Background
When a defect or water intrusion is alleged, owners and consultants often demand testing, core cuts, probes, tear-offs, or other destructive investigation before anyone knows whether the contractor’s work actually caused the problem. These investigations can become expensive, particularly when they require removal and replacement of completed roofing, waterproofing, insulation, finishes, or other building components.
A contract should address who pays for that investigation. Without clear language, the contractor may be expected to absorb substantial testing and restoration costs even when the investigation ultimately confirms that its work complies with the contract documents or that the condition originated elsewhere.
A testing and destructive investigation provision shifts those costs based on the outcome. If the investigation establishes defective or nonconforming contractor work, the contractor bears the reasonable cost. If the contractor’s work complies with the contract requirements, the owner bears the investigation and restoration costs.
Contract Provision
Testing and Destructive Investigation. If Owner, Architect, Consultant, or any other party acting on Owner’s behalf requests testing, destructive investigation, exploratory openings, core samples, removal of completed Work, or other investigation to determine whether Contractor’s Work is defective or nonconforming, Owner shall initially bear all costs associated with such investigation, including testing, consultants, access, removal, protection, and restoration.
If the investigation establishes that Contractor’s Work materially fails to comply with the Contract Documents and that such noncompliance caused or contributed to the condition being investigated, Contractor shall reimburse Owner for the reasonable and necessary costs of the investigation and shall correct the nonconforming Work as required by the Contract.
If the investigation does not establish such noncompliance, Contractor shall have no responsibility for the investigation or restoration costs, and any Contractor labor, materials, equipment, supervision, delay, disruption, remobilization, or restoration associated with the investigation shall constitute a Change in the Work entitling Contractor to an equitable adjustment of the Contract Sum and Contract Time.
