that other people will now interpret: a project executive, a superintendent, a purchasing manager, none of whom were in the negotiation and all of whom will read the document literally.

Language that everybody understood in the room is read six months later by people who were not in it. That is not a failure of good will, it is how any contract is administered, and it is the reason an ambiguity you were comfortable with at signing rarely stays comfortable.

What five days buys

A full reading of a guaranteed maximum price is two to three weeks. A focused reading of the largest exposures is five to ten working days, and it runs in parallel with legal review rather than after it.

In five days a reader can cover four things. The qualifications and assumptions page, every line, with a dollar figure against each. The allowance schedule, read against the current drawings, with a realistic landing point for each item. The procurement log, to establish what share of the price is an estimate rather than an award. The change order clause, because markups and rates are fixed for the life of the job the moment you sign.

That is not the whole review and it is not presented as one. It is the four places where the largest movement sits, and it is enough to produce three or four positions worth taking into the last conversation before execution.

Three positions closed is usually worth more than the schedule cost of the five days, and the comparison is arithmetic rather than judgment. If the exposure found is smaller than the cost of the delay, sign. That is a real answer and it happens.

The version of this scoped to a signing date sits in the rapid review package, which exists for exactly this situation.

A worked example

Example only$2.4M

Illustrative figures. Not taken from any client project and not a quotation.

A $48 million guaranteed maximum price on a hotel, with a signing date set by a rate lock expiring in nine days. The sponsor asks whether there is time for a reading.

Five working days of focused reading produces four findings. An exclusion for unsuitable soils with no quantity cap, worth an estimated $900,000 if it opens. An elevator allowance carried $380,000 below current market for the specified units. A procurement position with 61 percent of the price still an estimate. A change order markup stack of 21 percent on subcontractor work, which is high for the contract type.

Two of the four move before signature. The soils exclusion gets a quantity cap. The markup stack comes down to 16 percent. The other two are accepted and written into the budget with figures attached, which is a different thing from not knowing about them.

Estimated value of the two positions closed: $2.4 million of exposure removed or capped. Cost of the five days: the rate lock held, because the reading ran in parallel with the loan documents rather than after them.

What to do when the date will not move

  1. Separate the deadline that is real from the deadline that is habit. Rate locks are real. Board dates move more often than people expect.
  2. Run the reading in parallel with legal and lender work rather than in sequence after it.
  3. Scope it to four documents: qualifications, allowances, procurement log, change order clause.
  4. Ask for a dollar figure against every finding, ranked, rather than a list of observations.
  5. Decide in advance how many positions you will take into the final conversation, because three well supported ones beat fifteen.
  6. Where a finding cannot be closed, write it into the budget with a figure rather than leaving it as a known unknown.
  7. Make execution conditional on any document you have not received, since that costs the other party nothing if it exists.

Item seven is the cheapest protection on the list and the one most often skipped. A missing procurement log is either an administrative gap or a fact somebody would rather you saw later, and the conditional makes the difference visible. The full list of questions sits in the questions to ask before you sign.

What we do

We work to your signing date rather than to our own. A focused reading of the four documents above, delivered as a ranked register with a dollar figure and a page reference against each finding, plus a short memo setting out the positions worth taking into the final conversation. If the exposure we find is smaller than the cost of waiting, we say so. The scope and turnaround sit in the readiness review.

Questions people ask

Is a rapid review worth anything compared with a full one?

It covers less ground and it says so. A focused reading of the qualifications, the allowances, the procurement position and the change order terms finds most of the largest movement, because that is where the largest movement sits. It is not a substitute for a full review, it is what fits before a fixed date.

Can a review be done after signature instead?

It can, and it still has value for managing the job, but the instrument changes. Before signature a finding is a position. Afterwards the same finding is either a change order to negotiate or a risk to budget for. The reading costs the same and buys considerably less.

What if the contractor refuses to move on anything?

That is itself a finding, and a useful one. A contractor unwilling to cap an open ended exclusion nine days before signature is telling you what it expects that exclusion to be worth. You may still sign, but you will do it with a number written into your own budget rather than without one.

Posted in GMP fundamentals GMP Negotiation Timing Developers

This is general information about construction contracts and is not legal advice.