When my kids break something in the house, they immediately begin pointing the finger at the "alleged" responsible actor. In the construction world, many times you will need to fix the problem first and then point the finger later.
I read an article today by Jack Broom in the Seattle Times that illustrates this point. The incident involved two massive tunneling machines that were damaged and awaiting costly repairs … 300 feet below ground! The 17.5 foot diameter machines are supposed to be boring a 13-mile tunnel to take waste water to Puget Sound. Rather than the five-feet-per-hour pace that these machines should be boring through compacted wet dirt, they are dead stopped awaiting repairs. According to the article, more than 120 workers have been laid off until the machines are fixed and each day of delay adds to the owner’s more than $1.8 billion in escalating costs. It may take another month or two before the machines can be fixed and start boring again.
This story represents what should be happening on the construction project gone wild scenario:
For now, [according to the owner’s project manager], the county, the contractor and the machines’ manufacturer are working together on "getting the fix in place and getting these tunnel-boring machines moving again … It’s in everybody’s interest to complete this job as quickly as possible."
Although the parties are reportedly working to find a common solution to repair the two machines so that the contractor can complete the work, legal responsibility for the delays will need to be determined. Including the legal questions highlighted in Broom’s article, a court may be asked to resolve the following:
- Were there any subsurface reports performed prior to the start of the work?
- Did the owner have any contractual responsibility for subsurface conditions?
- Did the contractor have any contractual responsibility for its own inspection of subsurface conditions?
- Did the owner/architect have any ongoing supervisory or inspection duties during performance of the work?
- Were the machines properly mobilized and operated during construction?
- Were the machines defective in any way?
- Were there any other concurrent delays affecting the work?
For owners/developers, this incident is an example of how unexpected events on a construction project require a multi-phased approach to the problem. Your situation may dictate that you quickly assess the extent of the damage, determine a workable and cost effective solution and fix the problem first … and leave leave the finger-pointing to later. So long as you reserve your rights in accordance with the notice provisions of your contract, the project completion will be better served in this approach.
Contractors should take heed that when your work is delayed for reasons beyond your reasonable control, there may be contractual and legal defenses to an owner’s assessment of liquidated damages. Of course, the immediate goal will be to get the project back on schedule … but remember the finger may be pointed at you sometime down the road.