In construction, the person running your job matters: the project manager who sat in your preconstruction meetings, who understands the phasing, who knows why the MEP coordination sequence was set up the way it was, who has relationships with your team and the owner’s team. That person is not interchangeable. And if they disappear six weeks into the job and get replaced by someone who’s never read the drawings, you have a problem.
This happens all the time. A contractor or consultant sells the A-team—the experienced project manager; the sharp superintendent; the people who won the job—during the proposal and interview. Then, once the contract is signed, those people quietly get moved to a larger project, not out of anything nefarious, but usually out of a necessity. A fire happens on another project and they are needed to put it out. By the time you realize those working on your project aren’t the ones you originally signed on, you’re three months in and the damage is already underway.
A key person provision is the contract tool—and a dramatically underutilized one—that prevents this.
What Is a Key Person Provision?
A key person provision is a contract clause that identifies specific individuals who must remain assigned to the project, and it sets conditions around their removal or replacement. It turns a handshake expectation into an enforceable obligation. The concept is simple: You hired this company in large part because of who they were putting on your project. The key person clause dictates those people stay or a conversation is to be had before anything changes. In its most basic form, a key person provision does three things: It names the key person or persons; It restricts the other party from removing or materially reducing their involvement without consent; And it establishes what happens if the key person is removed anyway.
How a Well-Drafted Key Person Clause Works
A good key person provision is not complicated. But it needs to be specific enough to actually mean something when it matters. Here’s how they’re typically structured.
- Name the individual. The clause should identify the key person by name and role. “Subcontractor’s Authorized Representative” is fine as a defined term, but somewhere in the contract (usually in an exhibit or the signature block), there should be a real name attached. Vague references to “qualified personnel” are not key person provisions. They’re wishful thinking.
- Require continuous assignment. The clause should state that the named individual will remain actively and continuously assigned to the project. Not just listed on the org chart. Actually working on the job. The language should cover both outright removal and the quieter version of the problem: materially reducing the person’s level of engagement. Moving someone from full-time to “available as needed” is a reduction that should trigger the provision. It is good practice to have objective requirements here.
SEE ALSO: LIMITATIONS OF LIABILITY PROVISIONS IN CONSTRUCTION CONTRACTS
