Contracts

What is assignment of contract in construction?

Assignment of contract is the transfer of a party's rights (and sometimes its obligations) under a contract to someone else. Most construction contracts limit it without the other side's written consent.

A contractor and plan reviewer discuss drawings and permit paperwork across an office desk.
Keep plans, permit requirements and approvals together when preparing construction work. AI-generated illustration.

An assignment of contract happens when one party hands its rights under a contract to a third party, who steps into its shoes. In construction you see it in a few places: an owner assigns the general contractor's warranties to a buyer, a developer assigns a design contract to a new owner, a general contractor's subcontracts are assigned to the owner if the GC is terminated, or a contractor assigns the right to receive payments to its bank.

Assigning rights is not the same as escaping duties. The party that assigns usually stays responsible for performance unless the other party agrees to release it in a separate document, often called a novation.

How assignment works on a real job

Most standard prime contracts say neither party may assign the contract as a whole without the other's written consent. They often carve out exceptions, such as the owner's right to assign to its lender. Subcontracts commonly include a conditional assignment clause: if the prime contract is terminated, the owner can take over the subcontract by accepting the assignment in writing.

Example: a GC is terminated for default halfway through a $5 million medical office. The owner wants the steel erector, who is performing well, to finish. Because the subcontract has a conditional assignment clause, the owner accepts assignment of that subcontract. The steel erector now looks to the owner for payment going forward. Whether the owner also inherits the GC's unpaid balance to the erector depends on the clause wording, and that is where fights start.

Federal contracts: the Anti-Assignment Act

Federal contracts are stricter. Under 41 U.S.C. 6305, a party receiving a federal contract may not transfer the contract, or any interest in it, to another party, and an attempted transfer annuls the contract as far as the government is concerned. There is an exception for money: amounts due under a contract can be assigned to a bank, trust company, or other financing institution, if the contract does not forbid it and the total amount due is at least $1,000. The assignee must give written notice to the contracting officer, the surety on any bond, and the disbursing officer.

That exception is how many contractors finance federal work. The bank lends against the receivable and takes an assignment of the payments, while the contractor keeps performing.

Common mistakes and disputes

  • Assigning without consent. A sale of the company or a transfer of a contract to a sister entity can trigger the anti-assignment clause. Check before closing a deal.
  • Assuming the new party pays old debts. An assignee usually takes rights going forward. Who owes what for past work must be spelled out.
  • Warranty gaps. If an owner sells a building and the warranties were not properly assigned, the buyer may not be able to enforce them against the contractor or manufacturers.
  • Bond surprises. A surety bonded the original contract with the original contractor. An assignment can affect the bond, so the surety should consent.
  • Lien and payment rights. Subs whose contracts are assigned should confirm their mechanics lien or bond claim deadlines are still protected.

Related terms

See termination for default, termination for convenience, subcontract, surety, and collateral warranty. The guide what to include in a subcontract agreement covers assignment language. Smart Business Automator keeps contract documents and change history on each job, so an assignee can see exactly what was agreed and paid. See construction workflow automation.

Frequently asked questions

Can a contractor assign a construction contract to another company?

Usually only with the owner's written consent. Most contracts prohibit assignment without consent, and federal contracts generally prohibit transfer under 41 U.S.C. 6305.

What is the difference between assignment and novation?

An assignment transfers rights, and the original party usually stays liable. A novation replaces the original party with a new one and releases the original party, with everyone's agreement.

Can I assign payments on a federal contract to my bank?

Yes, in many cases. 41 U.S.C. 6305 allows amounts due to be assigned to a financing institution if the contract does not forbid it, the amounts due total at least $1,000, and written notice is given to the contracting officer, the surety, and the disbursing officer.

What is a conditional assignment of subcontracts?

A clause in the prime contract or subcontract that lets the owner take over subcontracts if the general contractor is terminated, by accepting the assignment in writing.

Sources

  1. Cornell LII: 41 U.S.C. 6305, Prohibition on transfer of contract and certain exceptions
Written and edited by

Maurice Francois writes and edits construction operations guides for Smart Business Automator. More from Maurice on the Scaling Legends podcast.

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