From Headaches to Lawsuits
- By Michael Fickes
- 08/01/07
No one can predict when one of the million and one headaches that crop up during school construction or renovation projects will blossom into a legal problem. But it is well worth reviewing legal problems that have arisen in the past, and setting policies to help avoid them in the future. Building a new school or renovating an old one is difficult enough, and expensive enough, without a lawsuit.
Attorneys that represent school districts advise that virtually any question about school construction projects may have many facets that deserve careful consideration.
Have you selected a site for a new high school? Don’t announce it until you have put together a communications program designed to explain the decision to the community. While few neighborhoods will turn down a new school, those that will have to bus their kids to the new site may want an explanation —“why didn’t you choose the site on the other side of town?”
“These kinds of disputes can leave scars and even create rifts in communities that could endanger the success of future bond issues,” says David Hansen, an attorney experienced in school construction disputes and a shareholder in the law firm of Schwartz & Eichelbaum, P.C. in Austin, TX.
In the area of bond issues, Hansen has seen administrators run afoul of local laws in jurisdictions that prevent the use of school property for promoting or arguing against bond issues.“While most people seem to know the rules, questions might arise when a community group uses the facility and ends up having a meeting supporting or opposing a bond,” Hansen says.
Poor scheduling and late delivery of a new school can leave kids out in the cold come September. That can cause parents to take action.
As the final arbiter in cost disputes, school boards can create problems when they develop institutional amnesia.“When one board member is replaced by another, a piece of institutional memory is lost,” Hansen explains.
Suppose one board gave the superintendent authority to approve change orders up to a certain amount of money, continues Hansen. On the heels of an election, a new board may want to know why the superintendent is approving costly changes when the bond issue for the project has already set the price.
“In my experience, construction projects with these kinds of problems can cost a superintendent his or her job,” Hansen says.
But the nastiest problems have to do with roofing systems. “Most litigation in school construction involves defective roofing systems,” Hansen says. “Administrators and school boards need to educate themselves and understand what their decisions about roofing systems can mean.”
Expect The Roof To Be Worth What You Pay
In one Texas school district it is unnecessary to bid a job out if the total contract value will be under $25,000. Some district schools are so small that major projects often come in under $25,000. Not long ago, for example, the superintendent sought quotes for a new roof for a small middle school with just a few classrooms and a science lab. He found a roofer that would do the job for just $13,000.
The contractor installed the roof in May, at the beginning of the dry season in Texas. It seemed fine. But then, it rained, on the night of the first football game. Early the next morning, at 2:00 a.m., the superintendent took a call from school security warning of a dire emergency. The entire roof was a sieve, and rain had poured through it into the school, draining into the walls and eventually covering the floors with two feet of water. The single storm had destroyed the entire middle school. It would have to be torn down to its skeleton and rebuilt.
Turns out, the superintendent bought the wrong kind of roof from an inexperienced contractor with no engineer. The roof, itself, a metal system, had been assembled improperly. The flashing was put on wrong. Entire areas of the roof were left without a roofing cover.
Hansen was preparing to take the case to court when the insurance company agreed to cover the cost of repairing the building.
“The lesson here is that there is no correlation between the cost of a construction project and the cost of damages that could be caused if the project is carried out poorly,” Hansen says.
Ask Questions About Value Engineering Decisions
Builders often promote the construction management construction method by pointing out the benefits of value engineering, a process in which the contractor reviews an architect’s plans and makes suggestions that can lower the cost, while increasing the quality of the project. Theoretically, at least, the idea of increasing quality or at least maintaining quality is a key to value engineering.
In practice, however, according to architects familiar with the process, value engineering too often lowers both cost and quality. In one Texas school district, the contractor value engineered the roofing system in the plans for a new school. The overall school design had pushed the project over budget, and the expensive roof design looked like a prime candidate for whittling costs back down.
The contractor suggested that moving to a standing seam metal roofing system, reducing the slope of the roof, and reconfiguring the eaves and gutters would cut the cost of the roof and the labor required to install it. The change would reduce the cost of the steel required to support the roof. The trade-off is that a higher sloped roof sheds water better.
The modified design reduced the slope from four-in.-per-ft. over a 90-ft. span to one-in.-per-ft over that same span. Another cost saving measure eliminated the eave of the roof and terminated the roof at the exterior wall that had brick on the outside and plasterboard on the inside.
Reducing the slope and eliminating the eaves might have worked, Hansen says. But only if every component of the system would have to be constructed to exacting tolerances. “Because the building and the roof were constructed in the real world, and not in the theoretical world, the wall terminated, in some places, above the exterior brick,” Hansen says. “In those areas, porous concrete block beneath the eaves would catch rainwater. The first rain caused a few hundred thousand dollars in damage.”
The lesson of the case, says Hansen: Don’t forget that most construction litigation involves one or another of a legion of possible roof problems. Learn about roofing systems and apply what you know if a contractor or architect suggests reducing construction costs by reducing the quality of the roof. In such a case, get a second opinion from a roofing consultant. A second opinion will cost much less than litigation to recover the cost of replacing the plasterboard covering the interior walls of the structure.
Performance Contracting
Construction problems can come from virtually any direction. Another of Hansen’s cases involved a major national building control company, which took on a performance contracting project for a school district. As part of the project, the company would re-roof every building in the district.
While it sounds unusual that a school district would include replacement roofs in a performance contract with a building controls firm, school district officials understood the $1.2 million contract to require the performance contractor to employ an engineer and an architect to design the roofs.
“No one hired an engineer or architect,” Hansen says. And the roofs leaked — all of them, all across the district.
The district brought suit against the company. “In a deposition, the contractor’s corporate representative said that the company never intended to hire an engineer or architect for the project,” says Hansen. “They also maintained throughout the litigation that they were not experts in roofing systems.”
During the litigation, the school district worked with many local contractors to seal the roofs. Eventually, however, it was determined that the roofs would never be watertight.
After 38 depositions, Hansen finally discovered that the roof system used for the schools was called an R-panel system. “According to our expert, an R-panel system is for sheds and other kinds of structures for which it is not important to have a watertight roof. Of course, these were schools, and it is important to put watertight roofs on schools.”
In the end, Hansen won an award that would allow all of the roofs to be replaced, a little over $3 million.
The lesson this case teaches, according to Hansen, is that district officials must raise questions when something doesn’t look right, no matter how strong a company’s reputation. In this case, officials were dealing with a national company known for building controls but not roofing systems. They should have questioned the inconsistency.
Three pieces of advice can sum up the lessons of these cases. First, learn about roofing systems and other complex building systems and be prepared to call in an expert for advice when something seems to go against the grain. Second, question inconsistencies no matter how reputable the firm with which you are dealing. Finally, quality and cost are connected. Don’t forget that low-cost building systems and high cost litigation are also connected.