By Susan Van Bell, Esq., AIA Contract Documents content contributor
April 25, 2022
After the construction phase of your project has started, you will naturally be looking at your contractor’s work to assess its quality and accuracy. The standard by which the contractor’s work is evaluated is whether it is in accordance with the requirements of the contract documents, as well as required compliance with applicable law and codes. The contractor typically warrants to the owner and architect that materials and equipment furnished under the contract will be new and of good quality; that the work will be free from defects; and that the work will conform to the requirements of the contract documents. If you have an architect providing construction phase administration services, the architect will determine whether or not the contractor’s work complies with these requirements. But, you may not have retained an architect for these services. In that case, you need to know about when you can reject a contractor’s work and, if that happens, the contractor’s obligations to correct the work.
Rejection of Work
Your agreement with the contractor should include a provision stating that you (or the architect, if applicable) has the authority to reject work that does not conform to the contract documents. Keep in mind that this does not mean you can reject work just because you don’t like it, or because you may have changed your mind about something you wanted done. In those instances, you would likely have to negotiate a change to the contract sum or the contract time. For work that is rejected because it does not conform to the requirements of the contract documents, the agreement should require that the contractor absorb the cost of correcting the work.
As someone who may not be familiar with how to assess the adequacy of a contractor’s work, what tools can you use for guidance? The contract documents themselves are really your guide, as you would be checking for conformity with the requirements of those documents. The construction documents, which are the detailed documents that the contractor uses for the construction, will include specific layout and measurements. The specifications are another important tool. “Specifications” is a term you are probably not familiar with. AIA Document A201-2017, General Conditions of the Contract for Construction, defines specifications as “that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services.” On a small residential or commercial project, there may not be too much in the way of specifications but, if there are specifications for your project, they are a useful guide.
Published industry standards are another place where you can look for guidance on what constitutes acceptable work. For example, the National Association of Home Builders publishes Residential Construction Performance Guidelines. Other industry groups, such as the National Wood Flooring Association and the Tile Council of America, also provide standards for acceptable performance. These kinds of standards can be included in the specifications. The AIA recently published new documents for residential construction and remodeling that include language stating that, if the Contract Documents reference a standard for performance or quality of the work, failure to meet the standard shall be considered to be non-conforming work. This language was included to assist both contractors and owners with a means to include objective standards in the contract documents that can be used to provide the parameters for acceptable work.
Correction of Work
The agreement should require that the contractor will correct work that does not conform with the requirements of the contract documents, at the contractor’s expense. These costs include additional testing and inspections, the cost of uncovering and replacement, and other necessary expenses. It is important to include this in the agreement because, if the contractor does not correct such work in a timely manner, the owner may have the right to stop the work until the rejected work is corrected, or to make other arrangements to have the work corrected, at the contractor’s expense. The contractor is also responsible for correction and cost of work that does not conform with laws or regulations of governing authorities. This would apply to something like a change required by a building inspector because the work doesn’t comply with the building code.
In addition to correction of non-conforming work discovered during the course of the construction, there should also be a period after completion of construction during which the contractor would have to correct non-conforming work that may be discovered later. For example, AIA documents include a one-year correction period.
The contractor should be given time to correct non-conforming work. This period of time may be specified in the agreement. Some states also have “right to cure” laws, which provide a specific time frame and procedure for contractor’s correction of work. These laws are based on the concept that, as a matter of fairness, the contractor should be given notice and a reasonable amount to make the necessary repairs. These laws are also intended to help prevent disputes that end up in litigation. You should look into whether your state has such right to cure laws and be sure to comply with them.
It is important to be aware of the standards for rejection and correction, and to work with your contractor if you think work does not meet the standards, to achieve a successful resolution to the issue.
Our next article will address a topic that no one wants to think about going into a project: termination. Although you may not want to think about this early in your relationship with the contractor, it is important to have the issue anticipated in your agreement to avoid disputes if there is a situation that warrants termination. We will address the important topics of when the owner can terminate the agreement, when the contractor can terminate the agreement, and the consequences of termination.
Susan Van Bell, Esq. was Senior Director of Content for AIA Contract Documents for over ten years. She is currently a consultant.
AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.