Material Shortages and the Implied Warranty of Availability of Materials - April 2021

By Trent Cotney, FRSA Legal Counsel, Cotney Attorneys & Consultants
Mon, Apr 05, 2021

COVID-19 has caused a variety of material shortages and price increases affecting lumber, steel and shingles. Recently, FRSA affiliate, RCASF issued a notice that foam used for tile installation was in short supply, delaying projects. As a result of these material shortages, contractors have had to adjust to delays and determine how to keep the customer happy despite the inability to obtain key materials needed for construction. 

Material Specifications
In most cases, preferred materials are readily available for construction projects. However, there could be a project where an owner requires the use of a construction material that is difficult to locate or is available only from a single supplier. In this case, it could be reasonable to conclude that the owner implicitly warrants the specified material’s availability.

Under the implied warranty of availability, if an owner specifies a material available only from one supplier or requests one supplier for a specialty or brand name material and that supplier cannot or will not provide the required material, then the owner’s specifications are defective. In this instance, it follows that the owner has broken the implied warranty of constructability and is therefore liable for any damages or expenses that the contractor encounters. Read More

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