As a consumer and as a lawyer I feel compelled to reply to the article on dealing with contractors that appeared in these pages last week.
The authors made a valid point when they wrote that the consumer should fee comfortable when dealing with the contractor. But I take strong issue with their suggesting that the consumer should not insist on a written contract.
A contract is - or should be - a carefully drawn document, spelling out the respective rights and responsibilities of the parties. The consumer should know how much the entire job will cost, and should be obligated, in writing, to make prompt payments under a drawn schedule. Similarly, the contractor should be obligated, in writing, to begin and end the job at specified times. The contract should also state under what circumstances the contractor will receive partial payments.
Moses Voloshen, president of the Metropolitan Home Improvement Council, said the substantance of the article "goes against everything the industry stands for." A written contract is an essential element of any agreement for home improvement work, he said.
While it may very well be true, as the article stated, that "a reluctantly drawn contract may be so padded that the work will cost you more than it would have paid for in the usual way," the burden should always be on the consumer to shop and compare. And comparison shopping in the area of contracting includes not only price, but reputation and quality of the contractor.
The authors go on to suggest that it may not always be necessary to deal with a licensed contractor. I cannot disagree more. While a license does not assure quality, it will protect the consumer against fraud, and it will often permit the aggrieved consumer to seek restitution under the contractor's bond if the work is not properly completed.
The authors also suggest that since contractors are always bidding for more jobs than they can handle at once, someone will have to be delayed on the job. Their solution to this problem is for the consumer "to become the squeaky wheel on the carriage" and to keep pressuring the contractor until the work is done.
Needless to say, in my opinion this is not the answer. A carefully drawn contract should contain a provision that "time is of the essence," and the contractor should agree to complete the work by a specified date. If the work is not completed at that time, a per day penalty clause can be included in the contract, thereby reducing the profits to the dilatory contractor.
Here are a few suggestions for dealing with contractors, so as to preserve the consumer's rights yet at the same time not diminish the quality of the contractor:
Use the standard form contract drawn up by the American Institute of Architects, which you can purchase from that organization. This was drawn up by architects who have had experience with contractors.
Insist on a completion bond from your contractor. This will guarantee performance. Thus, if your contractor does not complete the job, the bonding company will take over to insure completion.
Find out what kind of warranty the contractor is willing to provide. Reputation is important, but clearly it is not enough. The fact that the contractor does one job nicely will not assure you of that same performance. This is especially true if the contractor is rushing to get through with your job so as to move on to the next one.
provide for arbitration in the event of a dispute. The standard form contract generally provides for arbitration under the rules of the American Arbitration Association. We all know that legal fees and court costs are often prohibitive. Arbitration is an economical - and fairly rapid - method of resolving disputes short of the courthouse.
Check with your insurance company to see if you are adequately covered against claims by workmen who may be injured on the job. Ask the contractor about the insurance he carries.
It is true that no legal contract will make the difference between a good construction job and a poor one. However, if you don't have the terms and conditions reduced to writing, you may never get the job done and may waste a lot of money.
Benny L. kass answers questions through this column. Write him in care of the Real Estate section, The Washington Post, 1150 15th St. NW, Washington 20071.