Warranties on plantings often seem reasonable. Until they aren’t.
Most landscape architects are familiar with specifications about plant warranties. We often apply them without much thought because many consider it to be an industry standard practice. A typical plant warranty, usually lasting one or two years, requires the contractor to replace plantings that have died or appear to show unsatisfactory growth. Standard specification language often seems reasonable and enforceable. Until it isn’t—especially a few months after you thought the job was complete, or worse, after the end of the stated warranty period when the client calls upset that some of the plants are looking bad or are outright dead. Now comes the hard part. Whose responsibility is it if plants don’t succeed? Aren’t the dead or dying plants supposed to be covered by the warranty? If not, what was the warranty actually supposed to cover? These are all good questions that are symptomatic of a larger problem in the landscape industry.
The idea behind a warranty is to protect an owner from the inherent risks of building a project. Landscape architects have a fiduciary responsibility to clients. Ensuring that there are checks and balances in the contracting process is certainly necessary. Some contractors don’t always do the best work, especially in competitively bid situations. On projects where construction managers are apt to look the other way when landscaping is installed, rigorous specifications requiring onerous warranties are often the only device serving the landscape architect’s purpose of protecting the owner’s investment. Unfortunately the scope and reach of the one- or two-year warranty do not really provide that much protection to an owner beyond blatant plant failure. However, owners think that the warranty is their best option for getting a good landscape outcome. Although warranties are part of most standard construction contract language endorsed by the American Institute of Architects, the Engineers Joint Contract Documents Committee, and the Associated General Contractors of America, they seem appropriate for hard items such as concrete walls and asphalt pavements, or for mechanical systems such as irrigation or drainage. Yet a warranty on living plants is trickier. As part of a company that both estimates and oversees landscape construction designed by a variety of landscape architecture firms, my staff and I are often charged with sorting out the various reasons, costs, and responsibilities surrounding planting failure. We often ask ourselves if there is a better way to handle the intent behind the warranty.
To begin with, warranties raise costs to the owner without a clear return on investment. When a warranty is required as part of a contract, the contractor has to raise its planting price to cover the risk of plants requiring replacement. The additional cost of the warranty replacements includes removal of the dead or dying plants, plant replacement, and, typically, the additional warranty period for the replacement plants to match the duration of the original plant warranty. If the job has been bid with bonds, the one-year warranty period often draws out the bonding duration, representing additional contractor costs that have to be factored into the bid price. By requiring a contractor to assume the responsibility to replace plants via a warranty, the contract effectively burdens the owner at the time of bidding with costs, whether or not the plantings fail.
Most wholesale nurseries will not readily warrant their material beyond the point of sale, especially with regard to perennials and ground covers. Even if they do, they typically cover only the cost of the replacement plants, not the cost of transportation of replacement plants to the site or the time, materials, and equipment to install them. Yet somehow we expect the installing contractor to do better than the people who grow the plants. This is a tough one, and it simply adds costs. On a small job, the extra cost can be seen as a necessary evil or an insurance plan against plant failure. On larger jobs, especially jobs designed to provide critical ecological functions, the added costs can be substantial, putting much-needed ecological improvements at risk owing to inadequate funding. Might there be better ways to spend our clients’ money?
Moreover, warranties often lead to or are a source of disputes. Typical specification language requires the contractor to repair or replace plantings and accessories that fail within the warranty period. Failures are often defined to include plant death and unsatisfactory growth, except for problems as a result of vandalism, lack of adequate maintenance, or neglect by the owner. This sort of specification language seems straightforward, but it is rarely clear in practice.
Disputes often arise around what is “adequate” maintenance, because adequate can mean both proper and timely care. As we all know, establishment care, especially watering, needs to be diligent and weather-dependent. It requires skill and experience to know what to do. It is hard for a contractor to control warranty risk if the contractor does not control maintenance. Even with written maintenance instructions and periodic inspections by the warrantying contractor, things can go sideways quickly. We see this sort of problem a lot.
One of the most common warranty disputes centers around proper watering. At the completion of the job, the installing contractor typically sets the irrigation clock and rain sensor. Within a few days or weeks, the owner or the site representative notices the plants looking wilted and immediately overrides the system controls and overwaters the landscape without notifying the installation contractor who has warranted the job. Within a short time, the plants are either overwatered and rotting or they are dying of drought because the automation of the system has been fouled. With shared responsibility, issues such as disease or infestation can also be hard to pin on one or the other entity. If the owner is going to take over maintenance while the plants are under the installing contractor’s warranty, the owner needs to know how to carry out responsible landscape maintenance or hire an entity that does. Then the question arises as to who is watching the maintainer. Enforcing the requirements of the warranty falls at the end of the job, when the contractor, designer, and owner all are suffering from project fatigue and may have overextended their resources on the job. But remember, the owner has paid for the replacement that is being abandoned.
Warranties don’t always improve contractor performance. Many of us have experienced contractors who fail to return to the job after they have received their substantial completion payments. If you try to impose a heavy retainage factor on completed work to ensure the contractor returns to the site to cover its warranty obligations, the contractor typically will inflate its bid prices to cover costs ahead of the retainage factor. Some contractors game the requirements for warranty replacement. They wait until the last minute to make replacements to avoid additional maintenance or warranty coverage. Owners often get frustrated and just give up. In the scheme of things, a few dead plants in the year after the end of a job suddenly becomes acceptable, and long-term plant performance gets compromised.
Perhaps most troubling is that warranties perpetuate a regressive view of landscape plants as agricultural commodities rather than as instruments of valuable ecosystem services. Many landscape architects see their primary role as creators of a design to be built by someone else, often choosing to be less engaged during the building and establishment process. A reluctance to engage postbid, either willingly or because of fee restrictions, means we are not serving the needs of the landscape itself because we are failing to communicate its importance to owners. If we want to be taken seriously as stewards of ecological function, we need to ensure that our designs, including the construction of soil and hydrological systems into which plantings are placed, are being properly built. We are setting into motion conditions meant to ensure planting success. It is not a “plug and play” operation in which, if the plant dies, you can simply swap it out with another. If the plants do not grow over time, well beyond a year or two after planting, we don’t reap long-term ecological benefits. We need to drive home with our clients that plants are not commodities. They are living, long-term investments.
We need to remind owners that landscape architects provide true value during the construction and postconstruction phases of a project. We are often the only people on the design or construction team who can provide qualified third-party oversight of the selection of plants at reputable nursery sources, including appropriate delivery and unloading practices. We should both require planting mock-ups to ensure the contractor understands the planting requirements and be on site to observe planting activities, including percolation testing at multiple planting pits. We should also be on site observing postinstallation care before substantial completion including mulching, staking, watering, corrective pruning, and integrated pest management. Rather than trusting the contractor to perform properly and trying to use the warranty to enforce performance after the fact, we provide better value as landscape architects by getting ahead of potential problems before or as they occur, not once the plants start declining.
The bottom line is that a warranty does not really ensure planting success. It is more fundamentally a matter of proper selection, installation, and maintenance. We are relying on the warranty in lieu of actual engagement and knowledgeable oversight appropriate to construction and maintenance. Unfortunately, to do this, we need to be negotiating better contracts and fees to better serve our clients’ interests well before the start of projects. Make no mistake, this is not an easy task.
What are some alternatives to a warranty? In our practice, we have identified a combination of strategies that can be used instead of plant warranties.
- In bid documents, require the contractor to identify the replacement cost of each species of plant as part of its bid. These costs should be vetted and negotiated prior to the award. These costs can then be used for replacement costs as described below.
- On larger projects, require the prepurchase of additional plantings to assure adequate availability during construction.
- Encourage owners to set aside 10 to 15 percent of the estimated planting budget as a contingency fund to cover plant replacement rather than paying the contractor for replacements as part of the bid price.
- Specify maintenance separately from installation over an appropriate period of time to cover the likely establishment period of the plantings—often two or three years, unless the owner has the in-house capability to appropriately maintain the plantings. The maintenance cost should be a separate bid item price that can be vetted and negotiated before the award.
- Require participation in plant selection, inspection during planting, and periodic observation during the maintenance period as part of a standard scope of landscape architecture services. This requirement provides clients with peace of mind that they will have some level of protection from faulty work. It is also important to note that providing more attentive care during construction and maintenance costs more, though this additional cost is often offset by lower planting bids because warranties are not required, especially when applied at scale.
Rather than sticking to these well-known fundamentals, the warranty serves as a crutch. It comes down to this: A warranty is largely a strategy to preassign fault as a result of construction so a project owner has a sense of protection from the inherent risks of building projects. While this approach is a viable way to limit short-term risk, it does little to actually encourage successful long-term planting outcomes. And it does nothing to change the mind-set of our clients about the importance of proper plant installation and establishment care. The urgency of improving durable ecological performance with vegetation for the benefit of our communities should give all landscape architects pause. It is time to reconsider the broader consequences of our business-as-usual approach to using plant warranties.
Andrew Lavallee, FASLA, is a partner at SiteWorks LLC in New York City.