Protect yourself

Jan. 10, 2013
On many occasions and in many articles, the inherent dangers of contracting have been enumerated by a lot of other people who have experienced them first hand.

On many occasions and in many articles, the inherent dangers of contracting have been enumerated by a lot of other people who have experienced them first hand. Discussions and seminars have tackled the subject from many angles and points of view. One approach that usually is left on the table, or left unsaid, is what to do when you are the one being taken advantage of in spite of your best efforts to the contrary. Yes, there is always the lawsuit route to consider when things go south, but as I have stated before, this is truly a no win situation in the short term and usually not much better in the long run either.

The setup

The subject of this particular column came about due to a very sad, and not so rare, situation that happened to a young acquaintance who is a plumbing subcontractor. This particular fellow did primarily service and residential remodels but, due to the economy, bid some small commercial projects. He won a bid on a small strip center (very few of which are being built these days).  Nothing big, just a dozen two-piece, back-to-back cold water restrooms, condensate drains and a few hose bibbs according to the “draftsman” type blue prints the young guy bid off of. He made arrangements with his supplier to pay as he went since this was a bit larger than anything he had done previously.

The general qualified the plumbing bid and offered a contract which the contractor accepted. So far, so good. Terms of payment, time schedule, insurance requirements and such were discussed and agreed upon. Also good so far. The work began and things ran smoothly through the soil and top out stages. The contractor performed as agreed and the general paid, although slower than agreed. Pleading the owner was holding up payments, the general became harder and harder to get in touch with as things moved forward.

Being new to this type of work and not wanting to antagonize the general, the plumber let the oversights slide hoping that things would get back on track. Finally, the project was nearing the trim stage; the plumber was shorted his last draw, which put him in the position of not being able to pay the supplier as he had intended. The supplier, who had filed a pre-lien on the project, contacted the general and when the general refused to talk with them, contacted the owner and the lender.

You can almost see this coming can’t you?

The hammer

The general proceeds to get irate at the plumbing contractor because the supplier is making waves. A meeting is convened and the plumber expects he will be paid and everything will be fine. At the meeting the general contractor not only does not pay the plumber for his work as agreed, but points to the plans and asks, “Where are the roof drains? You are holding up my project.”

The plumber stammers, “Roof drains? What roof drains?” The general unrolls a page of the plans that the plumber never saw when he bid the job, but which shows a roof plan with small circles at various intervals. The plumber tells the general he never even saw that plan page, but the general points to the signed contract in which the subcontractor agreed to do the work per the “approved plans.” Big as life, the roof plan has the “approved” stamp from the municipality.

Not wanting to believe what is happening, the plumber tries to reason with the general, to no avail. The ultimatum is given, install the roof drains or be in breach of contract. The remedy for that breach will have the owner bringing another contractor onto the job to finish and to try making the present plumber responsible for any deficiency. The amount of materials involved, not including the extra labor, made it impossible for the plumber to complete the job and he must abandon the project.

Ready for the best part? The project does get completed by another plumber, who didn’t have to put in the roof drains because the owner agreed to use sheet metal scuppers!

Caveat emptor

The sad end of this story is that the job was finished, the general made a few bucks and the little guy got screwed. This story and a lot more like it happen every day in the contracting business.  The cynical among us would posit that the subcontractor was not a good businessman, and that might be true, but the fact of the matter is that the guy was a good craftsman, honest and hard-working and expected the general to be honest and have integrity as well.

Had the plumber filed a pre-lien on the project himself, had he gone over the contract and made sure that the plans he bid from were the only ones he agreed to work from, had he insisted on verbiage protecting his right to timely payment and remedies for failing to pay timely, things might have been different. But then, had he done those things, he probably would not have gotten the job.

The Brooklyn, N.Y.-born author is a retired third generation master plumber. He founded Sunflower Plumbing & Heating in Shirley, N.Y., in 1975 and A Professional Commercial Plumbing Inc. in Phoenix in 1980. He holds residential, commercial, industrial and solar plumbing licenses and is certified in welding, clean rooms, polypropylene gas fusion and medical gas piping. He can be reached at[email protected].

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