Paint It, Black? Prompt Notice of Construction Defects

“I see a red door and I want it painted black.”

Was Mick Jagger citing plans and specifications or demanding a change? Either way, he was clear about what he wanted. And that’s what we’re writing about this month. It’s a good practice to identify and communicate defects in construction in real time.

Construction project managers and superintendents are as busy as ever. But it’s critical that when defects in construction are identified, that they be communicated and addressed as quickly as possible. We’ve seen this lesson learned repeatedly.

Let’s first discuss communications about defects downstream. This could be communication from the owner to the general contractor or from the GC to a subcontractor or supplier. In each case the communicator wants to identify the defect early and communicate it promptly, demanding inspection and cure.

There are any number of reasons why speed is important. Perhaps the first is that the upstream party wants the project built right. And quick notice may identify and halt the root cause of the defective work, which in turn may minimize the work that has to be repaired or reperformed. Quick notice and prompt attention to the problem may minimize the likelihood of delay to the performing trade’s work or to other trades.

Quick notice also facilitates discussion. Many years ago, we represented a contractor building a barracks at the Parris Island marine base. They received notice from the owner that a 14-day concrete cylinder test had shown concrete from a slab pour that did not appear to be coming up to strength. The contractor wondered whether this could be an anomaly, as all other test reports or concrete on that slab were in order.

The contracting officer issued a nonconformance report and wanted the slab demolished.  The contractor resisted demolition, but recognized the perils of waiting for the 28-day break, as the project was on a tight schedule. The client consulted with us, and we suggested a concrete consultant. The consultant went to the site quickly and conducted a Swiss hammer test to measure surface hardness and provide an alternative estimate of the concrete’s compressive strength. That test showed the concrete strengthening as expected and required. The contractor and the expert met with NavFAC about the situation, and the expert showed the contracting officer’s representative how the core break appeared to occur at an area with a concentration of aggregate at the cylinder wall. He distributed academic literature about how an early break could result from the distribution or concentration of aggregate in a core sample and produce a false negative that the concrete was not curing on schedule. Based on the alternative evidence that the concrete was strengthening, the contracting officer allowed the construction to proceed, while of course, reserving its rights. And the 28-day cylinders all broke at or above the required 28-day PSI. The slab was fine.

That experience cemented our point. (Pun intended.)  Prompt communication brought the issue to everyone’s attention, reinforced the importance of prompt action, and allowed discussion about the quality of the concrete at issue without any loss of project progress.

Prompt communication is also a virtue with upstream defective work notice. Upstream notice can result from many reasons, but two common ones are defective work by earlier trades or defective design.

For example, a site work contractor might recognize that site topography doesn’t match the project plan elevations. This could lead to a differing site conditions claim under certain contract clauses, particularly those that recognize differing site conditions for “physical or latent site conditions.”  Prompt notice of the difference would be important to allow the project owner to observe the conditions before they are disturbed. It also might be required by procedural requirements of the differing site conditions clause. And from a practical perspective it’s better to address issues earlier rather than later.

Another concrete example is illustrative. Our client had issues with concrete design on a large international airport taxiway concrete project. The replacement panels began cracking once exposed to traffic. The client promptly notified the airport of the problem. We contacted experts, and the client offered to conduct test panels with different construction means and methods. But none of those techniques solved the problem – all of the test panels cracked. Our experts determined that the problem was not the mix design, but the engineer’s decision to omit rebar from the shallow panels.

Prompt notice in this context did not avoid litigation. But it allowed the client – and counsel – to be better prepared to ultimately reach a favorable settlement of the matter and to allow the client to continue as a vendor to the airport.

And what about prompt notice of defects in the preceding work? Quick communication is also important there. Not only for the reasons described above, but because many subcontracts have language requiring trade contractors to inspect the preceding work before beginning their own scope.

On a construction project, seeing a red door—or cracked concrete, nonconforming work, or a site condition that does not match the plans—and simply wanting it “painted black” is not enough. The problem must be identified, documented, and communicated promptly so the parties can investigate the facts, determine responsibility, and pursue a practical solution before delay and cost spread across the project. When a defect appears, do not act on Mick Jagger’s impulse to “fade away and not have to face the facts.”  It may not be easy, but your world likely will turn to black if you simply ignore the problem and do not give timely notice of the issue.

Peckar & Abramson Has The Most Experienced and Largest Construction & Infrastructure Practice in the United States – With a Worldwide Reach. 

The views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.