Typical Performance Disputes
- Owner claims that a contractor deviated from the drawings or specifications
- Disputes over whether work met the required quality
- Terminations for cause and the condition of the work at termination
- Backcharges by a general contractor against a subcontractor
- Claims that a contractor failed to correct deficient work after notice
- Disputes over completion, punch lists and acceptance
Deviations From the Documents
A deviation from the drawings or specifications is not always a breach. It may have been approved through a submittal, RFI or change order, required by a field condition, or insignificant to the function and quality of the work. Paul identifies each deviation, the documentation that addresses it, and its significance. Unapproved deviations that affect function, durability or compliance are treated very differently from minor, approved or necessary ones.
Scope Requirements
Performance disputes often turn on what the scope included. Paul reads the contract, scope descriptions, allowances, exclusions, bid documents and changes to describe what the documents say was included, and he identifies ambiguities where they exist. He compares that scope with what was built, separating incomplete work from deficient work and from items that were never in the scope.
Work Quality
Where the dispute is about quality, Paul compares the installed work with the quality level the documents required, using recognized trade practice where the documents are silent. He examines the work in the field and documents conditions with photographs and location records. His experience as a journeyman carpenter and general foreman allows him to evaluate the quality of installed work and how it was supervised and checked.
Terminations, Notice and Cure
When a contractor is terminated, the parties usually dispute both the condition of the work and whether the contractor was given proper notice and opportunity to correct it. Paul documents the condition of the work at termination, separates incomplete from deficient work, evaluates the reasonableness of the completion and correction costs, and describes what the record shows about notices and responses. Whether termination was proper under the contract is for counsel and the court. See subcontractor coordination for backcharge issues.
Notice and Opportunity to Correct
Many contracts require that a contractor be notified of deficient work and given an opportunity to correct it before another party corrects it at the contractor's expense. Paul reviews the notices, the responses and the timing, and describes what the record shows about whether the contractor was told of the problem, what it did in response, and whether the correction by others was limited to the deficient work.