Question

This project includes new classrooms and training workshops. The contractor bid the project lump sum, and it is approximately 90% completed. Dry wall is being taped, and finish materials are beginning to arrive on the job site. On a recent walk-through, the owner and architect (control agency, consultant to the owner) realized that several items are not exactly as they had anticipated. The gray carpet is actually black. The plywood wainscot in the warehouse area is CD grade, not AC. The sanitary waste pipe in the ceiling space between the two floors is plastic, not cast iron, and will be noisy and may not meet code requirements. The gates on the fence are swinging, not rolling. The interior wood trim is hemlock, not oak. There are many other examples of these types of surprises. The contract requirement for preparing submittals (samples of materials to be used) was generic, and although it did list some items to be submitted, it did not list everything. There were conflicts in the documents. The contractor has chosen the most inexpensive materials, wherever possible, and is now basing his argument on document inconsistency. The architect is recognizing that there were some inconsistencies but is pleading to the contractor that if there were questions, he was to ask, or a submittal could have been used to verify the design intentions. It is now too late to make changes, and the owner will have to accept these conditions.

If there were a withholding of funds from the owner to the contractor, who would win the dispute? List the reasons.

Answer 1

According to the given scenario/problem it is very difficult to say who will win the dispute.

According to the law, if a construction contract does not specify the details of material( quality,brand,type,nature etc.) that must be used in a finished project ,then contractor have right to file a case against owner if he/she hold fund.And in this case there is more chance that contractor will win the dispute.

Here it may be very difficult to prove that contractor has acted wrongfully.

If owner want to win the dispute he have to identify another legal basis to make a case against contractor.

So in simple way I can say that chance of winning the dispute for contractor is more than owner.

Thank You.