Breach of Contract

Breach of Contract

In this conflict, I believe the design professional was responsible for the conflict. This is because the designer was in the know of the equipment that had been settled on. He or she knew was in charge of the design of the ceiling space therefore he knew what dimensions of the equipment, could fit in that particular space. On top of this, the designer knew the size and dimensions of the equipment and would have thus brought it to the attention of the owner as well as the mechanical subcontractor so as to think the way forward whether they would readjust the design or settle for another equipment all together. Therefore the resulting problem was a result of the designer not being keen when doing his or her job.
In this scenario, the HVAC contractor was helpless as concerns the problem arising from the equipment not fitting on the space. This is because he or she was working based on the designs that had been provided by the designer. The HVAC subcontractor, was not also involved when the equipment was being purchased. Therefore he or she did not have any say on what equipment was to be installed and of what dimensions. Thus it was the duty of the designer to ensure that the equipment was of the right size and would fit perfectly on the ceiling space provided. In fact he or she was within the contractual obligation since his or her mandate was to install the equipment not to ensure that it would fit on the space. According to Mikhail Chester and Chris Hendrickson, this problem had direct costs associated with it such as delay, change of scope and defective work. There are also indirect costs involved such as wages escalation and also change of scope. Change in scope would require extra materials. This forces the HVAC subcontractor out of his initial plan. (103). The HVAC contractor is therefore entitled to compensation for all the costs that may have accrued due to the design problem. Since he or she is not responsible for it.
According to an article published by All Law on who is legally responsible for defects in construction, the law of construction, is usually based on contracts. The owner of the project usually contracts a general contractor who foresees the implementation of the project. He or she is mandated with ensuring that the projects kick offs with the correct designs and the whole project runs on smoothly. The contract between the designer and general subcontractor should have carefully spelled out the terms of engagement on the project. In any case, a liability accruing to the subcontractor, also accrues to the general contractor. This is based on the theory of negligent construction. In this case being that the parties did not analyse the design and equipment requirements carefully. Thus Prime contractor should have discovered the conflict prior to commencement of work since they are the ones responsible for the well-being of the whole project.
The Prime contractor is not entitled to its customary mark-up due to compensations made to sub-contractors since the extra cost occurred because of his or her own mistakes. This is because the contractor should have been keen enough with the designer to ensure that the VAY sound attenuator they purchased was compatible with their design. Thus the general contractor did not act in the best interests of the project since he or she did not raise a red flag due to this design error. As the overall head, the contractor should have scrutinized all documents including the designs to ensure they met standards and that the equipment would be put in place without unnecessary changes to the project.
Close analysis shows that the owner is required to compensate only the HVAC subcontractor. This is because only this subcontractor, got a loss from factors that were beyond their reach. To add on this, the loss was not caused by the HVAC subcontractor. This is because, it was not his or her responsibility to ensure that the design met standards but the designer’s responsibility. The subcontractor should therefore not be left to bear the loss since according to the contract the HVAC subcontractor acted in good will and fulfilled the agreement at the signing of the contract.
The Prime contractor on the other hand who is the general contractor should not be compensated at all. This is because they did not act within the contract. The reason being they did not notice the error in the design which is part of their mandate. If they had been keen they should have analysed the initial design and liaised with the designer to do adjustments to the designs and thus avoid an overflow of errors to the HVAC subcontractors who ended up using more money and resources on an error that would have been easily solved. Based on this I believe that the Prime Contractor did not act within the requirements of the contract they had with the owner and should therefore not be compensated for any losses.
Legally the designer breached the initial contract by not taking into consideration all design factors that would have seen to it that the equipment is installed successfully. According to the outlaw website on direct and indirect loss for contractors, any losses that could have been prevented the contractor is liable for any loss accruing to it thus he or she is mandated by law to pay up for such a loss. This is based on a test of remoteness. This test says that a contractor is usually liable for a loss that occurs due to a breach on the contract and also a loss which doesn’t arise naturally but was in the contemplation of all the parties involved at the time of signing up the contract. A loss that occurs outside this, is considered to be too remote. In which case, a party is not liable for such a loss
In this scenario, the design professional did not account for the equipment installation in his or her design which led to additional costs on the HVAC subcontractor. These ae losses that the designer could have avoided by doing his job thoroughly by accounting for the installation of the equipment in his or her design. These are losses that the owner had to bear in the long run. The owner can therefore lodge a complaint for this and request the designer to pay up for losses caused since the losses were as a result of poor design work on his part. A poor design is a breach of contract since he or she failed to meet the needs of the design.
REFERENCES
ALLLAW article: Who is Legally Responsible for defects in Construction? , 2016 , www.alllaw.com/articles/nolo/personal-injury/who-legally-responsible-defects-construction.html. Accessed 12 Dec. 2016.
Construction Advisory &Disputes- Construction disputes. Checklist for terminating a construction contract, October 2012, www.out-law.com/topics/construction-advisory-disputes/construction-disputes/checklist-for-terminating-a-construction-contract/
Accessed 12 Dec. 2016.
Mikhail Chester and Chris Hendrickson, Costs Impacts and the Claims Process during Construction, January 2005.