You’re confronted with the bad news: it didn’t pass inspection, or it’s clearly wrong. So, who fixes it and who pays? The general contractor? Subcontractor? Are the architect or engineers responsible?
Generally, a contractor who followed plans and specifications furnished by the owner, or the architect or engineer hired by the owner, will not be responsible for the consequences of defects in those plans or specifications. Where the contractor does not comply with the plans and specifications provided by the owner, the contractor proceeds at their peril and assumes the risk of any deviations from the plans and guarantees the suitability of their work. Similarly, a subcontractor is not liable to the general contractor (GC) for using the materials specified by the GC and following the contractor’s instructions. These general rules, however, do not apply to certain contracts where the contractor has been delegated design responsibilities. Thus, it is important to analyze the specific contractual obligations governing a project to determine who may be liable for the mistake.
What if the work does not follow the design plans?
An easier, but unfortunate case for the contractor, is where the work was not performed as prescribed pursuant to the approved plans and specifications, and the defective work was caused by the contractor’s mistake. But what if the plans and specifications are not clear? What happens if the plan drawings are in conflict with the written specifications as to how to build the plans? If the plans provide one standard and the specifications state another, then it’s critical to know what documents take precedence. A well-drafted construction contract will specifically address what documents and terms will govern if there is a conflict between the plans, specifications, industry standards, etc. Courts will try to give precedence to what the parties truly intended, but it may be difficult to determine if the parties never expressly considered this issue. For example, written communications and change orders executed by the parties after the creation of the original plans and specifications can take precedence over the original plans or specifications. To reduce their risk and clarify their role, contractors should include terms in their contract with the owner that state they not responsible for flaws in the design and has no obligation to either (1) detect design errors or (2) amend dimensions and descriptions in the plans.
What if something is omitted or not clear in the design?
A more difficult case may arise when the plans and specifications are silent on a key point. The architect or engineer is responsible for design errors or omissions, but all parties play a role in identifying and minimizing the effect of such errors through prompt notification. Contractors must minimize their risk by carefully examining the plans and specifications to determine whether they are complete and clear on all material terms. If something Is not clear or a general reference is made to use building code standards, it is imperative to ask all questions up front and confirm all requirements prior to the commencement of work. When General Contractors assume design responsibilities, the GC must make sure the terms of its subcontracts also assign design liability to its subcontractors where appropriate and obtain proper insurance coverage to include claims related to design defects.