Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

True Sustainability – Trust, But Verify

Originally posted 2011-10-28 09:00:05. Republished by Blog Post Promoter

Brian HillBrian L. Hill helps others to achieve more from less through business development, digital media and construction consulting. A fourth generation construction/real estate professional, he shares his passion for pursuing quality in the built environment at Always on the search for quality content, if you are a professional in the A/E/C industry, consider writing for For more information about Brian, visit

I’m humbled and honored to once again be able to be invited back to Construction Law Musings for another Guest Post Friday. Last February, I wrote about the role of forensics in the A/E/C industry. In that post, I stated that that the green building movement is clearly a driving force in furthering innovation in construction. But as I concluded, “in order to push the limits of architecture, engineering and construction, one must know what the limits are.” In this post, we are going to look at the role that quality plays in green building, because perhaps the biggest obstacle to true sustainability, is the construction industry itself.

Broken Buildings Aren’t Sustainable

For the hands-down best book on the true state of the construction industry in the U.S., look no further than Barry LePatner’s seminal work, Broken Buildings, Busted Budgets, published by The University of Chicago Press. In the book, LePatner identifies a number of pressing concerns that hinder the ability of the industry to deliver projects consistently on time and under budget. And while I agree with most of his points, I disagree with one of the major tenets of his thesis – which I’ll get to in just a moment. But first, I’d like to share my own perspective.

I have worked for over a decade specifically in construction defect litigation, primarily on behalf of experts providing technical opinions. However, I myself am not an expert (in the legal sense), nor do I have any interest in seeking such designation. I am an independent observer, a documenter of facts. And what I have observed is this – of the literally thousands of buildings I’ve personally investigated, not a single one was built 100% per plans, per specifications, per code, and/or per “industry standards.”

Unfortunately, construction defect litigation hasn’t resulted in a better standard of quality. There are a number of reasons for this:

  • Not every stakeholder/owner elects to pursue litigation (the vast majority of defect claims involve residential projects)
  • Many legitimate defects are not covered by insurance – so even if legal liability exists, without coverage, there is no point in pursuing a claim (insurance carriers determine standard of care for the construction industry, make no mistake)
  • Statutes of limitation/repose limit the time available in which to file a claim
  • Most importantly, even when claims are filed and monies are paid to claimants, most defects are not repaired (we used to call these “Suburban lawsuits” because a few months after a case settled, there would be a lot more new Suburbans in the driveways)

Even when building owners do make repairs following a construction defect claim, they rarely are able to or are knowledgeable enough to make all of the necessary repairs. Regardless of issues over liability or insurance coverage, many construction defects do decrease the useful life of various components and assemblies. If you ask a layperson how long a building should be expected to last, you’ll probably hear something from several decades to forever. But those of us in the industry know that a building must only last long enough for the statutes of limitation to expire.

This isn’t helping the reputation of the construction industry. Here’s something to ponder: To my knowledge, no large overextended construction firms have been bailed out by the government, but their insurance carrier may have been. The culture in the A/E/C industry needs to undergo radical change in order to be truly sustainable.

Getting back to LePatner’s book, his solution is that massive consolidation should take place in the construction industry resulting in huge corporations functioning somewhat like an oligarchy. He suggests that we should be like auto workers. Is that what we want?

The current state of the construction industry does not bode well for the green building movement. The desired outcome of green building is to reduce use of nonrenewable resources during the construction and operation/maintenance of a building, as well as to improve the “quality of life” for stakeholders and the general public. Unfortunately, many of the specific green building provisions in a typical program are not covered by standard insurance policies. Without insurance, there is no money to fund repairs to deficient work. That doesn’t mean that there’s no liability, but in the end, the stakeholders are once again going to be left holding the bag.

Who are the stakeholders for green building projects? Besides the owner and end users, the whole point of green building is to build projects that benefit the entire planet. Therefore we are all stakeholders for green building projects.

Quality First

For too long, the mantra in our industry has been, “Safety First.” To get a great perspective on this subject, I suggest reading Mr. Dirty Jobs, Mike Rowe’s take: Safety First or Just in the Top 3. Quality is defined as, “the standard of something as measured against other things of a similar kind; the degree of excellence of something.” In other words, it means doing one’s job right. Part of that means following applicable safety protocols. But as long as safety is the highest bar, we as an industry are doomed.

Quality must become co-equal with safety and green building practices if we are going to create a truly sustainable built environment.

How do we get there? The key to improving construction quality is to take the approach of Trust, But Verify. In the last several months, I’ve had the opportunity to get to know some companies that are offering real innovation in this regard.

At the most basic level is documentation. By thoroughly documenting the construction of a building at regular intervals, companies like Multivista and Geedra are empowering stakeholders and the project team in the pursuit of quality. Photographs of specific locations over time are integrated into an interactive floor plan and/or building model. This is not only beneficial for reducing risk, but provides an incredible resource for facility management following turnover.

While thorough documentation is helpful, quality control practices have evolved to foster better “checks and balances” for construction. Many construction managers, general contractors and subcontractors have developed strong internal quality control programs. Vela Systems takes this even farther by offering a complete suite of software for construction field management. The company is even credited with developing the first construction app for the iPad.

Unfortunately, documentation and quality control are not enough. An internal quality control program is akin to the fox watching the hen house. Additionally, quality control is reactive, whereas quality assurance is proactive. The purpose of a properly implemented third party quality assurance verification program is to “infuse a culture of excellence into every level of a project,” according to Erik Peterson of OAC Management Incorporated. (Erik was also featured on this blog for a guest post entitled, The Two Words No One Wants To Hear.) I recently attended training necessary to become a Certified Quality Assurance Practitioner, per the Quality Assurance Observation (QAO) methodology developed by Peterson. Quality Assurance Observation “is the act of verifying, at predetermined incremental stages, the condition of a particular scope of work, activity, task or assembly, meets and/or exceeds the distinctive characteristics, properties or attributes that have been specified and defined.”

Until the green building movement embraces a Trust, But Verify approach, the mission is doomed to fall below expectations. True sustainability means properly assembled buildings that will exceed not just the statute of limitations (the current standard of performance), but long enough to outlast our current building stock. If we are all stakeholders in green building, shouldn’t someone be making sure that we’re getting what we’re paying for?

Brian and I welcome your comments below. Also, please subscribe to keep up with this and other Guest Post Friday Musings.

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5 Responses to True Sustainability – Trust, But Verify

  1. Brian. I have been involved in the construction industry since 1972, primarily as a high end custom builder in Santa Barbara and now Durango Colorado. Over the years I have fostered my interest in all the various dynamics of construction; client/builder relations (conflict avoidance), expert witnessing, mediation, building a culture of quality. It is a fascinating process and one which has undergone massive changes since I started almost 40 years ago. When I was doing many big custom homes at a time I would employ many of the techniques you talk about; never dry in a house until myself (owner) and one other supervisor has walked the house with the project supervisor, pay to have the engineer do an inspect on our dime (amazing how many times they find their own mistakes), etc. We were fortunate in that most houses had budgets to accommodate such methods. In todays world of subs and builders trading dollars and owners with sledge hammers and a far less trained workforce it is a tough sell to find owners willing to buy in to the concept. Especially true in residential work. I imagine most contractors would resist too unless they have a track record to allay their fears that someone is going to look over their shoulders and make them look bad. I am going to visit your site. Thanks tom Gorton

  2. Thanks for the comment, and thanks for sharing your wisdom, Tom!

    You started in construction around the same time as my father, and it sounds like you have a very similar background (custom residential, remodeling, expert work, consulting, etc.). You bring up a good point about having “budgets to accommodate such methods.” What few realize is how much money is spent after the fact settling disputes – even for claims that have little or no merit.
    Brian L. Hill recently posted..Some Thoughts on True SustainabilityMy Profile

  3. Brian- as someone who works in the construction industry, I found these tips to be very helpful! Thanks for the recommendations, especially when it comes to “Safety First”- one can’t be too careful.

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