The project is breaking down. There are clearly problems with the subcontractor’s work and you now have to bring in another subcontractor to fix the work. If you don’t tread carefully, you may find yourself having to pay the original subcontractor and the replacement subcontractor, and not getting any damages from the original subcontractor.
Two issues to consider when replacing a subcontractor are notice and opportunity to cure. Both of these issues should be addressed in your contract and technical compliance with these two provisions may be necessary.
Put It in Writing
Problems with the subcontractor should be addressed in writing. This may take the form of an e-mail or a letter, but it should be written with the thought in mind that someone not familiar with this project, like a judge or a jury, may review this letter or e-mail to determine whether it adequately sets forth the subcontractor’s work. The notice should also be specific with regard to what you want the subcontractor to do, be it remove and replace, repair or whatever steps should be taken.
Provide an Opportunity to Cure
Most contracts contain an opportunity to cure provision. Therefore, another item in your notice letter should provide the subcontractor with the specific timeframe by which the problems must be resolved. Again, keep in mind that someone not familiar with this project may review your letter, and include enough detail to explain the entire situation. Additionally, any opportunity to cure must be reasonable. Providing a contractor three days to repair two months worth of work will probably not be deemed reasonable.
As we often say in this blog, the language of the contract will control and your compliance with that language will be paramount if you ultimately seek damages from the subcontractor.
It is almost always more economical and efficient to work thru problems with the original subcontractor, rather than displacing them. Also, I had a case recently where the prime contractor provided NO opportunity to cure, which was challenged on Appeal.