Builders and Contractors Exchange
Weekly Bulletin: 18 May 2007
Failure To Notify Of Contract Discrepancies Can Equal Waiver Of Future Claims
By: Burns G. Lewis
What is a contractor to do when there are conflicts in the contract documents and drawings? Notify the owner immediately, or risk waiving any claim based on the inadequate documents.
It is imperative when entering into a contract that a contractor (and owner for that matter) reviews the contractor’s responsibilities very carefully. Many construction contracts include requirements that the contractor verify all drawings and details, including dimensions, quantities, equipment, material, etc. and immediately notify the owner of any discrepancies or proceed at the contractor’s own risk. This sounds like a no-brainer, but failure to fully understand and comply with the requirements can mean the difference between getting paid and being responsible for the time and expense of performing the work properly, even where the contractor in fact followed the drawings and specification, which later turned out to be faulty.
Modern Continental South v. Fairfax County Water Authority, 70 Va. 172 (Fairfax Co. Cir. Ct. 2006) is illustrative of this issue. In Modern Continental, the contractor was charged with installing certain valves for a water treatment plant. The contractor began installation of the valves, only to discover that different valves were required to complete the contract. The contractor sued the owner for breach of contract based on the owner’s refusal to pay for “extra work” performed in installing the necessary valves allegedly not included in the contract documents. It was determined that the contract documents and drawings provided by the owner were in conflict, but the contractor failed to bring this to the attention of the owner prior to beginning work as required under the contract; thus, the contractor was barred from suing the owner because the contractor was deemed to have breached the contract by failing to notify the owner of the conflicts.
So, make sure that if you undertake the responsibility of verifying design documents, you fully review the drawings for accuracy and compare them with the contract documents. Notify the owner immediately of any discrepancies. Ensuring such a review is performed will go a long way in protecting the contractor from future liability and lost revenue
Questions?
If you have any questions about this article or any other related matters, please contact:
Burns G. Lewis
This article is meant to bring awareness to this topic and is not intended to be used as legal advice.