Make Testing Lab Decisions Before Job Starts

WE RECENTLY HAD a situation in a concrete case that brought up an issue that I have been thinking about for some time. On a multi-prime, construction manager job, this contractor had poured concrete for a playground water feature. The contractor bought concrete from a supplier and had 10 truckloads delivered to the site. A testing lab was on site and took samples from the first load and the third

WE RECENTLY HAD a situation in a concrete case that brought up an issue that I have been thinking about for some time.

On a multi-prime, construction manager job, this contractor had poured concrete for a playground water feature. The contractor bought concrete from a supplier and had 10 truckloads delivered to the site. A testing lab was on site and took samples from the first load and the third load.

About the time that the third load was in place, the contractor’s foreman got a call on his cell phone from the construction manager’s rep, who told him that the testing lab had reported that the first load didn’t have enough air entrained in it. This was reported back to the concrete vendor, who agreed to add more air to trucks Nos. 4 through 10.

Some time later, written reports were received from the testing company, signed by a P.E., attesting to the low air in both loads Nos. 1 and 3. Several weeks after this, the structural engineer sent a letter rejecting all the concrete for not meeting the specs. Of course, by now all the work was done.

While the vendor who supplied noncompliant concrete is still responsible for its product, everyone now has a mess on his hands, as the owner doesn’t really want to tear out the entire playground, and no one wants to pay for all that work. The solution, probably involving a warranty from the concrete vendor, is still being negotiated.

But how could this problem — and others like it involving testing firms — have been avoided? Through forethought, communication and documentation.

The first decision that has to be made by the owner is, “Who will hire the testing firm?” This decision has serious legal consequences because that is the person to whom the testing firm has a duty. If the owner makes this part of the contract for the contractor to hire the testing firm, then the contractor can set the parameters for how often testing is done, how it is done, who gets the reports and how detailed they are. In a CM job, it would make sense for this contract to be let by the CM, or at least for the owner to arrange for the testing firm to report to the CM.

The second decision to be made is, “What is the scope of work of the testing firm?” Is it to test every item that requires independent testing on the project, just the first one or to spot check? If it is to spot check, who defines what that means? Does all affected work stop until the test results are obtained? If so, how will this affect the progress of the work? Is there any protocol for what to do if any results come back showing deficiencies? Who does the testing lab report its results to?

All these items need to be discussed and worked out with the testing firm in advance and put in a written agreement with the firm.

The third decision to be made is, “What do we do with the testing firm’s information?” Will there be someone on site to review the results on behalf of the owner or CM? If not, there will either be a delay to the job, or decisions may come too late to do any good. What is the role of the consulting engineer? If a mechanical, structural or civil engineer has “final” say on acceptability of work, does it make any sense for the engineer to not see the results for weeks? What would it cost the owner to get an engineer on site at the time so that decisions can be expedited? And who has the authority — or, better yet, the responsibility — to stop the work? This is often the most crucial question as many firms shrink from the fear of legal liability if they make a decision that has financial consequences.

Having discussed all this, the owner then has to ask, “What will all this cost me?” It may be that the extra cost of an appropriate scope and protocol is money well spent, particularly if without it, the testing being done is of little practical value.

Does the owner really need a P.E. from the testing firm, or the engineer of record, out on the site? Maybe for some crucial items the answer is yes, and for other more routine, lower-risk items the answer is no.

If a contractor has the opportunity to have any input into the discussions, he could add value by pointing out some of these issues to the customer so that they can be thought through and addressed in advance. Many owners in their ignorance of construction just “assume” that all these pieces fall into place, but you know better. Everyone benefits from having their roles clarified, and a job with problems avoided is inevitably a more profitable job.

Susan McGreevy is a partner at Husch & Eppenberger, Kansas City, Mo., 816/421-4800, e-mail susan.mcgreevy@husch.com.

TAGS: Law