Note: This is the first of a five part weekly series covering the subject of roof leaks and what you can do when you get one. The first three articles are focused on preventing construction defects. The last two articles will focus on remediating the effects of a leaky roof including whether or not you may be able to get the architect or contractor to pay for the repairs. (Here’s a hint. The statute of limitations for most school district construction defect claims is 10 years.)
I recently took a deposition in a leaky roof case where one of the defendants made the statement that all roofs leak. As far as I can tell all of the school district roofs he installed do leak. So I guess in his world he was right. In the real world, however, schoolhouse roofing systems that leak from the get go are substandard and suffer either from design defects or construction defects. Nobody bargains for a leaky roof.
So how did you get one? Quite simply, if your roof is fairly new the most likely cause of your roof leaks is that the architect or contractor didn’t give the district what it paid for - a roof that was designed and constructed in accordance with accepted industry standards. So what do you do to avoid the leaky roof and what do you do if you get one?
When it comes to roofing, speed kills. School boards often have reservations about hiring architects or engineers to perform design work on roofing projects that it considers to be minor. If the project is over $25,000, then skipping the architect or engineer is not a legal option. This is because under the bidding statute applicable to school districts, all contracts for the modification of facilities in excess of $25,000 must be procured using one of the delivery methods specified by the Texas Education Code.
The methods of delivery are: Construction Manager at Risk, Construction Manager Agent, Competitive Sealed Proposals, Competitive Bids, Design Build, Job Order Contracting, and Interlocal Agreement. With the exception of Interlocal Agreement, each of these methods of delivery expressly require the use of an architect or engineer.
What if your project is less than $25,000? Depending on the kind of roof you are installing or repairing and the nature of the repairs you are making, you may still be required to have a professional engineer or architect design or specify your project. If the project cost is greater than $20,000 and it involves structural engineering then the law requires the use of an architect or engineer. But what if the project cost is less than $20,000?
When making the decision consider this question: What will the costs be if the project fails? The real consideration is not so much the value of the job as it is the value of the contents of the building if the engineering of the roof fails.
It has been my experience that contractors are willing to tell school districts that they can install metal roofing systems without the need for an architect or engineer. It has also been my experience, however, that the roofs installed by those contractors failed completely and caused millions of dollars worth of damage to the school districts. In the end, we were able to recover the majority of the cost of repairing those damages, but not before the districts had to go through years of litigation. And not before those contractors completely reversed field by blaming the failure of the roof on the district’s failure to hire an architect. This is not a position an administrator or board wants to find themselves in.
So what do you do to avoid this pitfall? Assume that your roof repair requires the services of an architect or engineer. In most cases it is required by law and hiring one is, relatively, simpler than hiring the contractor that will perform the work. Next week we will cover the hiring of the contractor and what you can do to ensure that your contractor is qualified to install the roof that your architect or engineer specified for you.
What's New
June & August 2007
Schwartz & Eichelbaum, P.C.
is now offering
Summer School Webinars
Visit www.edlaw.com for more information and to register online.
July 11, 2007
Schwartz & Eichelbaum, P.C. and TASPA
jointly present
A Tropical Summer Personnel Law Conference
Austin Doubletree Hotel
Austin, TX
Visit www.taspa.org to register.
July 20-21, 2007
Seventh Annual
Schwartz & Eichelbaum, P.C. and the Equity Center
Seminar on School Finance and Legal Issues
Austin Marriott North
Round Rock, TX
Visit www.edlaw.com to register.
