General contractor questions - types of contracts

[Kiva]

Hi there

This forum and its members were an excellent resource in my completion of a Saltillo Tile Job a few years back. You were very professional and I thought somebody may be able to help me with a general contractors question. I couldn't find any other place that specifically addresses my question, so I thought I'd start here.

This involves a landscape contractor I hired last November (I live in CA, btw). i did something really stupid and agreed to a portion of the contract (irrigation and lighting) as "time and material". In hindsight, I realize that was a bad idea. However, not knowing any better, I did it. The contractor and I talked about a total job maximum of $16k. He ended up coming in at $21k.

He completed the work and I paid him. However, it turns out he received and installed a part that was wrong (light transformers) and he ordered a new one. He's had it for 4 months and despite repeated promises to install it as well as calls on my part, he hasn't replaced them yet. I finally got him on the phone and he was really snippy with me (he didn't like it when I said "you have all my money and the job isn't done.") and he said to give him "another week."

Out of curiosity, I called the state licensing board and the agent told me he "is not supposed to do time and material contracts." I've asked him to forward me the code sections that he referred to.

So, given this info, I have two questions:

(1) Was it lawful to offer a "time and material" contract for a portion of his work? I realize that I was the dummy that signed it, but is he at fault for even offering it? As a consumer, we can't know everything, so I would think that would offer some protection.

(2) How would you go about dealing with the unfinished portion of the work? What about future issues related to his installation?

I'm asking this here because I believe all state contractors fall under the same laws/regulations, so perhaps you can help. Please keep in mind that I am NOT trying to play the angry/pissed off consumer here. I have been incredibly reasonable with this contractor regarding delays, problems, etc. I only became perturbed when he didn't return my calls and then was rude to me on the phone.

I've already learned a lot from this experience and am just trying to close the book on this thing.

any thoughts? Thank you for your time.

matt

[kevjob]

time and material contracts are hard to prove. i only use time and materials when i cant see through walls under slabs etc.. He should as a professional come and install the parts. not much you can do. did you sign off on his contract as done and paid in full?

[David Meiland]

There are very few situations in which time and materials is appropriate. Typical would be jobs that are unusual and cannot be estimated accurately (curved work, angled work, unusual materials, etc.), jobs with a lot of concealed conditions, and jobs where the design is not complete but work must start anyway. Your project doesn't sound like any of these. Your contractor sounds like a guy who is afraid or otherwise unwilling to sit down and estimate carefully and come up with a fixed price. Your experience is typical: a likely price is named, and then exceeded substantially.

I still have a CA contractor's license although I have not lived there in a few years. I have heard things to the effect that T&M is no longer legal, but I don't know the details. The Contractor's State License Board website says this:

http://www.cslb.ca.gov/consumers/cons_hicontracts.asp

It does not say specifically that T&M is not legal, but it does say that jobs over $500 must be governed by a written contract, and that the contract must include the price. There may be other info on the site, but I haven't looked everywhere. It would appear that they at least frown on T&M contracts.

Your situation is easily resolvable and will require playing hardball. You can threaten to file a complaint with the CSLB, and you can threaten to file a claim of fraud against the contractor's bond. Neither of those things require legal action on your part, and the threat of both will probably get you what you're owed quite quickly. I would probably send the contractor a clearly written letter stating your intention to do both by X date, and give him a week to get it done. Your complaint to the CSLB would be that the contract was improper, the maximum price was exceeded, and that the job was not finished. Your complaint to the bonding company would be that the contractor defrauded you by charging money and failing to provide goods and/or services for that money.

You will absolutely be burning a bridge if you take this route. I had to do it once with a sub I had on a job there. He did a roof replacement that leaked and damaged the house. We repaired the house and sent him a bill that he refused to pay. I threatened to go to his bonding company and he paid. It's ugly stuff.

[Scooter]

Time and Material contracts are legal and indeed are appropriate where the actual scope of the work is unknown.

If you have a Complaint with a California contractor, lodge one at the CSLB and if he doesn't fix the problem, sue him in small claims court. He must pay the Judgment or his license will be suspended for lack of bonding.

[NVC]

Hi Matt,

Sorry about the grief you're having, most of us contractors are half decent guys.

David and Scooter gave good advice. I would probably go with the letter 'of intent' to the contractor first, before contacting the CSLB and Bonding Co. If this doesn't light a fire under his hind quarters, then follow through. Hopefully he'll become motivated and deliver and it won't go any further.

This may sound like a 'no brainer' but if all goes as planned and he makes it right, I wouldn't do business with him anymore in the future.

Here is the link to CSLB's website to do some homework on him via his lic.# and or business name/personell name(s) http://www2.cslb.ca.gov/CSLB_LIBRARY...se+Request.asp

hope this helped, and I hope a little nudge solves the problem,
Mark

[Kiva]

thanks folks...turns out he still hasn't fixed a sprinkler that isn't working right and, perhaps, he's screwed up the whole thing putting too many heads on the same zone. I left him a nice message and we'll see where it goes from there. If it's not done by this Friday, he'll get the letter and we'll see what happens.

Too bad...i really thought he was a stand-up guy. Guess he forgot what happens when a customer is unhappy with your work and how many people they end up telling....

matt