Buried Defects Could Mean Future Trouble
Who Pays for Uncovering and Correction of the Work?
Arthur O'Leary, FAIA, MRIAI
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Years after a building is built, occupied, and operated successfully, a hidden defect comes to light. Something that was not in conformance with the contract documents, the building code, or accepted workmanship standards. It could be something very easy to fix, such as a copper piping joint inadvertently left unsoldered. But the cost to find the defect, uncover the joint, and restore all the damaged finishes might be quite extensive. Inconvenience to the building users could be enormous, depending on the location of the repair and the use of the building. Consequential damage to other building elements or contents could add heavily to the cost.
Other more significant defects, such as inadequate structural members, inferior materials, or other major deviations from the building’s specified standards, could be extremely difficult and costly to rectify while the building remains in use. Repairs that require complete vacation of the building are even more disruptive and expensive.
Most of these types of defects are avoided entirely by the normal systems of inspection during construction. Government building inspection furnishes a basic protection, but it has its limitations. It is only a spot-check at best, not a comprehensive examination. Furthermore, it is for the sole purpose of testing compliance with the building code. The building inspector will not be judging the work against a higher standard that might be specified in the contract documents.
The contractor is the most significant figure in quality control on any building site. The contractor and its superintendent set the standards for their own personnel as well as for their subcontractors and suppliers. The contractor warrants that the work will be in accordance with the requirements of the contract documents. (A201-1997, 3.5.1) The architect and engineering consultants are also present in a position of oversight through their periodic jobsite visits.
Projects on which the AIA general conditions are a part of the contract, have provisions to facilitate the architect’s access and examination of the work in progress. (A201-1997, 3.16)
Sometimes the construction progress gets ahead of the architect’s program of site visitations or important work is completed and covered between the architect’s scheduled visits. The result may be that critical work gets covered up before the architect has seen it. Architects are frequently suspicious of the motives of contractors who cover their work with undue haste.
Specifying Work to Be Left Open for Inspection
The architect must decide at the time of specifying which portions of the work are important enough to specify leaving open for the architect’s or engineering consultants’ examination before they are finally covered. This might include plumbing piping or electrical conduits that will be buried in trenches, roof sheathing that will be covered with roofing, or structural connections that will be hidden behind plaster or other finishes. Subterranean waterproofing is often kept open for examination before backfilling.
When work is left open for the architect’s inspection, the burden is on the architect to examine the work promptly and not unduly disrupt the contractor’s progress schedule.
If a contractor covers work that was previously specified to be left open for examination, then the architect may request in writing that the work be uncovered for inspection. The contractor must pay for the uncovering and reinstatement of the finishes even if the work, upon inspection, proves to be not defective. This is also the case if the architect had merely requested, even though not specified in the contract documents, that the work be left open for inspection. (A201-1997, 12.1.1) No extension of the contract time should be granted.
When the architect has neither specified nor requested the work to be left open for inspection, the situation is different. If the uncovered work proves to be defective, then the contractor must pay all the costs of uncovering, correcting the work, and reinstating the finishes with no extension of the contract time.
On the other hand, however, if the uncovered work is not defective, then the owner must pay all the related costs as well as grant an appropriate extension of the contract time. (A201-1997, 12.1.2)
This places the architect in a vulnerable position with the client who might feel that the architect used poor judgment in ordering the inspection. The client might also criticize the architect for not previously specifying or requesting the work to be left open for examination. A persistent client might also raise the question of the frequency and adequacy of the architect’s site visitations. The cost of uncovering the work and reinstating the finishes could be very expensive, depending on the situation involved. In addition, the contract time extension might be costly as well as inconvenient.
Discussion with the Owner
An architect would be foolish indeed to order the uncovering of work without a complete prior discussion with the owner of the possible consequences. The architect would have had to convince the owner that it was necessary to examine the work. Normally the reason that an architect would ask to expose covered work is if there was some reasonable suspicion or concern that it was improperly done. When the integrity of the building or one of its systems might be materially compromised if improperly executed, then the architect should explain this and all its ramifications to the client. The client should realize that the cost of uncovering important work might be less in the long run than living with the uncertainty of the condition of uninspected work.
Accepting Defective Work
Work not conforming to the contract documents is considered to be defective. (A201-1997, 3.5.1)
When the work is found to be defective, the owner or architect might decide to accept it anyway, if it will satisfy realistic requirements for service, longevity, capacity, and appearance. However, only the owner has the power to accept defective work. (A201, 12.3.1) Although the architect lacks the power to make this decision, the architect’s assistance in making the decision would be considered valuable by most owners. The architect should completely explain the advantages and disadvantages of retaining the defective work. In most cases it would be appropriate for the architect to make a recommendation and be prepared to explain it. However, the final decision belongs to the owner.
If defective work is allowed to remain, the contract sum will be equitably adjusted. Naturally, the owner could not decide to accept defective work that is a building code violation or if it affects safety or the integrity of mechanical, electrical, or structural systems.
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