Last week I had a reminder of why amending your contract is something that every contractor needs to do. When I first started at Wilson & Hampton, I couldn’t believe the amount of time and effort Cliff spent reading and amending contracts. There isn’t a contract we sign that we don’t redline something.
It helps to understand that Cliff comes from an Industrial background. The thing about Industrial Jobs, is that not only is there more money involved, but there are more requirements, and the margin of error is exponentially larger. Cliff worked at some of the largest Coatings contractor’s in the world. His role was Loss Mitigation. Everything on an industrial job revolves around 2 things:
- What you agree to in the contract
- What is in the Specification
Because of His background, we spend A LOT of time pouring over the contract. (I will cover a lot of what we review in another Blog Post, but indemnification clauses are a big thing with us.) We currently have a few major public works projects. On one in particular, both the general and the airport are trying to put the responsibility for inspection back on the subcontractors. That might not seem like a big deal, but hopefully I can put it in perspective.
As a painter, we usually perform our work after the Drywall has been completed. It’s important that as a subcontractor that you understand the importance of being directed to perform your work. If we just decide to enter an area and paint it without approval, we are responsible for everything that goes wrong. If the GC or Owner wanted, they could go as far as require us to remove the coating. (Imagine trying to get dried paint off of Drywall.) It can get real expensive, real quick. Had you been told to perform the work, then you can likely rest assured the blame won’t fall on you if something does go wrong.
I want to point out that the purpose of a construction project is for all of the Subs to work together with the General Contractor, to build something. If you have to spend all of your time trying to dream up ways trying to protect your ass, then you are probably working for the wrong contractors. There is something to be said for being able to go to a contractor and tell them the truth about being in a tight spot and working together to find a solution.
I’m not saying: “trust, don’t verify.” You will have to build a relationship of trust with your contractor. However, if all you do is fight with the G.C., you need to better vet the General’s you work for.
Some of Cliff’s best advice has always been: “Construction is about managing expectations.” The opportunity you have with your contract is to clearly define most of those expectations. As a subcontractor, you can only be responsible for what you can control. Due to the idea of Risk Management, most companies will try and bass the responsibility off to everybody else. The painter should not be responsible for QC of another subcontractor.If we blindly sign a contract, we might just become drywall quality control inspectors.
One of the items we almost always specify, is the PDCA inspection standards. The industry standard for a painting contractor specifies that a painter is responsible for to inspect that paint will properly adhere to the surface. We should never be responsible to determine if the finish work by another contractor is visually acceptable to the owner or G.C.. We will definitely tell the contractor if there is a glaring deficiency (If the tape lines have not been sanded, or it’s not a Level 5 finish, etc.) The reality is though, we should only do our job as a painter, and leave the quality inspections up to a qualified inspector.
We have to deal with explaining this on almost every job we work on. Usually multiple times. Some people get it, some people fight it, but if you have clearly defined your responsibilities in the contract, you can spend your time doing your own work, and not everybody else’s.
Below is the email chain that it finally took to resolve this issue on a current job. I had a meeting with the General’s QC Manager and the Airport’s Inspectors. I clearly stated our position on what was required by us concerning inspection. The QC Manager adamantly disagreed that we are not responsible for inspecting the visual quality of the finish. He believed we were contractually bound by the specification to perform QC inspection. (There is a Sermon that can be taught on how well most Superintendents “know” what is in the contract.) I finally had to tell him, he needed to prove his stance. I have redacted his name and the company he works for …something something…protect the innocent.
Sent: Wednesday, February 22, 2017 6:50 AM
To: Kent J <firstname.lastname@example.org>
Please see attached copy of the specification section 099123-3.1 in regards to examination. This section of the specification clearly states the substrates has to be examined prior to application of paint so I expect your field personnel to comply with this requirement. This is not limited to drywall surfaces only, it also pertains to other surfaces noted on spec. section of the attached subcontract. Call me if you have any questions.
I sent my response below, and Afterwards Cliff read it and said I seem like a total dick! Meaning doesn’t always translate well into text. You be the judge.
From: Kent J
Sent: Wednesday, February 22, 2017 8:08 AM
Subject: RE: Substrates
Thank you for taking the time to find this info and send it over. It seems there needs to be a little clarification on what is meant by the wording, and how it will be interpreted if this were to escalate into a construction claim. It is clearly written and only stands to enforce the industry standards that we reference in our contract. Understand that we deal with this on a daily Basis. We are familiar with the specification, the industry standards, as well as how courts have and will side in a claim of this nature. I am going to clarify now what exactly is in the Specification, and I am going to do it in writing to document our response. I will follow up with our reasoning for our stance which I hope you will take the time to read, as I am taking the time and effort to write it out. I do not want to have to explain it multiple times as we have in the past with people on this project.
- Examine Substrates and conditions, with Applicator present, for compliance with requirements for maximum moisture content and other conditions affecting performance of work.
This is pretty cut and dry. 1) Examine Moisture Content. 2) Other Conditions – This is fairly Ambiguous. It is not specified that performance means anything to do with “quality of appearance”. The work can be performed regardless of what the final appearance may be. Due to the ambiguity, the Industry Standard should be referenced: (See the attached PDCA P4 Standard)
5. Standard Specification
5.1. Acceptance of Surface
5.1.1. The painting and decorating contractor is required to inspect surfaces to be finished only to determine, by reasonable and visible evidence, that the finish will satisfactorily adhere to surfaces provided by others and will perform as specified.
5.1.2. The contracting entity has the responsibility to determine that a surface is complete and that the “quality of appearance” is such that it is ready for finish painting or wallcovering.
5.1.3. When the previous trade has completed its work and/or notification to proceed has been given, such action will be construed as tacit evidence that all work has been inspected, and that it is warrantable, completed and ready for finishing.
MORE Importantly, Please see the attached executed CO#12 between Wilson & Hampton and ■■■■■■ that specifically addresses this. (See Articles 20 & 23) This was reviewed and accepted by ■■■■■■ and myself.
- Maximum Moisture Content of Substrates: When Measured with an electronic moisture meter as follows:
Again, No Issues here. We are moisture testing the surfaces before painting.
- Verify suitability of substrates, including surface conditions and compatibility with existing finishes and primers
An example of Suitability of the substrates would be: Not to put Floor Coating on a wall, etc. Surface conditions have already been clarified. (See Article A above)
- Begin coating application only after unsatisfactory conditions have been corrected and surfaces are dry.
- Beginning coating application constitutes contractor’s acceptance of substrates and conditions.
Unsatisfactory conditions, as far as we are contractually concerned are: 1)Moisture Content 2) Anything that would prevent that: “the finish will satisfactorily adhere to surfaces provided by others and will perform as specified.”
Become familiar with the Executed CO#12 as it is a part of our contract on this job. We spent the time amending these items to our contract, to avoid us becoming responsible for deficiencies in other trades work. Something we have absolutely no control over. We don’t do it to be difficult, but we can only be responsible for the items we have direct control over. Please call me if there are any questions concerning the above.
We want to be helpful. If [W&H Foreman] notices a glaring issue in the surface, he will point it out to you. Understand specifically though: If we are directed to paint a surface ■■■■■■ has agreed to the following: 5.1.3. When the previous trade has completed its work and/or notification to proceed has been given, such action will be construed as tacit evidence that all work has been inspected, and that it is warrantable, completed and ready for finishing.
Our Proposal still stands, and I can go back as far as the Pre Mobilization meeting and play you our recorded notes where we offer the following: Allow Wilson & Hampton to Prime and 1st finish an area. We can return to 2nd Finish after all of the other finishes have been installed. This will allow time for deficiencies to be repaired. We have no problem Spot Priming and final finishing areas. By doing this, you will reduce a majority of added cost due to trade damage. We are currently doing this in T1 and it has reduced the trade damage expenses to almost none.
Feel free to call me with any questions or concerns.
WILSON & HAMPTON
Painting and Finishing Contractors
As an interesting side note, this job is actually a CO to a previously completed project. When I talk about change order 12 above, that serves as the basis for this contract. See the picture below of the amended contract:
To emphasize the importance of a good relationship with contractors, I present my email below:
From: Kent J
Sent: Wednesday, February 22, 2017 1:45 PM
Subject: 50565 FW: Substrates
I wanted to write you and apologize if I came off as an ass in the email below. When Cliff read through it, he thought I sounded like a condescending A-hole.
Anyway, I know it comes across different written vs. if we were to talk about it face to face. My intention wasn’t to be a Jerk, so I apologize if I came across that way.
Give me a call if you have questions. I figured I would email you about it, because I know you are busy.
Have a good one!
WILSON & HAMPTON
Painting and Finishing Contractors
To drive home the importance of a good relationship, here is his response:
Sent: Wednesday, February 22, 2017 2:08 PM
To: Kent J <email@example.com>
Subject: RE: 50565 FW: Substrates
I was planning to call you and ask you on what did you eat this morning. But you beat me to the ringer. No big deal !!
Common Construction Standards:
Painting: PDCA Standards
Drywall: Drywall Finishing Council Standards
Concrete: American Concrete Institute
Finish Carpentry: Journal of Light Construction
Please Comment if you use one not listed!