I am a subcontractor in the state of Texas, hired by a general contractor, to complete a flooring installation for a commercial business funded by the state. For the sake of the following argument, please take my words at face value. The situation: the owners/GC are exceptionally difficult to please, beyond reason, and created weeks (months even) of delays due to their indecision and lack of communication. We had (FINALLY) reached an approximately 90-95% completion mark, and we were at the "fixing defects and completing punch list items" stage when everything all went to hell. We offered a few different solutions to the alleged defects and vague punch list requirements ("I don't like it over here, I don't like that section over there, this piece of flooring has too much variation, that piece doesn't have enough variation, etc.). The GC said, in an email, "to standby for a decision." We received no opportunity or clearance to proceed with the job, only several emails putting us on standby and/or delaying any sort of completion, followed by over a month of silence and crickets. During this timeframe, the GC hired another subcontractor to "fix" our work. (We know this because other friendly subcontractors, also working in the building, told us as much off the record and sent pictures of the altered floor.) In short, the other subcontractor messed it up really, really bad and to the point the floor looks absolutely nothing like we left it. In fact, the majority of our installed flooring was removed or damaged. Honestly, even if we were to fix it, it would basically have to start from scratch, materials and everything, but I digress. SIX WEEKS WITH NO RESPONSE LATER - The GC sends us a 48-hour Cure Notice, basically stating that we are in default for not completing the work, not holding up our end of the contract, we might be responsible for costs and other subcontractor fees and legal fees and all that jazz. We responded to the Cure Notice the same business day we received it, addressed the claims therein, and again offered a variety of solutions/actions. Crickets again, no communication whatsoever. Now, over a week after THAT email and our response, the GC leaves a voicemail about trying to reach an amicable solution and how he hopes we'll be honorable people considering how we've held up his project so long. Mind you, this is the first time anyone on that side of the project has responded cooperatively to our attempts at communication. The GC/Owners have caused inexcusable delays, even perhaps deliberate lack of communication, with a side of shadiness by hiring another company to redo the floor while we still have an active contract. (For the record, we've been paid just about everything except retainage, and our proposed solutions and implied completion would have taken, at most, two more business days once approved.) What actions are open to us? What state law allows us, in the absence of any other definitions or agreements, to quit and close the contract if something doesn't give? Secondly, the contract states that the subcontractor (me/my company) is not obligated to warranty the manufacturing of another entity, but it doesn't discuss what or when our "product" is no longer "ours." As I mentioned, the floor has been altered/destroyed beyond our recognition and, officially, without our knowledge or consent if that matters. What law designates when a product stops becoming OUR product and is no longer our legal or financial responsibility? How does a subcontractor fight back in these instances when they're being unreasonably pushed and pulled around and threatened? What law or statute or anything can I reference, beyond my own documentation supporting my claims, when our latest attempt at communication/completion goes sour again, as I'm sure they will?
First, this is a very well written and thought out analysis and timeline. Your questions are valid, and need to be answerd, but here comes the lawyer answer. Absent a review of the contracts at play, I can't tell you in any real detail what your legal options are. Obviously you have a potential claim for your retainage, and there are certain notices, including a potential lien, you must utilize to protect your rights to that retainage.
Without further review it sounds to me as though you substantially completed the project, at which point your work was actually damaged or destroyed by another contractor. In my opinion there is a considerable liklihood that the responsiblity for this will fall back on the general contractor/other contractor. Moreover, the cost of repair of those items should not be taken from the retainage owed to your company.
There are just too many approaches to discuss in this public setting, so at this point I can only recomend that you contact an attorney directly to discuss these various issues.
Feel free to reach me directly if you would like to continue this discussion via any method below.