My partner and I have a residential renovation project in Queens, NY which is halfway through construction. Because of the pandemic, the client hired a very shifty contractor because they were the low bid and available on the desired timeline. We recommended against this due to our misgivings about initial interactions.
Six months into the project, they are not close to finishing. The client is losing their mind due to the schedule delay and everyone is pointing fingers.
So far—-
as construction began, we asked to set up weekly meetings: ignored by client and GC
we asked for a construction schedule: ignored again
we asked for a submittals schedule: ignored
as questions came in, we requested that they be submitted as RFIs or at a minimum sent via email and with photos or context so we can be informed on the issue.
Now we only get called or emailed when there’s an emergency conflict. Questions are not submitted in writing nor can we get the GC to send us any form of RFI for tracking. Everything ends in us getting berated for holding the project hostage if we don’t go to site and come up with a solution and new drawings within the week.
We have exhaustively sent note after note that this is not how this work and it seems to be coming to a head, now after a week of intensely unpleasant finger pointing I have resigned myself to the knowledge that this project will not improve, that we will not be able to get the information we need, and that carrying on will result in opening ourselves to liability for a project that crawls forward without any guardrails.
The main complaint from the client is suddenly that we have not been on site weekly. However due to the pandemic as well as HAVING NO CLARITY ON SCHEDULE even with persistent requests for this, we felt that we shouldn’t push this matter. They never asked us to increase our presence on site until the GC told them that was why the project was so messed up.
Other relevant context:
project was delayed getting to permit due to multiple (unbilled) rounds of VE
we were constantly present before construction started; after construction started the project went silent other than these fire drills. We have been to the site once since September because of total lack of communication
contractor has repeatedly insulted our team and engineers, declaring that our designs are overdesigned and overstructured and getting the client agitated that we somehow are trying to screw them with expensive structure (but of course when we suggested the GC prepare an alternate solution with their own engineer they refused the liability) (also we gave them extremely standard structural details)
contractor has run into numerous unforeseen/unforeseeable site conditions due to this being an old structure; has blamed us for not probing during documents although we did probe where we thought was necessary and discovery of site conditions is responsibility of the GC to report to us. This has caused deepened distrust and dislike between all parties.
owner has asked us also to prepare agendas for site meetings including anticipating any issues we could imagine- which we told them was impossible due to no schedule visibility and is also outside of our scope of work
we are in NYC- termination would require withdrawing the job from DOB, stop work order and then new permit and docs to complete. this schedule delay is what I’m the most concerned about in terms of the client coming legally for financial losses
honestly, owner is kind of a douchebag. He pushed to get everything drawn and submitted ASAP and claimed every time we wanted to review designs that they aren’t experts and don’t want to have to review anything because they can’t make a decision on anything. Then when things came to light they declared that they’re furious no one ever gave them every option on the table for every single line of work in the project. He would have never reviewed any options we gave him so we went forward with the most standard designs and had a page turn pre-construction with the whole team to review. Nothing enormous flagged then by any party.
TLDR: can’t get any information from GC regarding project status during construction; toxic relationship, fingertip pointing and fear of liability for nonconforming work has me wanting to terminate contract. I am wondering if the refusal to provide written requests for information as well as refusal to provide any information about the schedule or progress of the project is grounds to terminate without exposing us to legal risk.
Just follow the contract terms. If you used a typical AIA contract, there's termination clauses.
Essentially, once the relationships break down, always, always go back and review terms of the contract and follow them to the letter. For instance, if you used the AIA contracts, they'll reference the AIA A201 which describes roles and process. That helps establish your reasonable expectations for the performance of the GC and Client as well.
A 'good out' is this has run well beyond the original schedule. You are a business and they aren't your only client. It is unreasonable for the client to expect you to remain available well beyond the time period anticipated in your contract and proposal. You need to focus on other projects at this time and it has become obvious their selected GC will not follow industry practices or recommendations of the design professional. There is a lack of faith the design will be properly executed and conform with the design your firm stamped and submitted to the building department in good faith. That good faith no longer exists with this GC.
I'm repeating this for the third time because it really is the only answer here and that's to check your agreement with the client for termination clauses and follow it.
Thanks all! The contract clause that I think would apply is if the owner “fails to substantially perform in accordance with the terms of this Agreement” - but since it’s the GC who is fundamentally failing to execute their contract not sure if this applies.
I have never considered terminating a contract before so this is new territory for me! Usually either the GC or the owner is relatively sane - here is one where neither seems to have anyone home.
Part of your contract with the owner should include language that the owner is responsible for the performance the GC. If the owner isn't holding up their end of 'controlling' the GC then you can terminate the contract.
I would assume worst case scenario because you can never tell. My current read is they’re too exhausted to pursue legal proceedings but emotions are running very high.
The Owner IS failing. The GC has a contract with them, not you. So the Owner is ultimately responsible for the performance of their professional they hired. If it helps.... if it goes to lawsuit, the GC's head will also roll for their failure to perform within generally accepted industry norms.
Consulting with your liability insurer may be helpful here. We were in a similar situation where a GC blamed us for all delays and associated costs and we initiated a "pre-claim" process in which our insurer. The insurance company provided us with one of their in-house attorneys who advised us for free on how to navigate finishing the job. In other words, our insurer paid for our legal adviser instead of us.
If your insurer won't do this for you, invest a little bit of money on a few hours of a construction lawyer's time to review the situation and contract with you.
Unfortunately, I have seen more and more GC's half-assing or just not doing submittals, construction schedules, and the RFI process in order to save office staff expenses and have the lowest bid.
Bad contractors, douche bag clients, etc. Has possible lawsuit(s) written all over it. Proceed with caution and know your agreements like the palm of your hand.
I so love being retired from this business. Best career move I've ever made.
In addition to what everyone else said about the contract issues, you should also notify the AHJ that the Contractor is proceeding without customary construction observation by you and that you wish to be removed from the building permit as the architect of record.
Terminating contract during construction..?
My partner and I have a residential renovation project in Queens, NY which is halfway through construction. Because of the pandemic, the client hired a very shifty contractor because they were the low bid and available on the desired timeline. We recommended against this due to our misgivings about initial interactions.
Six months into the project, they are not close to finishing. The client is losing their mind due to the schedule delay and everyone is pointing fingers.
So far—-
Now we only get called or emailed when there’s an emergency conflict. Questions are not submitted in writing nor can we get the GC to send us any form of RFI for tracking. Everything ends in us getting berated for holding the project hostage if we don’t go to site and come up with a solution and new drawings within the week.
We have exhaustively sent note after note that this is not how this work and it seems to be coming to a head, now after a week of intensely unpleasant finger pointing I have resigned myself to the knowledge that this project will not improve, that we will not be able to get the information we need, and that carrying on will result in opening ourselves to liability for a project that crawls forward without any guardrails.
The main complaint from the client is suddenly that we have not been on site weekly. However due to the pandemic as well as HAVING NO CLARITY ON SCHEDULE even with persistent requests for this, we felt that we shouldn’t push this matter. They never asked us to increase our presence on site until the GC told them that was why the project was so messed up.
Other relevant context:
TLDR: can’t get any information from GC regarding project status during construction; toxic relationship, fingertip pointing and fear of liability for nonconforming work has me wanting to terminate contract. I am wondering if the refusal to provide written requests for information as well as refusal to provide any information about the schedule or progress of the project is grounds to terminate without exposing us to legal risk.
What dose your contract say about terminating CA services with your client? Start there.
Just follow the contract terms. If you used a typical AIA contract, there's termination clauses.
Essentially, once the relationships break down, always, always go back and review terms of the contract and follow them to the letter. For instance, if you used the AIA contracts, they'll reference the AIA A201 which describes roles and process. That helps establish your reasonable expectations for the performance of the GC and Client as well.
A 'good out' is this has run well beyond the original schedule. You are a business and they aren't your only client. It is unreasonable for the client to expect you to remain available well beyond the time period anticipated in your contract and proposal. You need to focus on other projects at this time and it has become obvious their selected GC will not follow industry practices or recommendations of the design professional. There is a lack of faith the design will be properly executed and conform with the design your firm stamped and submitted to the building department in good faith. That good faith no longer exists with this GC.
I'm repeating this for the third time because it really is the only answer here and that's to check your agreement with the client for termination clauses and follow it.
Thanks all! The contract clause that I think would apply is if the owner “fails to substantially perform in accordance with the terms of this Agreement” - but since it’s the GC who is fundamentally failing to execute their contract not sure if this applies.
I have never considered terminating a contract before so this is new territory for me! Usually either the GC or the owner is relatively sane - here is one where neither seems to have anyone home.
It applies.
Part of your contract with the owner should include language that the owner is responsible for the performance the GC. If the owner isn't holding up their end of 'controlling' the GC then you can terminate the contract.
Great. That’s pretty much what I wanted to confirm - I thought so but am admittedly not 100% confident in my legal prowess.
Depending on the client (litigous?) you might want to have your lawyer issue a termination letter based on the contract.
That would avoid contractual language errors on your part as well as announcing that you are prepared for a fight.
I *hate* recommending lawyers. Good luck.
I would assume worst case scenario because you can never tell. My current read is they’re too exhausted to pursue legal proceedings but emotions are running very high.
The Owner IS failing. The GC has a contract with them, not you. So the Owner is ultimately responsible for the performance of their professional they hired. If it helps.... if it goes to lawsuit, the GC's head will also roll for their failure to perform within generally accepted industry norms.
Perfect. Thank you this makes sense and was exactly my question!!
Consulting with your liability insurer may be helpful here. We were in a similar situation where a GC blamed us for all delays and associated costs and we initiated a "pre-claim" process in which our insurer. The insurance company provided us with one of their in-house attorneys who advised us for free on how to navigate finishing the job. In other words, our insurer paid for our legal adviser instead of us.
If your insurer won't do this for you, invest a little bit of money on a few hours of a construction lawyer's time to review the situation and contract with you.
Unfortunately, I have seen more and more GC's half-assing or just not doing submittals, construction schedules, and the RFI process in order to save office staff expenses and have the lowest bid.
This is a great tip. I will contact them regardless because of the issues with this project!
Great suggestion.
Bad contractors, douche bag clients, etc. Has possible lawsuit(s) written all over it. Proceed with caution and know your agreements like the palm of your hand.
I so love being retired from this business. Best career move I've ever made.
So true! Can’t wait to retire…only about 100 more years before I’m financially able to
lol... not retired, but being just an employee and not having to deal with those headaches anymore is a blessing.
In addition to what everyone else said about the contract issues, you should also notify the AHJ that the Contractor is proceeding without customary construction observation by you and that you wish to be removed from the building permit as the architect of record.
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