As the kids were making Valentine’s cards this week, a smaller one disappeared from the pack. Then came silence.  You see, in my house, silence is a bad thing.  This particular silence turned out to be too funny:

The hand writing on the wall is a sign of doom or misfortune. Now, the phrase has become a popular idiom for something bad is about to happen.  When something goes bad on a construction project, you have many choices.  Best practices tells us to find a solution first and point the finger later.  

What happens when there is a contaminated spill on site?  What if a busted piece of heavy machinery or equipment is delaying the schedule?  Or perhaps the most common … what happens when you discover unsuitable soils? 

Although the parties must work to find a common solution to any of these problems so that the contractor can complete its work, legal responsibility for the delays still needed to be determined. Ultimately, when disputes like this arise, a court or arbitrator will have to resolve many legal questions, including:

• Were there any subsurface reports performed prior to the start of the work?
• Did the owner have any contractual responsibility for unanticipated conditions?
• Is the vendor or supplier have an obligation to timely service, repair or replace leased equipment? 
• 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 or were they defective in any way?
• Were there any other concurrent delays affecting the work?

For all players in construction industry, 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 the parties reserve their rights in accordance with the notice provisions of the contract, the project completion will be better served in this approach.

Contractors should pay particular attention to the contract provisions relating to time, changes, force majeure and differing site conditions. 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 best approach is to take steps during construction to avoid the writing on the wall.