Construction Warranty Issue

[Pegacorn]

We constructed a building. Hired the designing A-E to do construction management and commissioning. One month before the 1 year warranty expired. Two systems failed. Constructor contractor claims to have done per the contract. A-E finally inspected and gave us some minor information on the problems. A hook-up was not per the submittal for one system. Suggested the system be checked throughly by contractor. Other system, just move some tubing so heat is generated where it should be. Construction contractor says tubing is where it should be and if he moves it, at our cost, the tubes would be mashed by equipment laying on it.

Construction contractor's sub has dissolved and he refuses to do more work. Called A-E back twice and left messages. We need clarification. Was the work done per four drawings/specs. If not done per submittal need to show construction contractor. A-E not responding. As grumbled about getting compensation. But if work wasn't per drawings/specs. The A-E failed to find it and the construction contractor's sub failed to follow it as well. If it was a drawing problem, it's the A-E fault. But if per our drawings and specs. and submittals, which were approved by the A-E, neither contractor is at fault. But how do I find out? What do I do now?

Review the A-E warranty clause and write up a letter? Both contractors have been fully paid. I'm in a bine.

Would appreciate advise. Thank you

[brian]

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All an A-E firm has to sell is its reputation.

Speaking from my experience as a private construction contractor, since my 1102 construction experience is somewhat limited, I think your best bet is to make clear to the A-E firm that you will make an adverse entry in the Past Performance system if they don't get your problems fixed.

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[Pegacorn]

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All an A-E firm has to sell is its reputation.

Speaking from my experience as a private construction contractor, since my 1102 construction experience is somewhat limited, I think your best bet is to make clear to the A-E firm that you will make an adverse entry in the Past Performance system if they don't get your problems fixed.

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Sounds like a good start. Luckily we haven't done it yet. But now we are mandated by USDA to do all NIH past performance evaluations within 14 days after the completion date, even before the final payment and warranty have been completed! Its so stupid. But there is a massive push to get contracts officially closed out.

I'm also torn. Told to cool it and not upset the A-E as we have some other work they are doing. But then I'm told to get on it and solve it. Our Govt. engineer isn't much help.

[joel hoffman]

Sounds like a good start. Luckily we haven't done it yet. But now we are mandated by USDA to do all NIH past performance evaluations within 14 days after the completion date, even before the final payment and warranty have been completed! Its so stupid. But there is a massive push to get contracts officially closed out.

I'm also torn. Told to cool it and not upset the A-E as we have some other work they are doing. But then I'm told to get on it and solve it. Our Govt. engineer isn't much help.

If your office has no expertise to determine whether the constructor or the engineer is responsible for the problem, then I'd advise you to hire a third party expert to investigate and advise you what to do.

If it is a construction warranty issue, the Government may have to sue to obtain performance under the Warranty. The cost of the investigation will probably be the government's responsibility but you should be able to recover repair costs.

If the A-E is determined to be liable, youy may be able to sue for the cost of the fix as well as the cost of the investigation and perhaps the cost of the lawsuit under the paragraph ( of the clause 52.236-23, "Responsibility of the Architect-Engineer Contractor", which makes the A-E liable for "all damages to the Government caused by the Contractor's negligent performance of any of the services furnished under this contract."

However, I think you need an attorney who knows something about A-E liabilit? and construction contract law to advise you on this.

I will say this - government engineers tend to stick up for their. A-E buddies when it comes to A-E liability. They tend not to be aggressive about pursuing A-E liability cases. Take this from somebody who supervised the A-E liability investigator for a Corps of Engineer's District for 5 years...

[Guest carl r culham]

Posing this as a dual quesiton to Joel and Pegacorn consideration - If a "construction" issue and if there was the warranty of construction clause in the contract and if there was performance bond is there not recourse through the performance bond as well?

[Guest Vern Edwards]

1. Find out what work must be done to fix the problems with the two systems.

2. Estimate the cost/time required to hire someone to do the work and for them to get the work done.

3. Determine the cost/time of hiring a third party to find out who was at fault.

4. Determine the cost/time of pursuing and resolving the matter with the culprit(s).

5. Determine how long it would take to get the fixes done by the culprit(s) once they agreed to do them.

6. Compare the cost/time of 2 to the cost/time of 3 + 4 + 5.

7. Do whichever is cheaper and faster, 2 or 3 + 4 + 5. If one approach is cheaper and the other is faster, do a cost/speed tradeoff.

[joel hoffman]

Posing this as a dual quesiton to Joel and Pegacorn consideration - If a "construction" issue and if there was the warranty of construction clause in the contract and if there was performance bond is there not recourse through the performance bond as well?

Carl, I believe that you are correct. However, our contracts contained a special contract requirement that specifically stated this, so we didn't have to push it with the bonding companies. They probably never saw the SCR, either.