Dealing with the Unknown

You’ve been there before. A homeowner or general contractor has a friend of a friend’s brother who offered to do one stage of construction for a good price. You haven’t heard of this person before, so you don’t know their work.

When this happens, it raises a number of issues: Should the new contractor be on your contract? Should you work with them at all? If so, how can you protect yourself down the road?

Here, professionals share their strategies for deciding whether to work with the unknown contractor and how to makes the project go as smoothly as possible.

Tough decision
First, consider what stage the contractor will be performing. For certain key stages, some builders will not use an unknown.

For instance, Genesis 3 cofounder Skip Phillips will not take a chance with the excavator. He has one excavator, and that’s whom he uses.

“If he doesn’t dig it, I don’t do it,” explains the president of Questar Pools and Spas in Escondido, Calif.

So much of a project’s success will rely on the precision of the excavator that Phillips won’t take the chance. Not only that, but problems resulting from improper excavation show through in other aspects of the project, such as the gunite. So when a failure does occur due to excavation, it’s not always so easy to identify who is at fault.

However, every rule has an exception. Once, Phillips was working with a general contractor who wanted to use another excavating firm — but it was headed up by someone who had worked for Phillips’ contractor in the past. But that’s about the only way he’ll use another company. “The excavation process is going to be much riskier from a liability standpoint, because nobody can ever see what he did,” Phillips says.

Builders often don’t want to take any chances with the core stages, including steel, gunite or shotcrete, plumbing and electrical.

On issues where failures are more easily isolated and less catastrophic, such as decking, tile and plaster, some builders are willing to take more of a risk. The exception to that rule comes when the trade will affect the performance of a vanishing edge pool. Tile, for instance, is a surface veneer and problems tend to be more straightforward. However, the tile’s placement will affect the level of the vanishing-edge weir which in turn can have a profound impact on the visual success of the entire project. If the skill of subcontractor will affect the catch basin, water in transit or any other aspect of a vanishing-edge pool, many professionals will only work with those they consider qualified. If the customer won’t budge, they will then walk away from the job.

“We need work, our guys have got mortgages to pay and kids to feed,” says Mike Giannamore, vice president of Aqua Pool & Patio in East Windsor, Conn. “So it’s a very, very difficult decision to make, but with certain things it’s better to just leave. It’s a no-brainer — you’re just asking for trouble.”

However, before drawing a hard line, outline your specific concerns to the client. For instance, just because someone is a licensed electrician doesn’t mean they know how to correctly wire a pool.

“If they don’t know anything about pool electrical, they’re going to make a lot of mistakes,” says David Peterson, president of Watershape Consulting Inc. in Solana Beach, Calif. “There are specific codes about pools that they may not know about. We have the controllers to deal with, and they may not understand the controller technology. I’ve seen control systems get goofed up.”

Explain to the customer the aspects of working on a pool that are unique for that trade, so that they can ask the right questions of the other contractor.

“I’d be really upfront with him,” Peterson says. “I’d just say, ‘Here are my concerns and here are the questions I want to ask your brother or whatever.’ And let them get a feel for how comfortable they are. I could try to put a little bit of fear into the owner, saying, ‘This is the kind of thing that could cost you a lot of money if it’s not done right.’”

The bottom line
Besides making sure that the contractor knows what he or she is doing, there’s also the issue of price. When a customer suggests swapping out one of your subcontractors, they generally believe they’re going to get a better deal. But that may not be the case. For this reason, builders should also have the client make sure that the other contractor is pricing the job correctly. If an electrician has never wired a pool, for example, they may not know the bonding requirements and how that’s going to affect the cost.

“Do they understand how the bonding works, and that they’re going to have to buy a spool of copper that’s going to cost $5,000?” Peterson says.

Peterson has suggested a conference call between himself, the new subcontractor and the client to discuss these things and get a feel for the other person’s expertise. “We’ve done this before, and the [homeowner] kind of goes, ‘Yeah, you’re right. I’m just going to stick with you guys. You know what you’re doing.’”

If the client insists on the other contractor, and the pool builder has decided to remain on the job, in most cases it will make sense to have the homeowner or general contractor write up a separate contract just for that trade. If the pool builder isn’t comfortable with the unknown entity, they should avoid including the unknown on their own contract.

This won’t necessarily prevent a lawsuit down the road; however, it will create some distance that could help if a suit were to be filed. The easier it is to leave a gap between the unknown and yourself, the better.

While the project is being constructed, pool builders must walk a tight rope when it comes to the other trades. On the one hand, it’s important to provide enough observation to be able to fulfill your obligation as a contractor, but on the other hand, it’s unwise to provide an amount of supervision or design input that could result in liability if there’s a problem.

“In those cases you continue to not supervise but to monitor the project,” Phillips says. “If I see things that maybe aren’t up to speed, I don’t want to be sucked up in a failure-to-warn deal. Since I’m the expert, I will send a note saying, ‘You may want to check the compaction.’ What will happen is one of two things: They’ll either start watching this guy and maybe it’ll turn out okay, or they’ll say it’s none of your business … in which case you’ve been indemnified.”

By Rebecca Robledo | 2.22.2013
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