Most surprises on a construction site fall into one of three categories:
- Differing site conditions – hidden or highly unusual conditions no one would have anticipated.
- Change in scope of the work – something discovered later, such as by the inspector.
- Mistake or omission in the plans – something the designer got wrong or didn’t consider.
I’ve covered differing site conditions and changes in the scope of work elsewhere. Mistake in the plans is different.
Earlier this month, a perfect example came across my desk. When it came time to connect the building sewer line to the sewer main, the plumbing sub discovered two mistakes -- both the diameter and location of the sewer main were wrong on the site plan. As with every surprise, the question was, “Who pays?”
Of course, construction contractors have to follow the plans. But it’s not that simple. Courts usually put it this way: A contractor has an implied duty to give notice when something in the plans either isn’t clear or seems defective. If the plans or specs seem inconsistent or wrong, take it up with the designer, engineer and owner before work starts.
But that wasn’t the issue with the plumbing contract on my desk. Nothing on the site plan was either missing or obviously wrong. Work was nearly done when the mistake was discovered. The civil engineer either made an error or didn’t bother to check district records.
What Should the Contractor Do?
- Make
the connection. Settle up on costs later.
- Complete
the job as shown in the plans. Leave the sewer line connected to nothing.
- Stop
work until the owner and prime contractor write a change order.
Before you answer, consider a case from the Wyoming Supreme Court (Hogan v. Postin).
The millwork sub, Hogan, agreed to make and install windows for restoration of the historic Tivoli Building in downtown Cheyenne. Postin was the architect and supervised Hogan’s work. When Hogan got started, he discovered a problem. The ceiling height on the plans wasn’t the same as the actual ceiling height. Hogan notified Postin of the mistake in his plans. Postin told Hogan to make the windows the size shown on the plans. To do that, the sill height had to be raised to 39 inches, not 27 inches as shown on the plans. Hogan built the storefront in his shop exactly as shown on the plans.
When Hogan installed the windows, Postin had a beef. He didn’t like the sill height. Postin wanted the sill height one foot lower (27 inches). Hogan agreed to re-do the windows and offered to keep track of the extra time and materials. The general contractor agreed that a 39” sill height was wrong and told Hogan to make the change. When Hogan tried to collect for the extra work, both the City of Cheyenne and the general contractor had a defense. There was no written change order, as required by both the prime and subcontracts.
So Hogan sued the architect, Postin. His plans were wrong. The trial court found in favor of Hogan, ruling the architect had to pay. Postin appealed. The district court reversed, ruling the architect was not personally liable for his mistake. Hogan appealed to the Wyoming Supreme Court. A majority of the supreme court affirmed the district court’s decision. Postin was not personally liable for his mistake in the plans. According to the majority, Postin was speaking for the City when he told Hogan to re-do the windows. As an agent of the City, Postin was not personally liable for a commitment made to benefit the City. But Hogan couldn’t collect from the City. There was no written change order. Pure Catch 22.
I prefer the dissent by Justices Rooney and Cardine. In directing Hogan to do the extra work, Postin waived the requirement for a written change order. Let Hogan collect from the City.
My Point
Mistakes in the plans can be a minefield.
Tread carefully. The best protection is a well-written contract. In my sewer connection
case, the plumber had an agreement drafted with Construction Contract Writer, including plenty
of good language covering mistakes .Problem solved.
