Legal Question in Business Law in New York

Specification discrepancies

A mechanical spec listed the component rating of a steam system to be 300 psi. The same spec also listed specific manufacturers and model numbers for pipeline strainers (components) that did not meet the 300 psi rating. A clarification of the Engineer's intent was requested. The response resulted in an additional cost to the contractor. The Architect has rejected the contractor's request for additional cost, referencing a clause in the ''front-ends'' that states that should a discrepancy arise, the more expensive way of doing the work shall govern. The Engineer has been dead-set against allowing substitutions to their specified products (in the contractor's opinion, providing a strainer that meets the rating {and one that is not specifically noted} will be a substitution).

Question- should the contractor be required to eat the additional cost that resulted from this spec discrepancy? Are there precedents dealing with this issue?


Asked on 7/16/08, 12:16 pm

2 Answers from Attorneys
Nancy Delain Delain Law Office, PLLC

Re: Specification discrepancies

It's bar exam time, and this sort of question could easily creep onto the NYS bar. Therefore, if you're a law student studying for the bar exam, remember the Reading Pipe case from Contracts in your first year.

If you're a real contractor, this is a question you need to discuss with your attorney. There are too many other things that affect the answer that exist in construction contracts that you have not discussed in your question for this question to be legitimately answerable on this board.

THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.

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Answered on 7/16/08, 12:27 pm
Michael Markowitz Michael A. Markowitz, PC

Re: Specification discrepancies

It is hard to give an answer without looking at the contract.

If an AIA contract, there may be an arbitration clause. At the completion of the contract you may commence an action for nonpayment. But be careful, there may be a provision in the contract calling for the architect's opinion to be binding after a period of time.

Mike.

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Answered on 7/16/08, 1:06 pm


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