ComplaintsforBrainNerd Construction LLC

• Initial Complaint

  12/04/2023

  Complaint Type:

  Service or Repair Issues

  Status:

  Answered

  More info

  I hired BNC builders in October 2022. We signed a contract for them to build a basement with a 1 story addition, to add a new porch, reside my home, to put a new roof on my home, and to add a gabled peak to the roof of my home. The amount was $105,000. They were only drying it in and not finishing the inside. I gave them $68,000 up front and was told the project would take 3 months from one of their employees who was communicating with me about the bid. They are still not done and they willfully destroyed my property. I had to get an engineer involved. The company wanted to charge me to fix their mistakes. They left the existing foundation exposed and vulnerable to crack. There were supposed to fill that in. The engineer who did the inspection said they were supposed to use to a structural foam. BNC purposely used a open celled insulating foam trying to save money. I had another contractor come out to take a look. I was told the work had to be redone and would cost $69,000. The engineer's report also said they water proofed the basement incorrectly. BNC does not want to fix the issues. In October they sent me a termination request and wanted me to sign a non disclosure agreement which I did not agree to. They are also now trying to charge me for several things that should've been included in the contract or they did not specifically exclude in the contract. They are trying to charge me to waterproof the basement properly which was included in the contract, for ICF which I never requested, to haul off the access dirt they didn't need and didn't disclose to me in contract, and for a French drain which should've been included in the work to build the basement.

  

  Business response

  12/17/2023

  The below response is attached as a PDF with supporting documents. The PDF format is much more readable due to formatting. 

   

  December 18, 2023
  To: *** Serving Eastern & Southwest Missouri & S. Illinois
  RE: *** Complaint dated 12/4/2023 ID of ********
  ******* ********** (The Customer)
  *** ********* ****
  **********, ** *****
  Daytime Phone: (**** ********
  E-mail: ***************************
  
  To whom it may concern, ********* ************, LLC (***** *** *********** ********) disputes Ms. ************ claims, particularly her social media claims of fraud, intentional damage, and breach of contract. We ask that this complaint be rejected and removed from the *** website. 
  We have attempted to come to a resolution with ********** through calls, texts, requests for in-person meetings, negotiations through our attorney, and requests for mediation. ********** has rejected the settlement offers and has instead chosen to create a social media campaign by leaving negative and inaccurate reviews and encouraging others to leave negative and inaccurate reviews on ******, ******* ****, ********, ***, and otherwise. 
  Instead of using proper and reasonable legal channels, ********** has inaccurately argued the case on social media. With ************ project being a complex construction matter, the contracts, changes, and communications occurring over the past fifteen months are too complex for the disinterested general public to digest in whole. We believe that ********** is relying on this to paint us in an unfavorible light. Simply put, ********** is either mistaken in many key facts or intentionally misrepresenting them in the hope that she can cause us to increase the amount of already reasonable settlement offers we have made. Combating ************ inaccurate recitation of the facts on social media will only further lead to mudslinging without any real resolution of the dispute. 
  A ******** page that is presumably created and maintained by ********** can be found here: 
  ************************/*****************************
  We appreciate the ***’s willingness to assess complaints and allow only fair reviews from the general public. We will attempt to answer all of the complaints ********** mentioned in their review, without deviating too far into the issues not mentioned here. 
  The details of this matter are as follows:
  Customer’s statement of the problem and our responses.
  Note:  ******* ************* words are italicized, as well as any quotations from the proposal or other sources. Our responses and explanations appear in plain text. Underlining was added to highlight key points that were not a part of the original proposal or other documents. 
  ************ allegations
  ************ allegations can be categorized into six complaints. I have categorized her complaints for clarity and responded to each.
  Schedule
  “I hired BNC builders in October 2022.”
  “was told the project would take 3 months from one of their employees who was communicating with me about the bid. They are still not done”
  Scope
  “We signed a contract for them to build a basement with a 1 story addition, to add a new porch, reside my home, to put a new roof on my home, and to add a gabled peak to the roof of my home. The amount was $105,000. They were only drying it in and not finishing the inside. “
  Change Orders
  “They are also now trying to charge me for several things that should've been included in the contract or they did not specifically exclude in the contract.”
  “They are trying to charge me to waterproof the basement properly which was included in the contract,” “The engineer's report also said they water proofed the basement incorrectly.”
  “for ICF which I never requested”
  “to haul off the access dirt they didn't need and didn't disclose to me in contract”
  “and for a French drain which should've been included in the work to build the basement”
  Correction of workmanship 
  “The company wanted to charge me to fix their mistakes.”
  “BNC does not want to fix the issues.”
  “They left the existing foundation exposed and vulnerable to crack. There were supposed to fill that in.”
   “I had to get an engineer involved.”
  “The engineer who did the inspection said they were supposed to use to a structural foam. BNC purposely used a open celled insulating foam trying to save money. I had another contractor come out to take a look. I was told the work had to be redone and would cost $69,000. “
  Destruction of property/intentional misdeeds
  “they willfully destroyed my property.”
  “BNC purposely used a open celled insulating foam trying to save money.”
  Money’s paid and termination of contract
  “The amount was $105,000.”
  “ I gave them $68,000 up front “
  “In October they sent me a termination request and wanted me to sign a non disclosure agreement which I did not agree to. “
  
  
  Our Response
  I will address each of the six categories individually to show that we have worked hard to meet the client’s expectations and exceeded our contractual obligations for the portions of the project we have completed. We do not believe any money is due to her, but are willing to offer a settlement.
  Schedule
  ********** alleges that the estimator gave her a verbal timeline of 3 months to complete the project. 
  The estimator originally assigned to the project no longer works for the company and we did not have his emails, texts, or written communications which would verify ************ claims on this issue.
  No start date is noted in the signed proposal. ************ stream of requests for changes and concerns regarding the work performed caused further delays in the project. For example, the project was stopped because we hired an engineer to address ************ concerns about hairline cracks in the concrete slab, gravel size, and waterproofing the ICF.The project was forced to halt from June 30, 2023 until September 13, 2023, at which point additional time was required to discuss the issues, find solutions, and solicit subcontractor bids for additional work. There were many other client-induced delays, including wanting a sump pump, change in ceiling height of the basement, insisting the French drain extending to daylight near the pond, window well material type, and concerns about the ICF installation.
  Ultimately, work permanently halted when agreement could not be reached on a variety of issues, including what work was to be done, who was going to pay them, and other important details.
  Scope
  While ************ description may generally describe the work, the scope is not worded this way in the proposal or any other project documents. This is pertinent as this was never intended to be a complete start-to-finish home addition. ************ vision of what we should have included in that scope differs from the proposal she signed.
  ********** describes the scope as “build a basement with a 1 story addition, to add a new porch, reside my home, to put a new roof on my home, and to add a gabled peak to the roof of my home. The amount was $105,000. They were only drying it in and not finishing the inside.”
  This is not an accurate summary of our proposal. Each scope has a specific list of items that were included in the price. Some items for drying in the basement were clearly to be provided by the owner and therefore not included in the estimator’s cost list or proposal. Examples of this are that ********** explicitly agreed she would provide the exterior windows, topsoil, and landscaping.
  The contracted work was only excavation, prep/pour foundation, exterior framing, sheathing, roofing, and siding. Simply put, the proposal stated in clear and explicit terms that the only work that was included is what was specifically recited in the proposal and nothing else. Then, after the project was started, ********** started advising BNC of all the other work she believed was or should have been included.  ********** had a full and fair opportunity to bring all of these issues up after reviewing the scope of the work before the proposal was signed.  If ********** had done so prior to executing the proposal, adjustments could have been made to the scope of work, but such requests also might have occasioned increases in the price and time to do the work as one might reasonably expect.
  Change Orders 
  ********** alleges that items she assumed were included in the contract should be performed at no additional cost, despite them not being listed or paid for. 
  The proposal ********** signed lists all of the items we included, in detail. I will respond to the assumption generally as well as specifically to each item she mentioned in her complaint.
  Of critical importance is the following section of the proposal which ********** conveniently disregards in all of her stories and postings on social media and herein:  
  “BC [********* ************] agrees to perform the scope of work for the price outlined in this bid only.  Any deviation from the scope of work set forth in this bid must be memorialized by a Change Order and signed by BC and Owner.  The cost of Change Orders shall be calculated by time and materials.  Administrative Charges for re-permitting, restaffing, retooling, restocking, material returns or material purchases may apply.” 
  This section is notable in that it does provide terms for the modification of schedule and price. 
  As the project progressed, ********** made it clear that she expected many items not listed on the proposal, including additional french drains, waterproofing, backfill, gravel, and hauling away spoil piles from excavation (dirt from digging out the basement). She also demanded many other items be given to her for free including increasing the overall basement wall and ceiling height, adding a utility pump, pump basin, and upgrading window wells. 
  In addition to her expectations, there were other incidental deviations along the way, including additional excavation and drainage to remediate what appeared to be an underground spring, upgraded foundation, and upgraded framing requirements. 
  As will be seen below, we actually agreed to provide some of these changes at no cost to her.  ********** nevertheless expected us to provide everything she wanted for free, and refused to pay any additional money or sign any change orders for these deviations. This is in no way reasonable, especially considering we performed many of these upgrades despite her refusal to sign change orders in an attempt to play nice in the sandbox and meet her expectations. 
  The specific change orders she mentioned in her complaint are addressed as follows.
  Waterproofing - type and installation
  ********** alleges “The engineer's report also said they water proofed the basement incorrectly. “
  This is false. While we intended to use the Rpro waterproofing solution, we also were not finished when we stopped and called an engineer. The dirt and gravel needed to be removed from the base of the wall and additional layers of the product still needed to be installed.
  The provided engineer's report addresses the waterproofing only three times in the five-page report without stating we waterproofed the basement incorrectly. Here is the exact text of the report regarding waterproofing:
  Observations:
  “While inspecting the exterior of the addition, it was found that the current waterproofing method of the ICF blocks was a rolled-on polymer asphalt.”
  Conclusions:
  “The best way to remedy the waterproofing issue is to follow the recommendations of the ICF manufacturer, Fox Blocks. Fox Blocks recommends self-adhering waterproofing membranes over spray, brush, or trowel-on options due to shortcomings in the latter options. They also recommend utilizing a dimple board and a French drain/weeping system in addition to the membrane for full coverage. All this needs to be completed in conjunction with re-excavating the deposits of clay and gravel from around the new foundation wall.”
  Recommendations:
  “1. Install a Polyguard 650 waterproofing membrane or equivalent on the ICF foundation wall per manufacturer's specifications.
  2. Install a dimple drainage board outboard of the waterproofing membrane.
  3. Install a drain tile system to ensure that any water drains away from the foundation wall. The new drainage system needs to set on no less than 2" of gravel that is one sieve size larger than the drain's perforated openings. Then the system should be covered with no less than 6" of gravel that is also one sieve size larger than the perforated openings.”
  The engineer's words “The best way to remedy the waterproofing issue” imply that there is more than one way, but in his opinion, this is the best way. 
  We chose to install the Polyguard system as recommended by the engineer. We began to install but then had to stop and remove the Polyguard due to ************ complaints. We purchased residential ICF Polyguard waterproofing material and began to install it. ********** took issue with the Polyguard waterproofing membrane being installed horizontally instead of vertically. She has since accused us on social media of installing it incorrectly. However, horizontal installation is allowed by the manufacturer.
  Attached is a letter from Jeff Nelson, the regional manager for Polyguard. In the letter, Jeff explains the possible use with horizontal installation:
  “Below Grade waterproofing best practice for a 60 mil membrane is to install the sheet membrane as vertical strips. This is because the weight makes it difficult to get the sheet to install flat on the wall without ripples, folds, and fishmouths. 
  If material has already been installed horizontally on the wall with proper shingling, all ripples that are close to the seams must be cut out and patched. Ripples in the center of the field are not of concern but if they are within or close to the overlap they will need to be addressed. Attached is the detail for patching the membrane.”
  There were no ripples, folds, or fishmouths noted in the installation and therefore the installation would meet the manufacturer's specifications. This email was provided to **********, but she disregarded the information.
  At this point, we had tried various solutions and she complained about each of them. Although we were willing to try and resolve any waterproofing issues reasonably at our own expense, it is not reasonable for her to demand a blank checkbook to obtain endless upgrades. ********** has refused to cooperate with us on achieving a reasonable, appropriate, and cost effective solution. She simply expects us to do whatever she wants for free.
  Foundation upgrade from poured to ICF
  The client claims we tried to charge for the ICF upgrade that she never asked for. This is false.
  We noted the ICF upgrade as a change but did not seek compensation for it. We simply noted it as a deviation, along with the value provided to show that the client was not being financially taken advantage of. We specifically agree to pay for this on our own.
  Haul off excess dirt from excavations
  Hauling off excess dirt was never in the proposal or intended to be included in our scope of work. The client has ample land to distribute the dirt. Hauling off dirt is a deviation from the scope and should be “memorialized by a change order.”Hauling off dirt, especially in southwest Missouri where there is a minimal amount of dirt, is not automatic or customary. Given that the extra dirt belongs to the homeowner and may be used elsewhere by the customer, we do not haul the dirt off unless we are specifically hired and paid to do so.  We were not so hired by **********.
  French drain installation
  ********** wanted extensive upgrades to the drainage, including draining across the driveway and down the hill to daylight, towards her pond. ********** refused any additional amounts for this upgrade which was not included in our proposal and we were never paid for it. 
  Additional work was needed to mitigate what appeared to be an underground spring found near the foundation during excavation. We were not aware of the spring nor did we contribute to the need to mitigate it.  This was no one’s fault, and these things sometimes happen in construction projects.  ********** did not agree to any additional money, and it was not reasonable to hold us responsible for not knowing of a hidden spring.
  Again we dispute that we charged ********** for illegitimate change orders or are demanding compensation for all of the additional work we performed. We currently have documented costs of over $95,000, not including profit and overhead; whereas ********** has paid $68,000. We have repeatedly agreed to make changes, repairs, and upgrades at our own expense, but cannot give ********** a blank checkbook to get as many free items and scopes of work as possible.
  4) Correction of workmanship 
  a) ********** alleges that “The company wanted to charge me to fix their mistakes.”
  We dispute this allegation. In fact, we corrected what we acknowledge might have been mistakes. What we are not and were not prepared to do, is to attempt to correct forever, what ********** (who apparently believes herself to be some sort of construction expert) believe may be done incorrectly. She went as far as to dispute what an engineer said ought to be done in one circumstance.
  In the construction industry, there are many standards and opinions as to what is considered quality and acceptable construction, especially when a customer’s budgetary constraints are taken into account. ********** clearly did not understand what was included in our proposal, so we attempted, within reason, to try to meet the client’s expectations of scope using basic construction techniques, common to our area. The engineer recommended higher standards than what we had budgeted for. However, we attempted to meet the customer’s expectations despite her refusal to accept any price adjustments. It soon became apparent that we could not afford to meet her expectations with the budget she had for the project.
  We did not charge for items we felt were our responsibility. Three examples of corrections we did not charge her for:
  The engineer observed that ¾” gravel was placed on the drain tiles. In item 3 of his report, the engineer recommended “The new drainage system needs to set on no less than 2" of gravel that is one sieve size larger than the drain's perforated openings.”
  We were unable to verify the gravel the subcontractor placed on the drainage system was the correct size, so we removed the gravel. (Note: neither gravel nor drainage system are listed in the contract. We installed them as an act of goodwill when ********** insisted that they should be included.)
  We hired a professional foundation foam contractor, ********, to fill the void between the new basement and the existing home’s foundation. We paid for this at our expense and never requested reimbursement. 
  The structural foam was more expensive than the engineer’s original recommendation to fill the void with concrete. We chose the more expensive option because we believed it would place less stress on the new basement wall, and provide better waterproofing than could otherwise be provided in a restricted space. We paid $9,245.00 for this change and never asked for reimbursement from **********. Note that the estimator’s proposal did not provide any budget or contracted price to fill in this void. 
  We removed and replaced a defective section of the ICF foundation wall, at no cost to the client. We spent a great deal of money correcting any work that might have  been considered defective and some which, by any reasonable standard in use in the industry were not, without asking for compensation.
  b) ********** alleges “BNC does not want to fix the issues.”  
  This is misleading for all the reasons previously stated. 
  c) ********** alleges “They left the existing foundation exposed and vulnerable to crack. [They] were supposed to fill that in.”  
  We had previously intended to backfill to meet the client’s expectations, and would have done so had we been able to complete the project.
  d)  ********** alleges “I had to get an engineer involved.”.
  Her statement is misleading. We took ************ concerns seriously regarding the work and workmanship of our employees and subcontractors who performed the work on the project. As an accommodation, we, not **********, hired an engineer to inspect the work, at our own expense. We worked with ********** to choose a mutually agreeable engineering firm to provide a report, again at our expense, not ************.
  e) Foam fill used between the existing foundation and the new basement:
  The client alleges: “The engineer who did the inspection said they were supposed to use a structural foam. BNC purposely used an open celled insulating foam trying to save money. I had another contractor come out to take a look. I was told the work had to be redone and would cost $69,000. “
  This is false. We did not use open-cell insulating foam. Additionally, the product data has been submitted to and approved by the engineer.
  Point of wording: the engineer’s report never uses the phrase “structural foam” (or closed cell as ************ social media states). The engineer allows for “polyurethane foam”. In the engineer’s words: 
  “I have formed the opinion that polyurethane foam can be used instead of concrete in the excavated area between the original dwelling and the new ICF basement wall.”
  The engineer never used the terms structural or closed-cell foam as ********** states but we used a closed cell structural foam nonetheless.
  ************ allegations of open cell insulating foam are patently false. ********** should provide more information on the contractors who claimed this to be open-cell insulating foam and their credentials for evaluating types of foam than to simply allege it without any supporting facts.
  ******** is a professional basement waterproofing and repair company. ********* chose the materials, installed, and provided the technical sheets for the material they used. The technical datasheets are attached and the description of the product is listed as:
  “Precision Lift 3.0# is a two-component, polyurethane foam used to fill voids, underseal and lift concrete slabs and foundations. This closed-cell, hydro insensitive, high density structural foam can be used for compaction grouting of soil and for filling voids behind pipes, walls, manholes and other structures.”
  ********’s website: https://********online.com/contact-us/
  The foam used by ******** was specifically and unequivocally approved by the engineer. We question the qualifications and intentions of any contractor who claimed the material used was an open-cell wall insulation product. We ask ********** to provide the names, estimates, and reports of any contractors who made this assertion. 
  If, however, a qualified expert somehow determines ********’s product is not structural foam (although we believe and are given to understand that it is) , we are more than willing to remove and replace the fill (or pay to have the work done). We are confident that open-cell insulation was not used.
  ********** claims “I had another contractor come out to take a look. I was told the work had to be redone and would cost $69,000.”
  ********** has, to date, not furnished us with any proposal that list the items they would intend to claim are defects and intend to repair along with the cost to do so.
  Destruction of property/intentional misdeeds
  ********** Claims “they willfully destroyed my property.”.
  We dispute this allegation, and treat this as an intentionally false statement intended to harm our company. ********** has not informed us nor are we aware of any intentional damage to the property by anyone at any time.  Moreover, we have no idea what property she alleges has been wilfully destroyed.
  Construction is messy, particularly when a foundation needs to be excavated. The client declined our offers of final grade topsoil, landscaping, etc. These items are required to restore the grounds to their original condition.
  This is not true and has been addressed above.
  Money’s paid and termination of contract
  No dispute on the $68,000 payment made by **********.
  The termination letter is attached.
  The estimated amount of free upgrades we performed and ********** was expecting was $67,638.66. This amount is a 64% increase from the original proposal of $105,384.00. This is an unfair and unreasonable demand for things that ********** could have discussed with us prior to the proposal and contract, but which would have certainly resulted in an increase to our price, as she well knows. She was not willing to negotiate or pay for any deviations/changes, no matter how legitimate. She specifically repeated on various occasions that she was simply unwilling to sign any change order for any reason.  She has since launched a social media campaign with these allegations in the hopes that by harming our business with unsubstantiated claims she can extract money from us that she is not legitimately entitled to receive. 
  We do not wish to do business with her, as we feel she has taken advantage of the situation to attempt to obtain a far more expensive product than she had requested or we had agreed to build in the first place. We admit that some mistakes may have been made and have incurred almost $30,000 in expenses more than we have been paid, yet ********** wants $67,638.66 in free upgrades or a $68,000 refund. This is patently unreasonable.
  Our lawyer has since tried to settle the dispute by offering her a $12,952.46 refund for the items listed in the contract that ********** argues had been paid for but not performed. The client did not settle, instead demanding an open-ended and indefinite amount of money. In addition, she started a social media campaign against us.  
  In closing, I express regret that the client’s dream is not what our estimator wrote in the proposal. The estimator initially included a larger scope with more items, however, items were removed to fit ************ budget.  This is not uncommon.
  7) Our offer
  a) We are willing to refund the client for the following items: 
  i) Footings for the porch scope of work.
  ii) Waterproofing the exposed portion of the new ICF foundation.
  iii) Reinstallation of removed section of french drain, installation of gravel and backfill.
  iv) The cost of the lumber to build the porch and roof changes that were previously agreed upon. 
   b) The value of these costs are hard to determine as they would need to be performed by a third party. We believe that $35,000 is a sufficient amount to cover these items. 
  c) Our settlement would be conditional on the customer’s agreement to end her social media campaign and seek to undo the damage she has caused.  This would include:
   i) Removing all social media posts, reviews, online information she has posted about the project, our company, our employees, and its affiliates. 
  ii) Require that her friends, family, and others in her sphere of influence also remove their posts about the company, it's employees, and it's affiliates. 
   iii) agree to refrain from future posts, discussions, or disparaging the company, its employees or affiliates in any way. 
  iv) Disclose all information and estimates from any contractors or consultants who claim our work was defective, particularly in regards to the foam foundation filler. 
  v) Provide all written communication between the customer and former contractors and employees of our company.
  If the client does not believe this settlement to be equitable, we ask that the client agree to mediation to resolve the matter. 
   We attach several documents to substantiate these responses. We ask that this complaint be removed and not be shown on our public *** record as it is false and misleading.
  Regards,
  
  ***** *******
  General Manager
  
  Attachments: 

  This letter, signed (13 pages)
  Signed Proposal (4 pages)
  Miller Engineering Report (6 pages)
  Miller Engineering Addendum (2 pages)
  ******** Foam Prime Resins - Precision Lift 3.0 Specs (2 pages)
  Termination Letter (1 page)
  Change Order showing deviation/changes estimated price (4 pages)
  Polyguard Residential Installation Specification (2 pages)

  
  

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