Just as the leaves change every year, those involved in construction projects around central Ohio face the annual push to complete weather-sensitive activities prior to the arrival of winter’s cold and wet conditions. Some common examples include completion of asphalt, roofing, and other building enclosure activities, because many of these activities are dependent on relatively warm and dry conditions that are less likely to occur during the winter months. While it is tempting to just proceed with the work in question and hope for the best, the consequences can be costly and take years to ultimately resolve.
Below are some tips for those dealing with the dilemma of trying to beat winter without becoming the party that has to pay to replace any subsequent nonconforming work that results from completing the work in less-than-ideal conditions.
1. Be Aware of Relevant Project Specifications
Closely evaluate the relevant project specifications, submittals, and manufacturer’s guidelines as to temperature and moisture requirements. To the extent work will proceed in conditions that are not recommended, those performing the work must develop a plan to address these issues in a transparent manner. The failure to do so could result in responsibility for the replacement costs even though everyone on the project wanted the work to proceed at that time. The plan to address the existing winter conditions could include temporary protection, heat or perhaps delaying the work until more suitable conditions occur. While the costs for these items may not have been included in the budget, they will likely be far less than the cost to either replace the work or defend the actions later in a legal proceeding.
2. Plan Your Pre-Installation Conferences Carefully
Make sure that pre-installation meetings or conferences, such as the common pre-roofing conference, as required by the specifications have taken place in sufficient time to address the likely conditions that will occur. Complete and accurate meeting minutes should also be prepared and circulated to those involved shortly after the meeting takes place. Any discrepancies in what was discussed at the meeting versus what was included in the minutes should be brought to the author’s attention. Furthermore, any differences in the site conditions that were promised by either an owner or contractor and what was actually provided to the subcontractor needs to be sufficiently addressed before the subcontractor will agree to proceed with its work.
3. Ask the Manufacturer to Visit the Job Site
Request that the manufacturer make a site visit, review the conditions, and provide an assessment as to whether the work is proceeding in accordance with the manufacturer’s guidelines. Any assessment should likewise be circulated as soon as possible after the visit takes place.
4. Document the Weather Conditions
Thoroughly document the conditions that existed at the time the work took place, including taking ample photos that can be identified by date and location.
5. Know the Importance of the Owner’s Inspection Services + Reports
Make sure the owner’s inspection services are on site during these times and has access to review all information. It is preferable that the owner’s inspection reports provide confirmation that the conditions were suitable at the time of the installation. At the same time, the inspection reports should note that the contractor stopped all work when unsuitable conditions were identified and the remedies implemented to properly address the condition so that the work could continue.
6. Timely Distribute the Owner’s Inspection Reports
Make sure that the owner’s inspection reports are distributed at the end of each day to those involved, including the contractor, subcontractor, and architect. Inspection reports that are distributed weeks after the work was performed or not at all do little good, especially if the reports identify questionable conditions that the contractor or subcontractor believed was acceptable at the time of installation.
7. Look to Third-Party Inspectors to Review the Situation
Consider engaging additional consultants or inspection services on behalf of the contractor or subcontractor to review the current situation and document that the work proceeded under appropriate conditions. The costs for this evaluation and the subsequent additional support showing the work was properly performed will be far less than the cost to engage an attorney to piecemeal the limited documents available needed for any defense.
8. Carefully Review the Geotechnical Reports
Review the project’s geotechnical or soils report prior to completing the site activities, including asphalt and hardscaping. Many times these reports contain recommendations for widespread underdrainage, soil stabilization and statements that the work should not proceed during cold and wet conditions. Those recommendations are sometimes not followed for any number of reasons, including the owner not wanting to pay for the added costs or the site engineer not following those recommendations. In situations where the geotechnical report recommendations are not being followed, the contractor or subcontractor needs to make it known in writing prior to mobilizing that it is being directed to proceed with work in a manner not recommended and that it will not accept responsibility for any nonconforming work that may result.
9. Obtain Written Direction to Proceed in Poor Condition if Owner/Architect Delays Existed
If earlier project delays by the owner or architect are the reason why the work is now scheduled during a time when cold or wet conditions may occur, contractors and subcontractors need to put the risk of proceeding on the owner and architect. In particular, written notice should be issued that identifies the current conditions, the risks of proceeding, and that written direction to proceed must be received from those in authority before the work will commence. Furthermore, the contractor or subcontractor should note that it will not be responsible for any subsequent failure.
10. Review the Builder’s Risk Policy with Your Insurer
Obtain a copy of the builder’s risk policy and review it with your insurance agent. Request that your agent identify any gaps in coverage that could be problematic based on how the work is actually progressing before a possible coverage event occurs. This is especially true when the building is expected to be “temporally enclosed” during winter months while finish activities take place.
The above tips are just a sample of some precautions you may face when having to complete weather-sensitive work during winter’s cold and wet conditions. While it may not seem like it at the time, it is much less painful to deal with the questionable conditions prior to the work taking place. The alternative is to either (1) argue over who is to blame for the nonconforming work, (2) pay to replace the work in question, or (3) some combination of both.
