The buck stops where?

Glass is the defining element of the Silver Lake Branch Library in Los Angeles. It is also the key green component, contributing to the project’s LEED Platinum rating from the USGBC. When working on projects targeting a specific LEED certification, it is important to understand what the specifications require from the glazing systems before the job begins. Photo by Tom Bonner Photography, Santa Monica, Calif.

"I was just following orders." This was the defense at the 1921 trial of Karl Neumann, an ex-submarine commander of the German Imperial Navy who knowingly fired torpedoes on the British Hospital ship Dover Castle and sunk her. His trial remains of historical interest because the excuse worked; the seven judges found Neumann not guilty because he "simply carried out the orders of a military superior."

While "following orders" is no longer a defense against war crimes, it's a phrase that is commonly heard in regard to construction projects: "I followed the contract. It's spec ... per plans."

But what happens when the building specifications conflict with the code, targeted building certification, or owner's wishes? Who is ultimately responsible for an incorrect product or installation? Allocating responsibility involves balancing contract documents, applicable codes and good building practices. This balancing act can be a troubling exercise for lawyer-types, let alone the companies actually doing the work.

The final say

Project specifications are intended to be instruction manuals for complex jobs; they are the "orders" contract glaziers follow. As you might know firsthand, problems arise when the building specs, applicable codes or scope of work conflict. Whether this conflict is identified before, during―or worst case scenario―after a project is substantially complete, it is important to understand who and what ultimately controls the project.

Building codes will always ultimately preside over a project because they are law. Specifications and contracts cannot violate the law, so code always influences or controls a particular project. That is not to say that specs cannot be more stringent than the law requires. Indeed they can. But what happens when conflict appears between or within the code, specs or owner's wishes? Things can get a little tricky here, but in general, the requirement closest to the work controls―be it code, spec or otherwise―as long as it does not violate the most stringent local requirements adopted into law. An example from Section 9.2 of AAMA ICPB-08, Standard Practice for the Installation of Windows and Doors in Commercial Buildings helps clarify the point:

"The 2003 IBC allows an [egress sill height] maximum of 44 inches. A state code may reduce this to 42 inches. The county code may be 40 inches, and the local code may be even lower, specifying a maximum of 38 inches. In this case, the 38-inch maximum would be enforced because it is the most stringent. The Property Owners' Association CC&R's (Covenants, Conditions, and Restrictions) could reduce the sill height even more."

In the example above, the project specs would need to comply with the most stringent local requirement, even though different from the IBC, or they risk violating the law (code). But as the example suggests, the spec'ed measure could move even lower if the job contract requires CC&R compliance. And in that case, because the CC&R measure was more stringent (i.e., lower) than the IBC and local building codes, it could control. This one example illustrates the types of conflicts that can appear and interpretation required for these issues.

Potential conflicts

The simplest conflict to identify is a project specification that is more lenient than the local code. In this case, the spec must comply with the local building code. This is true even if the installation contract contains the incorrect specification.

In this situation, responsibility can fall on a host of parties, depending on the contractual agreements between them. The design team of architects/engineers/developers may be charged with knowing the applicable local code. Product manufacturers might also provide input regarding code compliance. Glaziers might agree to comply with codes and indemnify the design team if the project fails to do so.

Every job is different, but in these situations, identifying potential conflicts before the job begins and refusing to install non-code-compliant systems may be a glazier's only true protection.

What if the conflict is not so clear? For example, what if the work or glazing complies with code but does not conform to another aspect of the building specifications? An increasingly common example of this involves whole-building performance measures. The U.S. Green Building Council's Leadership in Energy and Environmental Design criteria apply to the entire building. If one system fails to contribute to the overall LEED score, it can be devastating to the building's performance and the contractually targeted certification.

When the building specifications target specific LEED certification but the specified glazing does not meet the requirements necessary to maximize LEED credits, everyone looks to the glazier as the party responsible. Specifications usually incorporate acceptance clauses or LEED targets, and these contractual additions can allow blame to shift to the glazier and other trades that worked on the project.

Again, every job is different, but understanding what the specifications require from glazing systems before a job begins can protect glaziers from unintended responsibilities.

A final example is more tenuous, but becoming more common: What happens when the specifications do not comply with the owner's wishes? Decorative glass, for example, provides exciting design options. But what happens when the installed blue glass is not the "blue" the owner thinks he or she selected? To avoid conflict with the owner, document their approval of subjective products before installing them.

How to protect yourself

Identifying potential conflicts before they arise is essential to protecting your company. It is equally important to remember that there are opportunities throughout the project to manage risk and document approvals. Both of these steps can help deflect claims when conflicts do occur.

Begin with the start of any project: the sale. At the time of the sale, confirm what is being asked of you and your company. Is this a stock sale or an engineered project? Are you being asked to offer opinions on the product specifications? Even at the quote stage, confirming what you will do―and more importantly, what you will not do―can be essential to defining and allocating risk later. Admittedly, this approach will not be popular with salespeople, because closing a sale is all about satisfying the customer's needs. But, expert glazing requires knowing what one can and cannot do. Your clients will appreciate your expertise and candor.

The initial sale presents a glimpse of the project, but we all know the real issues arise on the jobsite. Changes to specifications can occur throughout a project. Your response to those changes will be crucial to how they impact your contract. More important, however, is the presence of knowledgeable, well-trained personnel in the field. We have all heard that employees are a company's eyes and ears on a job. They are your contract too. Those who work on the project will have an important understanding of site conditions and the impact of other trades on your work. When your work touches another trade, and your contract demands acceptance of their work, you are at risk if that trade's installation fails. Educating your personnel about the contract terms and conditions will prove valuable.

Of course, none of this matters if you cannot prove you performed the job correctly. Documenting your project in a manner that allows for easy access to information is key to avoiding claims. There is power in a letter that identifies what your company will and will not do. There is equal power in a confirmation sheet regarding color selection, product specification and internal training. Document your work before, during and after a project so you have evidence to help defend a potential claim and also confirm the scope of your work as a project evolves.

When all else fails

Even if you follow all of these steps, conflicts can still arise. So, how do you respond to a claim? No two claims are the same, and no silver bullet exists to address them all. That said, defining the issue and who might be responsible is an essential task. With that understanding, you can then research who knew about the issue, what they knew, and when they knew it. These steps should only be undertaken with an understanding of the legal and monetary risks involved. Internal protections and procedures that address claims can help define and protect your investigation from later, prying eyes.

"Just following orders" can create conflicts for many trades, in varying degrees of severity. Addressing such situations – before or after conflicts arise – should begin with recognition that the closest specification to the work governs the project, as long as it meets local code. Avoiding conflicts is best; and avoidance begins with the sale and continues throughout the project. Internal directives for education and documentation can help control conflict claims when they do arise, and your personnel form this first line of defense. When such claims cannot be avoided, the process of identifying and allocating exposure begins with acknowledging responsibility for scopes of work and then overlaying what you did during the job to address the potential for conflict. None of these steps avoids conflict claims, but may permit a defense that allows you to walk free.