This is the third in our series of articles dealing with construction management agreements (CMAs). In this article we address construction defects and failures, specifically those arising from faulty workmanship or materials. We will also offer a checklist of selected provisions for inclusion in CMAs designed to protect the owner against construction defects and failures. While the checklist is not a complete statement of all provisions to be included in a CMA, it will provide a road map to a comprehensive agreement.

Cause of and Responsibility

 During the course of any given project, and after completion of construction, defects in design, workmanship and materials may be observed through an inspection of the work by any member of the project team, i.e., the owner, its architect and engineers (the A/E team), the construction manager (CM) or a subcontractor, or by a failure of an element of the work, such a leaking roof or a malfunctioning HVAC system. The inquiry then becomes which party is responsible for the defect or failure and how should the problem be addressed.