The construction industry faces a dizzying array of political issues. Development and zoning approvals require a significant investment of resources. A project can face serious budgetary impacts if this process goes poorly.

As a masonry contractor, you may not face the developer’s pain of getting the project off the ground. You may, however, end up paying for its aftermath in terms of a crunched budget with no room to complete the job. The “political” process does not end with zoning approval and issuance of a building permit. Interaction with county officials will continue through the end of the job. These political interactions can have significant impacts on the time of completion and profitability of your job. Thus, here are a couple simple pointers for avoiding taking on City Hall in your job.

Be Familiar with the Approval Process and the Players

You should know and understand the political dynamics of your area. While you may not need to hobnob with the rulers of your area, you should know who is who. You should particularly know the local planning and building code officials. Simply having a good communicative relationship with code officials can be the difference between a problem project and a situation resolved amicably.

Know the Approval History of Your Job

When you are asked to bid on a job, you should have some familiarity with the project history. If the project was redesigned multiple times prior to the building permit being issued, this could be signs of future trouble. If the extra cushion for the unexpected is already eaten up in the design phase, this does not bode well for funding unexpected extras during the construction project.

A review of publicly filed documents, such as the plan submissions, the edits to original design documents, and the nature of code review comments, can provide a wealth of information before the bid. In addition, this background can inform you of what to expect during construction. The tendency is for bidding contractors to avoid that level of homework on a job. If it is a big project, the time spent on homework is a great way to save the endless headaches of claims or litigation.

The Politics of Code Enforcement

Interacting with code officials can also be a very “political” relationship. As a contractor, you must interact with and satisfy code officials reviewing work on the job. Certain matters of code interpretation and enforcement involve inherently subjective decisions.

Code officials are only human. Just as others, code officials and inspectors have their personal biases and prejudices. If you have a relationship of frank communication, friendship and trust, that relationship can support you getting the subjective judgment call when you need it.

Public Jobs: More of the Above

If you are working on a public contract job, you can expect far more of the above. With public jobs, you inject the additional overlay of financial scrutiny from the tax paying and voting public. Excessive extras and project delays that on a typical job impact only profitability can directly impact job security for elected officials. As such, public projects can add an extra degree of tension and challenge in dealing with the politics of a project during construction.

Further, accountability and decision-making on public jobs can become very tangled. An owner’s representative on a private job may have broad latitude to order extra work, trim budget excess, or grant extensions of time. On public jobs, that same project manager may commit in the field to a course of action; however, project managers on public jobs are often constrained by the need to obtain official approvals from political bodies. This is particularly true when it comes to adding work or paying extra money. You are well advised to obtain written approval and preferably a signed change order for all extra work.

Contractual Notice on Public Jobs

On a final point, I will emphasize something again that I have raised in other columns: on public jobs it is paramount to comply with all notice requirements. If you believe you have a potential claim for extra money, extra time, disruptions, or anything else, you must pay strict attention to claims requirements. The law books nationally are filled with cases where parties’ claims were denied due to failures to follow notice of claims procedures. These situations, and case decisions, are particularly widespread on public projects.

Conclusion

Building and completing a project with appropriate approvals require adhering to an inherently political process. You should develop political relationships on your projects to avoid snags and increase your chances of success.
 

Timothy R. Hughes, Esq., is the principal of the Northern Virginia law firm of Hughes & Associates, P.L.L.C. He specializes in construction litigation, corporate and business related representation, and complex civil litigation. He may be reached at tim@hughesnassociates.com.

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Printed with permission from Masonry Magazine September 2003

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