Analysis of the Parc Lombard Settlement
Attorney John Bacon will review and discuss his involvement with this case in San Francisco on the Embarcadero which also involved many Westcon members.
LETTER TO THE EDITOR
Fred Field put on a great January meeting regarding architectural liability. Thank you, Fred. I would like to respond with a comment from the Contractors side of a competitive bidding situation.
For many years I built custom homes, churches, medical/dental buildings, retail stores and more. on a competitive bidding basis. The welfare of my family depended on my being the low bidder and still be able to show a profit. Most general contractors and subcontractors I know are in the same boat.
The way a general contractor gets invited to bid work is to get on the architects bid list. The architect selects general contractors who the architect believes are qualified to bid the work and complete the project to the architects satisfaction.
The trick is to get on and stay on an architects bid list. I say "trick", because to get on the list in the first place requires a sales job. Architects often share their good lists and their "blacklists".
Many architects and engineers seek advice from contractors and welcome constructive criticism. A few even seek comments from the foreman and crew on the job. There are, however, a number of architects, with extremely sensitive egos, that simply will not stand for even a suggestion to improve the plans or criticism of any sort. The trick to remaining on the bid list is to know the difference between these two types before you get on the "blacklist".
If the general contractor or subs find plan errors that will cause problems for the owner or make it impossible to build to specification, they generally have three options:
1. Thank the architect/engineer profusely for asking you to bid, but you are simply too busy at this time to give the project the attention it deserves, and please keep us in mind for your next project.
2. Tactfully call the problem(s) to the attention of the architect/engineer and request an addendum to the bid documents. If the change will add to the cost, you cannot include it in your bid unless you and all the other bidders receive the addendum.
3. Bid low, get the contract, and make your profit in the change orders. Remember, this is a Poker game and the architect/engineer does not have to sign the change order. The contractor must be willing to forge ahead and take the consequences.
Conclusion: The architect/engineer is educated, knows (or should know) the building codes, knows (or should know) the trade standards, and knows what the owner expects from the project. The architect/engineer gets paid to know all of the above.
Bidding on the project costs the contractor a lot of time and money, that is only recoverable if he or she is the low bidder. The contractor gets paid to follow the plans.
The contractor does not get paid for the design of flashing details, or any other details unless he or she can build it into the change order.
If it is not on the plans, the owner does not get it.
John R. Ward, M. J. Ward & Associates
Westcon members opinions are valuable. Please take the extra step to write in your opinions or take the extra mile to come to the meetings to share your opinions.
Thanks to John Ward for taking the time and the "extra step". We would like to continue the direction of Januarys meeting of audience interaction and invite more opinions.
John Wards options are shared by many contractors. The contractor has a dilemma: If he gets the job does he really want it? This question will be discussed by Steve Saarman at his presentation in this Aprils "Assessment of Liability".
It is my opinion that the specifications are qualitative, the drawings are quantitative. Together they call for a complete job and should provide all that is necessary for the contractor to provide the method(s) to achieve that designated result.
Whatever "is not on the plans" is the contractors option to provide what is necessary for a complete project.
As of January 31, 2001, the nominating committe has put forth the following candidates for officers and offices. If you would like to offer your services, and/or have your name on the ballot, please call Rikki Field, Administrative Assistant at (415) 451-4897 or Fred Honeck, Board President at (415) 472-3538 before March 1, 2001.
President: Fred Field
Vice President: Bill Young
Secretary: Paul Goetz*
Treasurer: Eugene Webster
Sharon Waterman: Program Chairman
Art Zigas: Web Master
(*New to the Board)
Note: Remo Patri has agreed to handle the "Wine Raffle" with associated tasting and purchasing duties.
One hundred attendees took part in Westcons first all day symposium which was held on November 3, 2000. The symposium, entitled "Defects in Frame Buildings - How Can the Process Be Improved?", was formatted in six sections: Panel #1-Foundations; Panel #2-Structures; luncheon keynote speaker Judge John Marlo; Speaker Wes Page on waterproofing; Panel #3-Waterproofing; SpeakerTom Butt-Architect.
Summaries of the panels and presentations will be published in the next several issues of the Tribune starting with this issue.
Summary of Discussion
Panel 2 - Structures
Walt Hoskins, President, Hoskins Engineers Inc.
This panel is taking a little different approach than the previous panel. We will look at the overall process from a philosophical perspective. Our system in this country produces the best housing in the world, Yet most of the condominium projects end up in litigation. Our system is based on open and free economics. In our system we provide for review, for testing, for licensing and for inspection. Still in all, we produce too many defects. This panel will look into the system in the context of the structural consequences of water intrusion and lateral earthquake design.
(Some slides were presented detailing structural defects from cases in which Mr. Hoskins has worked.)
Massoud Abolhoda, Chief Building Official, City of Fremont
There is room for improvement in most Building Departments. The approach of the Building Department should be as a team member to produce a project of quality on time within budget. It is important that the submitters of plans to the Building Departments need to first review the plans to make sure that they are properly prepared, comply with codes and are build-able. Building Departments need to have qualified plan checkers and inspectors. Many Building Departments have budget limitations, which make it difficult for them to obtain a sufficient quantity of qualified personnel. This is a political problem. At the City of Fremont they are requiring inspections by the design professional. The Building Code is minimal. We should advocate more disciplinary measures for design professionals and contractors. We need to modify the Code adoption process so that it occurs more often than once every three years.
Glen Youngling, Esq., Attorney
No one ever comes to an attorney and says everything went right. I know more ways to do things wrong. The two biggest problems are sins of omission and failure to catch in the field. Being in the field is very important for the design professional. Spot-checking in the field will not catch all of the problems. We need integrity of process if we are going to diminish construction defects. Once a design professional identifies a problem, is the standard of care such that he should return to the field to make sure there is a correct repair because he now knows the system is flawed because the correction was required? Engineers need to keep better records and preserve them. Contract attorneys and litigators are two different types of people. There is nothing more important to a litigator than contract recitals. These are brief written understandings regarding your relationship with your client and the project. They cover certain concepts like (1) you are using a team approach, (2) you are using a systems approach, (3) you are balancing the amount of detail with costs, etc. Framers are typically the weak link in the process. Framers say that the engineers do not respond in a timely manner to questions that arose because there was insufficient information on the plans.
John Draeger, President, Draeger Construction Co., Inc.
We should improve the workmanship in the field. We should also use the proper tools and make sure that they are applied properly. There is also a need to make sure that the plans have sufficient details to properly construct the project. Mistakes in the field tend to compound themselves. Contractors need to teach their employees. They also need to monitor and teach their subcontractor. Design professionals need to quiz the contractors and subcontractors to make certain that they are familiar with specific materials and their applications. Contractors have difficulty in finding qualified personnel. Building Departments and design professionals are notorious for having very competent people in their offices but have marginal people in the field. Contractors need to get into the trenches with education. Litigation is not the way to solve the problems. We need team work and education for the parties involved in the construction process.
Questions and Answers
Question: How long should you keep records?
Glen Youngling: Thats a good question. Anyone can file a claim for up to ten years. There may be a point where you cull your records before that. However, there is no limit on personal injury that can result from your design. This could happen in a massive earthquake where people are injured or killed in a building that you designed.
Question: How many problems would be resolved if the design professionals did not use reverse floor plans etc. and instead provided plans for all floors?
John Draeger: This is not that big of a detail. It has been custom for a long time. Poor details are much more important. Sometimes the same detail is drawn differently on different pages for the same condition.
Question: What does a Building Department do when poor plans are submitted?
Massoud Abolhoda: We give them "hell". We discourage this type of submittal. We typically require them to resubmit and resubmit. This effectively discourages them because it is difficult for them to make money under these circumstances. Another thing that can be done is to threaten to report them to the Board. This gets their attention.
Question: Is it reasonable for the owner or developer to require that at the end of the construction of a project that the Architect, Engineer and the Building Department sign off that project?
Glen Youngling: I love those kinds of letters because no matter what went wrong you have a letter that says everything was performed correctly. Then the contractor can say it was your job to keep from doing anything wrong. From a plaintiffs standpoint that is on of the top five things I look for. Such a letter should say that it is not a guarantee and that you have provided field services and that based on your observations it is your opinion that...
Massoud Abolhoda: Building Departments should not ask for letters of this type, It is unfair to ask an engineer to check everything in the building.
John Draeger: I think a letter should be required on every job.
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If you were unable to attend the November 2000 Symposium, some binders are still available. The cost is $30.00 plus $5.00 postage and handling. If you would like a contents sheet faxed to you, please call Rikki at (415) 451-4897.
IDEAS? If you would like to give a presentation to Westcon, or have ideas or topics you would like discussed, please notify Fred Field, Program Director at (415) 4855882. All suggestions are welcome!
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