Notices of Nonperformance to a Trade Contractor on a construction project

 Bridgewater College Dormitory Project

Let me give you an example of an underperforming contractor from one of my past projects. I was involved in the building a $2.7 million Bridgewater Dormitory on the Campus of Bridgewater University in Bridgewater, Virginia. The Structure is 3 stories with a basement.

Bridgewater Dormitory

Liquidated Damage Project

This was a liquidated damage clause project. The project had to be completed before the school year started in late August. Liquidated Damages clause means that if we go over the allotted time for the project then we would be charged a specific amount for each day that we were over the time limit.

So, the overall schedule of this project was very critical to the completion of the project. The critical path of this project was the construction of the exterior masonry work which included the brick and the Capstone on the top of the building. Every Trade Contractor is tied to the overall schedule of the project and the completion date.

Mason Work on the Critical Path

The mason work was on the critical path of the schedule as the sequence was that the exterior brickwork was to be complete with the cast stone installed at the roof line. After the capstone was completed, we could install the roof and dry in the building.  After the roof was completed, we could start on the interior work of the building.

So, the mason had 5 crews installing the brickwork on the exterior of the building. A crew consisted of a mason and a mason tender or helper. They also had a couple of workers mixing cement mud for the masons.

With 5 crews we were on schedule to complete the Dormitory within the time limits. I met with the owners of the Mason crew at the job site. An older man and his son owned the company. I informed them that the schedule of the project was progressing per the overall schedule provided that they maintain 5 crews on the project site.

Mason Crew Delays Project 

Every week the mason was staying on schedule. Then one week later, I arrived at the job site on Monday morning and noticed only 2 mason crews on site. We were short 3 mason crews.

I asked my superintendent if he was in touch with the Owner of the Mason crews. He said that he phoned their office however he received no response.  I told him to keep trying and we'll see where we are tomorrow. The next day on Tuesday, I went to the job site and again there were only 2 mason crews. My superintendent stated that he still couldn't reach the Mason owner.

 We determined the completion of the brickwork on the exterior by counting the number of bricks that were laid each day.

With 5 mason crews, they could lay X many bricks per day. Then I divide it into the overall number of bricks on the exterior of the building. (Per the original takeoff from the estimate) We had about a week of float in completing the brickwork.

So, they needed to have 5 crews on the site to complete the work.  I knew that 2 crews were not going to complete the brickwork on the scheduled completion date.

So, I told the superintendent to keep trying to call the Mason Owner and we'll make a decision tomorrow on Wednesday.

So, on Wednesday, I was at the project site in the morning. Still just 2 crews and no word from the Mason Owner.

Termination Clause in the Contract

So, in this instance, I research the contract. Typical contracts between the General Contractor or Construction Manager and the Trade Contractor have a Termination clause. In this contract's General Conditions, it is article 14.2 Terminations.

You can terminate the Trade Contractor if the Trade Contractor.

1.     Persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials.

We must notify the Trade Contractor in writing that he was behind schedule and that he must man the project with the proper skilled workman to stay within the schedule.

48-Hour Notice

These notices stipulate that the Trade must comply within 48 hours of receipt of the Notice and if he doesn't then the General Contractor could terminate his contract.

So, Wednesday afternoon I called other Mason contractors to see if they could get some crews on our job site next week. I was preparing in case I had to terminate the contract of the existing mason. I got some interest.

Afterward, I faxed the 48-hour notice to the Mason Trade in the afternoon.

The Notice stated that if they didn't man the job with enough skilled workmen to maintain the schedule, we would terminate his contract by the termination article of the contract.

So, the next Thursday, I arrived at the job site around 11:30am and noticed that the Mason Contractor had the original 5 crews on the site.

From this point, we maintained the overall schedule and completed the project within the specified schedule.

Shettig Construction Management develops an overall Critical Path Schedule on all our projects to track the progress of your project to ensure that it is completed in the allotted schedule. www.shettig.com 

mshettig@gamil.com