Plan and Specification Errors: Who’s to Blame?

The general contractor, holder of a valid licence issued by the Régie du Bâtiment du Québec, has the responsibility, among other things, of coordinating and leading the work on a construction site, even if he hires other subcontractors or if the owner enters into a contract with other professionals for said work.

Despite the lack of recommendations and/or advice from other parties, the general contractor must monitor the quality and compliance of all work performed under his supervision.

While the current trend suggests a more widespread use of the fast track design/build contract, under which the contractor is responsible for both the design and construction of the work, most contractors in the province of Québec still use more “standard” models in which plans and specifications are prepared by professionals hired by the owner.

In such contractual models, where the general contractor is called upon to carry out work according to specific plans and specifications, errors are often found during the construction process. This leads to the following frequently asked question: when a contractor finds errors in the plans and specifications provided by other construction professionals, how should he react to efficiently and adequately protect his rights?

Here is the answer.

How to Deal with Errors in the Plans and Specifications?

The contractor’s strict duty to inform and educate demands that he notify both the owner and the professionals when such deficiencies are discovered. Furthermore, the contractor must act in the owner’s best interests and be proactive in making decisions regarding the performance of the work. Any contractor’s behaviour that would be contrary to the foregoing, in a situation where he would be able to report a design defect in a timely manner, can only be characterized as willful blindness.

A general contractor shouldn’t act as a simple executor and assume all the plans and specifications provided by the owner.

As such, it is a misunderstanding of the law for the general contractor to put the blame entirely on the professionals involved and the owner for errors that he himself has noticed or should have noticed.

We are convinced that you have already encountered such a situation where the owner and/or the professionals are putting a lot of pressure on you regarding the execution of the work and the delays that may result from it. We would recommend that you be careful and set up a detailed action plan that would be systematically followed by your team to ensure, first, that the situation is reported and, second, to find complete and lasting solutions for the remainder of the work.

We understand that in reality, projects may take place over a short period of time and that finding solutions can cause considerable delays in the project schedule. However, proper documentation of these errors and potential solutions is essential. In the long run, it is absolutely necessary to ensure that all the work done is in compliance with the best practices and that it was executed as per your obligations. The goal is not to substitute yourself for the professionals, but to make sure that the work performed was not the result of a situation in which each of the parties involved is trying at all costs to avoid their own responsibility or to pass it on to the other.

When Is a Contractor at Fault?

A contractor is at fault and is civilly liable when an error in the plans and specifications or in the expert reports remains that he could have identified, but failed to do so. The fault may also be in the form of an omission when the contractor fails to prevent a foreseeable danger.

Therefore, the contractor cannot be absolved of his responsibility by simply saying that there was an error in the plans and specifications so as to blame the other party. Once involved in the project, the contractor must ensure the accuracy of the measurements and data provided in the plans and specifications, even when these were prepared by a professional hired by the owner, and more importantly, the contractor must verify them prior to the beginning of the work. Furthermore, the work must comply with the plans and specifications and the contractor must see to it that the plans and specifications meet all the standards generally required by the best practices. The contractor could therefore be held liable for any consequences resulting from his failure to take the appropriate measures and to carry out any tests he should have carried out as verification following the assignment of the contract. That being said, the contractor who finds an error in a project’s design could also choose a different approach that would allow the desired outcome to be achieved, while validating this approach with professionals and presenting his proposal to the owner.

In any event, the contractor, as a specialist in the construction field, may be held liable for subsequent damages on the construction site should he untimely disclose or fail to disclose an error in the plans and specifications provided to him, unless he can prove that such an error would also have been missed by any other skilled, careful and reasonable contractor in similar circumstances.

To reiterate, the contractor should not act as a mere executor and assimilate without question or analysis all the plans and specifications provided to him by the owner, when his legal obligations are otherwise.

For any questions regarding general contractors’ obligations with respect to the execution of the work, feel free to contact our construction litigation team, who will gladly provide you with advice.