The Critical Nature of Specifications When Bidding and Billing Contract Work

In answer to this I’m tempted to go see you, smack you on the side of the head, and say, “Why did you arrange and pay for something that wasn’t part of your contract?” I suppose you didn’t read the specs during the bid period? Shame on you! I’m sure some hotshot lawyer would look at this and say, “If you do something out of contract, without first having a signed change order (or whatever those instruments of change are called in the specs for your project), you pay for it.” Far be it from me to argue with an attorney.

However, my own thought is that you should be paid. You did the work (or your lab did). I presume it was done in a satisfactory manner, and I would recommend to the owner that he or she pay you.

However, since this is a building project, I assume it is a lump sum contract, including the site work portion. Since you thought you should arrange for and pay the testing firm, you must have included the costs for it in your lump sum bid. This works against getting you payment. The testing costs, in that case, would be part of the lump sum, not an extra cost. Is the architect trying to dock you for those costs?

From this point on in the project, I suggest that you follow the specs. That means the owner will work with the design professional to arrange and pay for the on-site testing. It’s possible that the design professional and owner now see you as having included that in your bid and so would want to reduce the contract amount by the remaining testing costs. They might have a legitimate argument, and be within their rights to seek a deductive change order for the amount. That may seem harsh to you, but that’s how I see it.

As to how to convince the design professional and owner to pay you, assuming it’s a legitimate extra, write a letter to the design professional laying out the circumstances (including how the Bidding Documents and Contract Documents change local practice), itemizing the tests conducted, stating the costs and backing them up by invoices, and see what happens. If they refuse payment, then submit a formal claim according to the provisions of the contract documents. If it’s the only claim on the project, it may not be worth pursuing as part of the contractual remedies, but when bundled with other claims you might just get it.

Here are additional considerations:

• Where was the design professional, or the owner’s construction manager, when the testing lab showed up without their authorization? This could have been solved before it started with a word timely spoken.

• The fact that this was an unusual provision for your area doesn’t seem relevant. Everywhere I’ve worked it was the standard procedure for the owner to pay for on-site testing. The reasons for this will have to wait for another column.

Now, please don’t tell me that your company’s estimators got this provision right and didn’t include anything in the bid for testing, while you (tasked with executing the work at the site) got it wrong. If that’s the case, you may have more difficulty recovering your costs than I projected.