by Rick Stryker, P.E.
Have you had either of the following exchanges (or something much like
them) with a contractor? "That's not what you SAID!" "But
you knew what I MEANT!" Or, "You didn't ask me to!" "Well,
I shouldn't have to!" Under the best circumstances, these
disagreements get worked out when clearer heads and less emotion prevail.
However, these are often the precursor to construction lawsuits. This
month, let's look a little at the source of these disputes and
how you might avoid them.
Before we begin, bear in mind that we're not picking on either
party, nor are we taking sides. There are always two sides to every argument,
and while it may seem that "the other side" is completely
wrong, spending a moment in the other shoes may help you frame your opinion
in a more understandable way. At the same time, there are unscrupulous
contractors who choose to make your business a game. You should be aware
that typically the courts seldom side with the owner or project client,
and some contractors bank on that.
Language Barrier
Like the camp community, the construction industry has a language all
its own. Although the project is happening on your site, it's important
to choose the words carefully when discussing a project with a contractor.
In fact, in the legal end of construction parlance, certain words have
very specific meanings. Consider the similar terms, "supply," "install," and "provide." Insert
each one into the blank in the following sentence, "The contractor
shall ________ three-tab, composite, architectural shingles." If
supply is inserted, the contractor is handing you shingles. Period, end
of story. If "install" is used, the contractor is expected
to show up with labor and equipment to put a specific type of shingles
on the building. Where they come from is not his problem or concern.
In the last case, "provide" means that not only is the contractor
to obtain the shingles, but he's supposed to put them on the building.
The court will apply these definitions when called upon to sort out who
wronged whom. Using the right words in the agreement may make all the
difference in the world.
Opinion of Scope
This is a common source of arguments with contractors. You want something
done that seems pretty straightforward and simple. Let's use our
roofing project again. You get some estimates or quotes, and hire someone
to "Git ‘r done!" You've used the right word "provide," and
they show up with people, equipment, and shingles. Things are going well
so far. But twenty minutes later, you walk past and see new shingles
being put on top of the old ones. Your intent was for them to remove
the old shingles before they install the new ones. When you discuss this
with the crew leader, it becomes clear that this wasn't his intent
at all. He agrees to do it, but it'll cost more, and they'll
probably ruin some of the new shingles that they've already placed.
You're aggravated, but move on. It's a small project, and
they're done at the end of the day. Their truck is packed, and
all but the foreman is gone. He's looking for pay, and the new
shingles look great. But all of the shingles (and roofing nails!) that
were ripped off are where they fell from the roof. It's a mote
of dangerous construction debris. You say that you're not going
to pay until he picks all of that mess up. He says that he's not
going to pick it up and haul it to the landfill for free. After another
hour of argument and negotiation, you reluctantly agree on a price, but
the shingles lay until you've made fifty-seven phone calls to them
to come back and clean up. A year later, you're still finding roofing
nails all around the building and wondering how something so simple could
turn into such a mess. It should be very clear that more planning and
carefully laying out the work to be accomplished would have largely avoided
much of the problems. When we are arranging scope of work for any project,
we try to visualize each and every step from start to finish and make
sure that they're included as completely and thoroughly as our
documents will allow.
Permits
Although the building or property owner is ultimately responsible for
ensuring that any work is permitted and code compliant, because the procedures
and requirements are so unfamiliar, owners often assume that the contractor
will know what paperwork will be required and "take care of things."
It's not hard to imagine how and where things can go wrong from here.
Angry owners may be inclined to try to hold the contractor responsible
for not getting the required inspections and permits, but in the end
the way to avoid trouble is to get the permit yourself, or at the very
least get and hold the paper permit issued by the governing body. This
way, you're able to ask whether and which permits are required before
anyone begins work.
Change in Scope
This is a little different, but still similar to the opinion of scope
troubles described earlier.
Sometimes, as construction progresses, things begin to take shape that
you don't like, or that may be just not what you expected. If you
don't have a drawing that clearly shows what you intended, the
contractor will see this as a change in scope and whether you think that
it's a big deal or not, it will likely bring a change in the cost.
Consider, for example, painting your office spaces. You tell the folks
offering to do the work that you've picked out the color chip and
you want that color on the walls and white on the ceiling.
What could be easier? After he's about halfway through, the consensus
is that the color is wrong, and that you'd like it lighter or darker.
You can't return the paint that's bought, so there's
$150 of materials gone to waste, and a day or two of work. Pretty clearly,
he's entitled to more money for six gallons in a different color
and the value of the lost time.
But what happens when the work he quoted isn't what he's
expecting to do? Say, for example, he's quoted the work without
coming to your office, and he doesn't know that there are fifty
windows with stained window molding in your office. Masking all that
wood work will take time and materials he didn't anticipate. If
he arrives and announces that the job isn't what he expected, you
should consider negotiating, because it will certainly take more work
and time to do the job right. If, however, he waits until the job is
done to announce that the bill is higher because of the "change
in scope," you have every right to pay him the agreed-upon price
and not a dime more.
A Construction Agreement
A construction agreement would have closely defined the project scope,
addressing those troubles (and others) in advance. And while not every
job is complex enough to require an engineer or an architect's
help, you should spend the time and effort necessary to:
- Thoroughly describe the work to be done, in a step-by-step fashion
where you can. If you're not familiar enough with the work being
proposed, you can bet that the project is probably more complicated
than you think. A design professional's fee is money well spent.
- Prepare a drawing with dimensions that show the relationship between
the finished project and other, existing elements. Provide the contractor
with a copy and keep several for yourself. Going through this exercise
will help you to visualize your project and ensure that all of the
components will fit.
- Ask questions throughout the project but particularly before work
begins. A project schedule is an especially good tool to spark worthwhile
discussion. When the contractor has been required to plan the work
in a fair amount of detail, conflicts for the space, materials, or
manpower will become apparent, and you will have a yardstick against
which to gauge the progress of the work.
- Check back frequently on the progress of the work. Discovering
and correcting the "bad paint color" at the end of day one is
obviously much less expensive than the same discovery at the end of
the project.
No project is completely without ups and downs and problems along the
way. But the more thought and time spent preparing before the contractor
is on site, the more satisfied (and more rested) you're likely
to be when the project is done.
Originally published in the 2006 May/June
issue of Camping Magazine. |
