Remedial Work

Contractors are required to remedy defective work or any of their work that is not in accordance with applicable plans and specifications. Problems with remedial work are among the most frequently encountered construction-related dispute areas.

Before the contractor can be expected to perform remedial work, he must . be given notice by the owner of the complaint. He must also be given an opportunity to inspect the condition and, if a subcontractor's work or supplier's materials are involved, to take the matter up with them as well.

The contractor must then be given a reasonable time within which to take corrective action. What may be a reasonable time would depend upon a variety of factors, including weather, availability of manpower and materials, the extent of the work required to make the necessary corrections and other similar circumstances

Problems arise when the contractor either refuses or fails to perform remedial work after having been given the opportunity. At that point, the owner may have the necessary remedial work performed by others. The owner is then entitled to recover the reasonable cost of that corrective work from the contractor responsible through court action (or arbitration if the contract so provides). Under AIA general conditions, the architect must approve the nature and extent of the work done and the cost incurred.

When the owner has remedial work done by others because of the failure or refusal of the contractor, with the exception of recovering the cost from the contractor, considerable care is required. The same care would be required of a contractor who undertakes to have work which his subcontractors refuse to correct performed by others.

The care required is to avoid the contractor's later argument that the nature or extent of the work done or cost incurred was not reasonable. Frequently, those arguments are coupled with contractor contentions that his work was not deficient at all. Documentation of the existence of the deficiency, notice to the party at fault and of the specific remedial efforts made is essential.

The law generally frowns upon waste. This attitude is expressed in courts' reluctance to award full recovery for corrective costs incurred where the problem could have been remedied for substantially less money without undue harm to the owner or depreciation of the value of his property. For example, a court may very well be reluctant to reimburse an owner for substantial costs incurred in replacing a workable and functioning system simply because some of its component parts were not strictly in accordance with the specifications. Instead, the court would be more likely to be inclined to award the owner the difference between the cost or value of the two systems or the value of the project with one as compared to the other system. The owner having remedial work done by others must also exercise reasonable care in seeing that his costs for remedial work are reasonable. Thus, he may need to solicit competitive bids or negotiate seeking the best prices available. He should approach the situation as if he were spending his own money.

Caution is also required of the owner in assuring that the remedial work is only that necessarily required. He cannot expect to recover for unnecessary work or any upgrading. For example, if a lavatory needs replacement, the owner cannot have a more expensive fixture installed expecting to recover its full cost from the contractor.

Regardless of the contract language involved, the owner must give his contractor notice of the deficiency and an opportunity to both inspect the condition and do corrective work. Failing this, the likelihood of his recovery from the contractor is doubtful.

Coordination of any remedial work with the architect is certainly advisable and almost mandatory if the AIA general conditions apply. Those general conditions permit recovery of additional architectural expenses incurred in this situation, and such expenses may otherwise be recovered -even without the express contract language.

Inspection of the work to detect suspected deficiencies may result in expenses for uncovering finished work. For example, it may be necessary to remove drywall and finished surfaces to determine whether a deficiency in plumbing work exists. Under the AIA general conditions, the cost of uncovering and replacing finished work would be the responsibility of the contractor if, in fact, defective work is discovered. Otherwise, the expense is borne by the owner.

However frustrating it may be, owners are probably best-advised to exhaust all reasonable efforts to have the contractor (or his responsible subcontractors or suppliers) correct deficiencies. Otherwise, the owner is placed in a position of having to justify his remedial activities, advance the costs incurred and bear the risk of being unable to fully recover his costs and expenses from the contractor.

From the contractor's standpoint' he may be far better off performing the remedial work himself or, better yet, having it completed by the responsible subcontractors or suppliers. Otherwise, he may expose himself to claims in excess of what the work would have cost him. Also he may then be left without a good chance of being reimbursed by the subcontractor or supplier actually at fault.

Obviously the way to avoid problems over remedial work is for the contractor to see that it's done right in the first place or for the owner to overlook unimportant details. Careful inspection by the architect during progress of the work may likewise avoid remedial work problems.