The construction industry in Mexico is a high-risk sector, where contracting companies face enormous challenges to stay afloat. Guarantees and economic withholdings represent an additional burden, as the recovery of these amounts is often conditioned on the delivery of complicated and difficult-to-obtain documents, leading many companies to lose that money. Given this reality, the question arises as to why companies sign contracts that appear to be unfair.
The most common construction contracts in Mexico are 'lump sum and fixed time', 'unit prices and fixed time', and 'cost plus'. The unequal distribution of risks in these agreements leaves contractors in a position of extreme vulnerability. The structure of construction contracts, both in the public and private sectors, often jeopardizes the stability of companies, resulting in significant losses and even the disappearance of some from the market.
It is essential to promote a fairer contractual culture, where companies have a voice in negotiations and where the conditions reflect a reasonable balance between risks and responsibilities. However, the real problem lies in the lack of trust between the parties. Deep-rooted distrust has resulted in contracts designed to overly protect one party, without a real balance in the distribution of risks.
To change this dynamic, the inclusion of arbitration mechanisms in contracts is proposed to resolve disputes more equitably and promptly. Additionally, there needs to be flexibility from clients during negotiations, avoiding imposing take-it-or-leave-it conditions that leave contractors with no leeway. The lack of trust prevents commercial relationships from being fair and balanced. It is common for contracts to be designed in such a way that risks fall almost entirely on contractors, limiting their rights and negotiation options.
Ultimately, a deep change is required in the conception of the relationship between clients and contractors to achieve fairer and more sustainable contracts in the long term within the construction industry in Mexico.
