Goal: Quality Workmanship

Imagine you hire a contractor to put a new roof or gutters and downspouts on your house. Maybe the city hires someone to put a sanitary sewer system in your neighborhood, or the local school district builds new schools with your tax dollars. Do you feel your money is well spent if the roof leaks, the road in front of your house is full of potholes and is constantly settling, or the new school is a cold, leaky nightmare? When most people spend their money, they want to receive quality workmanship in return.

Many contractors advertise their services with such phrases as “quality contracting,” “experienced and reliable,” and “years of quality service.” Is it enough to rely on the history of a contractor and its past record of “quality workmanship”? Maybe the project that the contractor is hired to complete will be the very first bad project the contractor has ever had.

The stories about some projects make people nervous about how their tax dollars are spent. Consider the following events that, among other alleged problems, took place during one single school construction project:

  • Hot tar was allowed to drip into a classroom while school was in session;
  • Tar was found on vehicles parked near the construction site; and
  • Workers urinated on a school roof.

Do such signs of sloppy work and lax supervision leave marks on the finished product? They do. Typically, it is the lack of quality workmanship and experienced supervision that cause a roof to be a leaky sieve or turn a project into a failure. Supervisors often manage more than one project site or multiple locations within the same site. Workers may be left to complete tasks with little or no supervision. Whether the finished construction complies with plans and specifications or looks improvised on the spot often depends on the experience and dedication of the individual workers.

Contractual Requirements

How is the owner protected from a contractor’s lackluster performance that results from faulty workmanship? One way is to require the contractor to provide an adequate number of skilled workers on the construction site. Not surprisingly, this requirement is written into the standard contracts.

What do the contracts say?

Both the AIA A201 and the EJCDC C-700 general conditions documents require the contractor to provide quality workmanship. In fact, the termination provisions in each agreement specifically refer to this requirement and permit the owner to terminate a contractor who fails to provide the necessary skilled labor to complete the project. Consider the following provisions:

AIA A201 - Section 3.3.1 – The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention.

AIA A201 - Section 3.3.2 – The Contractor shall be responsible to the Owner for acts and omissions of the Contractor’s employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors.

AIA A201 - Section 3.4.3 – The Contractor shall enforce strict discipline and good order among the Contractor’s employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them.

AIA A201 - Section 3.9.1 – The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work.

EJCDC C-700 – Section 6.01 – Supervision and Superintendence

A. Contractor shall supervise, inspect, and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents.

B. At all times during the progress of the Work, Contractor shall assign a competent resident superintendent…

EJCDC C-700 – Section 6.02 – Labor Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. Contractor shall at all times maintain good discipline and order at the Site.

These provisions can be cited by an owner whenever a contractor is performing poorly. Quality contractors, those who perform quality work and avoid claims, understand the importance of having trained and experienced people in the right positions. Anything less can, and often does, lead to claims and possibly to the termination of the contractor before the project is even complete.

Getting Rid of Bad Contractors

Both the AIA A201 and EJCDC C-700 general conditions documents specifically refer to an inadequate number of skilled workers as a basis for terminating a contractor.

AIA A201 – Section 14.2 – Termination by the Owner for Cause

AIA A201 – Section 14.2.1 – The Owner may terminate the Contract if the Contractor: .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials.

EJCDC C-700 – Section 15.02 – Owner May Terminate for Cause

A. The occurrence of any one or more of the following events will justify termination for cause:

1. Contractor’s persistent failure to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the Progress Schedule established under Paragraph 2.07 as adjusted from time to time pursuant to Paragraph 6.04).

Proving Poor Workmanship

Proving poor workmanship can be difficult. There are, however, many ways that poor workmanship or a lack of sufficiently skilled workers can be brought to light and demonstrated, including the following:

Daily Logs – Quite often a contractor’s own daily logs will show how other contractors’ poor workmanship is hindering the completion of a project. Don’t wait until a project is mired in confusion to check these.

Photos and Video – Nothing is better to prove poor workmanship than some visual evidence. Where a contractor is caught in the act, there is hardly any excuse that can justify the poor workmanship. The owner needs a representative who takes frequent pictures at every stage of the project and labels and organizes them to show the progress—or lack thereof.

Manpower Reports –At every stage of the project, someone should be keeping track of the numbers of employees said to be working for each contractor. These reports can be summarized in a graphical format to illustrate a contractor’s lack of sufficient manpower.

Employee Interviews – During projects a contractor’s employees will often share their frustrations about construction practices, their lack of proper equipment, and various other complaints. After a project is complete, a contractor’s employees—especially former employees—will tell of cut corners and the intentional disregard for contract requirements and good building practices.

Of course, the trick is to learn of the shoddy workmanship, poor supervision, and inadequate manpower early enough to do something about it, which can be as extreme as terminating the problem contractor or can be just getting it to focus and correct its performance. An owner needs to be sure its representative, too, has the experience and training to know what to look for and is on the construction site frequently enough to report problems at an early stage, before they become insurmountable.

A Case Study

Just what type of workmanship can be found on some projects? As I was preparing this column, a colleague shared the following true story.

Poor performance by a roofing subcontractor on a new school led to defective work and numerous roof leaks. When it rained, it leaked. Investigation showed that the subcontractor never provided enough skilled workers to complete the project. Why not? It turned out that the owner of the roofing company had decided to change his profession and open a bar. During the project, he was already working nights in the bar, which proved to be his source for additional roofers when he needed them. Patrons of his new watering hole were invited to come to the school for a job; he would put them to work on the roof the very next day. In fact, the band at the bar even worked on the roof.

The contract dispute went to arbitration, and all of the details came out. Testimony from former employees—those with actual roofing experience— showed that the performance of the new hires was woefully inadequate. They might have made good music, but they made terrible roofs. Largely because of such testimony, the contractor had to pay a sizable arbitration award to the school district.

Final Reminder

If the owner becomes aware of problems with the finished project only after completion, remember that there may still be remedies available against the contractor or its surety for breach of contractual obligations to complete the work in conformance with the contract requirements.

Of course, no one wants a brand new building with a leaky roof . . . or an HVAC system that doesn’t work . . . or a foundation that sinks. Good results through arbitration or litigation may be satisfying, but it is always better when there is no dispute. It is always better when the project is done right the first time. Enforcing the contract provisions just reviewed should go a long way toward achieving this result.