Four Sources, Kept Distinct
Contractor conduct can be compared with four different kinds of requirements. They overlap, but they are not interchangeable, and treating them as one is a common source of weak opinions.
| Source | What it is | Example |
|---|---|---|
| Contractual obligations | What the contractor agreed to do | Provide a full-time superintendent; submit daily reports |
| Binding regulations | Requirements imposed by law | Adopted building code; OSHA construction standards |
| Industry practice | How competent contractors generally perform the work | Inspecting framing before drywall is hung |
| Legal duty | What the law requires, as defined by the court | The standard of care for the claim and jurisdiction |
Paul's opinions address the first three. The fourth is a legal question for the court, although his opinions on the first three are often what counsel uses to address it.
Why the Distinction Matters
A contract can require more than industry practice, for example a specific inspection program, or less, for example by assigning a task to the owner. A regulation sets a minimum but may not address the conduct at issue. Industry practice varies with project type, size and market. An opinion that blurs these categories invites a challenge. An opinion that identifies which source applies to each point, and why, is much harder to attack.
Establishing Industry Practice
Industry practice is established from experience and from recognized references, such as trade association guidance, published construction management practices and standard forms of contract. Paul draws on more than 30 years of performing and supervising construction work and identifies any published reference he relies on, including its edition. He describes practice as it existed at the time and place of the project, not as it may be described today.
Conduct Evaluated on the Information Available
A contractor's conduct is judged on what it knew or reasonably should have known at the time, not with hindsight. Paul reconstructs the information available to the contractor from the project record: what the documents showed, what was reported in daily logs and meetings, what was visible in the field, and what was communicated by the owner, designer and subcontractors. Conduct that looks unreasonable after the fact may have been reasonable given what was known, and the reverse is also true.
Applying the Framework
The same framework applies whichever side retains Paul. For each item of conduct at issue, he identifies the requirement from each source, the evidence of what the contractor did, and the comparison. Related pages explain how this works for general contractor responsibilities, supervision and quality control.