Fix Now, Point Finger Later:
Handling Unexpected Issues on a Construction Project
By Matthew DeVries
When my kids break something in the house, they immediately begin pointing the
finger at the “alleged” responsible actor. At the time, they are not concerned
about what was broken. In the construction world, many times you will need to
fix the problem first and then point the finger later.
I am reminded of a waste water treatment project in Washington state a couple of
years ago. As reported in the Seattle Times, the incident involved two massive
tunneling machines that were damaged and awaiting costly repairs ... 300 feet
below ground! The 17.5 foot diameter machines are supposed to be boring a
13-mile tunnel to take waste water to Puget Sound. Rather than the
five-feet-per-hour pace that these machines should have been boring through
compacted wet dirt, they were dead stopped awaiting repairs. More than 120
workers were laid off until the machines were fixed and each day of delay added
to the owner’s more than $1.8 billion in escalating costs.
This story represents what should be happening on a construction project gone
wild—finding a solution. According to the owner’s project manager, the county,
the contractor and the machines’ manufacturer worked together on “getting the
fix in place and getting these tunnel-boring machines moving again. . . . It
[was] in everybody's interest to complete this job as quickly as possible."
Although the parties worked to find a common solution to repair the two machines
so that the contractor could complete the work, legal responsibility for the
delays still needed to be determined. Ultimately, when disputes like this arise,
a court or arbitrator will have to resolve many legal questions, including:
Were there any subsurface reports performed prior to the start of the work?
Did the owner have any contractual responsibility for subsurface conditions?
Did the contractor have any contractual responsibility for its own
inspection of subsurface conditions?
Did the owner/architect have any ongoing supervisory or inspection duties
during performance of the work?
Were the machines properly mobilized and operated during construction?
Were the machines defective in any way?
Were there any other concurrent delays affecting the work?
For all players in construction industry, this incident is an example of how
unexpected events on a construction project require a multi-phased approach to
the problem. Your situation may dictate that you quickly assess the extent of
the damage, determine a workable and cost effective solution and fix the problem
first ... and leave leave the finger-pointing to later. So long as the parties
reserve their rights in accordance with the notice provisions of the contract,
the project completion will be better served in this approach.
Parties should pay particular attention to the contract provisions relating to
time, changes, force majeure and differing site conditions. When your work is
delayed for reasons beyond your reasonable control, there may be contractual and
legal defenses to an owner’s assessment of liquidated damages. Of course, the
immediate goal will be to get the project back on schedule—but remember that the
finger may be pointed at you sometime down the road.
About the Authors: Matt DeVries is a construction attorney in
Nashville, Tennessee, and is the founder of
www.bestpracticesconstructionlaw.com. He can be reached at
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