I ran into an old friend and co-worker outside of a store in Charlotte the other day.
He is at a stage in his life where it will be a real challenge to spend all of the money he and his wife saved for retirement. One of the things they did this year was to have a farm pond dug on their property. The good news is that they had a very specific contract written. The bad news is that the firm that was the counterparty did not come close to meeting the specifications that were in the contract:
- "Best practices followed"
- 220 feet in one direction by
- 110 feet in the other direction with
- A maximum depth of 12' to 15'.
Due to the amount of rain we had this spring and summer, the pond quickly filled to the overflow outlet.
My friend is a numbers guy and in his professional life he dealt with suppliers who tried to shave the deliverables. It was not in his nature to accept that the pond met the specs.
He went out and measured the depth of the pond and the very deepest spot he could find was about 7'6" deep. He purchased a laser measuring tool and calibrated it at the high school football field. The pond measured 150' by 75' instead of 220' by 110'. He measured the slope of the side of the pond and the distance of the water's edge to the spoils pile. The "Best practice" slope is 3 feet of run for 1 foot of drop. He measured 8-to-1. I forget what the "Best practice" for the spoils pile was but it was already washing back into the basin.
My friend called his lawyer to let him know there was a "situation" and then he called the firm.
The firm's representative showed up and pooh-poohed my friend's allegations. "We dug nearly a hundred ponds like this and you are the first customer to complain."
"I don't care about your other customers. This is the contract you signed and you are in breech of the contract." my friend informed him.
And then he proceeded to rub the representative's nose in every gory detail. He made the representative wrap tape around a kayak paddle at 1' increments and then paddled around the pond with him and let the rep look for the deepest spot. The deepest the rep could find was 6'-6".
The rep waved his hands and said it was because fill had washed back into the excavation. "That may be so, but it does not let you off the hook" my friend hammered him with. My friend pulled out the contract and made him read the paragraphs about distances, spoil piles and stabilizing erosion IN THE CONTRACT.
Then my friend used wood construction shims, a cinder block and a 48" bubble level to determine the amount of slope by measuring the distance from each end to the ground. "Three-to-one is "Best practice" and that means the distances should be different by 16 inches" my friend informed him. My friend let the rep lug the cinder block around to find any place where the slope was correct. Nearly all of the measurements were between 5" and 6". The rep could not find any place where it measured more than 8".
Then my friend had the rep use the laser measure to shoot distances across the pond with my friend standing on one bank and the rep standing on the other.
The firm came back FOUR TIMES before they threw in the towel. They did not have the equipment required to deliver a pond that conformed to the specifications that were in the contract they signed. What that means, of course, is that the other hundred they had already dug could not possibly be to specification.
They made a cash settlement rather than go to court. My friend is using the settlement to hire a guy with a drag-line and a bulldozer to push the spoils bank to the Best-practice distance.
Happens WAY too often!
ReplyDeleteUnfortunately in some industries it is VERY common to provide what can be done easily, not what the customer wants.
ReplyDeleteAnother example is people advertising, and charging for, a cord of wood but delivering a pickup truck full, which is usually about a half cord.
Jonathan
When I was buying firewood the term "face cord" was common. 4'x8'x16" deep. You've got to be specific.
DeleteFour times. I admire their commitment to making a failing argument, if nothing else.
ReplyDeleteIt was my impression that they showed up with a crew and equipment and attempted to move enough dirt to hit the specs.
DeleteAh, that makes sense - although not a strong sign that it took them three more tries and they still missed the mark.
DeleteEarlly this spring, a construction site allowed people to enter their property and take 'free dirt' that had been excavated to have replacement soil that would support the slab on grade foundation. Many people (myself included) were able to gain the soil to fill in holes where our animals had stamped down and created ponds when it rained where they were fed. The area adjacent to the hay shed was pretty sloped but thanks to that site, we delayed flooding for quite a while.
ReplyDeleteI do wonder though the possibility that the unusual rain amounts flooded the excavation before it could be completed. But your friend was smart enough to use the contract to get what he demanded in the 1st place.
In a former life I worked as "engineering tech" for state Highway Department. We inspected everything at every stage to prevent this cr@p, even when criminal penalties would have applied. Contracts had hold points where we would independently verify everything from slope angles to fill material makeup. A few key checks can limit these risks and keep honest people honest. Hope your friend is happy enough with what he ends up with.
ReplyDeleteOur marketing manager and I almost got canned over something like this. Our contract for some equipment said every unit would have an up to date manual supplied. Our Dot Gov order was to be shipped and the Boss had not started the rewrite. He reserved that job for himself because he was a marketing nerd and font nazi.
ReplyDeleteWe do the update, pass it through engineering, software, QC and service for review and get the sign offs. I give a copy to the CEO and let him approve it. We burn 20 copies and ship the order for a round $500K.
The Boss finds out and blows a fuse. He ends up screaming at us "Who do think you are?" I try and explain contract says current manual with every sensor. His reply is no one reads or cares about the manual. The CEO comes in and tells him to calm down. He approved the process and that we had covered the Boss's ass.
First technical review meeting with the customer, the contracting officer says he has signed off on payment and would we be supplying that manual with all future upgrades? The Boss says, " You don't use the manuals anyway."
The contracting officer looks at him as if he was the stupidest kid on the bus. "I would have shipped back all the units at your cost and asked when you would be able to fulfill the contract as written?"
There are just some people you just cant short change. Good for your friend.