Legal Ease

Spotlight on Spearin

Suppose you were awarded a contract to reroof a local high school. Plans and specifications were prepared by an architect retained by the school district. The specifications called for removing the existing built-up roof system and underlying insulation down to the poured concrete deck and installing new tapered polyisocyanurate insulation with a minimum of 1/8-in-12 (0.6-degree) slope and a modified bitumen roof membrane. The job proceeded without incident, and progress payments were made.

At the project's conclusion, following spring rains, several areas of ponded water were apparent on the roof. The punch list required elimination of ponded areas. You request a change order be issued to cover the costs of constructing crickets. Because crickets were not called for in the original plans and specifications, you believe you are entitled to a change order. The architect and school district refuse to issue a change order or make any further payment until the ponded water is eliminated.

The school district believes it is entitled to a roof without ponded water, particularly given the specification requirement that the contractor install tapered insulation with a minimum slope of 1/8-in-12 (0.6 degree). Your response is that you bid a tight job, installed exactly what had been specified and were not responsible for the ponded water that must be a result of roof deck irregularities. The school district writes you a letter stating that if you do not proceed to eliminate the ponded water within seven days, it will terminate your contract and retain another contractor, at your expense, to correct the problem.

Are you liable? Can the school district require you to eliminate the ponded water? Are you entitled to receive final payment? Would you be liable for the amounts paid by the school district to another contractor to eliminate the ponded water?