Can an Owner's Representative Deal Directly with a Sub-Contractor?

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Welcome to the On Site channel’s Construction Administration Column. When a construction observer gives instructions directly to a subcontractor, it can lead to contentious claims. David A. Todd, P.E., CPESC, discusses how to address the issue.

Columnist David A. Todd, P.E., CPESC, has 37 years of experience in the architecture, engineering, and construction (AEC) industry and has performed much construction administration during that time. He will answer questions from our readers or from his own practice and will provide answers based on his understanding of the construction process.

Can an Owner's Representative Deal Directly with a Sub-Contractor?
Question: [from a general contractor]

The construction observer recently informed a subcontractor on our project that work being performed (masonry walls for site visual barriers) was not to acceptable standards and would have to come out and be done over. Before I found out about it, the sub tore the partly finished walls out and started over. He has now submitted an invoice for extra work “as instructed by the engineer.” How should I handle this? I don’t know if the original work was good or bad.


Oh boy. I wish the construction observer hadn’t done that. The correct procedure would have been for the construction observer to document the alleged defective work, preferably including photographs; bring it to the attention of the general contractor’s superintendent; and then document that notification in a written report. Then you, as the general contractor, could have inspected the work, agreed or disagreed with the construction observer, and made decisions from there. If you thought the construction observer was being too picky, you could have asked the licensed engineer (or architect or landscape architect) to look at the work and make a final decision. Alternatively, if you saw that the construction observer was correct, you could have given the subcontractor proper instructions, and payment for corrective action would not be an issue.

Based on what you’ve said, the construction observer seems to have overstepped his authority. A rule that was drilled into me before my first project as a resident engineer was to never give instructions to a subcontractor. If you (or whoever is acting as the engineer or owner’s representative) believe that the sub’s work fails to meet the contract documents, bring it to the general contractor’s attention. The general contractor will then handle it and conduct all dealings with the sub.

In this case, before paying the subcontractor’s invoice for extra costs and before passing it on in your own pay application, ask for a review of the situation with the sub, the construction observer, and the design professional. Ask for documentation that proves the work was defective. If such proof is shown, I’d say the sub has to eat the extra cost. However, if the proof is not shown or if the proof doesn’t exclude the possibility of corrective measures as opposed to removal and replacement, then I think you might have a legitimate claim for some extra costs. It might not be the full amount for which the sub asked, but it should be something. As well, it might be a bargaining chip if other issues are open to discussion.

The problem with direct dealings between the owner’s representative and subcontractors or suppliers is much too common on construction projects, especially on smaller projects where rigorous site relationships are relaxed. The construction observer is right there, watching the sub, and how easy it is to simply call out an instruction instead of walking across the site to the job trailer and finding the superintendent. How easy it is for the subcontractor to say, “Fine,” and not bother to seek out the superintendent to confirm the instructions. In your situation, both the construction observer and the subcontractor need more training on how site relationships are best maintained, and the construction observer needs to learn the limitations on his authority.

David A. Todd

A senior engineer and corporate trainer of engineering for CEI Engineering Associates, Inc. David has 36 years of experience as a consulting civil engineer. His experience includes water, wastewater, stormwater, roads, and solid waste infrastructure. For much of the last 20 years he has been involved with stormwater issues. Specifications and construction administration have been a specialty of his within civil consulting engineering . He has BS and MS degrees in Civil Engineering, is a registered engineer in four states, and a Certified Professional in Erosion and Sediment Control.

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