[WSBARP] New construction contract - “substantial conformity"

[scott at scottgthomaslaw.com]

It used to be common practice for specifications to specify a particular product, and include an “or equal” clause.  In some instances the specifications (or the contract itself) would establish a procedure to be followed to allow substitutions.  Generally, the substitute must function as well as the specified equipment in all essential aspects.  And so if one product has a longer warranty period, for example, the products are not equal.  Or if one results in greater energy efficiency.  Etc. etc.  A problem can arise when there is no objective standard possible, as when one product or material just “looks” better than another in a particular application (think shades of paint, or color of tile.)  I don’t have a case citation for you but if I represented the owner in those instances I would argue so long as the denial of use of the material was not made in bad faith, then it should stand.  And if I represented contractor, I would want to know what the denial was based upon.

 

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Anthony Gibbs
Sent: Friday, October 25, 2019 11:06 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] New construction contract - “substantial conformity"

 

I’m trying to get a good definition for “substantial conformity” and “comparable quality" in the context of a new home construction contract.  

 

E.g., if the builder must substitute materials that are “comparable in quality” to those chosen by the buyer or when Builder says it will construct the home “substantially in accordance” with the drawings and other descriptions… 

 

Is there an objective standard for comparison? I’ve started on caselaw research with the precise terms but it’s slow-going so far.

 

Any thoughts or leads are most appreciated!

 

Best,

Anthony

 

--

Anthony F. Gibbs | Attorney

The Moceri Law Group PLLC

(888) 510-1961

 

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