In our work as the Construction Defects Expert, Holloway Consulting found that the general contractor failed to satisfy the contractual requirements, and was responsible for the resultant time and cost impacts. In addition, nothing about the disputed bid exclusion could reasonably have released the general contractor from their responsibility for properly installing the post-tensioned concrete decks, and managing the scheduling and timing of the floor leveling work.

CONSTRUCTION DEFECTS POST-TENSIONED CONCRETE DECKS

WHAT CONTRACTORS SHOULD NOT DO

The hotel project litigation at issue here was comprised of approximately 300,000 sf of suspended post-tensioned (PT) concrete slabs, or decks. The contractors that placed these slabs failed to satisfy the contractual requirements for slab finish, flatness and levelness. The concrete subcontractor refused to perform the subsequent necessary remedial and floor leveling work, which meant that the the general contractor hired other subcontractors to perform the floor leveling and backcharged the concrete subcontractor for those remedial costs. Although the general contractor held the concrete subcontractor responsible for floor leveling and slab defect repairs throughout the job, and also retained over $500,000 from the concrete subcontractor’s pay apps, at the end of the job the general contractor made the dubious decision to submit a floor leveling claim to the Owner, based in large part on an unrelated contract exclusion that read:

“Excludes design & detailing to accommodate “Structural Movement/Tolerances” per S1.01.”
Recognizing that flooring leveling was one of the primary causes of delay to job completion, and because both the Architect and the structural engineer concluded that the general contractor was contractually required to perform floor leveling, the Owner understandably rejected the general contractor’s claims.

CONTRACTUAL REQUIREMENTS

The American Concrete Institute (ACI) Manual of Concrete Practice represents the primary code and technical basis for the engineering, design, detailing, construction and testing for this structural concrete.  The structural engineer was responsible for performing the structural engineering and preparing the structural/concrete engineering plans and specifications. As the detailer, fabricator, and concrete installer, the concrete subcontractor was responsible for detailing and preparing the placing drawings, which are the working drawings that show the number, size, length and location of the reinforcement necessary for the fabrication and placement of the concrete materials.  Following approval by the structural engineer, the concrete subcontractor’s post tensioning (PT), formwork and reinforcement design drawings were used by the concrete subcontractor’s reinforcement fabricator and jobsite materials placement personnel to complete the concrete.

Along with other provisions of ACI, UBC and ASTM, the general contractor and the concrete subcontractor were responsible for complying with Standard Specifications for Tolerances for Concrete Construction and Materials (ACI 117-90) and Guide for Concrete Floor and Slab Construction (ACI 302.1R-96). These documents provide the various construction requirements, such as those for constructing and measuring floor flatness and levelness for these suspended concrete slabs. Both the general contractor and concrete subcontractor knew or should have known that ACI specified that remedial measures for suspended slabs include the use of concrete grinding and floor self-leveling products.

CHRONOLOGY

In contrast to the general contractor and the concrete subcontractor’s desperate attempt to rely after the fact on an unrelated structural exclusion, there was no question that they knew they were responsible for achieving floor finish, levelness and flatness consistent with the Contract requirements. For example, after several of the lower floor slabs had been poured, the Owner walked the job and discussed the obviously out-of-level slabs with the general contractor’s superintendent who acknowledged the unevenness of the floors even before the shoring and re-shoring had been removed. However, after the concrete subcontractor had performed some floor leveling, the general contractor decided to proceed with drywall and finishes seemingly in the hopes that additional floor leveling would not be required. Such risky and deficient job management delayed the job and resulted in the general contractor and its subcontractors having to rip-out tile, fireplace surrounds, carpet, thresholds and baseboards before leveling the floors.

The slab finish and levelness variances, with many areas greater than 1-inch, helped to provide the context in which to review the overall poor quality of the concrete subcontractor’s work and the floor leveling defects issue. Many problems arose with the concrete subcontractor’s work, and the general contractor and the concrete subcontractor had an ongoing dialogue on these problems. For example, at various times while reviewing job progress, the Owner, general contractor, Architect and the structural engineer each separately observed that numerous areas of concrete work were out of tolerance, and the parties.

HOLLOWAY’S FINDINGS

The need to level post tensioned concrete slabs in such hotel structures is common and should have been scheduled and priced by these contractors. In terms of time and cost impacts, the primary element was not that floor leveling had to be performed, but rather that the general contractor did not perform the work when or how it should have been. Rather, the general contractor unilaterally chose to perform the leveling very late in the job, after the contractual substantial completion dates had past. Worse yet, the general contractor had to hire subcontractors to remove existing work such as thresholds, carpet and baseboards prior to performing the leveling.

Both contractors represented to the Owner that they had significant prior experience with post-tensioned concrete structures; both companies had worked with the Owner, the Architect and the structural engineer for approximately two years prior to submitting their final bids; and both had more than enough time to thoroughly communicate with the Owner to develop a thorough understanding of the requirements of the job, and to accurately estimate the scope, cost and time to perform the work, including any concrete floor leveling and ceiling prep.

Given that the general contractor and the concrete subcontractor were responsible for carrying out the instructions on the Contract Documents, including the preparation of the detail drawings from which all concrete-related work would be performed, it is understandable that the Owner did not agree to a contract exclusion related to concrete floor leveling.  On the other hand, if the general contractor and the concrete subcontractor wanted to minimize the risks associated with the potential need for an unknown quantity of floor leveling, they could have insisted on including an allowance or unit price in their contracts.

CONCLUSIONS

Concrete and post-tensioning subcontractor(s) are typically not responsible for structural engineering, and normally do not have the necessary engineering information or design calculations to complete a determination of structural adequacy, nor is the subcontractor typically expected to do so. The structural engineer would be responsible determining that the information detailed and submitted by the concrete and post-tensioning subcontractor, the concrete subcontractor, on the various concrete shop/detailing drawings is structurally adequate and responsive to the intent of the Contract Documents.

Although the bid exclusion upon which the contractors relied was written by the general contractor, the general contractor did not mention the exclusion to the Owner nor did the general contractor ever decline responsibility for floor leveling. The general contractor and the concrete subcontractor hung their hats on the unsupportable argument that this unrelated exclusion somehow released them from their responsibility for floor leveling. Their position lacked believability and severely affected their credibility in the litigation and in settlement:

1. The general contractor was required to perform floor leveling to (1) repair the concrete subcontractor’s poor workmanship and (2) meet the contractual structural/ architectural tolerances.
2. If the general contractor wanted to attempt to negotiate with the Owner on the structural/architectural tolerance portion of the leveling work, it should have monitored and quantified the total s.f. of leveling versus repairs performed.
3. If the general contractor truly believed it wasn’t responsible for leveling, it should have informed the Owner before Contract signing, rather than waiting until the end of the job.
4. If the general contractor truly wanted and intended to exclude floor leveling work from the Contract, they should have followed accepted industry practices by providing a more clearly written exclusion, i.e., “Our bid and contract price excludes any suspended slab surface leveling, underlayment and/or topping slabs.”

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