All in Agreement
Just Say No!
What are two of the most powerful two- and three-letter words you know? A couple of two and three letter words that can make all the difference in our lives and business.
As parents, many of us have invested a lot of time teaching our kids these two words and when to use them. Since these two powerful words can actually change the course of a person’s life, I thought it was appropriate to mention that although adults know the words and teach the words to their kids many times, they don’t use the words in business because they fear the consequences.
A subcontractor may talk about why drywall cracks or why a building leaks. The subcontractor may explain why the paint peeled, the windows leaked, the flashing rusted, the decks collected water, or why his or her company is involved in a multi-million dollar defect claim lawsuit.
As parents and business owners, what are those two truthful, powerful words that benefit our family members, our businesses, our customers and us? Long ago, I remember the phrase, “Let your NO be NO.”
If the owner or general contractor tells you to start your EIFS work and during your pre-inspection or while applying foam you find that the windows are not properly flashed, how will you respond? Will you work around the problem, fix it yourself, or will you tell the owner or GC (no) that you won’t start or finish until the window flashing is corrected?
If the owner or GC wants you to start drywall work in the dead of winter without heat, what are you going to say? Do you know the consequences of leaky windows or lack of heat? If you don’t know the consequences then you either need training or you shouldn’t be in the business. The subcontractors who don’t know, don’t care, or are scared to tell the owner or general no are the subcontractors that are hurting the industry.
Why would a plastering contractor start work knowing there are several defects in the project that could cause the plaster to fail? Why would a painter paint over newly finished drywall if the taping were poor? Why would a drywall contractor hang board over exterior walls filled with rain soaked insulation?
One possible way to limit exposure to defect claims, mold and mildew issues, or other types of failures is to say no. When are subcontractors going to start saying no? “No, I’m not going to start the EIFS” “No, I’m not going to paint” “No, I’m not going to start ceiling grid” “No, I’m not going to stock the ceiling tile on the floor” “No, I’m not going to start hanging, taping or lathing!” Yes, you must have a specific reason why you’re saying no, and if that reason is a quality control issue you should keep saying no until something changes.
We mean businessWhen the owner or GC realizes that you are serious about quality and that you’re not willing to accept liability for something that can be corrected, the owner or GC is going to do one of three things:
1. Correct the problem.
2. Give you a letter releasing you from liability.
3. Intimidate you.
In most cases, if the owner or GC corrects the problem or gives you a release from liability related to the specific issue, then the problem is basically resolved and your work goes on as normal.
If the GC or owner resorts to intimidation and refuses to correct the deficiency or refuses to give you a release then you know that your chances of being involved in a claim have just increased a thousandfold. The problem is that you have told them no but the proposal or contract may not have the teeth to enforce your refusal.
As a suggestion and prior to bidding a job, contact your attorney asking him or her to develop a statement under the umbrella of a quality control plan that requires the owner or GC to direct you in writing once you have notified them of a deficiency. Print this quality control statement on your proposals and quotes so it becomes a part of a future contract. If you use a proposal or purchase order as your contract, make sure the QC statement is on that document.
If you don’t have contractual language that requires the owner or GC to direct you in writing about a specific issue then I can only suggest that you inundate the owner or GC with a letter or letters that clearly spell out the deficiency and what the resulting damage could be now or in the future if not corrected.
Make it very clear that you are notifying them of the deficiency in order to improve quality as well as protect yourself from a potential construction defect claim. Be open, honest and specific as to your reasons for notifying them.
I firmly believe that professional subcontractors know right from wrong. A professional knows if doors, windows and flashing are installed properly. A professional knows if decks and sidewalks slope properly. Professionals must know how other work affects their work.
Subcontractors will normally see marginal and severe deficiencies on most jobs prior to starting work. The trick is to determine if those marginal or severe deficiencies are going to affect your work. Once you determine that the deficiency may affect your work you must shift the liability to the owner or GC by notifying them. Let them fix the problem or give you a release.
Do you have the confidence to say no? Do you have the experience to point out a deficiency? Finally, do you have a system or method in place that gives some protection from construction defect claims?
My mind whirls at the possibilities of this approach. In my mind, we are throwing the deficiency back into the owner’s or GC’s lap by specifically pointing out the deficiency, and by telling him you will not be responsible for the resulting damage! My pulse quickens at the thought of a judge pouring through documents and then finding a letter from some drywall or plastering contractor who pointed out the deficiency in writing to the owner or GC.
How will a judge rule if it is determined that the subcontractor identified the problem early on, explained the potential for damage, as well as refused to accept any liability if the deficiency is not corrected? Imagine if your company and your insurance company were the only two firms excluded from the defect settlement, as a result of your actions!
Remember when you were a kid? Do you remember your parents saying, “Don’t play with matches or you’ll get burned?” If you do enough subcontracting, you’re most likely going to be involved in some sort of claim. As I mentioned, professional subcontractors know right from wrong and they know how their work is affected by the work of others.
People overall—especially owners, general contractors, salespeople and kids—hate “no” more than any other word. You dare tell them no and it’s likely that your popularity will sink faster than a submarine with a screen door. Yes, I know it’s sometimes hard to say no, but in the end it’s much better than a smack down.
Remember: Teamwork begins with a fair contract! W&C