A rogue trade

It sounds like the critical contractual framework was not established between the contractor and the sub-contractor (‘the trade’) in this instance given the particulars you have outlined although I am clearly not privy to the detailed circumstances. The following response is based on some assumptions in this regard and provides some general observations based on our experiences.
Quality Contractors
‘Good quality contractors’ and ‘quality trades’ are not always mutually inclusive factors in a positive project outcome and in my experience quality is controlled and delivered on the basis of the expertise of the contractor not the quality of the trades, notwithstanding the fact there are many trades that are ‘solution driven’ as opposed to ‘problem making’ and it is solution driven trades we seek to engage on our projects. Solution driven trades contribute to quality outcomes but they also need to be working with solution driven contractors. There is very little ‘rub off’ from a good contractor to problem making trades given those trades. These trades tend to spend most of their working life on cottage industry projects with C grade expectations from the outset. Promises are worthless in construction and the contract is the only document of real value when things go wrong. A good contractor is experienced enough to know that relationships will go pear-shaped with a trade at some point and that is why written agreements are more useful than handshakes. I recall a lecture many years ago where the presenter wrote the following four letters on the blackboard…. ‘RTFC’, an abbreviation for ‘Read the Fucking Contract’. Those four letters have stuck with me ever since and no more so than when I have established a working relationship with a trade without a contract to refer to when the shit hits the fan.
We place all trades with packages over $5,000 on trade contract agreements and any trades we are cautious about we establish contracts for lesser amounts. In the most part, architecturally designed projects are an anomaly for some trades and often a pain in their proverbial arse compared to their bread and butter work in the cottage sector. Those willing to quote on architectural work do so knowing there prices can be much higher. I have various strategies to deal with this including removing any reference to ‘architect’ on the drawings we send out, reducing our company name to ‘CplusC’ (dropping the ‘Architectural Workshop’), amending our email signatures so that our degrees are removed, ensuring our staff titles make no reference to them being architects and reducing detailed documentation to hand sketches on graph paper for quotation purposes. This works well with door/window packages, flooring, glazing and steelwork and once we have worked together we can drop the pretense. When we have had a waterfront project or projects with amazing views we try and obtain quotes before the trade visits the site. This strategy has proven to keep prices at reasonable levels.
There is another problem at the other extreme of the above scenario in that some trades provide low quotes to get their foot in the door on architectural projects. This has been the source of similar issues for us to those you have experienced and perhaps was the real reason for their actions or lack thereof. We have learned to accept these quotes but quietly put aside a contingency on their package on the assumption that we may need to throw some time, money and effort to get their work over the line. Occasionally we get super keen quotes, they do a great job and their work is impeccable but this rarely translates to the next project we ask them to quote on.

Architect Designed Projects – Context
High quality architectural projects are a relatively small portion of the residential construction sector. There are less than 500 contractors in NSW eligible to do more than $6M worth of residential work per annum (including volume builders) and a smaller number of professionally managed reputable contractors capable of delivering architect designed projects in this market sector (present company included on both counts). I expect this is a similar case in Victoria. I sympathise with any Architect and Client who has to deal with a difficult contractor given how painful it must be to see their hard work and expectations shattered, particularly given both Client and Architect have limited control contractually to do much about it as the disaster unfolds in front of them. By the time the defect liability period kicks in a savvy contractor (if they have survived the entire project) will have already factored in any retention as a loss but this is a discussion for another time. I equally sympathise with good contractors who have to work with inexperienced Architects who send their recent graduates or interns to attend site meetings with the contractor. The only reason this widespread issue is kept quiet is that it is not in the commercial interests of contractors to talk about it.
The reality position is that good project outcomes under a traditional tripartite agreement are achieved when the Architect and the contractor quietly work together to get the job done. Mistakes are inevitable in both construction and in documentation, more the latter in my experience. Architects that achieve good outcomes under traditional contract arrangements need to consistently take a ‘you scratch my back and I’ll scratch yours’ approach to their role as superintendent. The big stick approach may have worked in the time of our architectural predecessors but it does not work on contractors who the very livelihoods of their families intertwined with Government monitored Insurance eligibility provisions (present company excluded). This is the unspeakable truth and would be worth exploring in due course. I may have to speak to my PI insurers before delving too deeply into these phenomenon.

Sub-contractor Performance & Defects
The performance of the trades and the quality of the work is loosely governed by the documentation and specification provided by the Architect but is mostly dictated by the sub-contract agreements established between the head contractor and the sub-contractor and, as the case may be in your disputes, the lack of any agreement between those parties. With a standard trade contract agreement in place and a contractor who can micro manage progress, quality, claims and defects for each trade, the joiner in question would have been provided a limited timeframe by the head contractor to correct any defects in their work (see Security of Payments Act, particularly recent amendments). If they did not rectify their work and the rectification orders made by the contractor were not disputed the contractor could rightfully use the joiners remaining unpaid quote amount and/or any outstanding monies claimed by the joiner to rectify the issues themselves or with another joiner. It does strike me as a little odd that you as the Architect are privy to the performance issues around a sub-contractor in the disputes you have described but perhaps these projects were not part of a standard tripartite agreement or the joiners were nominated sub-contractors. These are really issues that must be directed at the contractor to resolve as he engages directly with the sub-contractor. Either way the Architect and Client do not have a right to review the contractual relationships between the contractor and their sub-contractors in standard form contracts (unless a specific new clause is negotiated) with the exception of some Cost Plus, Construction Management and Project Management contracts. They also have no right to contact the trades directly during construction with the exception of electricians and plumbers where their respective statutory regulators are involved in compliance matters.

Nominated Sub-Contractors & Nominated Suppliers
Whilst there are exceptions in every contractual relationship a nominated subbie or supplier generally represents an attempt at a contractual guarantee of quality or some sort of perceived value for the Client. Nominated subbies and suppliers are music to a contractors ears as they have limited, if any obligation to their work or performance (other than integration) yet still make their margin and can charge for any issue they cause to the contractors project.
PI Insurers advise their insured parties that “an Architect should do no more than communicate design intent in their documentation” and this is both absurd as it is wise and, very true if the Architect wants a negligence claim free career. This is a commonly misunderstood and often overstepped line in the provision of architectural services – ‘over documentation’. Complex details are best resolved with the contractor during construction so they take the lion’s share of responsibility for the outcome. It is not the Architects role to instruct the contractor how to build. An Architect has limited rights or obligations under standard industry contracts to deal directly with a sub-contractor in their Superintendent role unless those trades are ‘nominated sub-contractors’ and even in this instance their instructions must go through the head contractor. The only guarantee when nominating a sub-contractor or supplier is that there is no accountability to the contractor in the event of an issue such as those you have described. Nominated subbies and suppliers are generally a bad idea for all parties involved. I don’t believe quietly suggesting (not recommending) a particular subbie that the Architect has seen produce quality work on previous projects is a breach of the Architects Code of Conduct but I’ll leave that to the discretion of each Architect.

Learn from experience
Adjusting documentation or contractual relationships on the basis of experiences like those you have outlined will increasingly mitigate these sort of risks and issues in time. I would argue that documenting mitred timber benchtop joints on the assumption that the previous project subbie was simply a ‘rogue’ would be setting oneself up for a long and difficult career. These details look simple but are very complex to deliver and are subject to moisture content of the timber and acclimatisation issues. In my experience joiners are not great with solid hardwood details and we generally take this scope on directly and exclude it from the joiner’s package.
Over the years I have learned that notifying our Clients in advance of any issue that may arise after they take occupation is best practice. I explain how buildings move and settle, how some materials need time to acclimatise over time and how and when we will address these issues if they occur. This is most effectively communicated before those issues occur given explaining them after they occur is often interpreted as an excuse. This assists mitigate the risk of what I like to call the ‘enraged defect frenzy phase’ that Clients can sometimes fall into at Practical Completion or after they take occupation. This is the stage when pinhole leaks become ‘floods’ and hairline cracks become ‘imminent structural collapse’. Some Clients fixate themselves on the money they have spent and lose sight of the fact that the contractor only makes a small portion of all that expenditure and that the reality is that the issues they have are minute compared to every decision made on the project that is not an issue…I’m sure every Architect and contractor has experienced this. Of course this is not to say your issues were not straight forward plainly obvious defects. They do sound like they were.

Architect Designed Projects and ‘Plans’
The construction of an architect designed project almost never goes ‘plan’. Architectural designed projects are bespoke and by their very nature, a guarantee that a project will not go ‘to plan’ given aspects of the project have never been done before and cannot be accurately planned for. Plans are really ‘best intentions’ on any complex bespoke project. This is a personal view formed on the basis of the entire history of architecture since the birth of modernism.
Delivering ‘good’ architecture these days is arguably an intent to produce outcomes which are unique yet ultimately derived from, but not a replica of, precedent. Replicating precedent, or, as the case may be with large practices, duplicating and recycling their own precedent as a risk mitigation, efficiency fuelled, profit making strategy is clearly not a means to produce good architecture yet it is a safe alternative and a greater reassurance that a project will go to plan. Residential Clients aren’t paying their Architect to copy what they have done before and there is value is making it crystal clear that with unique solutions there are unique issues that will need to be resolved along the way and those unique issues need their buy in and the contractors buy in to resolve.

Architectural Projects involve Risk
Risk is a manageable if the risks are communicated to parties affected by risk and let’s face it, the Architect is the least affected by project risk yet in the best position to make it clear to their Client that the project may not go to plan. Architects are generally not well equipped to offer their Clients risk mitigation strategies, contingency parameters, cost control and estimation advice and often purport (or at least don’t go out of their way to clarify) to offer services that include ‘supervising’ construction. Risks should be laid bare before work commences and a reasonable contingency determined on the basis of those risks. The Architect should discuss risks with the contractor independently of the Client and the Client independently of the contractor so that they can be in as an informed position as possible. Whilst I appreciate it is a difficult subject to broach with a Client it is far less difficult than dealing with the process that transpires when the Client finally realises that the Architect is not actually supervising the work and the project has been completely derailed by cost increases they were not expecting. In these circumstances the Client will invariably say to the Architect that ‘had we known this could happen we would have made very different decisions both before and during the construction of the project’.
Architects tend to keep tight lipped about risk as they tend to be focussed on getting their project built as they designed the project without any compromise. This is an indoctrinated goal and a very dangerous headspace that creates risk to all parties.

Solutions
Nominate a Provisional Sum that is consistent with the outcome intended, stipulate a 3 quote requirement to the contractor and get involved with the decision without getting involved on a contractual basis and without making a recommendation. The contractor must have the ultimate say or you risk falling into the ‘nominated’ trap.
If your contractor held an appropriate Professional Indemnity Insurance Policy their sub-contractors would fall under their coverage with respect to decisions they make outside the ‘design intent’ documentation. Where we are acting as superintendents or as ‘Client advisors’ during construction of our projects by third party contractors we insist the contractor hold PI Insurance and we recommend to our Client that cost of the policy be covered by an appropriate and proportionate increase in the contract price. After all, it is an insurance that our ARB’s mandate on the basis that it provides protection for the consumer (hogwash in my opinion but that’s another story). This does provide the Client reassurance and ensures that all parties have proportionate liability in the event of a claim, not just the Architect who is forced to hold a policy under their Code of Conduct.

General Advice
In the first instance I seek the advice of other experts in the respective trade then make an informed decision without admitting or attributing liability. What is discoloured with respect to a veneer? I have no doubt that the veneers were discoloured but on what basis, specification, contractual expectation, industry standard, Australian standard etc etc is that claim being made? (I appreciate your blog is intentionally simplistic on this topic but it’s worth raising these questions for reader benefit nonetheless). A mitred timber benchtop is very easy to draw but requires experience and skill to get right and to the uninitiated it can be a guaranteed defect. Timber benchtops are one of the few benchtop materials that are rarely a supply and install item. The benchtop is generally delivered to site or to the joiners factory raw and either the Joiner or the contractor install them and in doing so take responsibility for them. Perhaps your joiner wasn’t experienced enough in timber benchtops hence their frustration at the outcome. If it were only a matter of the joint opening up slightly a smart joiner would say that it is not a defect, it simply needs to acclimatise for 6-12 months then mechanically closed up and wax finished in due course. BTW: we never apply poly finishes to solid hardwood mitre joints and always use natural oil finishes so the bench can breathe and used to prepare food.
Clauses relating to ‘naturally occurring’ materials used to be defined in standard form building contracts but those clauses have disappeared in updated contract versions. We had a case where the majority of the ironbark veneer panels on a project discoloured about a year after occupation. It turned out the owners cleaner had used acetone to clean their bathrooms and this remained on their cleaning cloths which were used to wipe down the veneer panels. This took 6 months to establish and involved lots of unpaid time. We were guilty until proven innocent as is usually the fate of all contractors in these scenarios.

Handover Issues
I know of a number of cases where the Architect has failed to maintain their independent referee role (Superintendent) at or nearing Practical Completion. The temptation to be heavy handed with the contractor in the interests of keeping the Client happy and getting some great photos is sometimes all too much for the Architect. Contractors will turn very quickly if they are pushed too far in these situations and matters can quickly turn into a bloodbath, particularly if the contractor or their sub-contractor have lost money, have a retention held over them and the Client is refusing to pay Claim amounts approved by the Architect thereby undermining the Architects authority. The cost to resolve common problems at the end of a project are insignificant compared to the cost to resolve them through the courts. We have learnt to simply get in and get the alleged defects done whether we were at fault or otherwise. Most Clients calm down in due course and experienced contractors have a very thick skin and a ‘rise above’ attitude to what are mostly trivial issues at the conclusion of a project in the scheme of things. The legal alternative is simply not worth the trouble. Perhaps your contractor and joiner will have to learn this the hard way but ultimately there will be no joy for you or your Client in terms of getting the issue resolved quickly if it goes down this path.