"The Delay Nobody Bills You For — What the Association Owes the Contractor."
The letter shows up in month four. It's polite, it's on letterhead, and it's addressed to the board.
"Please be advised that the Contractor has incurred twenty-two days of compensable delay attributable to Owner-caused conditions, including delayed submittal approvals, restricted site access, and unavailability of the designated laydown area. A change order request follows."
The board reads it twice and lands somewhere between confused and annoyed. Then the meeting happens, and it goes like this.
The board says: we relied on our manager.
The manager says, fairly: I sent everything to the board and to the attorney, and I never got direction back.
The attorney says, also fairly: I reviewed the contract. I'm not your construction consultant, and I never said I was.
Nobody in that room did anything wrong. Every single one of them behaved reasonably. And the association still has a twenty-two day delay claim, a submittal that got returned without anyone comparing it to the specification, and a laydown area that got reassigned in month two because somebody complained.
I want to write about that gap, because I think it's the single most under-discussed structural problem in HOA construction — and because almost every article about it, including some of mine, quietly assumes a board that doesn't exist.
The Board You Read About Isn't the Board You're On
Let me correct something I've probably implied in this newsletter more than once.
I've written about bid leveling, contractor interviews, submittal review, hidden-damage unit pricing, and contract terms as though the board were doing those things.
Boards almost never do those things.
Boards almost never level bids. They see a summary — three companies, three numbers, sometimes a recommendation. Boards almost never review submittals; most directors have never seen one and couldn't say what one is. Boards almost never negotiate a construction contract. They approve a motion to sign it.
And that's not a criticism. It's a description of a volunteer board doing exactly what a volunteer board is supposed to do: govern, set direction, approve expenditures, and rely on the professionals it has engaged. Nobody joined an HOA board to evaluate whether a proposed sealant meets the specified ASTM classification. The expectation that they would is unreasonable, and it's not the standard I'm holding anyone to.
The problem isn't that boards delegate. Boards should delegate.
The problem is that on most HOA construction projects, the technical review is delegated to people who were never hired to perform it — and everyone in the chain believes it's being handled by someone else.
The Circle of Reasonable Assumptions
Here's the loop, stated plainly.
The board is counting on the community manager and the attorney. That's rational. Those are the two professionals they pay, and both are competent people.
The community manager is counting on the board for direction and on the attorney for the contract. Also rational — and it's worth saying clearly that community managers are the most overloaded participants in this entire process. A portfolio manager may carry six to ten associations, several hundred owners, budgets, collections, violations, vendor management, and a meeting calendar that eats their evenings. They are operations professionals, often very good ones. They were not hired as construction managers, they don't hold themselves out as construction managers, and their management agreement almost certainly says so. When a project goes badly, they are the ones who absorb the blame anyway — which is why this gap is a bigger problem for managers than it is for anyone else at the table.
The attorney is reviewing legal work. That's exactly what they were engaged to do, and they do it well.
Every arrow in that circle points at somebody who is pointing back.
And the loop has no technical construction seat in it at all. Not because anyone was negligent — because nobody was assigned.
What Your Attorney Actually Reviewed (and What They Didn't)
This one is worth being specific about, because "our attorney reviewed the contract" is the sentence that ends the most board discussions.
A good association attorney reviews the contract as a legal instrument. Indemnification. Insurance requirements and additional insured status. Limitation of liability. Termination rights. Dispute resolution and venue. Lien rights and waiver forms. Warranty language as a legal obligation. Notice provisions. Whether the association can get out, and what happens if it does.
That's real, valuable work, and you should absolutely keep paying for it.
Here is what that review is generally not, and what most attorneys will tell you directly if you ask:
Whether the scope of work actually covers the condition you're trying to fix
Whether the specified products are appropriate, or whether one bidder quietly proposed something cheaper
Whether the hidden-damage unit prices are reasonable, or whether one of them is set ten times market because the contractor knows that's where the volume will be
Whether the schedule is achievable, or whether it puts a coating application in November
Whether the schedule of values is front-loaded so the contractor is cash-positive by month two and has no financial reason to finish
Whether retainage is adequate for this scope
Whether there are gaps between trades where no one has been made responsible
Whether the submittal and closeout requirements are strong enough to protect the warranty
None of that is legal work. All of it is contract content. And the reason it doesn't get reviewed is that the person reviewing the document was engaged to look at a different set of clauses in it.
That's not a knock on attorneys. It's a scope-of-engagement fact, and the fix is to stop treating a legal review as a technical review.
The Submittal Problem Is Worse Than a Slow Board
I originally framed this as a speed problem — that boards meet monthly and can't turn a submittal around in five days.
That's real, but it's the smaller issue. Here's the bigger one.
A submittal is the contractor telling you, in writing, exactly what they intend to install. That's the moment — the only clean moment — when the owner can compare what was promised in the specification against what's actually about to show up on a truck.
On most HOA projects, that comparison never happens. The submittal arrives, gets forwarded, and comes back either approved or ignored. Nobody opened the data sheet. Nobody checked the product against the spec. Nobody noticed that the proposed sealant has a different movement capability than the one specified, or that the coating is the contractor's builder-grade line rather than the premium line that was priced, or that the installer isn't certified for the system the manufacturer's warranty requires.
So the slow-board version costs you schedule.
The fast-board version — forward it, approve it, move on — costs you the building. An approval you didn't understand is worse than a delay, because a delay is visible and a bad approval isn't. It shows up in year four, when the warranty claim is denied and everyone discovers the association approved the substitution in writing.
Same thing happens with bid leveling. A board that received a three-column summary sincerely believes the bids were leveled. What they received was a price comparison. Leveling is the work of establishing that the three prices describe the same project — and that work requires someone who can read all three scopes and find what's missing from two of them.
So Name the Gap, Then Fill It on Purpose
I'm not going to pretend there's a clever no-cost fix. There are three honest options, and boards should pick one deliberately instead of arriving at one by accident.
Option one: engage a technical owner's representative for the project. Somebody whose actual job is scope, bids, submittals, site observation, pay application review, and closeout — and whose duty runs to the association. Yes, that's what I do, so weigh this accordingly. The reason it works isn't expertise alone; it's that the role has an owner. Cost is typically a small percentage of project value, and it comes out of the same budget as the change orders it exists to prevent.
Option two: use the design professional you already hired for construction-phase services. If an engineer or architect wrote the specification, they can usually be retained through construction to review submittals, respond to RFIs, and observe the work. Many boards buy the design and then decline the construction-phase scope to save money — which is how you end up with a specification nobody is enforcing. The person who wrote it is the cheapest person to enforce it.
Option three: decide consciously to go without, and price the risk. Legitimate on a small, simple, low-consequence project. If that's the call, make it out loud, write it in the minutes, and stop telling yourselves the submittals are being reviewed. Then at minimum: no substitutions accepted, period; unit prices locked at bid; retainage held to the contract; and no final payment until the closeout package is complete.
What isn't an option is the current default — assuming.
Three Things to Do This Month, Whatever You Choose
1. Ask the two questions out loud at your next meeting. Who is reviewing submittals on this project, by name? and who is on site verifying the work matches the contract, by name? If the answers are "the manager" and "the manager," go ask the manager whether their management agreement includes construction administration. It almost certainly doesn't, and they will be relieved that somebody finally asked.
2. Write down who owns each owner obligation. Site access, laydown area, parking, water and power, resident notification, unit access, decisions and approvals, pay application review. These are the association's contractual duties, and they're the ones that generate delay claims. If the responsible party is "the board," it isn't assigned.
3. Give one person defined authority in the minutes. One point of contact for the contractor, with stated limits — which submittals they can approve, what dollar amount of hidden-damage work they can authorize at contract unit prices, and what has to come back to the board. This protects the volunteer director as much as the schedule; without it, the director who lives closest to the site becomes the de facto superintendent, and the contractor's daily reports will have his name in them.
The Bigger Point
The contractor's obligations are managed by a superintendent who is on site every day and is paid to track them.
The association's obligations are managed by a circle of people, each reasonably assuming another one has it.
That asymmetry is the whole problem, and it isn't solved by working harder. The board can't out-diligence it, because the board isn't the right instrument for it. The manager can't absorb it, because it isn't in their agreement and there aren't enough hours in their week. The attorney can't cover it, because it isn't legal work.
It gets solved exactly one way: somebody's name goes next to it.
If you'd like the worksheet behind this article — an Owner Obligations & Responsibility Map that walks the project role by role, forces a name next to every technical review and every owner obligation, and includes fill-in-the-blank resolution language for a single point of contact with authority limits — comment below or send me a DM and I'll get it to you.
And I'd like to hear it from both sides of this. Board members: did you believe your submittals were being reviewed? Community managers: how often does a board assume you're providing construction administration you were never contracted to provide? I suspect the managers reading this have the better stories.
Next up: the warranty you think you have. The difference between a workmanship warranty, a material warranty, and a full-system warranty — and the four ordinary things associations do, usually at the submittal stage, that quietly void all three.
Nothing here is legal advice, and nothing here is a criticism of the attorneys or managers doing this work well. Scope of engagement varies; read yours. The point is to find out what it actually covers before the project starts rather than after the claim arrives.
Sean Davis, PMP | Civil Engineer | Current HOA Board Member (12 years) | DHA Construction Management | Broomfield, CO
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