Are You Winning the Tender, but Losing the Job?

After a full day of in-house training with a group of experienced main contractors, mixed with QSs, project managers and architects, one of them leaned back in his chair and said:

“I didn’t know there were so many things we had little to no chance on, and we hadn’t even started the project yet. It feels like we won the tender, but already lost the job.”

Everyone in the room nodded.

They weren’t being dramatic, they were being honest.

Because that’s what often happens.

By the time you celebrate winning a project, you may have already signed away your strongest protections.

Hidden time bars, uneven risk allocation, and vague scope responsibilities, all buried neatly inside the contract you were too rushed (or too trusting) to question.

And once the work begins, those words quietly decide your future disputes.

They determine whether your delay claim is valid, whether your variation will be paid, and whether you’ll ever see the final retention.

Most people think disputes start when something goes wrong on site.

But the truth is, the seeds of most disputes are planted the day you sign.

Because it doesn’t start with bad work, it mostly starts with bad wording

A few weeks ago, a contractor called me frustrated.

He’d done everything right: finished the job, submitted his claim, and waited for payment.

When nothing came, he called the principal, only to be told, “Sorry, you missed the notice window.”

The clause? Hidden halfway through the contract, it said all claims must be notified within five working days, not from when the issue became serious, but from when the delay first arose.

He never had a chance.

The dispute was over before it began.

That’s when it really hit him:

He hadn’t just signed a contract, he’d signed the outcome of his next dispute.

The silent traps that bury your rights

When I review contracts for clients, I often find what I call “silent traps.”

They look harmless until something goes wrong.

Below are a few common ones:

• Unrealistic notice periods: 3 or 5 days to notify a delay or variation.

• Deemed acceptance clauses: silence counts as agreement.

• Ambiguous extension-of-time wording: “reasonable” left undefined.

• Hidden risk transfer: design responsibility slipped to the contractor.

• Payment timing tricks: claims “subject to approval” or “as assessed.”

These aren’t drafting mistakes.

They’re deliberate risk allocation tools.

And if you don’t spot them before signing, you’ve accepted those risks by default.

By the time it’s a dispute, it’s already too late.

The Construction Contracts Act in New Zealand gives you a fair mechanism for resolving payment disputes, but it can’t fix what you already agreed to.

If your contract says your claim is invalid after five days, or that you take full design responsibility, adjudication can’t rewrite that agreement.

An adjudicator can only work with what’s written.

That’s why so many “unfair” cases aren’t about who’s right or wrong, they’re about what the contract says.

Even “standard” contracts can tilt one way.

Take NZS 3910, designed as a fair starting point.

But once amended in the others conditions section, it can turn into a minefield.

I’ve seen versions where:

• The Engineer’s impartiality was completely removed.

• Liquidated damages were added without a cap.

• Payment cycles were stretched far beyond what the Act intended.

• All risks shifted to Contractors by remove clauses from General conditions section

And sadly, these contracts all been signed, without further professional review or questioned, because the contractor “didn’t want to delay the start date.”

By the time the first variation hit, the fight was already scripted.

How to stop signing your next dispute

Here are three practical things you can do before signing any contract, whether you’re a subcontractor, a main contractor, or a consultant.

1. Look for the time bombs

Before reading the whole thing, search for these words:

“Notice”

“Timeframe”

“Claim”

“Default”

“Deemed”

Then read every sentence they appear in.

You’ll quickly see where your rights quietly expire.

2. Ask one simple question:

“If something goes wrong, what happens next?”

If the contract doesn’t give you a clear, fair process to raise a problem and get it resolved, that’s a red flag.

Don’t be afraid to clarify or negotiate, it’s better to spend an hour questioning a clause than six months fighting over it later.

3. Get a fresh set of eyes

Sometimes you’re too close to the deal to see the danger.

Even a one-hour review from someone experienced can reveal where your risks really lie.

(That’s often what my consulting work ends up being, uncovering disputes before they happen.)

The cultural part we don’t talk about enough

In New Zealand, there’s still a strong trust first, contract later culture.

Many builders and subcontractors see reviewing a contract as “not being a team player.”

That mindset has cost the industry millions.

A handshake is a good start, but it’s not a dispute prevention strategy.

Contracts don’t create distrust; they create clarity.

And clarity is the best foundation for trust.

It’s not just about reading, it’s about understanding

Some contractors tell me, “I do read the contract.”

But reading isn’t the same as understanding how clauses interact.

For example:

• A “time bar” clause buried in the general conditions may cancel out your right to claim variations elsewhere.

• A “priority of documents” clause may mean that your tender assumptions don’t apply at all.

• A “fit for purpose” clause might sound fine until you realise it overrides professional standards protection.

These things aren’t obvious unless you know how contracts behave under stress.

And unfortunately, that’s knowledge most people only gain after losing a dispute.

If you sign without checking, you might be agreeing to lose before you even begin.

Your action point:

If you’re about to sign a contract, or even halfway through a project, take ten minutes to re-read the clauses about notices, claims, and time limits.

Ask yourself: If something went wrong today, would I still be within time to claim?

If the answer makes you pause, that’s your warning sign.

Bonus Tip: Let AI spot the red flags for you

You don’t need a fancy contract analysis platform to catch common traps.

Even a simple ChatGPT prompt can help you surface risky clauses quickly, before you send the contract to a professional for review.

Try copying your contract text (or key clauses) into ChatGPT and using a prompt like:

“You are a construction contract risk reviewer. Read the following contract clauses and identify any that may create unfair risk for a contractor or subcontractor — such as short notice periods, unclear claim processes, or hidden liabilities. Summarise each issue in plain language and suggest what questions I should ask before signing.”

You might be surprised how often AI helps you see the risk before you emotionally commit to the deal. And once you know what to ask, you’ll have a much stronger position to negotiate or clarify.

Although this won’t replace human judgment, but it’s a smart, fast first scan to highlight what deserves attention, and hopefully it can replace your excuses for not checking your contract.