Avoid the Risks of Term Confusion
December 18, 2020
Term debates often spawn delays in payment, completion issues and retention difficulties. Legal claims for breach of contract are the natural consequence.
Did you know that the United States has had two measurements for “foot” since 1959—the International Foot and the U.S. Survey Foot? In 1959, the relationship of the foot to the meter was made more exact than it had been when imperial measures were tied to meters in 1893. When that happened, the older “Surveyor’s Foot” was left in place, a few microns longer than the redefined “International Foot.”
While measures that small may not seem to matter, disagreements over the proper foot have led to real and expensive problems. The National Institute of Standards and Technology notes that failures to specify the appropriate foot have led to professional liability claims, land sale and project delays, boundary disputes, and increased overhead due to having to manage the miniscule measurements.
Glazing terminology can often prove just as complex and the measures equally small. And, similar to situations with differing foot measurements, expensive problems arise when two parties are not operating from a shared understanding of what terms mean, especially in specifications and contracting.
Normal considerations of high-performance glazing systems relate to good U-value, solar heat gain coefficient and visible transmittance. But what about performance grading or design pressure for operable units? How about reflective conditions and coatings? Interior usage and daylighting?
Regularly used terms like high performance often have embedded design and performance considerations that make detailed specification essential to a successful project and risk avoidance.
The failure to define code leads to debates about which code controls and what was required of a trade.
Equally, requirements for specific installation methods, materials and hardware selection can be embedded within a generic agreement to meet code. Look no further than egress and ADA claims to see examples.
This term can also lead to delay and withholdings. This is especially true when an owner’s concept of complete does not meet the trade’s assumptions of substantial completion.
In looking to manage these risks, it is first important to know your audience and not assume that you both are working from a common vocabulary. Owners, architects and general contractors each bring different levels of understanding about glass and glazing to projects. While there is no need to prepare a dictionary for clients, it can prove helpful to have standardized bid and contract addenda that address materials, scopes of responsibility and post-completion considerations. Each is an effort to clearly establish what glaziers bring to a site and what they do not. Offering these early in a project’s life or bid cycle can help identify potential misunderstandings and opportunities for negotiation.
It can be that differences are not discovered until work is underway. Where differences in terminology lead to in-project issues, it is crucial to identify these issues and use the change order process or get a written modification. When identified but left unaddressed or undocumented, term debates often spawn delays in payment, completion issues and retention difficulties. Legal claims for breach of contract are the natural consequence. Using the change order process or securing a modification of the work agreement gives the parties an opportunity to come together and reset understandings about terminology. It also offers an opportunity to address costs arising from initial misunderstandings without involving the courts.
Terminology differences can also spawn risk after completion. This often comes up in situations where warranty or remediation agreements are unclear. For example, what is included in a warranty that offers “labor” can mean different things to different parties. Another example is the failure to specifically define the starting point for “years” of coverage in remedial-work agreements and warranties. In both examples the failure to be specific prevents easy evaluations of what obligations exist at a project. This, in turn, leads to legal debates and potentially expensive, unanticipated work years after completion—work that could have been avoided by more carefully selecting words and defining what they mean.
Specific language matters throughout a project’s life, but the starting point for managing this risk requires looking for and addressing vocabulary/terminology issues early in a project. If project issues do come up, document and address them as soon as possible.
As for the “foot,” after 60 years, the United States is finally addressing the issue. The U.S. Survey Foot will no longer be recognized as of Jan. 1, 2023. Mark your calendars now.