AboutPeter M. Elliott Expertise First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only.
Experience Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit.
George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')
Question Dear Mr. Elliot,
My husband and I live in Kentucky, USA.
The contractor was instructed to pour a sidewalk, patio, steps and 2 retaining walls and did not follow customer's request at all. The company did an extremely below average job. We have talked to one of the company's owners and he wants us to pay them $300 to $400 more in order to tear it out and replace it. We have already paid seven thousand dollars.
The problems are too numerous to name them all but here are some of them.
1. The steps are not to code and have been roped off as a result in order to keep anyone from getting hurt. The top step is particularly dangerous since it has a 6-inch slant.
2. Nothing is square. It appears as though no measuring tape was used at all.
3. Honeycombing has been covered up with a thin concrete like substance.
4. Fairly large chunks are falling off on the edges of the concrete.
5. He told us that he could not pour a retaining wall because he could not tie it into the wall on the house and talked us into putting in a block wall instead, which we DID NOT WANT.
6. He added a third retaining wall that we did not want.
7. Now he is denying all of this and saying that it is our fault.
8. There are cracks completely across the sidewalk.
9. Sloppy forming.
10. Surface is flaking.
11. Retaining walls not dimensions of configurations desired.
12. Steps are not to desired configuration.
13. Sidewalk tapers from 4 feet 7 inches to 4 feet.
He is denying that my husband gave him certain instructions on what we wanted. You have to see this job in order to believe it. We have had other concrete men look at it and they are all in dismay. One person even said it looks like it was a training job. I do not want him to be the one to replace it since his company has burned us already. It has to be replaced. The steps are so dangerous that we had to rope them off so no one would get hurt and sue us for this company's incompetence.
The owner of the company is telling us that it's our fault. He keeps saying, “I don't remember that.” We know better but we have to figure out how to beat this guy at his own game.
We talked to a lawyer and he told us that it isn't cost effective to take him to court. I think he just didn't want the case. He wanted to charge us five hundred dollars to write a letter and do some out of court negotiating.
Evidence: We have a canceled check and a receipt form the contractor.
Settlement Explanation:
We want ALL of our money back and any costs incurred as a result of tearing up the existing concrete and hauling it away.
We did not have a contract and we have already paid him in full. We are getting bids from other companies and all of the men are saying how bad this guy has burned us. If we tear the sidewalk up and find that there is no metal rebar or mesh (to make it stronger) which he says he used, we are hoping to prove fraudulent activity so he will have to pay the lawyers fees.
Any suggestions would be appreciated. This has been a nightmare.
Thank you so much for your time.
Answer Hi Mary,
You have a real problem, especially as you have paid him in full and you have no written evidence of your contract. You are now into a damage limitation execise from a position of weakness. Incidentally, you do have a contract, just no written evidence of it. You must be asking yourself, why you paid out all that money without ensuring that the work was up to standard.
All work must be fit for purpose and compliant with the Contract. You need to prove that the work is non-compliant, not that you don't like it. So now you have to prove what would be compliant, which is difficult without written evidence. So now you have to consider what would the normal or legal standards for this type of work. It would seem that you have a firm case with the steps, so concentrate on those.
Making good honeycombing is standard practice, but it has to be done properly. Cracking is normal, but should be regular and controlled. Reinforcement is not essential in a path, but might be useful if ground preparation is poor, but if he charged you for it, then you have him for fraud.
Firstly, you must allow the appointed contractor opportunity, and a reasonable time, to repair his poor work, at his own cost. If the Contractor is offering to remove, repair and complete the work for $3-400, then my advice would be to accept the offer, but with very clear written instructions, and penalties, agreed by him in writing before he starts. I know that it burns, but it is likely to be your cheapest solution. It is about 5% of your original payment and thus a relatively small amount, but make sure that you are not throwing good money after bad.
Give him a complete list of all unfinished or unsatisfactory work. Make sure that it complete, but not unreasonable. List what would be an acceptable solution, not just rip it up and take it away, but do not instruct the Contractor how to do the work. He could always claim, realistically or otherwise, that he could have done it a different way more cheaply, and you should pay the difference. You don't need the extra hassle. Make sure that everything is in writing and it is objective. Courts are notoriously inconsistent in their response to subjective claims, and they are difficult to prove.
If he is unwilling or unable to do the repairs, then you get three bids and choose the most economically advantageous, not necessarily the cheapest. Advise the first contractor that you intend to appoint another contractor and sue him for any extra costs, including your reasonable costs for arranging for a new contractor. If the sum is small enough, should be able to recover it through the small claims court. Remember to confirm all statements in writing and to keep written notes of any phone calls or meetings. Make sure that he can, and will, pay the money before starting the court action. You may win your case, but not get any money. You will not get all your money back, only the costs needed to complete or repair the work.
If you wish to prosecute him, then you have to prove breach of contract, fraud or negligence, not incompetence. I would tend to agree with your lawyer, that it not worth starting a court case. As you have found out already, lawyers are expensive, there is no guarantee of success and they insist on being paid!
I make no apology for the bad news above. Live is a learning experience and experience is always expensive. The important thing is to learn from the experience and get on with your life.
