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Question DetailsAsked on 11/20/2015

if contractor makes a mistake measuring and asks for less than he meant to, should he absorb the extra cost?

My contractor gave me a price for flooring. We agreed on a price. I signed a contract. Then he decided down the road after we had started work, that he should have added 50 more linear feet to the baseboards he was charging for. So when he asked me for payment 1/2 way through job, he asked for more than we agreed to. It was about $150 extra. Also, he told me that I would need to use more sealer than anticipated to prevent moisture from slab from getting into the floors. He told me it would be $1500. I said "Ok, fine I guess we need to do it." Then when I saw the bill, he charged me $1950. I called my husband to see how much he remembered being quoted.My husband also remembered him quoting $1500. When I said that's not the quote you gave us he said "well I didn't realize how expensive the material was." That does not seem like good business practices. I've subtly mentioned it but he seems to think it would be crazy for him to absorb the cost of his mismeasurement. I disagree

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2 Answers


Oy vey, as they would say in parts of New York or Joisey. Here we go again.

Could be he made a simple mistake on the 50 LF of baseboard, and depending on the phrasing of the contract and any terms about mismeasurement or added work he might or might not be able to LEGALLY claim that addition without you approving a change order in writing - read the contract terms. However, if it got to court, it is likely that the judge would say you are getting more product than originally bid for and $3/LF is in the normal cost range, so the $150 would likely be allowed. Tis might or mighkt not be supported literlaly by contraxct law, but many judges and arbitrators tend to go that way - giving part of the win to all parties to try to keep them all happy regardless of the black and white right and wrong of the situation.

Now - the $1500 (or $1800) - could be he misjudged, could be the $150 item was a feeler to see if you were a sucker, and when you went for the $150 he figured he had you on the line so slammed you with the $1500 item. Maybe he did not price the material before giving that amount so bumped it to $1800, or maybe he is just saying that and is eeking a bit more $ out of you while he can.

First, I would ask to see his original takeoff on baseboard to VERIFY that his original takeoff was actually 50 LF shy of the actual, which YOU would have to measure to compare. And make sure his contract estimate price was $3/LF.

Second - I really wonder WHAT the waterproofing material was - normally would either be a visqueen sheet (so how that could require significantly "more" than estimated I can't figure), or a concrete sealer which is spread/sprayed/rolled on, and granted has variable "take" rate on different concrete surfaces but should not have been off by anywhere near to $1500 - which would be mostly or all materials cost because a higher "take" rate or application rate does not dramatically increase the labor cost. A couple hundred $ more materials I could see; $1500 no.

Third - $1500, assuming this was in the ballpark of maybe 1000SF over concrete, would be about normal cost range for a high-end polymer sealant - more than is normally done under flooring, but you did not say what type of flooring, whether on-grade or basement, or what the water situation in your case is, so that treatment might or might not be appropriate. [I am not going to address the suitability of a relatively impervious flooring like say hardwood or laminate or engineered wood over concrete that needs a significant sealant to avoid water issues, because very few concrete sealants really stop water well enough for that purpose, so they commonly end up with water damaged flooring anyway].

Visqueen would normally be more like 10-20¢/SF installed and is generally a better vapor barrier as long as it is protected from damage during installation, so the $1500 number unless for a MUCH larger area or for a polymer or epoxy sealant would be VERY high in that case.

Of course, I don't have to tell you that since you had a contract, presumably with firm pricing rather than stipulated as "estimates", your apparent agreement to verbal quote without written change orders was a mistake. If the $150 item was a leader to see if you would fall for verbal rather than written change orders, that may have led you to where you are now, if he is dishonest. In the old days I would have said that was a rarity, but from what I have seen in the last couple of decades, between outright crooks and con men, shady characters, opportunists, laziness, etc I woul have to say about 25% of vendors fall in the category I flat would not trust or voluntarily do business with them, about 25% negligent or drunk or drugged up so not trustworthy or a contractor you would want on your job, about 25% marginally to totally incompetent - so that leaves about 25% being people you really feel safe or satisfied doing business with. Of course, that is where reputation and maintaining personal relations with those you have had good experiences with, and a list of personal "go-to" vendors comes in - or using resources like recommendations from friends and neighbors and Angies List to lean on other people's experiences in selecting your vendors.

If considering paying a reasonable negotiated amount on the assumption this was a legitimate mistake on his part, I would demand to see his original job bid estimate paperwork (and make sure it supports his original contract amount, though would be hard to prove he did not work it up overnight) and materials invoices - then compare the pricing and quantities and timesheets for the respective materials and time with his estimate to see what the difference is between actual expenditures and hours versus his estimate. This would be back-to-basics approach for the entire contract.

Second approach would be to just look at the baseboard materials cost estimate (Footage) and total materials and labor cost estimate for the baseboard versus the $150 request, then the materials and labor cost for the sealant versus his estimate, and look at an adjustment on those items only.

I have to say it, but additional sealer (unless due to unusually high penetration rate into the concrete) would be unlikely to solve a moisture issue - i.e. if one good coat does not suffice, a second coat is not likely to make that much difference.

Your choices - first, to negotiate - separately on the $150 and the sealant, and on the sealant I would put my foot down and work from the $1500 rather than the $1800 number because it is HIS business to properly establish materials pricing BEFORE he gives a price, so THAT $300 overrun I would say is totally on him. And if he is in this business, he should have had that price at his fingertips anyway, as a standard material he works with.

Your other approach, assuming the contract was a fixed-price contract, is to tell him you had a firm contract price and underestimating on his part is no excuse to change it, because you selected his bid on the basis of that price, and if he had bid a couple thousand more he would not have been given the job. Generally contract law backs you up on that, though many judges will revert to the principle of unjust enrighment to award him at least some of his claim, on the premise that you should not get additional work at no additional cost to you regardless ofthe contract terms - and it does sound like the waterproofing was "additional" work under the contract, even though if it was needed it should have been part of the original contrct scope of work. (You need to check on this - maybe he had it in original scope and bid and is basically double-charging you for it now).

Because you are talking a thousand or two using an attorney for more than maybe writing the contractor a strongly worded letter or two about upholding the contract terms or maybe making a settlement offer is probably not worth your money.

The problem with just refusing to pay is you are not going to get the paid-in-full invoice or statement and lien releases that you should be getting from him, so leaves you in limbo on job closeout - plus leaves him the option of putting a lien on your property for the additional amount, which unfortunately he can do - rightly or wrongly.

Clearly you are in the right on the $1800 versus $1500 item at a minimum, assuming what he gave you was a "firm price" rather than an "estimate". Unfortunately, a lot of contractors (and homeowners) do not know the legal difference between the two, and way too many contractors are tending to say that everything (including firm price contracts resulting from bids) are actually "estimates" and hence subject to them bumping the amounts up at will, and unfortunately too many homeowners and courts are letting them get away with this.

How far you pursue this, and where you are on the job (complete or not ?) obviously plays intop it whether it morally should or not, because if not complete and you balk at paying now he is likely to walk away with the job unfinished.

Though that might clarify matters - because if you then called his bond to finish the job, they would be working from the written contract (with the verbal $ issues being a he said - she said situation) so your position might actually be stronger.

Hard to say which way to go - not enough $ to sue (except maybe in small claims court, though this is a situation where more likely he would sue you than vice versa), and no way to tell how far you would get in trying to negotiate him way down to make it go away and close out the contract and get your lien releases - like maybe the $150 for baseboard (assuming measurement supports that) plus the invoice materials cost only for the sealant but no labor, for example, as a possible middle ground.

And of course, after all is said and done, sounds like it would be time to do an appropriate Review on AL.

Good luck.

Answered 3 years ago by LCD


After being a contractor for over 40yrs my policy is I eat it. Mismeasures are a part of life if I over priced you, would I call up and say "Gee your home worked out to be xyz less than I thought,here is an adjustment down" Not likely. In Nebr I would get Attorney General consumer fraud div, Better Business Bureau, Angie's , and the wrath of the local tv station Can Help desk plus if over 64 years old get the senior protection department in your state involved. First.

Jim Casper current Gutter & Gutter Cover Contractor

ps for ideas on gutters and covers see my blogs

Source: www.heartlandmastershield,com

Answered 3 years ago by jccasper

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