Documents, all costs made necessary by such failure ... shall be at the Contractor’s expense.”1 There is little a contractor can do to change this outcome (other than involve the responsible subcontractor to address the problem) because it is difficult to disprove or invalidate a failed inspection. Unfortunately, the reverse is not true. Contractors typically cannot rely on a passing inspection to prove compliance (and thus avoid liability) when deficiencies are later discovered in the contractor’s work. The same General Conditions caution “[t]he Contractor shall not be relieved of its obligations to perform the Work in accordance with the Contract Documents [by] ... inspections or approvals required or performed by persons or entities other than the Contractor.”2 Most construction contracts adopt this same approach, imposing a non-delegable duty on the contractor to ensure its work complies with the plans and specifications, regardless of third-party inspections. Still, there is a way to tip the balance. A “passing” inspection can be valuable (though not conclusive) evidence of compliance if the quality and conformance of the contractor’s work are later called into question. Consider the following recommendations (and reminders) when dealing with third-party inspections: • Perform work with diligence, be laser-focused on quality, and implement a comprehensive quality assurance program. • Educate your team about inspection processes and compliance requirements; conduct internal inspections to complement third-party inspections. • Ensure inspectors are qualified and truly independent. Selecting third-party inspectors with appropriate expertise, certifications and experience lends credibility to the results. • Clearly define the scope of the inspection in writing to ensure it aligns with the project plans, specifications and contract requirements. Don’t leave it to the inspector to determine the standard against which the work will be measured and don’t simply assume the inspector knows the precise requirements of the Contract Documents. • Communicate clearly to the owner and architect about the nature and timing of the inspections, invite their active participation, and document whether and why reliance on required inspections is reasonable under the circumstances. • Attend inspections or delegate knowledgeable representatives to oversee the process. Actively engage with the inspector in real time to clarify any findings or discrepancies. • Promptly address any deficiencies identified during inspections and document corrective actions taken. • Require detailed and signed inspection reports that include findings, test results and photographic evidence of compliance. Consider supplementing those reports with additional photos, videos or drone footage. • Request written acceptance or acknowledgment from the owner or design professional of the inspection findings, if applicable. • Maintain detailed records of inspections, reports, correspondence and corrective actions taken. • Have legal counsel review inspection-related provisions in the contract and assess if and how they relate to liability for non-conformance. If possible, negotiate and include language explicitly specifying the role of third-party inspections, their scope and the evidentiary value of their findings. Inspections are a necessary part of any construction project. They are necessary to identify non-compliant work that requires correction. By proactively managing the inspection process, however, contractors can also rely upon third-party inspections as valuable evidence that the work was performed in conformance with the plans, specifications and other contract requirements. 1. AIA-A201 General Conditions of the Contract (2017 ed.) § 13.3.4 2. Id. § 3.1.3 CONSTRUCTIOn ADVOCATE 15
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