Construction Basics for Owners: Rejection and Correction of Work

{"version":"0.3.0","atoms":[],"cards":[],"markups":[["b"],["i"],["strong"]],"sections":[[1,"p",[[0,[],0,"April 25, 2022"]]],[1,"p",[[0,[],0,"After the\nconstruction phase of your project has started, you will naturally be looking\nat your contractor\u2019s work to assess its quality and accuracy. The standard by which the contractor\u2019s work is\nevaluated is whether it is in accordance with the requirements of the contract\ndocuments, as well as required compliance with applicable law and codes. The contractor typically warrants to\nthe owner and architect that materials and equipment furnished under the\ncontract will be new and of good quality; that the work will be free from\ndefects; and that the work will conform to the requirements of the contract\ndocuments. If you have an architect providing construction phase administration\nservices, the architect will determine whether or not the contractor\u2019s work\ncomplies with these requirements. But, you may not have retained an architect\nfor these services. In that case, you need to know about when you can reject a contractor\u2019s\nwork and, if that happens, the contractor\u2019s obligations to correct the work. "]]],[1,"p",[[0,[0],1,"Rejection\nof Work"]]],[1,"p",[[0,[],0,"Your agreement\nwith the contractor should include a provision stating that you (or the\narchitect, if applicable) has the authority to reject work that does not\nconform to the contract documents. Keep in mind that this does not mean you can\nreject work just because you don\u2019t like it, or because you may have changed your\nmind about something you wanted done. In those instances, you would likely have\nto negotiate a change to the contract sum or the contract time. For work that\nis rejected because it does not conform to the requirements of the contract\ndocuments, the agreement should require that the contractor absorb the cost of\ncorrecting the work. "]]],[1,"p",[[0,[],0,"As someone\nwho may not be familiar with how to assess the adequacy of a contractor\u2019s work,\nwhat tools can you use for guidance? The contract documents themselves are\nreally your guide, as you would be checking for conformity with the\nrequirements of those documents. The\nconstruction documents, which are the detailed documents that the contractor\nuses for the construction, will include specific layout and measurements. The\nspecifications are another important tool. \u201cSpecifications\u201d is a term you are\nprobably not familiar with. AIA Document A201-2017, General Conditions of the\nContract for Construction, defines specifications as \u201cthat portion of the\nContract Documents consisting of the written requirements for materials,\nequipment, systems, standards and workmanship for the Work, and performance of\nrelated services.\u201d On a small residential or commercial project, there may not\nbe too much in the way of specifications but, if there are specifications for\nyour project, they are a useful guide. "]]],[1,"p",[[0,[],0,"Published\nindustry standards are another place where you can look for guidance on what\nconstitutes acceptable work. For example, the National Association of Home\nBuilders publishes Residential Construction Performance Guidelines. Other\nindustry groups, such as the National Wood Flooring Association and the Tile\nCouncil of America, also provide standards for acceptable performance. These kinds of standards can be included in\nthe specifications. The AIA recently published new documents for residential\nconstruction and remodeling that include language stating that, if the Contract\nDocuments reference a standard for performance or quality of the work, failure\nto meet the standard shall be considered to be non-conforming work. This\nlanguage was included to assist both contractors and owners with a means to\ninclude objective standards in the contract documents that can be used to\nprovide the parameters for acceptable work. "]]],[1,"p",[[0,[0],1,"Correction\nof Work "]]],[1,"p",[[0,[],0,"The agreement\nshould require that the contractor will correct work that does not conform with\nthe requirements of the contract documents, at the contractor\u2019s expense. These\ncosts include additional testing and\ninspections, the cost of uncovering and replacement, and other necessary\nexpenses. It is important to include this in the agreement because, if\nthe contractor does not correct such work in a timely manner, the owner may\nhave the right to stop the work until the rejected work is corrected, or to\nmake other arrangements to have the work corrected, at the contractor\u2019s\nexpense. The contractor is also responsible for correction and cost of work\nthat does not conform with laws or regulations of governing authorities. This\nwould apply to something like a change required by a building inspector because\nthe work doesn\u2019t comply with the building code. "]]],[1,"p",[[0,[],0,"In addition\nto correction of non-conforming work discovered during the course of the\nconstruction, there should also be a period after completion of construction\nduring which the contractor would have to correct non-conforming work that may\nbe discovered later. For example, AIA documents include a one-year correction\nperiod. "]]],[1,"p",[[0,[],0,"The\ncontractor should be given time to correct non-conforming work. This period of\ntime may be specified in the agreement. Some states also have \u201cright to cure\u201d\nlaws, which provide a specific time frame and procedure for contractor\u2019s\ncorrection of work. These laws are based on the concept that, as a matter of\nfairness, the contractor should be given notice and a reasonable amount to make\nthe necessary repairs. These laws are also intended to help prevent disputes\nthat end up in litigation. You should look into whether your state has such\nright to cure laws and be sure to comply with them. "]]],[1,"p",[[0,[0],1,"Conclusion"]]],[1,"p",[[0,[],0,"It is\nimportant to be aware of the standards for rejection and correction, and to\nwork with your contractor if you think work does not meet the standards, to achieve\na successful resolution to the issue. "]]],[1,"p",[[0,[],0,"Our next\narticle will address a topic that no one wants to think about going into a\nproject: termination. Although you may not want to think about this early in\nyour relationship with the contractor, it is important to have the issue\nanticipated in your agreement to avoid disputes if there is a situation that\nwarrants termination. We will address the important topics of when the owner\ncan terminate the agreement, when the contractor can terminate the agreement, and\nthe consequences of termination. "]]],[1,"p",[[0,[],0," "],[0,[1],1,"Susan Van Bell, Esq. was\nSenior Director of Content for AIA Contract Documents for over ten years. She\nis currently a consultant."]]],[1,"p",[[0,[2,1],2,"AIA Contract Documents has provided this article for general\ninformational purposes only. The information provided is not legal opinion or\nlegal advice and does not create an attorney-client relationship of any kind.\nThis article is also not intended to provide guidance as to how project parties\nshould interpret their specific contracts or resolve contract disputes, as\nthose decisions will need to be made in consultation with legal counsel,\ninsurance counsel, and other professionals, and based upon a multitude of\nfactors. "]]]]}