Author: Duane Morris

What Robert Frost understood about construction contracts
Every spring, two neighbors walk a wall.

By Owen Newman

Robert Frost popularized the now-famous phrase “Good Fences Make Good Neighbors” in his poem, Mending Wall, more than a century ago. The neighbors in his poem would meet each spring to walk together along the wall, each replacing the stones that have fallen on his side.

Frost’s speaker is skeptical and asks why the wall needs to exist at all: “He is all pine and I am apple orchard. My apple trees will never get across and eat the cones under his pines.” But the neighbor is unmoved. “Good fences make good neighbors.”

I have frequently used the Good Fences analogy in discussions about how well-developed contracts may improve or at least preserve owner/contractor relationships, and I am not abandoning the premise. But just as Frost’s poem is not really about the quality of the fence, the lesson here is not about the quality of the contract. It is about the ritual of maintaining it. Both neighbors show up. Both walk the fence. The wall gets mended not because one man decides it should be, but because both agree it is worth maintaining.

“Something there is that doesn’t love a wall,
That sends the frozen-ground-swell under it,
And spills the upper boulders in the sun;
And makes gaps even two can pass abreast.
…

No one has seen them made or heard them made,
But at spring mending-time we find them there.”

Most construction contracts are negotiated carefully, between sophisticated parties, and then filed away. The project mobilizes. The work begins. Owner and contractor go back to their corners, focus on their work, and assume the other side is doing the same.

This works fine. Until winter comes.

In construction, winter comes in many forms: change orders, delayed performance, and supply chain disruptions. None of these are truly unforeseen events. Anyone who has managed or advised on a large construction project knows that change orders will come, that schedules will slip, that conditions will differ from the drawings.

When spring comes, both parties reach for the contract. And what they usually find are the gaps that have formed. Notice provisions may have gone unobserved. Force majeure language may not account for tariff-driven material escalation. Prior schedule or productivity impacts may not have been substantiated. Project challenges like these, if left unaddressed, can leave gaps that undermine the contract’s ability to make “good neighbors.”

“And on a day we meet to walk the line
And set the wall between us once again.
We keep the wall between us as we go.
To each the boulders that have fallen to each.”

Frost’s mending ritual is not complicated. What makes it work is not the sophistication of the process — it is the discipline of showing up. Both neighbors. Together.

Maintaining a construction contract requires the same discipline.

In practice, that means regular, deliberate conversations between owner and contractor about where the project stands and whether they are meeting the contract’s requirements. It means treating the change order process as a shared obligation — documented as it happens — rather than an administrative nuisance. It means revisiting the contract together when circumstances change materially. And perhaps most importantly, it means having difficult conversations up front rather than waiting to see what happens down the line.

The parties who do this — who are diligent in maintaining the contractual relationship together — are far less likely to end up in a courtroom. Not because their projects are free of problems, but because they addressed the problems while they were still problems that could be resolved by neighborly cooperation rather than a legal battle.

“Why do they make good neighbors? Isn’t it
Where there are cows? But here there are no cows.
Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whom I was like to give offense.
Something there is that doesn’t love a wall,
That wants it down.”

Frost’s speaker remained skeptical about the need for a wall and in part, worried about giving offense—perhaps about what the wall said about the relationship between neighbors. It is a reasonable concern. In construction, it frequently manifests as a reluctance to send formal notice, to document a change order while the relationship is still warm, or to insist on contract compliance when the other party is struggling. The instinct to avoid offense is understandable. The cost of acting on it is not.

Clients frequently lament that they avoided providing notice or addressing change as a gesture of good faith, believing both parties would “be fair to each other in the end.” But the paradox is this: the gesture intended to preserve the relationship and avoid offense is often what damages it. When a party withholds notice or stays silent about a developing problem, they are not protecting the partnership — they are building a private version of events that the other party knows nothing about. When spring comes, the relationship fails not because the change order was too large or the delay too long, but because one party knew something the other did not and said nothing. Trust is not preserved by avoiding difficult conversations. It is built by having them.

Good fences make good neighbors. Not because they signal distrust, but because they give both parties a shared structure for managing the inevitable winter events and avoiding the accumulation of gaps.

The best construction contracts work the same way. They are not statements of distrust. They are the shared understanding by which the parties can avoid or mitigate impacts as they occur. So long as both parties show up and walk the line together.

Owen Newman is a construction and energy litigator and international arbitration specialist at Duane Morris LLP in Chicago. Owen previously spent six years managing EPC projects and leading commercial operations for a global engineering and construction contractor—which is where he first learned to walk the line.