Pinnell/Busch: Project Management Consultants for the Design & Construction Industry

1. Introduction

Contractors, Architect/Engineers (A/Es), and Project Owners are all at risk from construction defect problems and the ensuing remediation and litigation. Here, we offer some advice on how to avoid defects, remediate those that do occur, and resolve any disputes before they become a claim or lead to litigation.

2. Design Phase – Owner, Architect/Engineer and Building Envelope Specialist

Project Owners control the project scope, select the project team, and require the team to control cost, time, and quality.

Start with a clearly defined scope of work – an ‘architectural program’ for building construction or ‘design criteria’ for engineering works. Then, verify that your budget is based on the scope and that the schedule is reasonable (don’t try to fast track without expert advice).

Next, hire the right Architect/Engineer. Consider their reputation for defect-free design, in addition to project performance, meeting budgets, timely completion, and good project management.

In addition, require your Architect to hire a Building Envelope Specialist to ensure against water intrusion, mold, and costly remediation – that can cost nearly as much as the original construction and often results in costly litigation. The A/E or Specialist should know local environmental conditions – heavy rains, wind and corrosive salt spray at the coast; extreme cold in Alaska and Montana; and moisture problems throughout the Pacific Northwest.

A Building Envelope Specialist is a person, often an architect or professional engineer, who advises on design (or purchase of an existing building), and investigates building envelope defects, identifies solutions, and oversees remediation. They also testify in court or arbitration on means and methods, costs, and who was responsible for the defect.

Architects may need assistance with current Best Practices for building envelope design, in addition to LEEDS, sustainability and other special services – for which the Owner is expected to pay, since they are the primary beneficiary.

3. Construction Phase
Regardless of whether you are using Design-Bid-Build, Agency CM, CM/GC-GMP, or Design/Build, Owners without ongoing construction programs should hire an Owner’s Representative with the expertise to manage the construction process and avoid defects. You also need a Building Envelope Specialist to ensure that envelope construction complies with the design and the workmanship is satisfactory.

Mockups have traditionally been used for aesthetic issues (color, texture, etc.) which are difficult to specify. Now, contracts are requiring mockups of windows, roofing, and other critical building systems to help avoid defects. Owners and A/Es, or their Building Envelope Specialist, need to identify critical building systems that require preparation and testing of mockups. Manufacturers can often assist with mockups.

4. Maintenance and Operation Phase
Contractors should prepare a Building Owner’s Maintenance Guide and require the Owner to acknowledge receipt and agree to follow the guide. This reduces the risk of system failure due to lack of maintenance, which is often blamed on the A/E or Contractor. The Guide and one-year warranty inspections help identify incipient failures, which avoids continued deterioration and collateral damage, and can head off claims.

5. Litigation Phase
If all else fails, be ready for litigation.

Building Owners should determine the statute of repose in their state, and in addition to their regular inspection program, conduct an in-depth inspection before that date, with a focus on the building envelope and other systems that are prone to failure.

If problems are found, hire an attorney familiar with construction defect disputes. You or your attorney should retain an expert to determine the extent of the problem, whether emergency repairs are required, the needed scope of remediation, the probable cost, duration, and the impact on building use.

Contractors or A/Es contacted by an Owner regarding a potential claim, should first (after calling their attorney) get the details and determine whether the problem can be resolved and serious conflict avoided by working with the Owner to fix it. If the Owner is reasonable and if your firm or subs are probably at fault, it is usually best to fix the problem – as long as there are no insurance problems and your Attorney approves.

Attorneys need the most qualified Expert Witness and field investigation team for successful resolution of a construction defect claim. The ideal building envelope expert is a licensed architect (or engineer for engineering projects and building system failures) with experience as a building contractor and in investigating and remediating construction defects. The expert must also have a reputation for credible testimony on the witness stand and the ability to provide solid, direct evidence that gives an attorney the winning edge.

6. Visualizing the Message
Regardless of the project phase, the visual display of information can be your most powerful tool for creating understandable and clear communication.

Good graphics can tell a complex story with little or no supporting explanation. A graphic image can summarize hundreds of change orders, piles of certified payroll, boxes of files, and the consequence of change, delay, impact and bad weather – all on a single sheet of paper.
When presenting graphics, start with the details to 'build a foundation' and then summarize it for understanding with a chain of logic from your source documents to your summary charts.

Patrick Melvin, our Graphics Consultant, works with our clients and our Claims, Construction Management, and Construction Defects divisions to communicate complex, data-intensive stories of what happened and why.