You’ve been here before. Every contractor
has.
Something doesn’t pass inspection. It’s
clearly wrong. Work has to be torn out and re-done. The question is, “Who pays?”
Was it the fault of the prime? Or the sub? Or the architect or engineer?
The Easy Case
If the approved plans and specs are clear
and work wasn’t done as prescribed, it’s the contractor’s mistake. No question.
Case closed.
But what if the plans and specs aren’t
clear? Or are clearly in conflict? For example, suppose the plans show studs 16”
o.c. and the specs call out 24” o.c. A mistake like that drops us into what lawyers
call precedence of the documents. Some construction contracts go on and on
about which prevails if there’s a conflict between plans, specs, industry standards,
etc. Logic dictates that precedence favor what was truly intended, assuming anyone
actually considered the issue. For example, handwritten notes and change orders
should get precedence over either plans or specs.
What if the plans and specs are mute
on some point? That’s a tougher case. Is it the designer’s fault? True, architects
and engineers have been found liable for simple omissions. But don’t expect either
to cover the cost of ambiguity in the plans. The cost of fixing what’s broken usually
falls on contractors and subs. It’s a risk inherent in the construction process.
Obviously, there’s a good way to stay
out of trouble. If the plans and specs aren’t clear, if you aren’t sure what the
code requires, if something doesn’t seem right, start asking questions. Don’t assume.
Don’t let anyone pick up tools while there’s doubt about the finished product.
Courts usually put it this way: A contractor
has an implied duty to give notice when something either isn’t clear or seems defective.
A leading case on this is Rubin v. Coles, decided in New York in 1931. The addition
to a brick building in Flatbush was subsiding. The building department cited the
owner. Eventually the contractor was called to account. His defense was perfect.
The foundation complied exactly with the plans. According to Judge Geismar, that
wasn’t enough. Most of Flatbush is built on filled soil. The contractor, not the
designer, is the man on the spot, put there to use his training and experience to
either correct plans or at least give warning of the defect.
It has been repeatedly held that, even
though he be bound to follow fixed plans and specifications, the contractor owes
the duty to examine such plans and judge of their sufficiency; that he is bound
to discover defects that are reasonably discoverable or patent; and where he knows
or had reason to believe that the plans are defective, and follows them without
pointing out such defects to the owner or architect, he is not entitled to recover
if the building proves insufficient because of such defects.
Now the Hard Part
Notice the words, “that he is bound to
discover defects that are reasonably discoverable or patent.” In Rubin v. Coles,
the plans were silent on depth of the foundation. “It was, therefore, the duty of
the contractors to construct it upon solid ground so as to produce a level structure,
even though it might have been necessary to make greater excavation or more substantial
fill."
Decide for yourself. Is that a reasonable
standard? Should contractors make design decisions when something seems out of place?
I’m not convinced. Fortunately, there’s an easy way to put risk of design flaws
back where it belongs, on the owner or design professional. Write two points into your contracts:
The contractor has no obligation to either (1) detect design errors or (2) amend
dimensions and descriptions in the plans.
Construction Contract Writer makes it
easy to draft agreements like that. Mistakes don’t have to add to your cost. The
trial version is free.
