Rebecca A. Bowman, PE, Esq.
The great department store magnate, Marshall Field, once said, “Right or wrong, the customer is always right.” And we’ve all seen the poster, mug, or desk-top placard that says, “Rule #1: The customer is always right. Rule #2: If the customer is wrong, see Rule #1.” Now, we all know that isn’t really true.
On the other hand, at a recent networking meeting, someone said (it might even have been I who said it), “This must be National Stupid Client Week, because all I have had this week were stupid clients.” Aargh. We can all relate, right?
I will never try to pretend that there are not unreasonable clients. And, to the best of your ability, you need to try to identify them early (preferably before you submit the lowest bid) and stay far, far away. If you inherited an unreasonable client or discover after you have committed that the client is unreasonable, what are you to do?
I have two approaches I want to discuss. First of all, take comfort and power from objective standards. For example, the Concrete Foundations Association (CFA) specifies that the maximum allowable crack for a foundation wall width is 1/8 inch. That is a width that can readily be spanned with water- and damp-proofing materials.
For exterior slabs, the Illinois Ready-mix Concrete Association provided a guideline in 2002 that a slab is acceptable so long as it does not display major cracking. “Major cracking” is defined as “an uncontrolled crack with a width of 1/8 inch or more that covers more than 10% of the total length of all the joints and edges of the slab, and the total length is no more than 20% of the perimeter length of any one panel.”
The National Wood Flooring Association provides Chapter 9 — Solid Strip and Plank Flooring Installation, Part VI — Solid Strip & Plank Installation Methods, Section E. Wall Line Layout, includes the following Items:
5. Lay one row of strip or plank along the entire length of the working line.
6. Top-nail and blind-nail the first row (hand-nail if necessary), using appropriate fasteners. Denser species may require pre-drilling. Each succeeding row should be blind-nailed with the nailing machine wherever possible. At the finishing wall and other obstructions, it may be necessary to blind-nail by hand until top nailing is required.
7. Racking rule of thumb: Avoid H patterns. Stagger end joints of boards row to row a minimum of 6” for strip flooring, 8”-10” for 3” to 5” plank, and for plank wider than 5 inch, stagger as much as possible with minimal or no H joints.
10. Nailing: Blind-nail through the tongue using 1½” to 2″ fasteners. Use 1½” fasteners with ¾” plywood subfloor direct to concrete slab. Face-nail boards where needed using 6d-8d casing or finish nails. Fasteners should be spaced every 6”-8” on blind-nailing, or every 10”-12” on face-nailing.
Those are objective standards. If you have control over the specification, use objective standards wherever possible. If you don’t have control over the specification, review it with the greatest of care, monitoring yourself to see if you’re making assumptions about the interpretation or meaning of some aspect. If you are, ask for clarifications and state/confirm your assumptions. Get answers that are as objective as possible, to minimize future disputes about the intent of the language.
Of course, objective standards are a two-edged sword: If you specify them, you must comply with them. With objective standards, it is much easier for the owner/client to identify situations in which you have failed to comply.
Increasingly, I am seeing performance-based specifications, rather than component specifications. Performance-based specs give us much greater freedom, but correspondingly greater risk. We have the freedom to achieve the performance however we want, but if what we have specified fails to perform, we have no one to blame but ourselves.
However, at the end of the day, the issue is that, unless advised otherwise in advance, the client is likely to expect flawless perfection when, in fact, after accounting for factors such as shrinkage, “perfection” may not be flawless. Incorporation of standards from the start can alleviate that problematic gap between reality and expectation.
Listen and Document
The second approach I want to discuss is pragmatic. For less than $200, pretty much anyone can sue anyone for anything. Consequently, it behooves you to go at least one round with the owner/client if the owner/client asserts that there is a problem. Listen carefully, listen very carefully. Then document thoroughly:
On Tuesday, June 3rd, I met with you to discuss the items on your punchlist. I agreed with the validity of items 1, 3, and 7. We will schedule the appropriate staff to address those concerns next week. I disagreed that 2 or 4 required any adjustment. However, since you took issue with both of those aspects of the project, I have agreed to make the minor adjustments necessary to fulfill your requests. I will absorb the cost of labor and you will reimburse me for any material costs. Items 5 and 6 on your list of issues are normal outcomes, fully comply with industry standards, and do not represent defects or deficiencies. I refer you to Paragraph 35 (page 6) of the specification with regard to item 5 and Paragraph 43 (page 9) of the specification with regard to item 6.
With documentation like that, if the owner/client decides to sue you over your refusal to “fix” items 5 and 6, you have already provided the owner/client with your assessment, your analysis, and a comparison to the standard. Unless your position is patently unreasonable, such documentation will go a long way to persuading a fact-finder that you fulfilled your responsibilities.
As I mentioned with the concrete specification, “satisfactory” may not equal “perfect” may not equal “flawless. If you have not already assembled your tools of protection: defining standards, listening carefully to owner/client issues, and documenting your responses and solutions, you are engaging in a Risky Business.
Rebecca A. Bowman, Esq., P.E. is the principal of a woman-owned business in civil engineering, dispute resolution, real estate, and legal services. She is experienced in boundary law issues, engineering design and forensic analysis, construction/project management, dispute resolution, real estate, and small business start-ups. She is a registered professional engineer and a certified arbitrator, mediator, and Christian conciliator. Mrs. Bowman writes a column for the PE Reporter, “Risky Business”. She is frequent CPE lecturer (law and engineering) for a variety of providers. She received her B.S. degree in civil engineering, from the University of North Dakota, her M.B.A. degree from Oklahoma University and her J.D. degree from Duquesne University. Mrs. Bowman is involved with the National Society of Professional Engineers, the American Arbitration Association, the Institute for Christian Conciliation, the Financial Industry Regulatory Authority, and the American Bar Association. She volunteers with Legal Aid, Family Promise, the Pregnancy Resource Center of the South Hills, MATHCOUNTS, and Pennsylvania History Day. She received the 2014 PSPE President’s Distinguished Service Award.