• Letters of the Law: 'Q' is for Quality
  • September 9, 2015
  • Law Firm: DLA Piper (Canada) LLP - Vancouver Office
  • Quality can be difficult to describe and equally difficult to deliver.

    To what quality does a contractor have to deliver construction works by law? How is that measured?

    As with many aspects of construction and engineering law, the answer lies in a well-drafted contract. Most standard form contracts simply require the contractor to execute and complete (and in some cases design) the works in accordance with the contract. The law says the same. A well-drafted contract can then, in large part, answer the question of quality. The more detailed and defined the specifications the less scope there is for argument on quality.

    In the case of materials, where the specification is not sufficiently defined, the law requires that the contractor provide materials that are merely “adequate” for their proposed purpose. What is adequate may be open to interpretation but it does highlight the risk that if a higher quality of material is desired by the employer, he should take care to specify it accurately.

    In terms of the works as a whole, if the specifications offer no guidance the contractor shall be required to perform the work in accordance with generally accepted applicable practices for work of the same or similar nature. i.e. whatever is considered the norm.

    A problem arises where specifications use phrases such as “a quality finish” or “of a high quality” without further explanation. In the event of dispute as to the quality of works a view from an expert as to whether the works have been completed to the required quality will almost certainly be needed. This will fall to either the parties’ appointed experts in arbitration or a court appointed expert in the local court.

    It is important to provide the contractor, as far as possible with certainty as to what is desired by the employer. If objective and measurable criteria cannot be included in the contract then a fuller explanation and benchmark would be useful. E.g. A quality finish commensurate with the finish to be expected of a 5 star, luxury hotel in the city of Doha.

    Including and carrying out an approval process for crucial elements of the works (particularly the finish as that is commonly of primary concern for an employer) can assist in reducing disputes. However, care should be taken in establishing a mechanism that will not delay the works and is clear as to the time and cost consequences of delay in receiving approval or refusal of approval.

    The contractor’s liability as to visible/easily ascertainable matters of quality will end at the completion of the works - when handover is accepted - unless the contract specifies otherwise.

    However, if a quality issue is concealed and does not come to light until after the period has ended the contractor will still be liable for it provided the employer notifies the contractor of the issue when it is discovered. This is true for a period of 15 years but it follows that a loss must be suffered/or is likely to be suffered by the employer as a result of the quality issue before the employer could successfully prosecute a claim.