Construction Contracts and the Owner's Approval of Materials

Commentary from Bruce Jervis, Esq.
Editor, Construction Claims Advisor

Construction contracts frequently call for the owner’s approval of materials prior to incorporation into the project. Samples must be tested to establish conformance to the specifications. This raises two issues. Are there objective standards by which to measure compliance? And in the event of noncompliance, what are the procedures for bringing the materials into conformance with the specifications?

Repeated test failures can strain the patience of project owners. This was seen in a recent case where an asphalt mix failed four successive tests. The owner’s engineer ordered the highway contractor to shut down its batching plant and redesign the mix. But was this procedure authorized under the terms of the contract?

The testing and approval of material samples poses challenges and risks for contractors and project owners. It is not just the contractor that must comply with the contract requirements. The Advisor wants to hear from readers regarding best practices for the testing and approval of materials.

Featured in next week's issue of Construction Claims Advisor:

• Highway Contractor Recovers Delay Damages after Wrongful Rejection of Mix Formula
• Prime and Sub Not Liable for Benefit Contributions of Lower-Tier Sub
• Sub Proved Breach But Not Cost of Completion

Construction Advisor Today would like to hear from you regarding best practices for the testing and approval of materials and welcomes all comments for this post.

Bruce Jervis, Editor
Construction Claims Advisor

Comments

[RLG]

Prior to submitting your bid ensure that you know what the material specs are. provide those spec to your supplier, and ensure that his quote to you the prime or sub states that his material price and quantity meets those specs (in writing) also on your submitted ensure that you state that material quantity & quality is based solely on supplier availability. This ensures that all the facts are out in the open from jump street. it also dictates some contractual terms & requirements in your bid as well as the quote received from your supplier. Granted their are those that say nobody would ever accept a bid /quote like that, but those are the same folks that think you cannot get paid bi-weekly without giving up a portion of your profits. I've been doing it this way from the beginning and it works for me.

[Bruce Jervis]

I agree with RLG that it is an excellent practice to require a material supplier to state in writing that the materials comply with the specifications. In terms of a contractor including a "supplier availability" caveat in a bid or proposal, this would be fine on a private project if the owner does not object. On a publicly bid project, however, it would almost certainly render the bid nonresponsive.....Bruce Jervis, Editor, Construction Claims Advisor