Superintendents and Close-out Issues

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Author Message Brett M. Wilbur CSI, CDT, AIA Senior Member Username: brett Post Number: 83 Registered: 12-2004 Posted on Wednesday, December 28, 2005 - 11:31 am:    Recently, I have been having discussions here in the office, in Houston, about whether penalties, fines, or liquidated damages can be accessed to a Prime Contractor for removing the project superintendent from the project prior to Final Completion and Close-out. Sometimes I have seen it where a rookie is brought in early to replace the original superintendent to complete punch list and close-out so the contractor can move their more experienced superintendent to another “paying” project. Does not seem like a liquidated damages issue, but can penalties of this type be legally accessed and enforced? If so, would it be added to Supplementary Conditions, and where, paragraph 3.9? If this is not legal, is there another way to ensure that the superintendent stays through close-out? John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 447 Registered: 03-2002 Posted on Wednesday, December 28, 2005 - 02:57 pm:    States do not permit the use of "penalties" in contract because, as a matter of public policy, imposition of penalties is reserved to government in criminal and civil procedings. Liquidated damages are a contractual way of imposing damages (not penalties) for late performance. The amount of damages is agreed upon in advance in the construction contract. Therefore, I doubt that these are provisions you can use in the case you describe. However, many contract conditions have a clause that prohibits the contractor from changing the superintedent on the project without permission or authorization of the owner. As a practical matter, however, these are very difficult to enforce. For example, if the super quits, this condition is completely out of the control of the contractor. I have had many cases where the super is changed. Often, it is better for the project if the original super did not have his or her heart in it. The "junior" super brought in to finish the punch list is not unusual in my experience, but I have not felt the need to resist this. If the new super is doing the job, that's what counts. Often this new person is a "working super", who actually does much of the niggling stuff themselves. This is an advantage--the work gets done. One can certainly see the advantage to the contractor cost-wise. A top-notch super in this market gets a salary well in excess of $100,000. They are too valuable to be bleeping around with punch list work. In fact, as the project pace winds down, they will be tasked with an ever-increasing work load on another project, even before closeout looms. From this perspective, someone whose sole task is to pick away at the punch list can actually be a blessing. Nathan Woods, CCCA Senior Member Username: nwoods Post Number: 56 Registered: 08-2005 Posted on Wednesday, December 28, 2005 - 03:07 pm:    Typically, you do not contract with a named individual, but with a firm or company. Yes, named individuals sign the contracts, but they do so as authorized agents of their company. So can you "legally" do anything about a change in personnel? Not if there aren't any clear performance issues. If there are performance issues, then the Owner may terminate the contract for cause, but that is messy, and the burdon of proving cause is often difficult. A more easily negotiable item might be to reduce the contractors monthly General Conditions fees, based on reduced salary expenses. But I really don't think that will save you much financally, though it may make you feel better :-) J. Peter Jordan Senior Member Username: jpjordan Post Number: 163 Registered: 05-2004 Posted on Wednesday, December 28, 2005 - 04:16 pm:    I can see plusses and minuses to the situation... On one hand, a Contractor may have one or two "junior" people on their payroll who are "closeout specialists", maybe even "working supers" as indicated by Mr. Bunzick above. I believe there are requirements in AIA A 201 regarding changing the superintendent, but as Mr. Woods notes, this may be difficult to enforce. On the other hand, I can see where bringing in a new guy who doesn't know the history of the project could actually be detrimental to closing out the job. Dave Metzger Senior Member Username: davemetzger Post Number: 148 Registered: 07-2001 Posted on Wednesday, December 28, 2005 - 06:12 pm:    AIA A201 addresses the superintendent in 3.9.1. It states "The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case." No wording about changing the contractor. That could go either in Supplementary Conditions or Division 1; I'd lean toward the former. As John noted above, we can't prohibit the contractor from changing the super. However, it would not be unreasonable for the owner to have the right to approve the replacement. Whether the owner chooses to exercise this right would depend on several factors, for example the complexity of the project, the stage at which the change was made, and the project history and contractor performance prior to the change. C. R. Mudgeon Senior Member Username: c_r_mudgeon Post Number: 47 Registered: 08-2002 Posted on Thursday, December 29, 2005 - 04:20 pm:    Thank goodness architects never have rookies process shop drawings or send them out to the site to observe the work.